United States District Court, N.D. California
JAMES P. BRICKMAN, et al., Plaintiffs,
FITBIT, INC., Defendant.
ORDER RE CLASS CERTIFICATION RE: DKT. NO.
DONATO United States District Judge.
consumer action against Fitbit, Inc. (“Fitbit”)
under California and Florida state law, named plaintiffs
James Brickman (Florida) and Margaret Clingman (California)
move for class certification. Dkt. Nos. 60,
119-4. Certification is granted except for the
Florida common law negligent misrepresentation claim.
material facts are not in dispute. Fitbit is a well-known
maker of wearable fitness devices. Starting in 2009, Fitbit
released several models that it marketed as equipped with
sleep-tracking functionality. The models in dispute here are
the Fitbit Ultra, One, and Flex. Dkt. No. 60 at 5; Dkt. No.
130 at 1; Dkt. No. 122 at 3. An expert witness retained by
Fitbit has stated that the methods and algorithms used for
the sleep functionality are the same for all of the devices,
a fact neither side contests. Dkt. No. 121-6 at 18. Fitbit
made the same representations about sleep functionality for
all of the devices, including on the packaging and boxes for
the products. Dkt. No. 119-13 at ECF pp. 4, 13; see
also Dkt. No. 119-7 at 56. Among other statements,
Fitbit represented that the devices all could track
“hours slept, ” “times woken up, ”
and “quality of sleep.” Dkt. No. 119-13 at ECF
pp. 4, 13. Fitbit also presented images of charts
and graphs displaying the data the devices were said to
collect. Id.; Dkt. No. 60-2. Fitbit sold some
sleep-equipped devices directly to consumers but “the
vast majority of Fitbit Devices are sold through its retail
partners.” Dkt. No. 122 at 14. Regardless of
distribution channel, each purchaser had to register her
device online with Fitbit to activate full functionality.
Dkt. No. 122-5 at 5-12; Dkt. No. 122-6 at 4; Dkt. No. 119-7
at 89. The registration process collected consumers'
email addresses and the model of the device being registered.
Brickman and Clingman were interested in the sleep
functionality, and they each bought a device represented to
be equipped with that feature. After buying and wearing the
devices, plaintiffs allege they tracked motion and movement
only, and not sleep. Dkt. No. 60 at 9-10. The essential claim
in the case is that plaintiffs and putative class members
were deceived into paying more for Fitbit devices allegedly
equipped with sleep-tracking functionality “because the
Fitbit devices can only measure movement and not
sleep.” Dkt. No. 60 at 2-3.
seek to certify a class of California consumers and a class
of Florida consumers. Dkt. No. 130 at 1. The proposed
California class consists of California residents who have
purchased and registered online a Fitbit Flex, One, or Ultra
in the State of California between 2009 and October 27, 2014,
Id. The proposed Florida class is defined the same
way for residents of that state. In the motion for class
certification, plaintiffs abandoned the warranty and
California False Advertising Law claims in the complaint.
Id. at 4 n.1. At the hearing on Fitbit's motion
for summary judgment, plaintiffs also agreed that the Florida
common law fraud claim could not be certified. Dkt. No. 188
plaintiffs ask to certify: (1) a California class for claims
under the California Unfair Competition Law
(“UCL”), the California Consumers Legal Remedies
Act (“CLRA”), common law fraud, negligent
misrepresentation, and quasi-contract/unjust enrichment; and
(2) a Florida class for claims under Florida's Deceptive
and Unfair Trade Practices Act (“DUTPA”),
negligent misrepresentation, and quasi-contract/unjust
Rule of Civil Procedure 23 governs this motion. As the
parties seeking certification, plaintiffs bear the burden of
showing that the requirements of Rule 23 are met. Mazza
v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir.
2012). They must show that the proposed class action
satisfies all four requirements of Rule 23(a), and at least
one of the subsections of Rule 23(b). Comcast Corp v.
Behrend, 569 U.S. 27, 33 (2013); Zinser v. Accufix
Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.
2001), amended by 273 F.3d 1266 (9th Cir. 2001).
23(a) imposes four prerequisites. The class must be “so
numerous that joinder of all members is impracticable”
(numerosity). There must be “questions of law or fact
common to the class” (commonality). The claims or
defenses of the named plaintiffs must be “typical of
the claims or defenses of the class” (typicality). And
the named parties must show that they “will fairly and
adequately protect the interests of the class”
(adequacy). Fed.R.Civ.P. 23(a)(1)-(4).
Rule 23(b), plaintiffs propose certification as a (b)(3)
class. Consequently, they must show, in addition to the four
Rule 23(a) prerequisites, that “questions of law or
fact common to class members predominate over any questions
affecting only individual members” (predominance) and
that a class action is “superior to other available
methods for fairly and efficiently adjudicating the
controversy” (superiority). Fed.R.Civ.P. 23(b)(3).
Court's “class-certification analysis must be
rigorous and may entail some overlap with the merits of the
plaintiff's underlying claim.” Amgen Inc. v.
Connecticut Ret. Plans & Trust Funds, 568 U.S. 455,
465-66 (2013) (internal quotations and citations omitted).
“That is so because the class determination generally
involves considerations that are enmeshed in the factual and
legal issues comprising the plaintiff's cause of
action.” Comcast, 569 U.S. at 33-34 (internal
quotations and citations omitted). These principles apply to
the Rule 23(a) and 23(b) analysis alike. Id. at 34.
rigorous analysis, however, has its limits. A significant
portion of Fitbit's opposition is that plaintiffs have no
claims because its devices do, in fact, work as advertised.
See, e.g., Dkt. No. 122 at 6-9. That contention goes
too far for present purposes. “Rule 23 grants courts no
license to engage in free-ranging merits inquiries at the
certification stage. Merits questions may be considered to
the extent -- but only to the extent -- that they are
relevant to determining whether the Rule 23 prerequisites for
class certification are satisfied.” Amgen, 586
U.S. at 466. The class certification procedure is decidedly
not an alternative form of summary judgment or an occasion to
hold a mini-trial on the merits. Alcantar v. Hobart
Service, 800 F.3d 1047, 1053 (9th Cir. 2015). The goal
under Rule 23 is “to select the metho[d] best suited to
adjudication of the controversy fairly and
efficiently.” Amgen, 568 U.S. at 460 (internal
quotations omitted) (modification in original). That means
deciding whether efficiency and the interests of justice are
best served by having the named plaintiffs go forward to the
merits as individuals or on behalf of a class as “an
exception to the usual rule that litigation is conducted by
and on behalf of the individual named parties only.”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348
(2011) (quoting Califano v. Yamasaki, 442 U.S. 682,
700-701 (1979)). Fitbit's many arguments on the ultimate
merits of plaintiffs' claims may be suitable for summary
judgment or trial, but they will not be resolved here because
they exceed the scope of the Rule 23 examination.
decision of whether to certify a class is entrusted to the
sound discretion of the district court. Zinser, 253
F.3d at 1186.
The Rule 23 Factors
Comcast teaches, the Rule 23 analysis is grounded in
the specific facts of the case. The dispositive facts here
are straightforward and undisputed: Fitbit's devices
shared common methods and algorithms to track sleep, and
Fitbit marketed those devices with the same representations
to consumers during the class period. This is not a situation
where, as in some cases, the defendant made different or
conflicting representations to different buyers at different
times. Nor is it a situation where the statements to
consumers were sporadic or isolated.
Fitbit has raised a host of arguments against certification.
In many instances, Fitbit offers only a few lines of argument
followed by a string of case citations. Fitbit's brief
also did not clearly identify which Rule 23 factor was at
issue in many of its objections. For clarity, the Court
addresses Fitbit's main arguments in the structure of
Rule 23(a) and (b).