Brickman v. Fitbit, Inc.
3:15-cv-02077
N.D. Cal.Nov 20, 2017Background
- Fitbit sold Ultra, One, and Flex devices (2009–Oct. 27, 2014) marketed as having sleep‑tracking: “hours slept,” “times woken up,” and “quality of sleep.”
- Devices used the same algorithms/methodology for sleep tracking; packaging made uniform representations to consumers.
- Plaintiffs (California and Florida residents) allege the devices only measure movement (actigraphy) and therefore do not actually track sleep, causing consumers to pay a premium for nonworking functionality.
- Proposed classes: California purchasers who registered a Fitbit device in California; Florida purchasers who registered in Florida (both limited to pre‑arbitration clause sales).
- Plaintiffs seek certification under Rule 23(b)(3) for various state statutory and common‑law claims (UCL, CLRA, fraud, negligent misrepresentation, quasi‑contract/unjust enrichment; Florida: DUTPA, negligent misrepresentation, unjust enrichment).
- Court granted certification for all proposed claims except the Florida negligent misrepresentation claim, which was denied for class treatment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Common exposure / packaging visibility | Fitbit’s uniform packaging and statements were presented to all buyers, enabling classwide proof of exposure | Some purchasers (e.g., online buyers) may not have seen the statements; therefore exposure is not common | Court: packaging and uniform representations suffice; Fitbit offered no evidence of meaningful exposure gaps; common exposure found |
| Consumer understanding of “tracks sleep” | Reasonable consumers would interpret statements like “hours slept,” “times woken up,” and “sleep quality” consistently | Reasonable consumers might understand “tracks sleep” differently, defeating commonality | Court: language was clear and concrete; common understanding presumed; commonality satisfied |
| Reliance / Materiality (CLRA, UCL, DUTPA, fraud/neg. misrep.) | Material misrepresentations were made to the entire class; reliance can be inferred or is not required for some claims; classwide proof possible | Reliance and materiality are individualized; predominance fails | Court: For California statutory/common‑law claims and Florida DUTPA/unjust enrichment, common issues predominate; reliance inference or non‑requirement applies; predominance satisfied |
| Florida negligent misrepresentation | (Classwide) same misrepresentations support class treatment | Florida law requires individualized, subjective and justifiable reliance, precluding class treatment | Court: Florida negligent misrepresentation cannot be certified as a class claim; Brickman may proceed individually |
| Damages methodology | Plaintiffs will pursue price‑premium damages (difference between devices with and without sleep tracking) using company records | Damages require individualized proof and expert work; not classwide | Court: Plaintiffs’ price‑premium approach is acceptable; occasional individualized calculations do not defeat predominance |
| Superiority / Manageability | Class treatment is superior given small per‑claim damages and common issues; identification via registration database and self‑identification is feasible | Manageability problems: user error, identification gaps, varied expectations | Court: Class action is superior; manageability concerns rejected given registration data and class design |
Key Cases Cited
- Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455 (2013) (class certification inquiry may overlap with merits but merits questions are limited to relevance for Rule 23)
- Comcast Corp. v. Behrend, 569 U.S. 27 (2013) (plaintiff must show predominance; Rule 23(b)(3) demands rigorous analysis)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (commonality requires a common contention capable of classwide resolution)
- Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) (limited advertising exposure can defeat commonality where class members received disparate information)
- Just Film, Inc. v. Buono, 847 F.3d 1108 (9th Cir. 2017) (price‑premium damages and predominance analysis in consumer class actions)
- Levya v. Medline Indus., Inc., 716 F.3d 510 (9th Cir. 2013) (rigorous commonality standard and that individualized damages do not necessarily defeat predominance)
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008) (CLRA claims judged by the reasonable consumer standard)
- In re Vioxx Class Cases, 180 Cal. App. 4th 116 (Cal. Ct. App. 2009) (reliance may be inferred for CLRA where material misrepresentations were made to an entire class)