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Brickman v. Fitbit, Inc.

United States District Court, N.D. California

November 20, 2017

JAMES P. BRICKMAN, et al., Plaintiffs,
FITBIT, INC., Defendant.


          JAMES DONATO United States District Judge.

         In this 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.[1] Certification is granted except for the Florida common law negligent misrepresentation claim.


         The 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. Id.

         Plaintiffs 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.

         Plaintiffs 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, when Fitbit added an arbitration clause to its terms of use. 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 at 20.

         Consequently, 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 enrichment.


         I. Legal Standards

         Federal 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).

         Rule 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).

         For 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).

         The 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.

         The 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.

         The decision of whether to certify a class is entrusted to the sound discretion of the district court. Zinser, 253 F.3d at 1186.

         II. The Rule 23 Factors

         As 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.

         Nevertheless, 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).

         A. ...

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