United States District Court, N.D. California
JAMES P. BRICKMAN, et al., individually and as a representative of all persons similarly situated, Plaintiffs,
FITBIT, INC., Defendant.
ORDER RE MOTION TO DISMISS Re: Dkt. No. 63
DONATO UNITED STATES DISTRICT JUDGE
putative class action, named plaintiffs James Brickman and
Margaret Clingman allege that defendant Fitbit, Inc.
(“Fitbit”) misled consumers about the
functionality of sleep tracking on its wearable devices.
Plaintiffs have gone through a number of pleadings
developments and are now on a fourth amended complaint. Dkt.
No. 60. Fitbit challenges the complaint for failure to state
a plausible claim and other reasons. Dkt. No. 63. The Court
took Fitbit’s motion under submission pursuant to Civil
Local Rule 7-1(b), and finds that the complaint is sufficient
to proceed to the merits. Dismissal is denied.
the current complaint is a fourth amended complaint, the
Court has not yet ruled on the adequacy of plaintiffs’
allegations. The amendments were largely the product of
voluntary agreements between the parties that are not germane
to this motion.
gist of the operative complaint is that Fitbit knowingly
misled consumers about the utility and efficacy of its sleep
tracking functionality. Brickman, a Florida resident, and
Clingman, a California resident, each bought a Fitbit
“Flex” device that included a sleep tracking
feature. Plaintiffs allege that Fitbit materially
misrepresented the ability of the Flex -- and all similarly
equipped Fitbit devices -- to track “hours slept,
” “times woken up, ” and “sleep
quality” through statements and graphics on product
packaging and in other places. Dkt. No. 60 ¶¶ 3,
statements are false, according to plaintiffs, because Fitbit
uses an accelerometer as the platform for its sleep tracking
functionality, id. ¶ 34, and accelerometers
“can only measure movement and not sleep.”
Id. ¶ 4. Plaintiffs cite independent reviews,
commentary from sleep doctors, and “anecdotal evidence
from consumers” to allege that movement alone does not,
and possibly cannot, provide meaningful information or
accurate data about the duration or quality of sleep.
Id. at ¶¶ 10-11, 38. These sources feature
comments like Fitbit’s devices “are not measuring
sleep, simply motion, ” “[y]ou cannot infer
quality of sleep from motion, ” and the technology only
“guesses” the amount of sleep experienced.
Id. ¶ 38. Plaintiffs allege that these and
other facts show that Fitbit promised a functionality that
its devices cannot deliver.
state that they “encountered and relied on”
Fitbit’s representations about the sleep tracking
function in buying their devices. Id. ¶¶
47, 56. They also say that Fitbit charged a premium of $30 or
more for devices equipped with the sleep tracking feature
over those without it. Id. ¶ 28.
allege nine claims: (1) the Unfair Competition Law, Cal. Bus.
& Prof. Code Section 17200 (“UCL”); (2) the
False Advertising Law, Cal. Bus. & Prof. Code Section
17500 (“FAL”); (3) the California Consumer Legal
Remedies Act, Cal. Civil Code Section 1750
(“CLRA”); (4) the Magnuson-Moss Warranty Act, 15
U.S.C. Section 2301 (“MMWA”); (5) breach of
implied warranty, Cal. Civil Code Section 1790; (6) the
Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”), Fla. Stat. 501.201; (7) common law
fraud, (8) negligent misrepresentation, and (9) unjust
standards govern Fitbit’s motion to dismiss. To meet
the pleading requirements of Federal Rule of Civil Procedure
8(a)(2) and survive a Rule 12(b)(6) motion to dismiss, a
plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). At this
stage, the Court accepts all the material allegations in the
complaint as true and draws all reasonable inferences in
favor of the plaintiffs. Moyo v. Gomez, 32 F.3d
1382, 1384 (9th Cir. 1994). But the Court will not treat as
fact or accept as true allegations that are bare legal
conclusions, recitations of elements or unwarranted
deductions. Iqbal, 556 U.S. at 678; In re Gilead
Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
this case alleges claims sounding in fraud and deception,
Federal Rule of Civil Procedure 9(b) also applies. Vess
v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103-04 (9th
Cir. 2003); Kearns v. Ford Motor Co., 567 F.3d 1120,
1125-26 (9th Cir. 2009). Rule 9(b) requires that “[i]n
alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake.” This means the allegations must “be
specific enough to give defendants notice of the particular
misconduct . . . so that they can defend against the charge
and not just deny that they have done anything wrong, ”
and the “[a]verments of fraud must be accompanied by
‘the who, what, when, where, and how’ of the
misconduct charged.” Vess, 317 F.3d at 1106
(internal quotation marks omitted). In addition, the
“‘plaintiff must set forth what is false or
misleading about a statement, and why it is
false.’” Ebeid ex rel. United States v.
Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010) (quoting
Vess, 317 F.3d at 1106). Mechanical or conclusory
allegations of fraud will not do. Moore v. Kayport
Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989).
The elements of “[m]alice, intent, knowledge, and other
conditions of a person’s mind” may be alleged
generally. Fed.R.Civ.P. 9(b); see also Vess, 317
F.3d at 1104.
plaintiffs acknowledge, these requirements apply to the UCL,
FAL, CLRA, FDUTPA, and common law misrepresentation claims in
the complaint (and arguably to the warranty claims too,
although Fitbit does not make that point), all of which are
grounded on the allegation that Fitbit misled consumers about
the sleep tracking functionality. Dkt. No. 60; Dkt. No. 67 at