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Fitbit’s PurePulse Tracker at the Heart of New Consumer Fraud Lawsuit

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By: Reena R. Bajowala

On January 5, 2016, three putative class plaintiffs – Kate McLellan, Teresa Black and David Urban – filed a nationwide class action lawsuit against Fitbit Inc. in the Northern District of California.  Fitbits are wrist-based devices that track fitness activity.  At the center of the suit is the PurePulse Tracker, which records the wearer’s heart rate during fitness activities.  The suit brings a panoply of consumer fraud claims – common law fraud, fraud in the inducement, breach of express and implied warranties, and violations of the California Unfair Competition Law and Consumer Legal Remedies Act, along with parallel claims under Colorado and Wisconsin business codes – but rests upon a central allegation.  To wit: plaintiffs claim Fitbit’s advertising representations regarding the consistency and accuracy of its PurePulse Trackers in recording heart rates during intense physical activity are false.  The Complaint also challenges Fitbit’s use of a post-purchase agreement, required to activate the PurePulse Tracker, as unconscionable. 

That agreement contains, among other things, an arbitration clause and a class action ban.  The plaintiffs seek money and equitable relief to exceed $5 million.  Plaintiffs also seek punitive damages.  To make a case for punitive damages, the plaintiffs will need to show that Fitbit’s conduct was intentional, malicious and showed a reckless disregard for the class members.  To bolster this argument, the plaintiffs are alleging that the Trackers present a safety hazard because class members “could jeopardize their health by relying on the inaccurate heart rate readings and potentially achieving dangerous heart rates.” The jury is out on whether such an allegation can withstand a defense challenge. What are your thoughts?

McLellan v. Fitbit, Inc., Case No. 16-cv-36 (N.D. Cal.)