Case 3:15-cv-02077-JD Document 1 Filed 05/08/15 Page 1 of 29
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`Patrick J. Perotti (Ohio Bar No. 0005481)
`Frank A. Bartela (Ohio Bar No. 0088128)
`DWORKEN & BERNSTEIN CO., L.P.A.
`60 South Park Place
`Painesville, Ohio 44077
`Telephone: (440) 352-3391
`Facsimile: (440) 352-3469
`Email: pperotti@dworkenlaw.com
`fbartela@dworkenlaw.com
`
`John A. Kithas (California Bar No. 64284)
`Christopher Land (California Bar No. 238261)
`LAW OFFICES OF JOHN A. KITHAS
`One Embarcadero Center, Suite 1020
`San Francisco, CA 94111
`Telephone: (415) 788-8100
`Facsimile: (415) 788-8001
`Email: john@kithas.com
`chris@kithas.com
`
`Attorneys for Plaintiff JAMES P. BRICKMAN
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`JAMES P. BRICKMAN, individually and as a
`representative of all others similarly situated,
`
`
`
`
`Plaintiff,
`
`v.
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`FITBIT, INC.,
`
`
`
`Defendant.
`
`
`Case No. 3:15-cv-2077
`
`COMPLAINT
`CLASS ACTION
`DEMAND FOR JURY TRIAL
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`Now comes Plaintiff James P. Brickman, individually and as a representative of all others
`similarly situated, and for his Class Action Complaint states:
`INTRODUCTION
`This is a class action brought by James P. Brickman (“Plaintiff”), individually and as putative
`class representative, against Fitbit, Inc. (“Defendant” and/or “Fitbit”). Defendant sells wearable,
`wireless-enabled devices that purportedly track exercise and other fitness and physical activity to
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`COMPLAINT – CLASS ACTION
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`Case 3:15-cv-02077-JD Document 1 Filed 05/08/15 Page 2 of 29
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`measure data such as the number of steps walked, calories burned, and other personal metrics. This
`lawsuit does not challenge any of those functions. Recently however, Defendant has made specific
`advertisement claims that for an extra charge, the customer can purchase a device which also
`contains a "sleep-tracking" function which will track "how long you sleep," "the number of times
`you woke up," and “the quality of your sleep." In fact, the sleep-tracking function does not and
`cannot do these things. It does not perform as advertised. Consumers who purchase these products
`and pay the extra amount for this function do not receive the value of this function for which they
`paid.
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`By advertising this sleep-tracking function without actually providing this function to its
`customers, Defendant is violating California law. This lawsuit is to stop this unlawful practice, force
`the Defendant to return and disgorge its inequitable profits, and recover for customers the
`overcharges which they paid.
`
`PARTIES
`1.
`Plaintiff James P. Brickman is an individual and resident of the State of Florida,
`County of Hernando, City of Spring Hill.
`2.
`Defendant Fitbit, Inc. is a corporation organized under the laws of Delaware,
`headquartered in San Francisco, CA, and registered to do business with the Secretary of State of
`California. Defendant operates its website and online store (www.fitbit.com) from California,
`through which Defendant sells its consumer fitness devices. Defendant also sells these devices at
`national brick-and-mortar retailer stores, including Apple stores, AT&T and Verizon stores, Best
`Buy, Brookstone, Dick’s Sporting Goods, RadioShack, REI, Target, and more
`(see
`http://www.fitbit.com/where-to-buy).
`JURISDICTION & VENUE
`Defendant is a citizen of the State of California and Plaintiff is a citizen of the State
`
`3.
`of Florida.
`4.
`This is a putative class action which involves more than 100 class members and more
`than $5,000,000.00 in controversy.
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`COMPLAINT – CLASS ACTION
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`Case 3:15-cv-02077-JD Document 1 Filed 05/08/15 Page 3 of 29
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`5.
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`This Court has jurisdiction over the present matter pursuant to 28 U.S.C. §1332 et
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`seq.
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`6.
`Venue is proper in this Court pursuant to 28 U.S.C. §1391(b)(1) because Defendant
`has its headquarters in this District.
`6b.
`Intradistrict Assignment: Assignment to the San Francisco Division is proper because
`a substantial part of the events or omissions which give rise to the claim occurred in this county.
`FACTS
`7.
`Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.
`8.
`Defendant markets and sells to consumers, directly and through large retail stores
`throughout the country, distinctly branded personal fitness-tracking devices. These are called the
`Fitbit Force, Fitbit Flex, Fitbit One, Fitbit Zip, and Fitbit Ultra; as well as Fitbit’s second-generation
`products, the Fitbit Charge, Fitbit Charge HR, and Fitbit Surge.
`9.
`The basic model of the devices, the Fitbit Zip, does not have the 'sleep-tracking
`function' and the price for this base-model device does not reflect any extra charge for that function.
`10.
`In contrast, the non-Zip Fitbit devices – the Fitbit Force, Fitbit Flex, Fitbit One, Fitbit
`Ultra, Fitbit Charge, Fitbit Charge HR, and Fitbit Surge (herein “Fitbit devices”) – charge at least an
`additional $30 for the 'sleep tracker' function which is not available on the Fitbit Zip. The Fitbit
`Force, Fitbit Flex, Fitbit One, Fitbit Ultra, Fitbit Charge, Fitbit Charge HR, and Fitbit Surge all claim
`to “track hours slept,” track “times woken up”, and track the “quality of sleep” of the wearer. These
`claims are on Fitbit Inc.’s website (www.fitbit.com) as well as on the actual physical packaging of
`the device itself.
`11.
`On its always-available website, www.fitbit.com, Fitbit Inc. advertises claims that
`these sleep-tracking devices will “measure your sleep quality. Once the data syncs, graphs on your
`(device) dashboard will reveal how long you slept and the number of times you woke up, giving you
`a ‘sleep quality score.’”
`12.
`Even more, the functional displays of information (see below) present even further
`detail and specific claims. These images claim to identify exactly what time and for how long the
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`wearer was awake over the course of each night’s sleep. These images also include specific numbers
`for “actual sleep time, X hrs X mins,” “bed time XX:XX p.m.,” “fell asleep in X minutes,”
`“awakened X times,” “sleep efficiency X%,” “X minutes awake,” “X restless minutes,” and how
`many times the user was awake and/or restless over the course of the wearer’s night of sleep.
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`13.
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`These are specific numbers presented to the consumer as exact times and percentages.
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`COMPLAINT – CLASS ACTION
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`14.
`However, the Fitbit sleep-tracking technology cannot and does not perform these
`functions as represented.
`Research Shows Fitbit Sleep-Tracking Devices “Consistently Misidentify” Sleep1
`15.
`Polysomnography and actigraphy are the two widely accepted sleep-monitoring
`technologies used by sleep scientists.
`16.
`Polysomnography is the most accurate of sleep-monitoring technologies. In
`polysomnography, a patient is hooked up to electrodes which report information back to a technician
`or doctor who, in real time, monitors the scientific equipment. This method accurately monitors
`many body functions during sleep, including brain function, eye movements, muscle activity, heart
`rhythm, and more, to diagnose and/or rule out sleep disorders.
`17.
`Actigraphy, on the other hand, is a less invasive sleep-monitoring technology. The
`standard method involves attaching an actimetry sensor to the patient to measure gross motor
`activity. While actigraphy is a scientifically accepted technology, it is widely regarded as less
`accurate than the polysomnography.
`18.
`The Fitbit sleep-monitoring function available to consumers on the Fitbit devices uses
`a much cheaper, and much less accurate actigraphy-like technology called an accelerometer (a “3-
`axis accelerometer” according to the device specs) to purportedly track a wearer’s movement while
`they are sleeping.
`19.
`At least one study has shown that the accuracy of the accelerometer in the Fitbit
`sleep-tracking devices falls far below the accuracy level of the actigraphy, and far below an
`acceptable standard of accuracy to render it useful in any way for scientific purposes.
`
`
`1 The scientific study referred to in this section is available at http://www.ncbi.nlm.nih.gov/pubmed/21971963.
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`Additionally, a significant amount of anecdotal evidence suggests that there is a pattern of consumer as well as sleep-scientist
`dissatisfaction with the Fitbit devices’ sleep-tracking function. See http://www.theguardian.com/lifeandstyle/2014/aug/22/sleep-
`trackers-to-boost-health-fitness (last visited October 28, 2014); http://www.livescience.com/42710-fitness-trackers-sleep-monitoring-
`accuracy.html (last visited October 28, 2014); http://www.huffingtonpost.com/2014/01/22/fitness-trackers-sleep_n_4637328.html (last
`visited October 28, 2014); http://www.usatoday.com/story/news/nation/2013/03/24/sleep-tracking-devices/2007085/ (last visited
`October 28, 2014); http://techcrunch.com/2012/11/18/fitbit-one-review-slightly-flawed-but-still-a-great-way-to-quantify-yourself/
`(last visited October 28, 2014); http://gizmodo.com/fitbit-force-review-a-health-tracker-youd-actually-ke-1454962288 (last visited
`October 28, 2014); http://gizmodo.com/5954563/fitbit-one-review-a-great-way-to-monitor-your-wretched-laziness (last visited
`October 28, 2014).
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`20.
`The Fitbit sleep-tracking function consistently overestimated sleep by 67 minutes per
`night as compared to what the polysomnography reported.
`21.
`The Fitbit sleep-tracking function consistently overestimates sleep by 43 minutes per
`night as compared to what even the less-accurate actigraphy reported.
`22.
`Despite being based on similar technology to the actigraphy, this study unequivocally
`evidences that the actual, discrete, specific numbers that the Fitbit sleep-tracking function presents to
`consumers as fact are substantially less accurate than any scientifically-accepted method of sleep-
`tracking.
`23.
`Despite Fitbit, Inc’s specific representations that the Fitbit sleep-tracking function can
`and does track and provide precise and accurate numbers, down to the minute, of how much sleep a
`user gets, the Fitbit sleep-tracking function simply does not and cannot accurately provide these
`numbers.
`24.
`Fitbit, Inc. goes beyond even those exact, mathematical representations, though, and
`represents to consumers that the sleep-tracking function can actually take those numbers, the
`numbers that the function itself purportedly carefully works out, to determine, to an exact
`percentage, the quality and efficiency of the consumer’s sleep.
`25.
`This, plainly, is false. The Fitbit sleep-tracking function simply does not and cannot
`inform the user how well they slept with any accuracy whatsoever.2
`26.
`Fitbit Inc. has egregiously overstated the ability of the Fitbit sleep-tracking function
`to perform as advertised. At the absolute very least, Defendant has failed to disclose and/or has
`concealed material facts from consumers, namely, the limitations of the sleep-tracking function of
`these devices.
`27. While Plaintiff and the putative class members expressly disclaim any recovery for
`physical injury flowing from any misrepresentations made by Defendant, nevertheless, these
`misrepresentations implicate serious public health concerns, as thinking you are sleeping up to 67
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`2 It should be noted that a consumer can manually input their sleep data on the dashboard function through their computer or through
`Fitbit’s website. This, however, does not affect the primary claim herein – that Defendant represented to consumers that each of the
`putative class devices would have a useful and functional sleep-tracking function, this function does not perform as represented,
`Plaintiff and the putative class members paid for a device that was supposed to have a useful and functional sleep-tracking function,
`and Plaintiff and the putative class members are entitled to recovery in the amount of the value of that function.
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`likely
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`to be deceived by Defendant’s
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`minutes more than you actually are can obviously cause health consequences, especially over the
`long term.
`28.
`As such, reasonable consumers are
`representations.
`29. Moreover, Plaintiff and the putative class members have been harmed in that they
`have paid for this sleep-tracking function, which was promised to them by Defendant through
`advertising, packaging, and other public and direct representations, and they have not received the
`function for which they have paid.
`PLAINTIFF BRICKMAN’S PURCHASE
`30.
`Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.
`31.
`On or about November 29, 2013, Plaintiff Brickman purchased a Fitbit Flex device,
`which includes the sleep-tracking function challenged in this action.
`32.
` Plaintiff Brickman contracted with Defendant to purchase said device for $99.00,
`which Defendant had represented through advertising, the packaging on the device itself, its website
`(www.fitbit.com), its social media pages (including, but not limited to, www.facebook.com/fitbit)
`and other public and direct representations, to include a sleep-tracking function as described above.
`33.
`Plaintiff’s receipt is attached hereto as Exhibit A and incorporated herein.
`34.
`Images of the packaging for Plaintiff’s purchased Fitbit Flex are attached hereto as
`Exhibit B and incorporated herein.
`35.
`Plaintiff encountered and relied on Defendant’s representations as to the Fitbit Flex’s
`sleep-tracking function, as described above,
`including, but not
`limited
`to, Defendant’s
`representations through advertising, the packaging on the device itself, its website (www.fitbit.com),
`Defendant’s social media pages (including, but not limited to, www.facebook.com/fitbit), and other
`public and direct representations. See ¶¶ 10 – 13, above.
`36.
`Defendant’s representations that Plaintiff Brickman would receive a working and
`functional sleep-tracking feature were false. The product Plaintiff Brickman purchased did not
`perform as advertised.
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`CLASS ALLEGATIONS
`37.
`Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.
`38.
`Plaintiff brings this action on behalf of himself and all other similarly situated persons
`(hereinafter referred to as “putative class members”), to wit:
`All individuals who have purchased a Fitbit Force, a Fitbit Flex, a Fitbit One,
`a Fitbit Ultra, a Fitbit Charge, a Fitbit Charge HR, and/or a Fitbit Surge within
`the applicable statute of limitations.
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`39.
`The class numbers over one-hundred (100) persons and is so numerous that joinder of
`all members is impracticable, and it is further impracticable to bring all such persons before this
`Court.
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`40.
`The injuries and damages to these class members present questions of law and fact
`that are common to each class member, and that are common to the class as a whole.
`41.
`Defendant has engaged in the same conduct regarding all of the other members of the
`classes asserted in this suit.
`42.
`The claims, defenses, and injuries of the representative Plaintiff is typical of the
`claims, defenses, and injuries of all those in the class he represents, and the claims, defenses, and
`injuries of each class member are typical of those of all other members in the class.
`43.
`The representative Plaintiff will fully and adequately protect and represent the entire
`class, and all of its putative class members.
`44.
`The identity of all members of the class cannot be determined at this time, but will be
`so determined at a later time upon obtaining discovery from Defendant and others.
`45.
`The prosecution of separate actions by each member of these classes would create a
`substantial risk of inconsistent or varying adjudications with regard to individual members of the
`class that would establish incompatible standards of conduct for Defendant.
`46.
`The prosecution of separate actions would also create a substantial risk of
`adjudication with respect to individual members of the class which, as a practical matter, would be
`dispositive of the interest of other members not parties to the adjudication, thereby substantially
`impairing and impeding their ability to protect these interests. Further, the maintenance of this suit
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`as a class action is the superior means of disposing of the common questions which predominate
`herein.
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`FIRST CLAIM FOR RELIEF
`California’s Unfair Competition Law
`Bus & Prof. Code, § 17200 et seq.
`
`47.
`Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.
`48.
`At all times relevant hereto, Defendant’s alleged actions constitute a business practice
`under California law.
`49.
`The California Unfair Competition Law (“UCL”) defines unfair business competition
`to include “unlawful, unfair, or fraudulent” acts or practices, as well as any unfair, deceptive, untrue,
`or misleading advertising. Bus & Prof. Code, § 17200.
`50.
`The California Supreme Court has emphasized that the “[s]ubstantive right extended
`to the public by the UCL is the right to protection from fraud, deceit, and unlawful conduct, and the
`focus of the statute is on the defendant’s conduct.”
`a. “Unlawful” Prong of the UCL
`51.
`Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.
`52.
`A business act or practice is “unlawful” if it violates any established state or federal
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`law.
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`53.
`The Federal Trade Commission Act prohibits unfair methods of competition, and
`unfair or deceptive acts or practices in or affecting commerce, which includes, inter alia, false
`advertising. 15 U.S.C. § 41 et seq.; 15 U.S.C. § 52(a) & (b).
`54.
`Defendant has violated and continues to violate the “unlawful” prong of the UCL by
`violating the FTC Act’s prohibition on false advertising and deceptive acts and practices when it
`represented to consumers that the sleep-tracking function of its Fitbit devices can and does make
`specific, mathematical measurements and calculations as to the amount and quality of the wearer’s
`sleep, as stated above.
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`55.
`As detailed in Plaintiff’s Second Claim for Relief, below, Cal. Bus. & Prof. § 17500
`(California False Advertising Law aka “FAL”) prohibits unfair, deceptive, untrue, or misleading
`advertising, including, but not limited to, making untrue or misleading statements in advertising.
`56.
`Defendant has violated and continues to violate the “unlawful” prong of the UCL by
`violating the FAL. See ¶¶ 81 – 86, below.
`57. Moreover, as detailed in Plaintiff’s Third Claim for Relief, below, Cal. Civ. Code
`§1770 (California Legal Remedies Act aka “CLRA”) section (a)(5) prohibits a business from
`“representing that goods… have… characteristics,… uses, [or] benefits… which they do not have”;
`Section (a)(7) prohibits a business from representing that its devices are “of a particular standard or
`quality, when they are of another”; and §1770(a)(9) prohibits a business from “advertising goods or
`services with intent not to sell them as advertised.”
`58.
`Defendant has violated and continues to violate the “unlawful” prong of the UCL by
`violating the CLRA. See ¶¶ 81 – 86, below.
`59.
`As a direct and proximate result of Defendant’s violations, Plaintiff and the putative
`class members have suffered injury in fact in an amount to be established at trial. For instance,
`Defendant markets and sells the Fitbit Zip, which contains the same fundamental features of the
`other Fitbit devices EXCEPT the sleep-tracking function. The Fitbit devices with the sleep-tracking
`function are at least $30 more than the Fitbit device without the sleep-tracking function.
`60.
`Through its unlawful acts and practices, Defendant has obtained, and continues to
`unfairly obtain, money from members of the putative class. As such, Plaintiff requests that this court
`restore this money to Plaintiff and all putative class members, to disgorge the profits Defendant has
`made on its sleep-tracking function, and to enjoin Defendant from continuing to violate the UCL as
`discussed herein.
`b. “Unfair” Prong of the UCL
`61.
`Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.
`62.
`A business act or practice is “unfair” if the reasons, justifications, and motives of the
`alleged wrongdoer are outweighed by the gravity of the harm to the alleged injured party.
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`63.
`Defendant has violated and continues to violate the “unfair” prong of the UCL by
`falsely representing that the sleep-tracking function of its Fitbit devices can make specific,
`mathematical measurements and calculations as to the amount and quality of the wearer’s sleep as
`stated above.
`64.
`These acts and practices are unfair because they are likely to cause consumers to
`falsely believe that Defendant is offering a function that will track, to the minute, the amount they
`sleep and the quality and efficiency, to an exact percentage point, of that sleep.
`65.
`The gravity of the harm to Plaintiff and the putative class members outweighs any
`conceivable reasons, justifications, and/or motives of Defendant to overstate the Fitbit devices’ sleep
`function capabilities (i.e. Defendant’s profit motive).
`66.
`As a direct and proximate result of Defendant’s violations, Plaintiff and the putative
`class members have suffered injury in fact in an amount to be established at trial. For instance,
`Defendant markets and sells the Fitbit Zip, which contains the same fundamental features of the
`other Fitbit devices EXCEPT the sleep-tracking function. The Fitbit devices with the sleep-tracking
`function are at least $30 more than the Fitbit device without the sleep-tracking function.
`67.
`Through its unfair acts and practices, Defendant has obtained, and continues to
`unfairly obtain, money from members of the putative class. As such, Plaintiff requests that this court
`restore this money to Plaintiff and all putative class members, to disgorge the profits Defendant has
`made on its sleep-tracking function, and to enjoin Defendant from continuing to violate the UCL as
`discussed herein.
`c. “Fraudulent” Prong of the UCL
`68.
`Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.
`69.
`A business act or practice is “fraudulent” under the UCL if it is likely to deceive
`members of the consuming public.
`70.
`Defendant’s acts and practices of overstating the Fitbit sleep function’s capabilities
`and misrepresenting that the function will track, to the minute, the amount a user sleeps and the
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`efficiency, to an exact percentage point, of that sleep have the likely effect of misleading consumers
`into believing, simply, that the function can do things it cannot. See ¶¶ 8 – 13.
`71.
`To reiterate, Defendant makes numerous very specific representations that the devices
`can and do track and provide precise and accurate numbers, down the minute, of how much sleep a
`user would get. The Fitbit sleep-tracking function simply does not and cannot accurately provide
`these numbers. See ¶¶ 8 – 13.
`72. What’s more, Defendant goes beyond even those exact, mathematical representations,
`and represents to consumers that the sleep-tracking function can actually take those numbers that the
`function itself carefully worked out to determine, to an exact percentage, the quality of the
`consumer’s sleep. See ¶¶ 8 – 13.
`73.
`The Fitbit sleep function cannot and does not do this.
`74.
`As a direct and proximate result of Defendant’s violations, Plaintiff and the putative
`class members have suffered injury in fact in an amount to be established at trial. For instance,
`Defendant markets and sells the Fitbit Zip, which contains the same fundamental features of the
`other Fitbit devices EXCEPT the sleep-tracking function. The Fitbit devices with the sleep-tracking
`function are at least $30 more than the Fitbit device without the sleep-tracking function.
`75.
`Through its fraudulent acts and practices, Defendant has obtained, and continues to
`unfairly obtain, money from members of the putative class. As such, Plaintiff requests that this court
`restore this money to Plaintiff and all putative class members, to disgorge the profits Defendant has
`made on its sleep-tracking function, and to enjoin Defendant from continuing to violate the UCL as
`discussed herein.
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`SECOND CLAIM FOR RELIEF
`California False Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq.
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`76.
`Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.
`77.
`The California False Advertising Law (FAL) prohibits unfair, deceptive, untrue, or
`misleading advertising.
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`78.
`Defendant’s practice of overstating the Fitbit sleep function’s capabilities and
`misrepresenting that the function will track, to the minute, the amount a user sleeps and the quality
`and efficiency of that sleep, to an exact percentage point, is an unfair, deceptive, and misleading
`advertising practice because it gives the false impression that the Fitbit sleep-tracking function can
`do things that it simply cannot do.
`79.
`As a direct and proximate result of Defendant’s violations, Plaintiff and the putative
`class members have suffered injury in fact in an amount to be established at trial. For instance,
`Defendant markets and sells the Fitbit Zip, which contains the same fundamental features of the
`other Fitbit devices EXCEPT the sleep-tracking function. The Fitbit devices with the sleep-tracking
`function are at least $30 more than the Fitbit device without the sleep-tracking function.
`80.
`Through its deceptive advertising practices, Defendant has obtained, and continues to
`unfairly obtain, money from members of the putative class. As such, Plaintiff requests that this court
`restore this money to Plaintiff and all putative class members, to disgorge the profits Defendant has
`made on its sleep-tracking function, and to enjoin Defendant from continuing to violate the FAL as
`discussed herein.
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`THIRD CLAIM FOR RELIEF
`Consumer Legal Remedies Act, Cal Civ. Code § 1750 et seq.
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`81.
`Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.
`82.
`At all relevant times hereto, including at all times during the transactions between
`Plaintiff Brickman and Defendant, and the consumer transactions between the putative class
`members and Defendant, Plaintiff Brickman and each of the putative class members were
`“consumers”, and the transactions were “consumer transactions”, within the meaning of the CLRA.
`83.
`In connection with the consumer transactions alleged herein, including the consumer
`transaction between Plaintiff and Defendant, and the consumer transactions between the putative
`class members and Defendant, Defendant’s representations, acts, and/or practices regarding the
`Fitbit sleep-tracking function’s purported abilities were unfair and deceptive, to wit:
`a. Defendant made very specific representations that the Fitbit sleep function will
`precisely track, to the minute, the amount a user sleeps and the quality and
`efficiency, to an exact percentage point, of that sleep.
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`b. Defendant goes beyond even those exact, mathematical representations, though,
`and represents to consumers that the sleep-tracking function can actually take
`those numbers, the numbers that the function itself purportedly carefully works
`out, to determine, to an exact percentage, the quality of the consumer’s sleep.
`c. Defendant specifically represents and provides to consumers exact numbers for
`“actual sleep time, X hrs X mins,” “bed time XX:XX p.m.,” “fell asleep in X
`minutes,” “awakened X times,” “sleep efficiency X%,” “X minutes awake,” “X
`restless minutes,” and how many times the user was awake and/or restless over
`the course of the wearer’s night of sleep.
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`84.
`Defendant’s deceptive representations were material to the consumer transaction
`between Plaintiff and Defendant, and the putative class members and Defendant.
`85.
`As a result of the conduct described herein, Defendant has engaged in unfair and
`deceptive sales practices in violation of the CLRA, to wit:
`a. Defendant, by advertising that the Fitbit sleep-tracking function could perform
`tasks that it in fact could not, was thus representing that its goods had
`characteristics, uses, and/or benefits that they did not have, which is a violation of
`CLRA §1770(a)(5);
`b. Defendant, by advertising that the Fitbit sleep-tracking function could perform
`tasks that it in fact could not, and not being able to provide consumers with a
`product with a function that could perform as advertised, Defendant was thus
`representing that its devices were of a particular standard or quality, when they
`are of another, which is a violation of CLRA §1770(a)(7).
`c. Defendant, by advertising that the Fitbit sleep-tracking function could perform
`tasks that it in fact could not, and not being able to provide consumers with a
`product with a function that could perform as advertised, Defendant was thus
`advertising goods or services with intent not to sell them as advertised, which is a
`violation of CLRA §1770(a)(9).
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`
`86.
`As a direct and proximate result of Defendant’s violations, Plaintiff and the putative
`class members have suffered injury in fact in an amount to be established at trial. For instance,
`Defendant markets and sells the Fitbit Zip, which contains the same fundamental features of the
`other Fitbit devices EXCEPT the sleep-tracking function. The Fitbit devices with the sleep-tracking
`function are at least $30 more than the Fitbit device without the sleep-tracking function.
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`FOURTH CLAIM FOR RELIEF
`Violation of the Magnuson-Moss Warranty Act,
`15 U.S.C. § 2301, et. seq.
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`87.
`Plaintiff realleges and incorporates herein all previous pa