Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 1 of 42 1 2 3 4 5 6 7 8 9 10 11 12 Elizabeth J. Cabraser (State Bar No. 083151) ecabraser@lchb.com Kevin R. Budner (State Bar No. 287271) kbudner@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Jonathan D. Selbin (State Bar No. 170222) jselbin@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 Robert Klonoff (Pro Hac Vice Anticipated) klonoff@usa.net ROBERT H. KLONOFF, LLC 2425 SW 76th Ave. Portland, OR 97225 Telephone: (503) 291-1570 13 14 Attorneys for Plaintiffs, individually and on behalf of all others similarly situated 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 19 20 KATE MCLELLAN, TERESA BLACK, and DAVID URBAN, Individually and on Behalf of All Others Similarly Situated, Case No. 16-cv-36 CLASS ACTION 21 Plaintiffs, CLASS ACTION COMPLAINT 22 v. DEMAND FOR JURY TRIAL 23 FITBIT, INC., 24 Defendant. 25 26 27 28 1278585.6 CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 2 of 42 1 TABLE OF CONTENTS 2 INTRODUCTION ........................................................................................................................... 1 3 JURSIDICTION AND VENUE ...................................................................................................... 3 4 INTRADISTRICT ASSIGNMENT ................................................................................................. 3 5 PARTIES ......................................................................................................................................... 3 6 COMMON FACTUAL ALLEGATIONS ....................................................................................... 6 7 I. Fitbit Falsely Claims the PurePulse Trackers Consistently Record Accurate Heart Rate. ........................................................................................................................ 6 II. The PurePulse Trackers Fail to Consistently Record Accurate Heart Rate As Promised and Warranted. ............................................................................................... 11 8 9 10 11 III. Fitbit Attempted to Keep Class Members Out of Court Through An Unconscionable Post-Purchase Agreement, Which Class Members Were Required to Accept in Order to Render Operational the PurePulse Trackers They Already Purchased.......................................................................................................... 13 12 CLASS ACTION ALLEGATIONS .............................................................................................. 15 13 CHOICE OF LAW ALLEGATIONS ............................................................................................ 19 14 CLAIMS FOR RELIEF ................................................................................................................. 20 15 PRAYER FOR RELIEF................................................................................................................. 38 16 DEMAND FOR JURY TRIAL...................................................................................................... 39 17 18 19 20 21 22 23 24 25 26 27 28 1278585.6 -i- CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 3 of 42 1 INTRODUCTION 1. 2 In widespread national advertising—including, for example, commercials run 3 repeatedly during Major League Baseball’s nationally-televised 2015 World Series1—defendant 4 Fitbit, Inc. (“Fitbit”) touted the purported ability of its wrist-based “activity trackers” to 5 accurately record a wearer’s heart rate during intense physical activity. To perform this 6 function, Fitbit equipped its “Charge HR” 2 and “Surge” fitness watches (the “PurePulse 7 Trackers”) with an LED-based technology called “PurePulse™”. 2. 8 Fitbit’s representation is repeated in and echoed throughout its advertising of the PurePulse Trackers, which employs such descriptive slogans as “Every Beat Counts” and “Know 9 10 Your Heart.” But the representation is false. Far from “counting every beat,” the PurePulse 11 Trackers do not and cannot consistently and accurately record wearers’ heart rates during the 12 intense physical activity for which Fitbit expressly markets them. 3. 13 Plaintiffs and many consumers like them have experienced—and testing 14 confirms—that the PurePulse Trackers consistently mis-record heart rates by a very significant 15 margin, particularly during exercise (described herein as the “Heart Rate Defect”). 4. 16 This failure did not keep Fitbit from heavily promoting the heart rate monitoring 17 feature of the PurePulse Trackers and from profiting handsomely from it. In so doing, Fitbit 18 defrauded the public and cheated its customers, including Plaintiffs. 5. 19 The heart rate monitoring function of the PurePulse Trackers is a material— 20 indeed, in some cases, vital—feature of the product. Not only are accurate heart readings 21 important for all of those engaging in fitness, they are critical to the health and well-being of 22 those Class members whose medical conditions require them to maintain (or not to exceed) a 23 certain heart rate. 24 6. Kate McLellan, Teresa Black, and David Urban bring this action on behalf of themselves and all 25 26 27 28 On behalf of all those who purchased the Fitbit PurePulse Trackers, Plaintiffs 1 Available at https://www.youtube.com/watch?v=vpdHMyvkJxw (last viewed December 1, 2015). 2 According to reports, in March 2016, Fitbit will be replacing the Charge HR with the “Blaze” model, which employs the same PurePulse technology. 1278585.6 -1- CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 4 of 42 1 those similarly situated to seek redress through this proposed class action in the form of 2 injunctive relief, damages, restitution, and all other relief this Court deems equitable. 3 7. While Fitbit purports to bind all purchasers of its products to an arbitration 4 agreement and class action ban, its method of doing so fails as a matter of law and, in itself, 5 constitutes an unfair and deceptive trade practice. 6 8. Fitbit sells the PurePulse Trackers through its own website and through many 7 third party online and brick and mortar stores. While Fitbit’s own website requires purchasers to 8 agree to be bound by the arbitration clause and class action ban, third party websites and brick 9 and mortar stores do not require any such agreement in advance or at the time of purchase, or 10 give any indication that such agreement will later be required. 11 9. Instead, Fitbit includes inside the box an instruction that requires purchasers 12 (post-purchase) to visit its website and register the PurePulse Tracker online. Such registration 13 is required for the PurePulse Trackers to work. In an affidavit submitted in other litigation, 14 Fitbit admitted that “[a] Fitbit user cannot use their [PurePulse Trackers] as intended until the 15 user has set up an [online] account. In fact, the Charge HR cannot even be used as a watch until 16 the device is first paired to a Fitbit account, which requires the user to agree to the Terms of 17 Service.” (Brickman v. Fitbit, Inc., No. 3:15-cv-2077, Doc. 41 at ¶4 (N.D. Cal. Sept. 30, 2015)). 18 10. Remarkably, Fitbit purports to bind anyone who even visits its website to its 19 arbitration agreement, whether they purchase or register any product at all.3 Indeed, if the reader 20 of this Complaint visits the link provided in the footnote below, she or he is now deemed by 21 Fitbit to have agreed to arbitration and a class action ban. 22 11. Fitbit’s attempt to bind customers who bought PurePulse Trackers through third 23 party online and brick and mortar stores to an arbitration clause and class action ban post- 24 purchase when they register the product—which is required to make the product function as 25 26 27 28 3 The Terms of Service provide: “You must accept these Terms to create a Fitbit account and to use the Fitbit Service. If you do not have an account, you accept these Terms by visiting www.fitbit.com or using any part of the Fitbit Service. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT CREATE AN ACCOUNT, VISIT WWW.FITBIT.COM OR USE THE FITBIT SERVICE.” Available at https://www.fitbit.com/au/terms (last visited December 21, 2015). Of course, by the time one reads the Terms of Service, he or she has already visited Fitbit.com and, per Fitbit, already surrendered his or her Constitutional right to a jury trial. 1278585.6 -2- CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 5 of 42 1 intended—is unconscionable, invalid, and unenforceable. It is also an unfair and deceptive trade 2 practice in its own right. 3 JURSIDICTION AND VENUE 4 12. Jurisdiction is proper in this Court pursuant to the Class Action Fairness Act, 28 5 U.S.C. § 1332(d), because many members of the proposed Plaintiff Class, including some named 6 plaintiffs, are citizens of states different from Fitbit’s home states, and the aggregate amount in 7 controversy exceeds $5,000,000.00, exclusive of interest and costs. 8 9 13. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because (1) the only defendant in this action resides in this District and (2) a substantial part of the events and 10 omissions giving rise to Plaintiffs’ claims occurred in this District—specifically, Fitbit designed 11 and marketed its product from its headquarters in San Francisco, California, and some Class 12 members reside in and purchased their PurePulse Trackers in this District. 13 INTRADISTRICT ASSIGNMENT 14 Pursuant to Local Rule 3-2(c), this civil action should be assigned to the San Francisco 15 Division, because a substantial part of the events or omissions giving rise to the claim occurred in 16 the county of San Francisco, where Fitbit is headquartered. 17 PARTIES 18 Plaintiffs 19 14. Plaintiff KATE MCLELLAN is a California citizen and resident domiciled in 20 Murrieta, California. She holds a PhD in rehabilitation science and currently performs research 21 for a clinical research group. In early 2015, Plaintiff McLellan was in the market for a heart rate 22 monitor to help her track her fitness goals. At that time, she saw Fitbit’s advertisements on 23 Hulu, which depicted users receiving consistent, real-time, accurate heart rate readings from 24 their PurePulse Trackers. Relying on those representations, Plaintiff McLellan purchased a 25 Charge HR at Sports Chalet in Temecula, California on February 27, 2015, for $161.94 after tax. 26 At no point before or during the purchase of her Charge HR was Plaintiff McLellan provided 27 with or required to agree to an arbitration clause or class action ban, nor was she put on notice 28 that she would be required to agree to an arbitration clause or class action ban for her Charge HR 1278585.6 -3- CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 6 of 42 1 to function as intended. Shortly after purchasing her PurePulse Tracker, she noticed that it was 2 not consistently delivering accurate heart rate readings, particularly during exercise. She 3 confirmed this by comparing the real time heart rate readings from her Charge HR with those on 4 stationary cardiovascular exercise machines. After re-reviewing the product manuals, Plaintiff 5 McLellan called Fitbit and was directed to reboot her Charge HR. She did so to no avail. When 6 her Charge HR continued to deliver inaccurate heart readings, Plaintiff McLellan initiated an 7 online chat with a Fitbit representative, who denied her a refund on her defective PurePulse 8 Tracker. Had Fitbit disclosed that the PurePulse Trackers cannot consistently deliver accurate 9 heart rate readings, even during exercise, Plaintiff McLellan would not have purchased her 10 Charge HR or would have paid significantly less for it. Plaintiff McLellan is now stuck with a 11 PurePulse Tracker that cannot perform the precise task for which she purchased it and which 12 does not function as Fitbit expressly promised and warranted. 13 15. Plaintiff TERESA BLACK is Colorado citizen and resident domiciled in Grand 14 Junction, Colorado. Plaintiff Black saw Fitbit’s advertisements touting the heart rate 15 functionality of the PurePulse Trackers. Relying on those representations, she told her husband 16 that she wanted a Charge HR, and her husband bought one for her from REI.com on May 25, 17 2015. At no point before or during the purchase of her Charge HR was Plaintiff Black provided 18 with or required to agree to an arbitration clause or class action ban, nor was she put on notice 19 that she would be required to agree to an arbitration clause or class action ban for her Charge HR 20 to function as intended. Shortly after that purchase, Plaintiff Black noticed that her Charge HR 21 was not consistently delivering accurate heart rate readings, particularly during exercise. At an 22 intense part of a personal training session in mid-June 2015, Plaintiff Black’s personal trainer 23 manually recorded her heart rate, which was 160 beats per minute (“bpm”). In stark contrast, her 24 Charge HR indicated her heart rate was only 82 bpm. Plaintiff Black was approaching the 25 maximum recommended heart rate for her age, and if she had continued to rely on her inaccurate 26 PurePulse Tracker, she may well have exceeded it, thereby jeopardizing her health and safety. 27 Had Fitbit disclosed that the PurePulse Trackers cannot consistently deliver accurate heart rate 28 readings, even during exercise, Plaintiff Black would not have purchased her Charge HR or 1278585.6 -4- CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 7 of 42 1 would have paid significantly less for it. Plaintiff Black is now stuck with a PurePulse Tracker 2 that cannot perform the precise task for which she purchased it and which does not function as 3 Fitbit expressly promised and warranted. 4 16. Plaintiff DAVID URBAN is a Wisconsin citizen and resident domiciled in 5 Hudson, Wisconsin. Plaintiff Urban is a fitness enthusiast who signed up for his first marathon 6 in mid-2015. Given his father’s history with heart disease, Plaintiff Urban’s doctor 7 recommended that he keep his heart rate from exceeding approximately 160 bpm. As a result, 8 Plaintiff Urban sought an accurate heart rate monitor for his exercise and training. At the 9 recommendation of his friends, Plaintiff Urban purchased a Surge at a Target store in Hudson, 10 Wisconsin on October 9, 2015, for $248.82.4 At no point before or during the purchase of his 11 Surge was Plaintiff Urban provided with or required to agree to an arbitration clause or class 12 action ban, nor was he put on notice that he would be required to agree to an arbitration clause or 13 class action ban for his Surge to function as intended. Soon after purchasing the Surge, Plaintiff 14 Urban noticed the heart rate function did not work. Even at high intensities it never displayed a 15 reading over 125 bpm. Plaintiff Urban then cross referenced his Surge against his chest strap- 16 based triathlon monitor and found that the PurePulse Tracker consistently under recorded his 17 heart rate at high intensities, often by as much as 15-25 bpm. In order to train effectively and 18 safely, Plaintiff Urban needs to accurately record his heart rate during exercise so that he can 19 reach, but not exceed, certain intensity levels. He cannot trust his Surge to deliver those accurate 20 readings. Had Fitbit disclosed that the PurePulse Trackers cannot consistently deliver accurate 21 heart rate readings, even during exercise, Plaintiff Urban would not have purchased his Surge or 22 would have paid significantly less for it. Plaintiff Urban is now stuck with a PurePulse Tracker 23 that cannot perform the precise task for which he purchased it and which does not function as 24 Fitbit expressly promised and warranted. 25 26 27 28 4 Plaintiff Urban later exchanged the Surge he purchased in Hudson, Wisconsin, for a larger version of the same model at another Target store in Madison, Wisconsin. 1278585.6 -5- CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 8 of 42 1 Defendant 2 17. Defendant Fitbit, Inc. is a corporation doing business in all 50 states. Fitbit 3 designs, manufactures, promotes, and sells the PurePulse Trackers described herein. Fitbit is 4 organized and incorporated under the laws of Delaware, and its principal place of business is in 5 San Francisco, California. It is therefore a citizen of Delaware and California. See 28 U.S.C. 6 § 1332(c)(1). 7 COMMON FACTUAL ALLEGATIONS 8 18. 9 Fitbit is manufacturer of activity trackers founded in 2007 and headquartered in San Francisco, California. Its products’ functions have included, among other things, step 10 counting, distance calculating, calorie calculating, and sleep monitoring. 11 19. In October 2014, Fitbit announced a new feature: wrist-based heart rate 12 monitoring. The two products equipped with this technology, dubbed PurePulse, are the Charge 13 HR and the Surge, which typically retail at approximately $1505 and $250 respectively. Those 14 products are shown below: 15 16 17 18 19 20 21 22 23 24 I. 25 Fitbit Falsely Claims the PurePulse Trackers Consistently Record Accurate Heart Rate. 20. Heart rate monitoring is an important feature for exercisers. Among other things, 26 it can help users achieve and maintain proper intensity, measure effort, track progress, and stay 27 28 5 In contrast, the Charge model without a heart rate monitor originally retailed for $130 and now sells for approximately $100. 1278585.6 -6- CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 9 of 42 1 motivated. And for those with certain health conditions, monitoring one’s heart rate can be 2 essential to staying safe. Traditionally, however, accurate heart rate monitoring required a chest 3 strap, which can be uncomfortable, distracting, difficult to clean, and may not work with dry 4 skin. 5 21. 6 Fitbit attempted to circumvent these problems with its wrist-based PurePulse technology, which it expressly contrasts with “uncomfortable” chest straps. 7 22. Per Fitbit’s promotional materials, PurePulse uses LED lights to detect changes in 8 capillary blood volume. It then applies “finely tuned algorithms” to “measure heart rate 9 automatically and continuously” and allow users to “accurately track workout intensity.”6 10 23. Unsurprisingly, the feature is the centerpiece of Fitbit’s promotional efforts. The 11 widely-circulated advertisements include slogans like: “The Difference Between Good and 12 Great…Is Heart”; “For Better Fitness, Start with Heart”; “Get More Benefits with Every Beat— 13 Without An Uncomfortable Chest Strap”; “Every Beat Counts”; and “Know Your Heart.” 14 24. These representations feature in an extensive and widespread advertising 15 campaign. As noted, the “Know Your Heart” commercial, for example, appeared prominently 16 throughout Major League Baseball’s nationally-televised 2015 World Series, which averaged 17 14.7 million viewers per game. 18 25. Importantly, these advertisements and product descriptions do not state or even 19 remotely suggest that the PurePulse technology works only at low or resting heart rates. To the 20 contrary, Fitbit expressly markets the PurePulse Trackers for activity and fitness, and depicts 21 them in use during high-intensity workouts. 22 26. The following advertisement, for example, depicts a user wearing a Charge HR 23 and jumping rope. That, combined with the elevated heart rate shown on the featured device— 24 135 beats per minute—and the tag line’s promise that “Every beat counts,” indicates that the 25 product accurately records every beat, even during high intensity exercise. 26 27 28 6 http://help.fitbit.com/articles/en_US/Help_article/Heart-rate-FAQs#How. 1278585.6 -7- CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 10 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 27. Similarly, the following commercial screenshots purport to show the PurePulse 14 Trackers delivering real time, elevated heart rate readings during strenuous activity: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1278585.6 -8- CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 11 of 42 1 2 3 4 5 6 7 8 9 10 28. In addition, the following promotional materials tote the PurePulse Trackers’ 11 ability to monitor “real time heart rate” at intensity, and to “track[] your heart rate all day and 12 during exercise.” 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1278585.6 -9- CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 12 of 42 1 2 3 4 5 6 7 8 9 10 29. Fitbit’s representations are also present at many points of sale. Some Best Buy 11 locations, for example, maintain a full comparative display with an interactive touchscreen and 12 video feature, as shown below. 13 14 15 16 17 18 19 20 30. Some Target sites feature a similar, though lower tech, display: 21 22 23 24 25 26 27 28 1278585.6 - 10 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 13 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 31. consistently record accurate heart rates, even during exercise, are unambiguous and widespread. II. 18 The PurePulse Trackers Fail to Consistently Record Accurate Heart Rate As Promised and Warranted. 32. 19 20 In sum, Fitbit’s representations regarding the ability of the PurePulse Trackers to Unfortunately, the PurePulse Trackers do not work, and their heart rate readings are wildly inaccurate. 33. 21 Plaintiff Black, for example, observed that her Charge HR under recorded her 22 heart rate while exercising with her personal trainer. Shortly after a high-intensity routine, they 23 compared her Charge HR’s heart reading with a manual heart rate test, and found the PurePulse 24 Tracker significantly under recorded her heart rate. 34. 25 Plaintiff McLellan had the same problem. She cross referenced the heart rate 26 readings from her Charge HR with the readings from a stationary cardiovascular machine. 27 Again, the readings from her PurePulse Tracker were too low. 28 1278585.6 - 11 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 14 of 42 1 2 35. Plaintiff Urban had the same problem, which he verified by checking his Surge against his chest strap heart rate monitor. 3 36. Scores of customer complaints confirm these are not isolated incidents. The 4 following, for example, is a non-exhaustive sampling of complaints about the PurePulse 5 Trackers drawn from user reviews on Amazon.com: 6 • “The HR technology is not accurate. It's close enough below 100bpm. But 100+ and it's consistently off by 30-50%. I tested this multiple times against my chest strap and other monitors in the gym.” • “The FitBit is regularly lower than the Polar [chest strap monitor] or cannot capture a reading at all.” • “Workouts I know I've kept my heart rate in the 140-170 range, Fitbit says an average of 100 bpm and a max of 120. I've measure it against a chest strap as well as machines at the gym. It's just not accurate, simple as that. Huge disappointment. Not to mention it randomly stops tracking heart rate during the workout…” • “I checked the HR accuracy of the new fitbit Charge by using it along with my Zephyr HRM which is worn on the chest and I have used for several years now. The accuracy of the fitbit swung wildly even when I switched the HR controls of the Charge from ‘auto’ to ‘on’. It could be off by as much as 20 BPM! That's fricken robbing me of my workout!” • “I followed all the directions very closely as far as placement, etc, but there is a 30 beat/min difference between the fitbit and my Timex HR chest strap HR monitor with the discrepancy increasing as my heart rate increased.” • “[A]s soon as my HR got above 120 [the Charge HR] either shuts down or just sits on 120. On a couple different occasions I wore my Polar at the same time. Polar had my highest heart rate at 160 BPM while the charge hr had me resting at 75.” • “Paid extra money for HR function and it's useless….If accuracy is important to you, this isn't for you.” • “If you are buying the HR version you are essentially just buying a more expensive Charge that has two green lights on the back and has a nicer strap because the heart rate function is useless.” • “While working out, the heart rate jumps around for no reason. I have tried many different positions and modified the tightness. Nothing seems to help….What good is tracking your heart rate when it's mostly wrong[?]” • “I am a 82 year old with a resting heart rate of 50 BPM just trying to stay in good basic shape using a stationary bike and rowing machine. I do 30-60 minute sessions at about 100-110 BPM…When I am working the exercise machines the reading is far short of my actual heart rate. I have tried all the suggestions here and on the Fitbit site. No luck. I am 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1278585.6 - 12 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 15 of 42 1 reminded of the proverbial broken clock which is 100% accurate twice a day.” 37. 2 Expert analysis has further corroborated the inability of the PurePulse Trackers to 3 perform as promised and warranted. A board-certified cardiologist tested the PurePulse Trackers 4 against an electrocardiogram (“ECG”), the gold standard of heart rate monitoring, on a number 5 of subjects at various exercising intensities. 38. 6 The results were as expected: the PurePulse Trackers consistently mis-recorded 7 the heart rates by a significant degree. At intensities over 110 bpm, the Heart Rate Trackers 8 often failed to record any heart rate at all. And even when they did record heart rates, the Heart 9 Rate Trackers were inaccurate by an average of 24.34 bpm, with some readings off by as much 10 as 75 bpm. With those margins of error, the Heart Rate Trackers are effectively worthless as 11 heart rate monitoring devices. 39. 12 13 monitor is inaccurate during high-intensity workouts. 40. 14 15 16 Interestingly, Fitbit even admitted informally to some Class members that the As such, the PurePulse Trackers fail to perform the precise task for which they are expressly marketed, and Class members are deprived of the clear benefit of the bargain. III. 17 Fitbit Attempted to Keep Class Members Out of Court Through An Unconscionable Post-Purchase Agreement, Which Class Members Were Required to Accept in Order to Render Operational the PurePulse Trackers They Already Purchased. 41. 18 Plaintiffs and Class members did not sacrifice their constitutional rights to a jury 19 trial, their right to join a class action, or any substantive statutory rights when they purchased 20 their PurePulse Trackers. No agreement to so limit their rights was requested by anyone or 21 represented to be necessary to complete the purchase transactions, nor was there any indication 22 at the point of sale or on the product packaging that such an agreement would be necessary to 23 render their PurePulse Trackers operational. 42. 24 Only after purchasing their PurePulse Trackers were Plaintiffs and Class 25 members informed that in order to render their PurePulse Trackers functional, they must first 26 register and create an online account through Fitbit.com and, in doing so, purportedly bind 27 themselves to an adhesive arbitration clause and class action ban. 28 1278585.6 - 13 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 16 of 42 1 43. Fitbit’s Vice President for Customer Support, Jay Kershner, recently conceded 2 under oath that because the PurePulse Trackers are “wireless-enabled wearable devices . . . [a] 3 Fitbit user cannot use their [PurePulse Trackers] as intended until the user has set up an [online] 4 account. In fact, the Charge HR cannot even be used as a watch until the device is first paired to 5 a Fitbit account, which requires the user to agree to the Terms of Service.” (Brickman v. Fitbit, 6 Inc., No. 3:15-cv-2077, Doc. 41 at ¶4 (N.D. Cal. Sept. 30, 2015)).7 7 44. Agreeing to those Terms of Service, in turn, comes at a high and hidden cost. 8 The Terms of Service contain a section entitled “Dispute Resolution” which, among other things, 9 purports to: 10 a. eliminate the consumer’s constitutional rights to a jury trial by designating 11 binding arbitration as the only forum for dispute resolution (with a one-sided exception allowing 12 Fitbit to utilize the courts to prosecute intellectual property claims); 13 b. prohibit class actions; and 14 c. impose an extra-judicial, one-year statute of limitations on every one of the 15 Class members’ potential causes of action relating to use of the PurePulse Trackers. 16 45. Notably, the Terms of Service purport to govern not just the services offered 17 through the online account, but also any conceivable grievance that might arise from use of the 18 PurePulse Trackers themselves, regardless of whether that use implicates the wireless service. 19 46. 20 Even more remarkably, Fitbit claims that the Terms of Service bind anyone who so much as visits Fitbit’s website, even if they do not register for an account. 21 47. This unilateral and unconscionable attempt to curtail Class members’ 22 constitutional and statutory rights is buried near the end of a long document and, unlike the 23 preceding section, is not highlighted or emphasized in any way. 24 48. 25 26 27 28 Moreover, while the Dispute Resolution section contains an inconspicuous provision outlining a limited procedure for opting out of the arbitration agreement, no such opt7 As defined below, the proposed Class definition excludes those who purchased their PurePulse Trackers directly from Fitbit.com. Upon information and belief, those consumers were the only ones even informed of Fitbit’s Terms of Service prior to finalizing their PurePulse Tracker purchases. 1278585.6 - 14 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 17 of 42 1 out possibility exists for the class action waiver, the one-year statute of limitation, or the clauses 2 governing selection of law and forum. 3 49. To reiterate, there is no mention on the product packaging or anywhere else at the 4 point of sale that the PurePulse Trackers will work as intended only after setting up an online 5 account or, critically, that such an account will be governed by Terms of Service including the 6 unconscionable provisions detailed above. 7 8 50. Those post-purchase clauses are therefore invalid and unenforceable as a matter of law to Plaintiffs and Class members. 9 CLASS ACTION ALLEGATIONS 10 51. Plaintiffs bring this lawsuit as a class action on their own behalf and on behalf of 11 all other persons similarly situated as members of the proposed Class, pursuant to Federal Rules 12 of Civil Procedure 23(a) and (b)(3), and/or (b)(1), (b)(2), and/or (c)(4). This action satisfies the 13 numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of 14 those provisions. 15 52. 16 The proposed Classes are defined as: Nationwide Class 17 All persons or entities in the United States who purchased a Fitbit PurePulse Tracker, as defined herein, excluding those who purchased their PurePulse Trackers directly from Fitbit on Fitbit.com and who did not opt out of the arbitration agreement. 18 19 California Subclass 20 All persons or entities in the California who purchased a Fitbit Heart Rate Fitness Watch, as defined herein, excluding those who purchased their PurePulse Trackers directly from Fitbit on Fitbit.com and who did not opt out of the arbitration agreement. 21 22 23 Colorado Subclass 24 All persons or entities in the Colorado who purchased a Fitbit Heart Rate Fitness Watch, as defined herein, excluding those who purchased their PurePulse Trackers directly from Fitbit on Fitbit.com and who did not opt out of the arbitration agreement. 25 26 Wisconsin Subclass 27 All persons or entities in the Wisconsin who purchased a Fitbit Heart Rate Fitness Watch, as defined herein, excluding those who 28 1278585.6 - 15 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 18 of 42 1 purchased their PurePulse Trackers directly from Fitbit on Fitbit.com and who did not opt out of the arbitration agreement. 2 53. 3 Excluded from the Nationwide Class and Subclasses (the “Classes”) are: (A) Fitbit, any entity or division in which Fitbit has a controlling interest, and their legal 4 representatives, officers, directors, assigns, and successors; (B) the Judge to whom this case is 5 assigned and the Judge’s staff; (C) governmental entities; and (D) those persons who have 6 suffered personal injuries or emotional distress as a result of the facts alleged herein. Plaintiffs 7 reserve the right to amend the Class definitions if discovery and further investigation reveal that 8 any Class should be expanded, divided into additional subclasses, or modified in any other way. 9 Numerosity and Ascertainability 10 54. 11 Although the exact number of Class members is uncertain, the size of the Classes can be estimated with reasonable precision, and the number is great enough that joinder is 12 impracticable. 13 55. 14 Fitbit sold 3,866,000 units in the first quarter of 2015.8 Analysts suggest that most of these sales were generated by the Charge HR,9 and Fitbit attributes 78% of its first 15 quarter revenue to the Charge HR and Surge together. The number of Class members is 16 therefore likely in the millions, and the disposition the Class members’ claims in a single action 17 will provide substantial benefits to all parties and to the Court. Class members are readily 18 identifiable from information and records in possession, custody, or control of Fitbit, the Class 19 members, and the PurePulse Tracker retailers. 20 Typicality 21 56. 22 The claims of the representative Plaintiffs are typical of the claims of the Classes in that the representative Plaintiffs, like all Class members, purchased a PurePulse Tracker 23 designed, manufactured, and distributed by Fitbit. The representative Plaintiffs, like all Class 24 members, were damaged by Fitbit’s misconduct in that they have suffered actual damages as a 25 result of their purchase of the PurePulse Trackers. Furthermore, the factual bases of Fitbit’s 26 27 28 8 https://www.sec.gov/Archives/edgar/data/1447599/000119312515209758/d875679ds1a.htm. http://venturebeat.com/2015/08/05/fitbits-first-earnings-since-ipo-reveals-400m-in-revenue-and4-5m-wearables-sold-in-q2/ 9 1278585.6 - 16 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 19 of 42 1 misconduct are common to all Plaintiffs and represent a common thread of misconduct resulting 2 in injury to all Class members. 3 Adequate Representation 4 57. Plaintiffs are members of the Classes and will fairly and adequately represent and 5 protect the interests of the Classes. Plaintiffs have retained counsel with substantial experience 6 in prosecuting consumer class actions, including actions involving defective products. 7 58. Plaintiffs and their counsel are committed to vigorously prosecuting this action on 8 behalf of the Classes and have the financial resources to do so. Neither Plaintiffs nor their 9 counsel have interests adverse to those of the Classes. 10 Predominance of Common Issues 11 59. There are numerous issues of law and fact common to Plaintiffs and Class 12 members that predominate over any issue affecting only individual Class members. Resolving 13 these common issues will advance resolution of the litigation as to all Class members. These 14 common legal and factual issues include: 15 16 a. rate monitoring, as advertised and warranted; 17 18 whether the PurePulse Trackers fail to consistently deliver accurate heart b. whether Fitbit knew or should have known that the PurePulse Trackers do not consistently deliver accurate heart rate monitoring; 19 c. whether the inability of the PurePulse Trackers to consistently record 20 accurate heart rates constitutes a material fact that reasonable consumers would have considered 21 important in deciding whether to purchase a PurePulse Tracker or pay an increased price for 22 them; 23 d. whether Fitbit’s concealment of the Heart Rate Defect in the PurePulse 24 Trackers induced reasonable consumers to act to their detriment by purchasing a PurePulse 25 Tracker; 26 27 e. whether Fitbit made material misrepresentations regarding PurePulse Trackers; 28 1278585.6 - 17 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 20 of 42 1 2 f. Trackers to Plaintiffs and Class members; 3 4 g. whether Plaintiffs and Class members are entitled to equitable relief, whether Plaintiffs and Class members are entitled to restitution and/or disgorgement and the amount of such; k. whether Plaintiffs and Class members are entitled to actual damages and the amount of such; and 13 14 i. j. 11 12 whether Plaintiffs and Class members are entitled to a declaratory including, but not limited to, a preliminary and/or permanent injunction, and /or rescission; 9 10 h. judgment; 7 8 whether Fitbit omitted and failed to disclose material facts about the PurePulse Trackers; 5 6 whether Fitbit had a duty to disclose the true nature of the PurePulse l. whether Plaintiffs and Class members are entitled to punitive or exemplary damages and the amount of such. 15 Superiority 16 60. Plaintiffs and Class members all suffered—and will continue to suffer—harm and 17 damages as a result of Fitbit’s uniformly unlawful and wrongful conduct. A class action is 18 superior to other available methods for the fair and efficient adjudication of this controversy. 19 61. Absent a class action, most Class members would likely find the cost of litigating 20 their claims prohibitively high and would have no effective remedy at law. Because of the 21 relatively small size of the individual Class members’ claims, it is likely that few, if any, Class 22 members could afford to seek legal redress for Fitbit’s misconduct. Absent a class action, Class 23 members’ damages will go uncompensated, and Fitbit’s misconduct will continue without 24 remedy. 25 62. Class treatment of common questions of law and fact would also be a superior 26 method to multiple individual actions or piecemeal litigation in that class treatment will conserve 27 the resources of the courts and the litigants, and will promote consistency and efficiency of 28 adjudication. 1278585.6 - 18 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 21 of 42 1 2 63. Fitbit has acted in a uniform manner with respect to the Plaintiffs and Class members. 3 64. Classwide declaratory, equitable, and injunctive relief is appropriate under 4 Rule 23(b)(1) and/or (b)(2) because Fitbit has acted on grounds that apply generally to the class, 5 and inconsistent adjudications with respect to the Fitbit’s liability would establish incompatible 6 standards and substantially impair or impede the ability of Class members to protect their 7 interests. Classwide relief assures fair, consistent, and equitable treatment and protection of all 8 Class members, and uniformity and consistency in Fitbit’s discharge of their duties to perform 9 corrective action regarding the PurePulse Trackers. 10 CHOICE OF LAW ALLEGATIONS 11 12 65. Because this Complaint is brought in California, California’s choice of law regime governs the state law allegations in this Complaint. 13 66. Under California’s governmental interest/comparative impairment choice of law 14 rules, California law applies to the claims of all Class members, regardless of their state of 15 residence or state of purchase. 16 67. Because Fitbit is headquartered—and made all decisions relevant to these 17 claims—in California, California has a substantial connection to, and materially greater interest 18 in, this the rights, interests, and policies involved in this action than any other state. 19 68. Nor would application of California law to Fitbit and the claims of all Class 20 members be arbitrary or unfair. Indeed, in its Terms of Service, Fitbit declares that, regardless 21 of any state’s conflict of law principles, “the resolution of any Disputes shall be governed by and 22 construed in accordance with the laws of the State of California.” Although the Terms of 23 Service are void and unenforceable as to Plaintiffs and Class members in other respects, this 24 provision demonstrates Fitbit’s awareness and agreement that California law should apply to the 25 claims in this Complaint, and Fitbit is estopped from contending otherwise. 26 27 28 1278585.6 - 19 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 22 of 42 1 CLAIMS FOR RELIEF 2 FIRST CLAIM FOR RELIEF Violation of California’s Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq. 3 69. 4 5 Plaintiffs hereby incorporate by reference the allegations contained in the preceding paragraphs of this Complaint. 70. 6 This claim is brought on behalf of the Nationwide Class and California Subclass 7 to seek injunctive relief as well as monetary damages against Fitbit under California’s 8 Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq. 9 71. Fitbit is a “person” as defined by the CLRA. Cal. Civ. Code § 1761(c). 10 72. Plaintiffs and Class members are “consumers” within the meaning of the CLRA, 11 as defined by Cal. Civ. Code § 1761(d), who purchased one or more PurePulse Trackers. 73. 12 The CLRA prohibits “unfair or deceptive acts or practices undertaken by any 13 person in a transaction intended to result or which results in the sale or lease of goods or services 14 to any consumer[.]” Cal. Civ. Code § 1770(a). 74. 15 Fitbit engaged in unfair or deceptive trade practices that violated Cal. Civ. Code § 16 1770(a), as described above and below, by, among other things, failing to disclose the defective 17 nature of the PurePulse Trackers, representing that the PurePulse Trackers had characteristics 18 and benefits that they do not have (e.g., the ability to consistently record accurate heart rates, 19 even during high-intensity exercise), representing that the PurePulse Trackers were of a 20 particular standard, quality, or grade when they were of another, and advertising PurePulse 21 Trackers with the intent not to sell them as advertised. See Cal. Civ. Code §§ 1770(a)(5), (a)(7), 22 (a)(9). 75. 23 Fitbit knew, should have known, or was reckless in not knowing that its products 24 did not have the qualities, characteristics, and functions it represented, warranted, and advertised 25 them to have. 76. 26 Fitbit’s unfair and deceptive acts or practices occurred repeatedly in Fitbit’s 27 course of trade or business, were material, were capable of deceiving a substantial portion of the 28 purchasing public, and imposed a safety risk to Plaintiffs and Class members. 1278585.6 - 20 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 23 of 42 1 2 77. Fitbit was under a duty to Plaintiffs and Class members to disclose the deceptive and defective nature of the PurePulse Trackers because: 3 a. The defect in the PurePulse Trackers presents a safety hazard because 4 Class members’ could jeopardize their health by relying on the inaccurate heart rate readings and 5 potentially achieving dangerous heart rates; 6 7 b. Heart Rate Defect in the PurePulse Trackers; 8 9 c. d. Fitbit knew that Plaintiffs and Class members could not reasonably have been expected to learn or discover the defect in the PurePulse Trackers. 12 13 Plaintiffs and Class members could not reasonably have been expected to learn or discover that the PurePulse Trackers contained the Heart Rate Defect; and 10 11 Fitbit was in a superior position to know the true state of facts about the 78. In failing to disclose the defective nature of the PurePulse Trackers, Fitbit knowingly and intentionally concealed material facts and breached its duty not to do so. 14 79. The facts that were misrepresented, concealed or not disclosed by Fitbit to 15 Plaintiffs and Class members are material in that a reasonable consumer would have considered 16 them to be important in deciding whether or not to purchase a PurePulse Tracker. Had Plaintiffs 17 and other Class members known about the true nature and quality of the PurePulse Trackers, 18 they would not have purchased a PurePulse Tracker or would have paid significantly less than 19 they did for their PurePulse Trackers. 20 21 80. Plaintiffs and Class members are reasonable consumers who expect that their PurePulse Trackers will consistently record accurate heart rates, as represented. 22 81. As a result of Fitbit’s conduct and unfair or deceptive acts or practices, Plaintiffs 23 and Class members suffered actual damages in that the PurePulse Trackers do not function as 24 represented and are not worth the amount paid and Fitbit has deprived Plaintiffs and Class 25 members the benefit of the bargain. 26 82. Plaintiffs and the Class seek an order enjoining Defendant’s unfair or deceptive 27 acts or practices, equitable relief, an award of attorneys’ fees and costs under Cal. Civ. Code 28 § 1780(e), and any other just and proper relief available under the CLRA. 1278585.6 - 21 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 24 of 42 1 83. In addition, many Class members are senior citizens or disabled persons, as 2 defined by Cal. Civ. Code §§ 1761(f) and (g), who suffered substantial economic damage 3 resulting from the Fitbit’s fraudulent representations regarding the PurePulse Trackers. Each of 4 those Class members is entitled to up to an additional $5,000. Cal. Civ. Code § 1780(b). 5 84. In accordance with section 1782(a) of the CLRA, on November 16, 2015, 6 Plaintiffs’ counsel served Fitbit with notice of its alleged violations of Cal. Civ. Code § 1770(a) 7 relating to the Heart Rate Defect in the PurePulse Trackers purchased by Plaintiffs and Class 8 members. Plaintiffs’ letter is attached to this Complaint as Exhibit A, for reference. Fitbit did 9 not correct or agree to correct the actions described in the letter and in this Complaint within 10 thirty (30) days of the notice. Fitbit’s response is attached as Exhibit B. Plaintiffs and Class 11 members thus seek an award of compensatory, monetary, and punitive damages based on the 12 conduct described herein, as well as any other relief the Court deems proper. 13 SECOND CLAIM FOR RELIEF Violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. – Based On the Heart Rate Defect 14 15 85. Plaintiffs hereby incorporate by reference the allegations contained in the 16 preceding paragraphs of this Complaint. 17 86. Plaintiffs bring this cause of action for themselves and on behalf of the 18 Nationwide Class and California Subclass. 19 87. California Business & Professions Code § 17200 prohibits acts of “unfair 20 competition,” including any “unlawful, unfair or fraudulent business act or practice” and “unfair, 21 deceptive, untrue or misleading advertising.” Fitbit’s conduct related to the Heart Rate Defect 22 violated each of this statute’s three prongs. 23 88. Fitbit committed an unlawful business act or practice in violation of Cal. Bus. & 24 Prof. Code § 17200, et seq., by their violations of the Consumers Legal Remedies Act, Cal. Civ. 25 Code § 1750, et seq., as set forth above, by the acts and practices set forth in this Complaint. 26 89. Fitbit committed unfair business acts and practices in violation of Cal. Bus. & 27 Prof. Code § 17200, et seq., when it represented that the PurePulse Trackers could consistently 28 1278585.6 - 22 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 25 of 42 1 record accurate heart rate, even during exercise, when in fact they cannot. The Heart Rate 2 Defect also presents a safety hazard as it can jeopardize the health and safety of users who rely 3 on the inaccurate heart rate readings and unknowingly achieve dangerous heart rates. 4 90. Fitbit committed fraudulent business acts and practices in violation of Cal. Bus. & 5 Prof. Code § 17200, et seq., when it affirmatively and knowingly misrepresented that the 6 PurePulse Trackers consistently record accurate heart rates, even during high-intensity exercise, 7 when in fact they do not. Fitbit’s representations and concealment of the Heart Rate Defect are 8 likely to mislead the public with regard to the true defective nature of the PurePulse Trackers. 9 91. Fitbit also disseminated unfair, deceptive, untrue and/or misleading advertising in 10 violation of Cal. Bus. & Prof. Code § 17200, et seq. and § 17500, et seq. when it distributed 11 advertisements falsely representing that the PurePulse Trackers consistently record accurate 12 heart rates, even at high intensity, when in fact they do not. 13 92. Fitbit’s unfair or deceptive acts or practices occurred repeatedly in the course of 14 Fitbit’s trade or business, and were capable of deceiving a substantial portion of the purchasing 15 public. 16 17 93. As a direct and proximate result of Fitbit’s unfair and deceptive practices, Plaintiffs and Class members suffered and will continue to suffer actual damages. 18 94. As a result of its unfair and deceptive conduct, Fitbit has been unjustly enriched 19 and should be required to disgorge its unjust profits and make restitution to Plaintiffs and Class 20 members pursuant to Cal. Bus. & Prof. Code §§ 17203 and 17204. 21 95. Plaintiffs and the Class further seek an order enjoining Fitbit’s unfair or deceptive 22 acts or practices, and an award of attorneys’ fees and costs under Cal. Code of Civ. Proc. § 23 1021.5. 24 25 THIRD CLAIM FOR RELIEF Violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. – Based On the Post-Purchase “Terms of Service” 26 27 96. Plaintiffs hereby incorporate by reference the allegations contained in the preceding paragraphs of this Complaint. 28 1278585.6 - 23 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 26 of 42 1 2 97. Plaintiffs bring this cause of action for themselves and on behalf of the Nationwide Class and California Subclass. 3 98. California Business & Professions Code § 17200 prohibits acts of “unfair 4 competition,” including any “unlawful, unfair or fraudulent business act or practice” and “unfair, 5 deceptive, untrue or misleading advertising.” 6 99. Fitbit’s conduct related to the post-purchase Terms of Service—unilaterally 7 imposing Terms of Service in a post-purchase agreement that included an arbitration clause with 8 a one-sided exception, forum selection clause, choice of law provision, class action ban, and 9 claim period limitation—constitutes an additional violation of the statute’s unfair and fraudulent 10 prongs. 11 100. Specifically, Fitbit committed unfair and fraudulent business acts and practices in 12 violation of Cal. Bus. & Prof. Code § 17200, et seq., by concealing and failing to alert Plaintiffs 13 and Class members at the point of sale either expressly, or by reference to the Terms of Service, 14 that in order to make full use of the PurePulse Trackers—and, indeed, even to render them 15 operable—they would be required to register for an online account, and that the account would 16 be accompanied by click wrap terms of service which purport to significantly curtail the Class 17 members’ legal rights. 18 101. Fitbit further advanced this unfair and fraudulent business act and practice by 19 attempting to compel arbitration and preclude class action litigation based on the unconscionable 20 post-purchase agreement. Indeed, in this case, Fitbit instructed Plaintiffs’ counsel that “Ms. 21 McLellan cannot litigate her claim and cannot represent a class,” despite the fact that she never 22 was presented with or agreed to any such “agreement” prior to purchasing her PurePulse 23 Tracker. 24 102. Fitbit’s unfair or deceptive acts or practices occurred repeatedly in the course of 25 Fitbit’s trade or business, and were capable of deceiving a substantial portion of the purchasing 26 public. 27 28 103. As a direct and proximate result of Fitbit’s unfair and deceptive practices, Plaintiffs and Class members suffered and will continue to suffer actual damages. 1278585.6 - 24 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 27 of 42 1 104. As a result of its unfair and deceptive conduct, Fitbit has been unjustly enriched 2 and should be required to disgorge its unjust profits and make restitution to Plaintiffs and Class 3 members pursuant to Cal. Bus. & Prof. Code §§ 17203 and 17204. 4 105. Plaintiffs and the Class further seek an order enjoining Fitbit’s unfair or deceptive 5 acts or practices, and an award of attorneys’ fees and costs under Cal. Code of Civ. Proc. § 6 1021.5. 7 FOURTH CLAIM FOR RELIEF Common Law Fraud 8 9 10 106. preceding paragraphs of this Complaint. 11 12 Plaintiffs hereby incorporate by reference the allegations contained in the 107. Plaintiffs bring this cause of action for themselves and on behalf of the Nationwide Class and all the Subclasses. 13 108. Fitbit engaged in both speaking and silent fraud, and in fraudulent and deceptive 14 conduct. As described above, Fitbit’s conduct defrauded Plaintiffs and Class members, by 15 intentionally leading them to believe, through affirmative misrepresentations, omissions, 16 suppressions, and concealments of material fact, that the PurePulse Trackers possessed important 17 characteristics that they in fact do not possess—namely that they could consistently record 18 accurate heart rate, even during high-intensity exercise—and inducing their purchases. 19 109. Fitbit’s intentional and material misrepresentations included, among other things, 20 its advertising, marketing materials and messages, and other standardized statements claiming 21 the PurePulse Trackers consistently record accurate heart rates. 22 110. The foregoing misrepresentations were uniform across all Class members. The 23 same extensive and widespread advertising campaign was promoted nationwide, and all of the 24 promotional materials contained the same material representations regarding the PurePulse 25 Trackers’ ability consistently record accurate heart rates. 26 27 111. These representations were false, as detailed herein. Fitbit knew the representations were false when it made them and intended to defraud purchasers thereby. 28 1278585.6 - 25 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 28 of 42 1 2 112. and extent of the Heart Rate Defect because: 3 4 a. b. The details regarding the Heart Rate Defect in the PurePulse Trackers and concealment thereof were known and/or accessible only to Fitbit; 7 8 Fitbit had exclusive knowledge of the Heart Rate Defect in the PurePulse Trackers and concealment thereof; 5 6 Fitbit also had a duty to disclose, rather than conceal and suppress, the full scope c. Fitbit knew Plaintiffs and Class members did not know about the Heart Rate Defect in the PurePulse Trackers and concealment thereof; and 9 d. Fitbit made general representations about the qualities of the PurePulse 10 Trackers, including statements about their performance and abilities that were misleading, 11 deceptive, and incomplete without the disclosure of the fact that the PurePulse Trackers could not 12 consistently record accurate heart rates, particularly during exercise. 13 113. Fitbit’s actions constitute “actual fraud” within the meaning of Cal. Civ. Code § 14 1572 because Fitbit did the following with the intent to deceive Plaintiffs and Class member and 15 to induce them to enter into their contracts: 16 17 a. Suggested that the PurePulse Trackers can consistently record accurate heart rates, even at high intensities, even though it knew this to be not true; 18 b. Positively asserted that the PurePulse Trackers can consistently record 19 accurate heart rates, even at high intensities, in a manner not warranted by the information 20 available to Fitbit; 21 22 c. Class members; and 23 24 Suppressed the true nature of the Heart Rate Defect from Plaintiffs and d. Promised it would deliver PurePulse Trackers that consistently record accurate heart rates, even at high intensities, with no intention of so doing. 25 114. Fitbit’s actions, listed above, also constituted “deceit” as defined by Cal. Civ. 26 Code § 1710 because Fitbit willfully deceived Plaintiffs and Class members with intent to induce 27 them to alter their positions to their detriment by purchasing defective PurePulse Trackers. 28 1278585.6 - 26 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 29 of 42 1 2 115. Fitbit’s fraud and concealment was also uniform across all Class members; Fitbit concealed from everyone the true nature of the Heart Rate Defect in the PurePulse Trackers. 3 116. Fitbit’s misrepresentations and omissions were material in that they would affect 4 a reasonable consumer’s decision to purchase a PurePulse Tracker. Consumers paid a premium 5 for the PurePulse Trackers precisely because they purportedly offered continuous, accurate heart 6 rate readings. 7 8 117. Fitbit’s intentionally deceptive conduct induced Plaintiffs and Class members to purchase the PurePulse Trackers and resulted in harm and damage to them. 9 118. Plaintiffs believed and relied upon Fitbit’s misrepresentations and concealment of 10 the true facts. Class members are presumed to have believed and relied upon Fitbit’s 11 misrepresentations and concealment of the true facts because those facts are material to a 12 reasonable consumer’s decision to purchase the PurePulse Trackers. 13 119. As a result of Fitbit’s inducements, Plaintiffs and Class members sustained actual 14 damages including but not limited to receiving a product that performs as promised and not 15 receiving the benefit of the bargain of their PurePulse Tracker purchases. If Plaintiffs and Class 16 members had known about the Heart Rate Defect, they would not have purchased the PurePulse 17 Trackers or would have paid significantly less for them. Fitbit is therefore liable to Plaintiffs and 18 Class members in an amount to be proven at trial. 19 120. Fitbit’s conduct was systematic, repetitious, knowing, intentional, and malicious, 20 and demonstrated a lack of care and reckless disregard for Plaintiffs’ and Class members’ rights 21 and interests. Fitbit’s conduct thus warrants an assessment of punitive damages under Cal. Civ. 22 Code § 3294 and other applicable states’ laws, consistent with the actual harm it has caused, the 23 reprehensibility of its conduct, and the need to punish and deter such conduct. 24 FIFTH CLAIM FOR RELIEF Fraud in the Inducement 25 26 27 121. Plaintiffs hereby incorporate by reference the allegations contained in the preceding paragraphs of this Complaint. 28 1278585.6 - 27 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 30 of 42 1 2 122. Plaintiffs bring this cause of action for themselves and on behalf of the Nationwide Class and all the Subclasses. 3 123. Fitbit’s fraud and false affirmations of fact, described herein, induced Plaintiffs 4 and Class members to purchase the PurePulse Trackers and thereby enter into a contract with 5 Fitbit. 6 7 124. PurePulse Trackers to Plaintiffs and Class members. 8 9 As described above, Fitbit had a duty to disclose the Heart Rate Defect in the 125. As described above, Fitbit’s actions constituted actual fraud and deceit as defined by Cal. Civ. Code §§ 1572 and 1710. 10 126. Plaintiffs justifiably relied to their detriment on the truth and completeness of 11 Fitbit’s material representations regarding the PurePulse Trackers. Class members are presumed 12 to have relied upon Fitbit’s misrepresentations and concealment of the true facts because those 13 facts are material to a reasonable consumer’s decision to purchase the PurePulse Trackers. 14 15 127. concealed from everyone the true nature of the Heart Rate Defect in the PurePulse Trackers. 16 17 Fitbit’s fraud and concealment was also uniform across all Class members; Fitbit 128. Plaintiffs and Class members would not have agreed to purchase their PurePulse Trackers, or would have paid less for them, if they had not been deceived by Fitbit. 18 129. As a result of Fitbit’s inducements, Plaintiffs and Class members sustained actual 19 damages including but not limited to not receiving a product that performs as promised and not 20 receiving the benefit of the bargain of their PurePulse Tracker purchases. 21 130. Fitbit’s conduct was systematic, repetitious, knowing, intentional, and malicious, 22 and demonstrated a lack of care and reckless disregard for Plaintiffs’ and Class members’ rights 23 and interests. Fitbit’s conduct thus warrants an assessment of punitive damages under Cal. Civ. 24 Code § 3294 and other applicable states’ laws, consistent with the actual harm it has caused, the 25 reprehensibility of its conduct, and the need to punish and deter such conduct. 26 27 28 1278585.6 - 28 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 31 of 42 1 SIXTH CLAIM FOR RELIEF Unjust Enrichment 2 131. 3 4 preceding paragraphs of this Complaint. 132. 5 6 Plaintiffs bring this cause of action for themselves and on behalf of the Nationwide Class and all the Subclasses. 133. 7 8 Plaintiffs hereby incorporate by reference the allegations contained in the Fitbit has been unjustly enriched in that it sold the PurePulse Trackers with defective heart rate monitors that do not consistently record accurate heart rates as represented. 134. 9 When purchasing their PurePulse Trackers, Plaintiffs and Class members 10 reasonably believed that the PurePulse Trackers would perform as advertised and as warranted 11 and would consistently record accurate heart rates, even during high-intensity exercise. 135. 12 Plaintiffs and Class members received less than what they paid for in that the 13 PurePulse Trackers do not consistently record accurate heart rates as represented and therefore 14 do not deliver as promised. 136. 15 Plaintiffs and Class members conferred a benefit on Fitbit by purchasing, and 16 paying a premium for, the PurePulse Trackers. Had Plaintiffs and Class members known about 17 the Heart Rate Defect, they would not have purchased the PurePulse Trackers or would have 18 paid significantly less for them. 137. 19 20 compensation it obtained through its wrongful conduct. 21 SEVENTH CLAIM FOR RELIEF Revocation of Acceptance Cal. Com. Code § 2608 22 23 24 138. Plaintiffs hereby incorporate by reference the allegations contained in the preceding paragraphs of this Complaint. 25 26 Fitbit should therefore be required to disgorge all profits, benefits, and other such 139. Plaintiffs bring this cause of action for themselves and on behalf of the Nationwide Class and the California Subclass. 27 140. Plaintiffs and Class members revoke their acceptance of the PurePulse Trackers. 28 1278585.6 - 29 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 32 of 42 1 141. Plaintiffs and Class members had no knowledge of the Heart Rate Defect when 2 they purchased their PurePulse Trackers, and their acceptance of the goods was reasonably 3 induced by the difficulty of discovering the Heart Rate Defect and Fitbit’s false representations 4 that the PurePulse Trackers could consistently record accurate heart rates, and therefore were not 5 defective. 6 7 142. to Plaintiffs and Class members. 8 9 The Heart Rate Defect substantially impairs the value of the PurePulse Trackers 143. There has been no substantial change in the condition of the PurePulse Trackers not caused by the Heart Rate Defect. 10 144. As described herein, Plaintiffs notified Fitbit of the Heart Rate Defect. 11 145. Consequently, Plaintiffs and Class members are entitled to revoke their 12 acceptances, receive all payments made to Fitbit, and to all incidental and consequential 13 damages, and all other damages allowable under law, all in amounts to be proven at trial. 14 EIGHTH CLAIM FOR RELIEF Breach of Express Warranty 15 146. Plaintiffs hereby incorporate by reference the allegations contained in the 16 preceding paragraphs of this Complaint. 17 147. Plaintiffs bring this cause of action for themselves and on behalf of the 18 Nationwide Class and all the Subclasses. 19 148. By advertising the heart rate function of the PurePulse Trackers, Fitbit expressly 20 warranted to Plaintiffs and Class members that the PurePulse Trackers would record heart rate 21 accurately, even during exercise. 22 149. By way of non-exhaustive example, Fitbit represented that 23 a. the PurePulse Trackers provide “continuous, automatic . . . heat rate” 24 monitoring which allows users to “maintain intensity”; 25 b. “Surge tracks your heart rate all day and during exercise” (emphasis 26 added); and 27 28 1278585.6 - 30 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 33 of 42 1 2 c. Charge HR “is an advanced heart rate and activity-tracking wristband, built for all-day activity, workouts and beyond.” (emphasis added). 3 150. Such statements became the basis of the bargain for Plaintiffs and other Class 4 members because such statements are among the facts a reasonable consumer would consider 5 material in the purchase of a heart rate monitoring fitness product. 6 151. Fitbit breached this express warranty by delivering PurePulse Trackers that do not 7 deliver as promised and fail to consistently record accurate heart rates, especially during 8 exercise. 9 152. As a result of the foregoing breaches of express warranty, Plaintiffs and other 10 Class members have been damaged in that they purchased PurePulse Trackers that could not 11 perform as warranted and did not receive the benefit of the bargain of their PurePulse Tracker 12 purchases. 13 14 15 16 153. Plaintiffs and Class members seek all damages permitted by law in an amount to be proven at trial. NINTH CLAIM FOR RELIEF Violation of Magnuson-Moss Act, 15 U.S.C. §§ 2301, et seq. – Implied Warranty 154. Plaintiffs hereby incorporate by reference the allegations contained in the 17 preceding paragraphs of this Complaint. 18 155. Plaintiffs bring this cause of action for themselves and on behalf of the 19 Nationwide Class and all the Subclasses. 20 156. The PurePulse Trackers are “consumer products” within the meaning of the 21 Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(1). 22 157. Plaintiffs and Class members are “consumers” within the meaning of the 23 Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(3), because they are persons entitled under 24 applicable state law to enforce against the warrantor the obligations of its express and implied 25 warranties. 26 158. Fitbit is a “supplier” and “warrantor” within the meaning of the Magnuson-Moss 27 Warranty Act, 15 U.S.C. § 2301(4)-(5). 28 1278585.6 - 31 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 34 of 42 1 159. Section 2310(d)(1) of Chapter 15 of the United States Code provides a cause of 2 action for any consumer who is damaged by the failure of a warrantor to comply with a written 3 or implied warranty. 4 160. Fitbit provided Plaintiffs and the other Class members with an implied warranty 5 of merchantability in connection with the purchase or lease of the PurePulse Trackers is an 6 “implied warranty” within the meaning of the Magnuson-Moss Warranty Act, 15 U.S.C. § 7 2301(7). As a part of the implied warranty of merchantability, Fitbit warranted that the 8 PurePulse Trackers would pass without objection in the trade as designed, manufactured, and 9 marketed, and were adequately labeled. 10 11 161. Fitbit breached these implied warranties, as described in more detail above, and are therefore liable to Plaintiffs and the Class pursuant to 15 U.S.C. § 2310(d)(1). 12 162. Any efforts to limit the implied warranties in a manner that would exclude 13 coverage of the PurePulse Trackers is unconscionable, and any such effort to disclaim, or 14 otherwise limit, liability for the PurePulse Trackers is null and void. 15 16 163. Plaintiffs and the other Class members have had sufficient direct dealings with either Fitbit or its agents to establish privity of contract. 17 164. Nonetheless, privity is not required here because Plaintiffs and other Class 18 members are intended third-party beneficiaries of contracts between Fitbit and its retailers, and 19 specifically, of the implied warranties. The retailers were not intended to be the ultimate 20 consumers of the PurePulse Trackers and have no rights under the warranty agreements provided 21 with the PurePulse Trackers; the warranty agreements were designed for and intended to benefit 22 consumers. 23 165. Pursuant to 15 U.S.C. § 2310(e), Plaintiffs are entitled to bring this class action 24 and are not required to give Fitbit notice and an opportunity to cure until such time as the Court 25 determines the representative capacity of Plaintiffs pursuant to Rule 23 of the Federal Rules of 26 Civil Procedure. 27 28 166. Furthermore, to the extent such notice is required, it has been provided through the letter sent to Fitbit by Plaintiffs’ counsel on November 16, 2015 (Ex. A), described herein, as 1278585.6 - 32 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 35 of 42 1 well as through complaints lodged by Plaintiff McLellan and other Class members. Fitbit 2 refused to remedy its wrongs after receiving these notifications and any further notice would be 3 futile. 4 167. Plaintiffs’ individual claims place into controversy an amount equal to or 5 exceeding $25.00. The amount in controversy of this entire action exceeds the sum of 6 $50,000.00, exclusive of interest and costs, computed on the basis of all claims to be determined 7 in this lawsuit. Plaintiffs, individually and on behalf of the other Class members, seek all 8 damages permitted by law, including diminution in value of their vehicles, in an amount to be 9 proven at trial. 10 168. In addition, pursuant to 15 U.S.C. § 2310(d)(2), Plaintiffs and the other Class 11 members are entitled to recover a sum equal to the aggregate amount of costs and expenses 12 (including attorneys’ fees based on actual time expended) determined by the Court to have 13 reasonably been incurred by Plaintiffs and the other Class members in connection with the 14 commencement and prosecution of this action. 15 169. 16 U.S.C. § 2310(d)(1). 17 18 19 Further, Plaintiffs and the Class are also entitled to equitable relief under 15 TENTH CLAIM FOR RELIEF Violation of the Song-Beverly Consumer Warranty Act for Breach of the Implied Warranty of Merchantability Cal. Civ. Code §§ 1791.1 & 1792 170. Plaintiffs hereby incorporate by reference the allegations contained in the 20 preceding paragraphs of this Complaint. 21 171. Plaintiffs bring this cause of action for themselves and on behalf of the 22 Nationwide Class and the California Subclass. 23 172. Plaintiffs and members of the Class are “buyers” within the meaning of Cal. Civ. 24 Code § 1791(b). 25 173. The PurePulse Trackers are “consumer goods” within the meaning of Cal. Civ. 26 Code § 1791(a). 27 28 1278585.6 - 33 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 36 of 42 1 2 174. Fitbit is a “manufacturer” of the PurePulse Trackers within the meaning Cal. Civ. Code § 1791(j). 3 175. Fitbit impliedly warranted to Plaintiffs and Class members that its PurePulse 4 Trackers were “merchantable” within the meaning of Cal. Civ. Code §§ 1791.1(a) and 1792; 5 however, the PurePulse Trackers do not have the quality that a buyer would reasonably expect, 6 and were therefore not merchantable. 7 176. 8 Cal. Civ. Code § 1791.1(a) states: “Implied warranty of merchantability” or “implied warranty that goods are merchantable” means that the consumer goods meet each of the following: 9 10 (1) Pass without objection in the trade under the contract description. 11 12 (2) Are fit for the ordinary purposes for which such goods are used. 13 (3) 14 (4) Conform to the promises or affirmations of fact made on the container or label. 15 16 177. Are adequately contained, packaged, and labeled. The PurePulse Trackers would not pass without objection in the trade because 17 they do not perform as warranted because they do not provide consistent, accurate heart rate 18 readings, even during exercise. 19 20 178. rates renders them unfit for the ordinary purpose of a heart rate monitor. 21 22 179. The PurePulse Trackers are not adequately labeled because the labeling represents that they consistently record accurate heart rates, which they do not do. 23 24 Similarly, the PurePulse Trackers’ inability to consistently record accurate heart 180. For the same reason, the PurePulse Trackers do not conform to the promises or affirmations of fact made on the container or label. 25 181. Fitbit thus breached the implied warranty of merchantability. 26 182. As a direct and proximate result of Fitbit’s breach of the implied warranty of 27 merchantability, Plaintiffs and the other Class members did not receive the benefit of their 28 bargain and received goods with a defect that substantially impairs their value to Plaintiffs and 1278585.6 - 34 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 37 of 42 1 Class members. Plaintiffs and Class members were damaged as a result of the defect in the 2 PurePulse Trackers, the products’ malfunctioning, and the nonuse of their PurePulse Trackers. 3 4 183. did not purchase their PurePulse Trackers directly from Fitbit. 5 6 Notice of breach is not required because Plaintiffs and the other Class members 184. Nevertheless, Plaintiffs notified Fitbit of its breach via a November 16, 2015, letter to its general counsel. 7 185. Pursuant to Cal. Civ. Code §§ 1791.1(d) & 1794, Plaintiffs and Class members 8 are entitled to damages and other legal and equitable relief including, at their election, the 9 purchase price of their PurePulse Trackers or the overpayment or diminution in value of their 10 PurePulse Trackers. 11 186. 12 entitled to costs and attorneys’ fees. 13 ELEVENTH CLAIM FOR RELIEF Violation of the Colorado Consumer Protection Act Colo. Rev. Stat. §§ 6-1-101, et. seq. 14 15 16 Pursuant to Cal. Civ. Code § 1794, Plaintiffs and the other Class members are 187. Plaintiff Black hereby incorporates by reference the allegations contained in the preceding paragraphs of this Complaint. 17 188. As described above, California law applies to the claims of all Plaintiffs and Class 18 members. In the alternative, Plaintiff Black brings this cause of action for herself and on behalf 19 of the Colorado Subclass. 20 189. Colorado’s Consumer Protection Act (the “CCPA”) prohibits a person from 21 engaging in a “deceptive trade practice,” which includes knowingly making “a false 22 representation as to the source, sponsorship, approval, or certification of goods,” or “a false 23 representation as to the characteristics, ingredients, uses, benefits, alterations, or quantities of 24 goods.” Colo. Rev. Stat. § 6-1-105(1)(b),(e). The CCPA further prohibits “represent[ing] that 25 goods … are of a particular standard, quality, or grade … if he knows or should know that they 26 are of another,” and “advertis[ing] goods … with intent not to sell them as advertised.” Colo. 27 Rev. Stat. § 6-1-105(1)(g), (i). 28 1278585.6 - 35 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 38 of 42 1 2 190. 1-101, et seq. 3 4 Fitbit is a “person” as defined by § 6-1-102(6) of the CCPA. Col. Rev. Stat. § 6- 191. Plaintiff Black and Colorado Subclass members are “consumers” under the 192. In the course of business, Fitbit wilfully misrepresented and failed to disclose the CCPA. 5 6 Heart Rate Defect in the PurePulse Trackers. Fitbit therefore engaged in unlawful trade 7 practices proscribed by the CCPA, including representing that the PurePulse Trackers have 8 characteristics, uses, benefits, and qualities which they do not have; representing that PurePulse 9 Trackers are of a particular standard and quality when they are not; advertising the PurePulse 10 Trackers with the intent not to sell them as advertised; and otherwise engaging in conduct likely 11 to deceive. 12 13 193. Plaintiff Black and Colorado Subclass members were deceived by Fitbit’s failure to disclose the Heart Rate Defect in the PurePulse Trackers. 14 194. Plaintiff Black and Colorado Subclass members reasonably relied upon Fitbit’s 15 false and misleading misrepresentations and had no way of knowing that the representations 16 were false and misleading before purchasing their PurePulse Trackers. 17 195. Fitbit intentionally and knowing misrepresented material facts regarding the Heart 18 Rate Defect in the PurePulse Trackers with an intent to mislead Plaintiff Black and Colorado 19 Subclass members. 20 196. Fitbit knew, should have known, or was reckless in not knowing that its products 21 did not have the qualities, characteristics, and functions it represented, warranted, and advertised 22 them to have. 23 197. Fitbit’s actions as set forth above occurred in the conduct of trade or commerce. 24 198. Fitbit’s conduct proximately caused injuries to Plaintiff Black and Colorado 25 Subclass members 26 199. 27 Plaintiff Black and Colorado Subclass members were injured as a direct and natural consequence result of Fitbit’s conduct in that they purchased PurePulse Trackers they 28 1278585.6 - 36 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 39 of 42 1 would have not otherwise purchased, or would have paid significantly less for, and did not 2 receive the benefit of their bargain. 3 200. Pursuant to Col. Rev. Stat. § 6-1-113, Plaintiff Black and the Colorado Subclass 4 seek monetary relief against Fitbit measured as the greater of (a) actual damages in an amount to 5 be determined at trial and the discretionary trebling of such damages, or (b) statutory damages in 6 the amount of $500 for each Colorado Subclass member. 7 201. Plaintiff Black and Colorado Subclass members also seek an order enjoining 8 Fitbit’s unfair, unlawful, and/or deceptive practices, declaratory relief, attorneys’ fees, and any 9 other just and proper relief available under the CCPA. 10 TWELFTH CLAIM FOR RELIEF Violation of the Wisconsin Deceptive Trade Practices Act Wis. Stat. § 110.18 11 12 13 202. Plaintiff Urban hereby incorporates by reference the allegations contained in the preceding paragraphs of this Complaint. 14 203. As described above, California law applies to the claims of all Plaintiffs and Class 15 members. In the alternative, Plaintiff Urban brings this cause of action for himself and on behalf 16 of the Wisconsin Subclass. 17 204. The Wisconsin Deceptive Trade Practices Act (“Wisconsin DTPA”) prohibits a 18 “representation or statement of fact which is untrue, deceptive or misleading.” Wis. Stat. 19 § 100.18(1). 20 205. 21 Fitbit is a “person, firm, corporation or association” within the meaning of the Wisconsin DTPA. Wis. Stat. § 100.18(1). 22 206. Plaintiff Urban and the Wisconsin Subclass members, or their spouses, purchased 23 PurePulse Trackers and are members of “the public” within the meaning of the Wisconsin 24 DTPA. Wis. Stat. § 100.18(1). 25 207. In the course of its business, Fitbit engaged in unfair and deceptive acts and 26 practices that violated the Wisconsin DTPA, including misrepresenting the nature of the 27 PurePulse Trackers and concealing and suppressing information about the Heart Rate Defect in 28 1278585.6 - 37 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 40 of 42 1 the PurePulse Trackers with intent that others rely upon such concealment, suppression, or 2 omission, in connection with their PurePulse Tracker purchases. 3 208. Fitbit intentionally and knowingly misrepresented material facts regarding the 4 Heart Rate Defect in the PurePulse Trackers with an intent to mislead Plaintiff Urban and 5 Wisconsin Subclass members. 6 209. Fitbit’s unfair or deceptive acts or practices were likely to and did in fact deceive 7 reasonable consumers, including Plaintiff Urban, and are presumed to have deceived Wisconsin 8 Subclass members. 9 210. Fitbit knew, should have known, or was reckless in not knowing that its products 10 did not have the qualities, characteristics, and functions it represented, warranted, and advertised 11 them to have. 12 211. Fitbit had an ongoing duty to refrain from unfair and deceptive trade practices. 13 212. Fitbit’s violations affect the public interest and present a continuing risk to 14 Plaintiff Urban, Wisconsin Subclass members, and the public. 15 213. Plaintiff Urban and the Wisconsin Subclass suffered ascertainable loss caused by 16 Fitbit’s misrepresentations and its concealment of and failure to disclose material information 17 regarding the Heart Rate Defect in the PurePulse Trackers. 18 214. Plaintiff Urban and Wisconsin Subclass members were injured as a direct and 19 proximate result of Fitbit’s conduct in that they purchased PurePulse Trackers they would have 20 not otherwise purchased, or would have paid significantly less for, and did not receive the 21 benefit of their bargain. 22 215. Plaintiff Urban and the Wisconsin Subclass seek monetary relief and other relief 23 provide for under Wis. Stat. § 100.18(11)(b)(2), including treble damages, because Fitbit 24 committed its deceptive and unfair practices knowingly and/or intentionally. 25 26 216. Plaintiff Urban and the Wisconsin Subclass also seek court costs and attorneys’ fees under Wis. Stat. § 100.18(11)(b)(2). 27 PRAYER FOR RELIEF 28 Plaintiffs, individually and on behalf of all others similarly situated, request the Court to 1278585.6 - 38 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 41 of 42 1 enter judgment against Fitbit, as follows: 2 3 A. as Class Representatives, and designating their counsel of record jointly as Class Counsel; 4 5 B. C. D. an order requiring Fitbit to notify the Class that the PurePulse Trackers are defective and cannot consistently record accurate heart rates; 10 11 a declaration that Fitbit is financially responsible for notifying all Class members about the true nature of the PurePulse Trackers; 8 9 an order enjoining Fitbit from engaging in further deceptive distribution and sales practices with respect to the PurePulse Trackers; 6 7 an order certifying an appropriate Class and/or Subclasses, designating Plaintiffs E. an order permitting Plaintiffs and Class members to elect to affirm their contracts or alternatively demand rescission and seek damages; 12 F. a declaration that the Fitbit must disgorge, for the benefit of Plaintiffs and Class 13 members, all or part of the ill-gotten profits received from the sale or lease of the PurePulse 14 Trackers, and make full restitution to Plaintiffs and Class members; 15 16 G. Restitution in the amount of monies paid by Plaintiffs and Class members for the PurePulse Trackers; 17 H. an award to Plaintiffs and Class members of compensatory, exemplary, punitive, 18 and statutory penalties and damages as allowed by law, including interest, in an amount to be 19 proven at trial; 20 I. an award of attorneys’ fees and costs, as allowed by law; 21 J. an award of pre-judgment and post-judgment interest, as provided by law; 22 K. leave to amend this Complaint to conform to the evidence produced at trial; and 23 L. such other relief as may be appropriate under the circumstances. 24 DEMAND FOR JURY TRIAL 25 26 Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiffs, individual and on behalf of the Class, demand a trial by jury of any and all issues in this action so triable of right. 27 28 1278585.6 - 39 - CLASS ACTION COMPLAINT; NO. 16-CV-36 Case 3:16-cv-00036-VC Document 1 Filed 01/05/16 Page 42 of 42 1 Dated: January 5, 2015 2 Respectfully submitted, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 3 4 By: Jonathan Selbin 5 Jonathan D. Selbin (State Bar No. 170222) jselbin@lchb.com LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 6 7 8 9 Elizabeth J. Cabraser (SBN 083151) Kevin R. Budner (SBN 287271) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Email: ecabraser@lchb.com Email: pgnguyen@lchb.com Email: kbudner@lchb.com 10 11 12 13 14 15 17 Robert Klonoff (Pro Hac Vice Anticipated) ROBERT H. KLONOFF, LLC 2425 SW 76th Ave. Portland, OR 97225 Telephone: (503) 291-1570 18 Attorneys for Plaintiffs 16 19 20 21 22 23 24 25 26 27 28 1278585.6 - 40 - CLASS ACTION COMPLAINT; NO. 16-CV-36