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Frenzel v. Aliphcom

United States District Court, N.D. California

December 29, 2014

ALIPHCOM, Defendant

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For Robert Frenzel, individually and on behalf of all others similarly situated, Plaintiff: Julia A. Luster, LEAD ATTORNEY, Bursor and Fisher, P.A., Walnut Creek, CA; Annick Marie Persinger, Lawrence Timothy Fisher, Bursor & Fisher, P.A., Walnut Creek, CA.

For Aliphcom, doing business as Jawbone, Defendant: Mortimer H. Hartwell, LEAD ATTORNEY, VINSON & ELKINS LLP, San Francisco, CA; Howard Holderness, Morgan Lewis & Bockius LLP, San Francisco, CA; Jeremy Noah Lateiner, Morgan Lewis and Bockius LLP, San Francisco, CA.

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WILLIAM H. ORRICK, United States District Judge.


Plaintiff Robert Frenzel brings this putative class action against defendant AliphCom dba Jawbone (" Jawbone" ), alleging that he was fraudulently induced to purchase a Jawbone UP fitness-tracker wristband by misrepresentations regarding the product's battery life and general functionality. Jawbone moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Frenzel's claims are precluded by California's choice-of-law rules and, in addition, are not adequately alleged. I agree on both counts and will GRANT the motion.



The following facts are alleged in Frenzel's complaint and are presumed true for the purposes of this motion. Jawbone is a California corporation headquartered in San Francisco, California. Compl. ¶ 8 (Dkt. No. 1). It markets and sells Jawbone UP, a fitness-tracker wristband that contains an accelerometer designed to track the user's daily movements and sleep patterns. Users can connect, or " sync," their Jawbone UP device to a mobile application that helps them set personal exercise and diet goals, monitor their progress, and collaborate with other Jawbone UP users. Compl. ¶ 2. Jawbone advertises the device as a " wristband [plus] mobile app[lication] that tracks how you sleep, move and eat so you can know yourself better, make smarter choices and feel your best." Compl. ¶ 2. The Jawbone UP box states: " KNOW YOURSELF; LIVE BETTER," " WEAR, SYNC, ACT," and " [u]nderstand your sleep and wake up refreshed; [m]easure daily activity and calories burned; [l]earn which foods help you feel your best." Compl. ¶ 15-17. The box also states: " Battery life up to 10 days." Id. Jawbone UP is available in major retail stores across the country and online.

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Compl. ¶ 46. its retail price is approximately $80.00 to $150.00. Id. Jawbone has distributed three generations of the device: a first generation Jawbone UP released in 2011, a second generation Jawbone UP released in 2012, and a Jawbone UP24 released in 2013. Compl. ¶ 14.

Frenzel alleges that each generation of Jawbone UP has been " plagued with . . . power problems," including " significant delay in charging, syncing problems, flashing lights indicating low charge . . ., extremely short battery life . . ., failure to charge at all, and other similar problems." Compl. ¶ 24. These problems render the device " effectively useless." Compl. ¶ 25.

In December 2011, Jawbone's CEO issued a letter acknowledging the power problems. The letter stated in relevant part:

[W]e know that some of you have experienced issues with your [Jawbone] UP band. Given our commitment to delivering the highest quality products, this is unacceptable and you have our deepest apologies. We've been working around the clock to identify the root causes and we'd like to thank everyone who has provided us with information and returned their bands for troubleshooting. With your help, we've found an issue with two specific capacitors in the power system that affects the ability to hold a charge in some of our bands.

Compl. ¶ 31. From December 9, 2011 through December 31, 2011, Jawbone offered a refund to purchasers of the first generation Jawbone UP. Compl. ¶ 32. Alternatively, purchasers could opt for a replacement device in the form of a second generation Jawbone UP. Compl. ¶ 32.

Frenzel alleges that when the second generation Jawbone UP was released in 2012, Jawbone represented that the power problems identified in the first generation had been fixed. Compl. ¶ 33. However, consumers continued to complain about the device's performance, and multiple articles appeared online describing the ongoing power problems. Compl. ¶ 34. Jawbone UP24's performance has also been lackluster. Like its predecessors, Jawbone UP24 suffers from " power problems that disrupt syncing, result in charging issues, and end in downright failure." Compl. ¶ 38.

Frenzel resides in Kansas City, Missouri and is a Missouri citizen. Compl. ¶ 7. In November 2012, Frenzel purchased a second generation Jawbone UP from an Apple store.[1] Compl. ¶ 41. Before purchasing the device, Frenzel " reviewed [Jawbone's] marketing materials and representations." Id. " The representations included that Jawbone UP is a fitness and lifestyle tracker that monitors the purchaser's physical activity, sleep patterns, and eating habits, and the battery is expected to last for 10 days when fully charged." Id. Frenzel purchased the device based on these representations.[2] Id.

Within a few months, Frenzel's Jawbone UP stopped maintaining its charge. Compl. ¶ 41. Frenzel contacted Jawbone and was issued a replacement second generation Jawbone UP.[3] Id. The replacement

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also experienced power problems and ultimately " died" when it failed to turn on. Compl. ¶ 42. Frenzel again contacted Jawbone but was told that his only recourse was to purchase a new device. Id.

On the basis of these allegations, Frenzel seeks to represent a national class defined as all persons who purchased any of the three generations of Jawbone UP for personal use, excluding those who purchased the product for resale. Compl. ¶ 44.


Frenzel asserts six causes of action in the complaint: (i) violations of California's Consumer Legal Remedies Act (" CLRA" ), Cal. Civ. Code § 1750, et seq.; (ii) violations of California's Unfair Competition Law (" UCL" ), Cal. Bus. & Prof. Code § 17200, et seq.; (iii) violations of California's False Advertising Law (" FAL" ), Cal. Bus. & Prof. Code § 17500, et seq.; (iv) breach of express warranty; (v) breach of the implied warranty of merchantability; and (vi) breach of the implied warranty of fitness for a particular purpose. Compl. ¶ ¶ 50-99. Frenzel seeks an order certifying a national class, compensatory and punitive damages, and injunctive relief. Compl. at 34. Jawbone filed this motion on September 29, 2014, Dkt. No. 13, and I heard argument from the parties on December 17, 2014.



A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint " must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A claim is facially plausible when it " allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In considering whether the complaint is sufficient to state a claim, the court accepts as true all factual allegations contained in the complaint. Id. However, the court need not accept as true " allegations that contradict matters properly subject to judicial notice." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks omitted). " Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Id. " [I]t is within [the court's] wheelhouse to reject, as implausible, allegations that are too speculative to warrant further factual development." Dahlia v. Rodriguez, 735 F.3d 1060, 1076 (9th Cir. 2013).


Claims sounding in fraud or mistake are subject to the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires that such claims " state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). To satisfy this standard, a plaintiff must identify " the time, place, and content of [the] alleged misrepresentation[s]," as well as the " circumstances indicating falseness" or " manner in which the representations at issue were false and misleading." In re GlenFed, Inc.

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Sec. Litig., 42 F.3d 1541, 1547-48 (9th Cir. 1994) (internal quotation marks and modifications omitted). The allegations " must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007).


Federal Rule of Civil Procedure 12(f) authorizes a court to " strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). The function of a motion to strike " is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Motions to strike are generally disfavored and " should not be granted unless the matter to be stricken clearly could have no possible bearing on the subject of the litigation." Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057 (N.D. Cal. 2004).



Jawbone contends that under Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), Frenzel's claims should be governed by the law of the state in which he purchased his Jawbone UP, which Frenzel has not identified but has conceded is not California. Mot. 2 (Dkt. No. 13); Opp. 3-9 (Dkt. No. 18). Jawbone argues that Frenzel's claims under the CLRA, UCL, and FAL must therefore be dismissed, and to the extent that Frenzel's warranty claims are based on California law, those claims must be dismissed as well. Mot. 7 n.2, 9. Jawbone also makes the similar but separate argument that under Mazza, Frenzel cannot maintain a national class action that seeks to apply California law to nonresident class members who purchased their Jawbone UP devices in other states. Mot. 2.[4]

In Mazza, a putative class sued Honda for violations of the CLRA, UCL, and FAL. Honda was headquartered in California, and the alleged misrepresentations emanated from California, but the transaction that caused the alleged injury (i.e., the lease or purchase of a Honda automobile), had occurred in other states for the majority of class members. The Ninth Circuit reversed the district court's certification of a national class after concluding that, under California's choice of law rules, " each class member's consumer protection ...

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