fitbit lawsuit seeks class-action status

8/12/2019 Fitbit Lawsuit Seeks Class-Action Status

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1 Plaintiff Jim Spivey, on behalf of himself and all others similarly situated, alleges the2 following:

INTRODUCTION4 1. JIM SPIVEY, ( Spivey or Plaintiff', individually and on behalf of all others5 similarly situatedbrings this Complaint to challenge the actions of FITBITINC. ( Fitbit 'r6 Defendant collectively with Does 1-100, Defendants ) with regard to Defendant's false and7 misleading promotion and advertisement of its Fitbit Force.he nationwide advertising, promotion,8 marketing, and selling of the Fitbit Forcer~ constitute a violation of California's False advertising Law9 ( FAL ), Business and Professions Code ss 17500, er seq.; California's Unfair Competition Law

10 ( UCL ), Business and Professions Code tj 17200, er seq., common law negligent and intentional11 misrepresentation, and strict products liability. This conduct caused Plaintiff and the putative class12 members damages, and requires restitution to remedy and/or prevent further damages.

JURISDICTION AND VENUE14 2. This Court has jurisdiction over this matter because Plaintiff Jim Spivey is a citizen of15 California.16 3. This Court has personal jurisdiction over the Defendants because Defendants do17 business in California> Defendants have minimum contacts in California, and otherwise purposefully18 avail themselves of the markets in this state through the research, development, manufacture,19 promotionadvertising, sale, and marketing of the product in California, to render the exercise of20 jurisdiction by this Court permissible under traditional notions of fair play and substantial justice.21 4. Venue is further proper in this Court in that the subject acts and transactions giving risc22 to this action occurred in the County of San Diego for the following reasons;

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a. Defendants conduct business in the County of San Diego and have intentionallyavailed themselves of the laws and markets within San Diego County by selling theFitbit Forcer~ to consumers living there;

b. Defendants do substantial business within the County of San Diego;c. Defendants are subject to personal jurisdiction in the County of San Diego; and

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d. The injury and harm to Plaintiff, a San Diego County resident, occurred within theCounty of San Diego because Plaintiff purchased the Fitbit Forcehile residingthere, wore it there, and suffered the injury while there.

5, Plaintiff brings this action on behalf of current California residents only, and on behalfof those same current California residents who purchased the Fitbit Forcer~'hile a resident ofCalifornia.

PARTIES6. Plaintiff Jim Spivey is a citizen of the State of California and a resident of the County

of San Diego. Plaintiff purchased the Fitbit Force~ in California, making venue proper in California.10

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7. Defendant FITBIT, INC, is a corporation organized and existing under the laws ofDelaware with its principal place of business in San Francisco. California located at 150 SpearStreet, San Francisco, California 94105. The Fitbit ForcerM is one of the products manufactured,marketed and distributed by Defendant FITBf1', IlvC. A Fitbit Forces an activity tracker: a

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wireless-enabled wearable device that measures data such as the number of steps walked, quality ofsleep, and other personal metrics. Unless otherwise indicated, the use of any Defendant's name in this

16 Complaint, including Defendants, includes all agents, emphoyees, officers, metnbers, directors,heirs, successors, assigns, principals, trustees, sureties, subrogees, representatives and insurers of the

18 named Defendants.1920

8. The true names and capacities of the defendants named herein as Does I through 100,inclusive, whether individual, corporate, governmental, associate or otherwise, are unknown toPlaintiff, who therefore sues such Defendants by fictitious names. Plaintiff will amend this complaint

23to allege their true names and capacities when ascertained, Each of the Doe Defendants is responsiblein some mannereither by act or omission, strict liability, Iraud, negligence or otherwise, for theoccurrences herein alleged, and Plaintiff's harm was legally caused by conduct of the Doe Defendants.

25 Does I through 100, inclusive, are responsible to Plaintiff on thc facts and theories herein alleged. At26

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all relevant times, each Defendant, including those fictitiously named, was the agent, servant, and/oremployee of each of the remaining Defendants, and was acting within the course and scope of saidagency and employment. Each of the Defendants is in some manner responsible for the events and

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1 happenings to which reference is made herein, and each Defendant caused injury and damage to2 Plaintiff as herein alleged. The acts ofDefendants and each of them were and are the acts of the other3 Defendants. Defendants, and each of themratified, authorizedand/or approved of the acts of the4 other Defendants.

FACTUAL ALLEGATJOPIS6 A. Fitbit. Inc.7 9. Fitbit, inc. was founded in 2007 in San FranciscoCalifornia by James Park and Eric8 Friedman.9 10. James Park and Eric Friedman also manage the company, as Chief Executive Officer

10 and Chief Technology Oflicer respectively.11 11. Fitbit, inc, is a company known for its products of the same name, which are activity12 trackers, wireless-enabled wearable devices that measure data such as the number of steps walked,13 quality of sleep, and other personal metrics.14 B. The Force15 12. The Fitbit ForceForce ) is a product designed, developed, manufactured,16 promoted, sold, advertised, distributed, and marketed by Fitbit throughout the State ofCalifornia. The17 Force product was launched and offered to the general public in the fall of 2013.18 13. Fitbit advertised and marketed its Force product as our most advanced activity19 tracker. The Fitbit Force was advertised as follows:

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a. LED display shows you your stats on the go; wristband wirelessly syncs stats toyour computer and leading smartphones so you can watch your trends over time;

b. %ster-resistant wristband records steps taken, distance traveled, calories burned,stairs climbed, and active minutes throughout the day;c. %hen the day's over, track how long and how well you sleep, and wake with asilent vibrating alarm that won't disturb your partner;

d. Log tood intake, weight and more at Fitbit.corn and on free apps for iPhone andAndroid;

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I 22. Fitbit, Inc. did not warn Plaintiff, its consumers or the public of the physical, bodily,2 health or safety dangers of using the product, including any physical injuries.3 23. Fitbit, Inc. advertised the safety of the Fitbit Force product.4 D. Plaintiff Jim Snivev5 24. Upon seeing advertisements and marketing/promotion materials, Plaintiff Jim Spivey6 purchased dte Fitbit Forceirectly from Fitbit, Inc.'s website on or about January 2014.7 25. Plaintiff purchased the Fitbit Force'rM for 129.95, with an additional 9.75 paid for8 sales tax, for a total of 139.70.9 26. Plaintiff purchased the Fitbit Forceith a credit card.

10 27. Plaintiff began wearing the Fitbit Forcemmediately upon receipt up untilI I approximately February of2014. Plaintiff discontinued use/wear of the Fitbit Forcet that time.12 28. Any alleged or claimed attempts to recall and/or refund Plaintiff or members of the

putative ciass are whoiiy inadequate and not Intended to actually notify class members nor intended to14 actually refund class members. Any alleged or claimed attempts to recall and/or refund are a sham

based on the design and execution of the recall, the member communications, and the refund efforts.

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CAUSES OF'CTIOIvlF'irst Cause of Action

California Business A Professions Code tJ 17500, et seq.(California's False Advertising I.aw)

(Against All Defendants)21 29. Plaintiff realleges and incorporates by reference as though fully set forth herein the22 preceding paragraphs I through 28.23 30. Plaintiff brings this cause of action on behalf of himself and on behalf of the putative24 class.25 31. The misrepresentations, acts, concealments, and non-disclosures by Defendants of the26 material facts detailed above constitute false and misleading advertising and therefore violate Business27 and Professions Code section 17500, et seq.

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1 32. At all times relevant, Defendants'dvertising and promotion regarding the Fitbit2 ForcerM was untrue, incomplete, misleading, and likely to deceive the public and/or has deceived the3 Plaintiff and California consumers similarly situated by representing that the Fitbit Forces a safe4 wearable device, free of unreasonable risks of injury.5 33. Defendants engaged in the false and/or misleading advertising and marketing alleged6 herein with the intent, to directly induce the purchase of the Fitbit Forcer~.7 34. In making and disseminating the statement and/or omissions alleged herein, Defendants8 knew or should have known that the statements and/or omissions were untrue or misleading or9 incompleteand Defendants acted in violation of California Business and Professions Code section10 17500, et seq.11 35. Plaintiff and members of the putative class have suffered injury in fact and have lost12 money or property and time and opportunity as a result ofDefendants'alse advertising, as more fully13 set forth herein. Plaintiff and members of the putative class have been injured because the paid for the14 Fitbit Forcenaware that it was a defective device that increased the risk of injury through its use.15 Plaintiff and members of the putative class have been injured because had they been made aware that16 the Fitbit Forceas a defective product that created an increased risk of injury to its users, they17 would not have purchased the Fitbit Force.18 36. At a date presently unknown to Plaintiff, but at least within the four years prior to the19 filing of this actionand as set forth above, Defendants have committed acts of untrue and misleading20 advertising and promotion of the Fitbit Force,s defined by California Business and Professions21 Code section 17500, et seq., as alleged above.22 37. The fraudulent, unlawful and unfair business practices and false and misleading23 advertising of Defendants, as described above, presents a continuing threat to consumers in that they24 will continues to mislead consumers to purchase or keep the Fitbit Forcender false pretenses.25 38. As a direct and proximate result of the aforementioned acts and representations of26 Defendants, Defendants received and continues to hold monies rightfully belonging to Plaintiff and the27 putative class who did not receive complete reimbursement for their Fitbit Force~ or compensation28 for physical or emotional injuries.

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1 39, Unless Defendants are enjoined from continuing to engage in the unlawful, unfair,2 fraudulent, untrue, and deceptive business acts and practices as described hereinconsumers residing3 within California will continue to be exposed to and damaged by Defendants false advertising.

Second Cause of ActionCalifornia Business k Professions Code () 17200, er seq.(California's Unfair Competition Law)

(Against All Defendants)8 40. Plaintiff realleges and incorporates by reference as though fully set forth herein the9 preceding paragraphs 1 through 39.10 41. 'Unfair competition is defined in Business and Professions Code section 17200 as11 encompassing any one of the five types of business wrongs,'* three of which are at issue here: (1) an12 unlawful business act or practice; (2) an unfair business act or practice; and (3) a fraudulent13 business act or practice. The definitions in section 17200 are disjunctive, meaning that each of the14 three wrongs*'perates independently from the others.15 42. Plaintiff and Defendants are both personjs] as defined by California Business and16 Professions Code section 17201. Section 17204 authorizes a private right of action on both an17 individual and representative basis.18 43. There were reasonably available alternatives to further Defendants'etdtimate business19 interests, other than the conduct described herein.20 44. Plaintiff and the putative class reserve the right to allege other violations of law, which21 constitute other unlawful business practices or acts, as such conduct is ongoing and continues to this22 date.23 Unfair Prone24 45. Defendants'ctions and representations constitute an unfair business act or practice25 under section 17200, in that Defendants conduct is substantially injurious to consumers, offends public26 policy, and is immoral, unethical, oppressive, and unscrupulous as the gravity of the conduct27 outweighs any alleges benefits attributable to such conduct. Without limitation, it is an unfair business28 act or practice for Defendants to negligently and knowingly represent to the consuming public,



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1 including Plaintiff, that the Fitbit Forces a safe, effective, risk-free wearable device and activity2 tracker when, in truth and in fact, and Defendants well knew, the Fitbit Forceaused an increased3 risk of skin irritation, rash, burns, blistering, bleeding, cracking, peeling, open wounds, and boils from4 the Fitbit Force.Defendants'usiness practices are unfair because they offend established public5 policy and/or are immoral, unethical, oppressive, unscrupulous, and'or substantially injurious to6 consumers in that consumers are led to believe that the Fitbit Forces safe, effective, and free of7 such health hazards.8 46. At a date presently unknown to Plaintiff, but at least within the four years prior to the9 filing of this action, and as set forth aboveDefendants have committed acts of unfair competition as

10 defined by Business and Professions Code section 17200, et seq. by engaging in the false advertising11 and promotion of the Fitbit Forces fully outlined above.12 47. Plaintiff and the putative class members could not have reasonably avoided the injury13 suffered by each of them. Plaintiff reserves the right to allege further conduct that constitutes other14 unfair business acts or practices. Such conduct is ongoing and continues to this date.15 48. Defendants could have and should have furthered their legitimate business interests by16 expressly indicating that use of the Fitbit Parcerought with it an increased risk of skin irritation,17 rash, burns, blistering, boils, cracking, peeling, and bleeding from the Fitbit Forcend alternatively,18 not selling an unreasonably dangerous product.

Fraudulent Prone49. Defendants'laims and misleading statements were false, misleading, and/or likely to

21 deceive the consuming public within the meaning of section 17200, Without limitation it is a22 fraudulent act or practice for Defendants to knowingly or negligently represent to Plaintiff, whether by23 conduct, orally, or in writing by: (1) intentionally and misleadingly advertising the safety of the Fitbit24 Force~, (2) intentionally and misleadingly minimizing the reported injuries caused by the Fitbit25 ForcerM, (3) and intentionally and misleadingly advertising the efficacy of the Fitbit Force.26 50. Plaintiff reserves the right to allege further conduct that constitutes other fraudulent27 business acts or practices. Such conduct is ongoing and continues to this date.28

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51. The fraudulent, unlawful, and unfair business practices and false and misleading2 advertising of Defendants. as described above, presents a continuing threat to consumers in that they3 will continue to be misled into using the Fitbit Force.

Unlawful Prone5 52. As otherwise herein alleged, Defendants conduct violates California law.6 53. There were reasonably available alternatives to further Defendants'egitimate business7 interest, other than the conduct described herein,8 54. Plaintiff and the putative class reserve the right to allege other violations of law, which9 constitute other unlawful business practices or acts, as such conduct is ongoing and continues to this10 date.ll 55. As a direct and proximate result of the aforementioned acts and representations of12 Defendants, Defendants received and continue to hold monies rightfully belonging to Plaintiff and13 other similarly situated consumers. Further, consumers of the Fitbit ForcerM have been and continue to14 be physically injured by its use.15 56. Defendants have engaged in unlawful, unfair, and fraudulent business acts or practices,16 entitling Plaintiff to judgment and equitable relief against Defendants, as set forth in the Prayer for17 Relief. Pursuant to Business k Professions Code section 17203, as a result of each and every violation18 of the UCL, which are continuing, Plaintiff and the putative class are entitled to restitution from19 against Defendants.20 57. Defendants, through their acts of unfair competition, have unfairly acquired money21 from Plaintiff and members of the putative class. lt is impossible for the Plaintiff to determine the22 exact amount of money that Defendants have obtained without a detailed review of the Defendants23 books and records. Plaintiff requests that this Court restore this money to Plaintiff and the members of24 the Class and enjoin Defendants from continuing to violate the law as described above.25 58. Plaintiff further seeks an order requiring Defendants to make full restitution of all26 moneys wrongfully obtained and disgorge all ill-gotten revenues and/or profits, together with interest27 thereupon.28 ///

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1 59. Unless Defendants are enjoined from continuing to engage in the unlawful, unfair,2 fraudulent, untrue, and deceptive business acts and practices as described herein, consumers residing3 within California will continue to be exposed to and damaged by Defendants'nfair competition.4 60. Plaintiff also seeks an order requiring Defendants to undertake a public information

campaign to inform members of the putative class of its prior acts or practices.Third Cause of Action

Intentional Misrepresentation(Against All defendants)

61. Plaintiff realleges and incorporates by reference as though fully set forth herein the10 preceding paragraphs 1 thmugh 60.11 62. At a date presently unknown to Plaintiff, but at least within the four years prior to the12 filing of this action, and as set forth above, Defendants intentionally represented to the public,13 including Plaintiff, by online and print materials and by other means, that the Fitbit Forces a safe,14 hazard-free, effective wearable device and activity tracker.15 63. Defendants made the representations herein alleged with the intention of inducing the16 public, including Plaintiff, to purchase the Fitbit Force.17 64. Plaintiff and other similarly situated persons in California saw, believed, and relied18 upon Defendants'dvertising representations, and in reliance upon them, purchased the Fitbit Force,19 as described above.20 65. As a proximate result of the Defendants'ntentional misrepresentations, Plaintiff and21 other consumers similarly situated were induced to spend an amount of money to be determined at22 trial on the Fitbit Force.23 66. Plaintiff is informed, and believes and thereupon alleges that Defendants knew that the24 Fitbit Forcer~ was and is incomplete, insufficient, inadequate and incomprehensive because it causes25 an increased risk of skin irritation, rash, burns, blistering, bleeding, open wounds, cracking, peeling26 and boils from the Fitbit Force,et represented the complete opposite. Defendants intended that27 consumers and the unknowing public should and would and did rely on such representations and other28 representations as alleged herein. Plaintiff and other similarly situated consumers including the



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1 74. At all times relevant and material to this action, the Defendants designed, tested,2 manufactured, packages, marketed, advertised, distributed, promoted, and sold the Fitbit Force3 placing the products into the stream of commerce.4 75. At all times relevant and material, the Fitbit Forcer~ was designed, tested, inspected,5 manufactured, assembled, developed, labeled, sterilized, licensed, marketed, advertised, promoted,6 sold, packaged, supphed and/or distributed by Defendants in a defective and/or unreasonably7 dangerous condition.8 76. The Fitbit ForcerM was expected to reach, and did reach, users and/or consumers,9 including Plaintiff, without substantial change in the defective and/or unreasonably dangerous

10 condition.11 77. The Fitbit ForcerM was used by Plaintiff in the foreseeable manner normally intended,12 recommendedpromoted, and/or marketed by Defendants.13 78. The Fitbit Forceas defective and unreasonably dangerous when it entered the14 stream of commerce in one or more of the following particulars:151617

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The Fitbit Forceontained manufacturing defects in that caused and/orincreased the risk of experiencing an adverse cardiovascular event, including butnot limited to increased risk of skin irritation, rash, burns, blistering, cracking,peeling, bleeding, oozing, boils, and other physical injuries.The Fitbit ForcerM was not safe because the health risks associated with itoutweighed the benefits.The Fitbit Forceas marketed and promoted for use when it carried anunreasonable and unnecessary risk of injury.The Fitbit Forceas insufficiently and/or inadequately tested by Defendants.The Fitbit Forceas not safe due, in part, to inadequate and/or defectiveinstructions and inadequate and defective warnings provided by Defendants.The Fitbit Forceas marketed and promoted for use as safe when it was not.It was unreasonably dangerous in that, as designed, it failed to perform safelywhen used by ordinary consumers, including Plaintiff.

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g. The Fitbit Forceas unreasonably dangerous in that, as designed, the risks ofinjury posed by using the product exceeded any benefits the product wasdesigned to or might in fact bestow.

h. The Fitbit Forceas defective in design in that the product neither bore, norwas packaged with, nor accompanied by, warnings adequate to alert users,including Plaintiff, of the increased risks associated with using the productincluding, but not limited to, the risk of injury.

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i. The Fitbit Forcewas not accompanied by adequate warnings and/orinstructions for use that included inadequate information to fully apprise themedical, and/or scientific communities, and users and/or consumers of thepotential risks and side effects associated with using the product.

12 j. The Fitbit Forceas unsafe for normal or reasonably anticipated use. Saidproduct was defective and/or unreasonably dangerous in design, construction

14 and/or composition.k. The Fitbit Forcerw was defective and/or unreasonably dangerous because the

product did not conform to an express warranty of the manufacturer about theproduct.

I. The Fitbit Forcer i was defective and/or unreasonably dangerous due toinadequate warnings, testing and study, and inadequate reporting regarding the

20 results of the clinical trials, testing and/or study.2I 79. The Fitbit Force,s manufactured and supplied by the Defendants was defective due to

inadequate post-marketing warnings or instructions because, aAer Defendants knew or should have

24known of the risk of injuries from use, Defendants failed to provide adequate warnings to the communityand the consumers, to whom it was directly marketing and advertising; and, further, it continued to

25 affirmatively promote the Fitbit Forces safe and effective.26 80. A reasonable person who had actual knowledge of the increased risks associated with27 using the Fitbit Forceould have concluded that the FitBit Force product should not have been

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I 81. Despite the fact that Defendants knew or should have known of the defective nature2 of the Fitbit Force,efendants continued to design, manufacture and sell the Fitbit ForcerM so as3 to maximize sales and profits at the expense of the public health and safety. Defendants thus acted4 with conscious and deliberate disregard of the foreseeable harm caused by the Fitbit ForcerM.5 82. Plaintiff could not, through the exercise of reasonable care, have discovered the risk of6 injury associated with and/or caused the Fitbit Force.7 83. As a direct and proximate cause of the defective and/or unreasonably dangerous8 condition of the Fitbit Forcer~, the product was used by Plaintiff. As a result, Plaintiff suffered the9 injuries and damages alleged herein.10 84. Information given by Defendants to the consumers concerning the safety and efftcacy of11 the Fitbit Force~, especially the information contained in the advertising and promotional material,12 did not accurately reflect the risks associated with using the product.13 85. Had adequate information regarding the safety of the products been provided to14 Plaintiff, she would not have used the Fitbit Force' . Had adequate warnings and/or instructions15 been provided, Plaintiff would not have used the Fitbit Force.16 86, Defendants acted with conscious and'or deliberate disregard of the foreseeable harm17 caused by use of its products.IS 87. As a direct and proximate consequence of Defendants negligence, willful, wanton,19 and/or intentional acts, omissions, misrepresentations and/or otherwise culpable acts Plaintiff suffered20 the injuries and damages alleged herein.21 88. Plaintiffs demand judgment against Defendants and seek compensatory, exemplary22 and punitive damages, together with interest, the costs of suit and attorneys'ees and such other and23 further relief as this Court deems just and proper,24 ///25 ///26 ///27 ///28 ///

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Sixth Cause of ActionNegligence

(Against All Defendants)

89. Plaintiff realleges and incorporates by reference as though fully set forth herein the5 preceding paragraphs 1 through 88.6 90. Defendants negligently manufactureddesigned, tested, researched, developed, labeled7 packaged, distributed, promoted, marketed, advertised, and sold the Fitbit Forcen this district and8 thmughout the United States.9 91, At all times relevant and material hereto, Defendants had a duty to exercise reasonable10care in the design, manufacture, research and development, testing, pmcessing, advertising, marketing,ll labeling, packaging, distribution, promotion and sale of the Fitbit Force.12 92. Defendants breached their duty and were negligent in their actions, misrepresentations,13 and omissions in numerous ways including the following:14 a. Failing to test the Fitbit Forceroperly and thoroughly before releasing the15 product on the market;16 b. Failing to analyze properly and thoroughly the data resulting from the prc-

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marketing tests of the Fitbit Force;Failing to report to the general public those data which indicated risks associatedwith using the product;Failing to conduct adequate post-market monitoring and surveillance ofthe Fitbit Forcer~ and analysis of adverse events;Designing, manufacturing, marketing, advertisingdistributing, and selling theFitbit Forceo consumers including Plaintiff, without an adequate warning ofrisks associated with using the products and without proper and/or adequateinstructions to avoid the harm which could foresee ably occur as a result of usingthe product;Failing to exercise due care when advertising and promoting the Fitbit Force;

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g. Negligently continuing to manufacture, market, advertise, and distribute theFitbit ForceAer Defendants knew or should have known of the risks ofserious injury and/or death associated with using the products;

h. Failing to use due care in the preparation, design and development of the FitbitForceo prevent and/or avoid and/or minimize the risk of injury to individualswhen the product was used;

i. Failing to conduct adequate testing and research, post-marketing surveillance,and exposure studies to determine the safety of the Fitbit ForcerM;

j. Failing to completely, accurately and in a timely fashion, disclose the resultstesting and surveillance and testing to Plaintiff, consumers, the medicalcommunity;

k. Failing to accompany the Fitbit Forcer~ with proper warnings regarding all13 possible risks associated with using the product;

1. Failing to use due care in the manufacture, inspection, and labeling of the FitbitForceo prevent risk of injuries to individuals who used the products:

m. Failing to use due care in the promotion and selling of the Fitbit Force' ~ to17

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prevent the risk of injuries to individuals when the product was used;Failing to provide adequate and accurate training and information to those whosold the products;Failing to provide adequate and accurate training and information to consumersabout the Fitbit ForceFailing to educate non-defendant entities and the public about the safest use ofthe product;Failing to give non-defendant entities adequate information to weigh the risks ofinjury associated with the product;Failing to test and inspect the Fitbit Forcen a reasonable manner in order toascertain whether or not it was safe and proper for the purpose for which it wasdesigned, manufactured, and sold;

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s. Failing to utilize and implement a reasonably safe design in the manufacture ofthe Fitbit Force

u. Failing to label the Fitbit Forceo adequately warn the Plaintiff of theincreased risk of injury associated with the product including an increased risk ofskin irritation, rash, burns, blistering, cracking, peeling, boils, bleeding, openwounds, itching and other physical injuries;

v. Defendants knew or should have known that the Fitbit Forcer~ had unreasonablerisks and caused side effects of'which Plaintiff would not have been aware.

9 93. Defendants advertised, marketed, sold and dismbuted the Fitbit Force'iM despite the fact10 that the Defendants knew or should have known of the increased risks associated with using the product.11 94. Defendants had a duty to warn its customers, the medical community and public about the12 increased risks of injury and refused to do so placing profits, stock options and bonuses ahead of13 consumer safety.14 95. Defendants knew or should have known that the Fitbit Forcead unreasonably15 dangerous risks ofwhich consumers would not be aware. Defendants nevertheless advertised, marketed,16 sold and distributed the Fitbit Force.17 96. Despite the fact that Defendants knew or should have known that the Fitbit Force18 increased the risk of injury, Defendants continued to manufacture, market, advertise, promote, sell and19 distribute the Fitbit Forceo consumers, including Plaintiff.20 97. Defendants recklessly, and/or negligently represented to Plaintiff, as well as all21 consumers, and those who Defendants knew would justifiably rely and accept, that the Fitbit Force22 was safe that the utility of it outweighed any risk in use for their intended purposes.23 98. Defendants recklessly and/or negligently failed to disclose to Plaintiff, and others,24 important safety and efficacy information, thereby suppressing material facts about the Fitbit Force25 while having a duty to disclose such information, which duty arose from their actions ofmaking,26 marketing, promoting, distributing and selling the Fitbit Forces alleged.27 99. Defendants led Plaintiff to rely upon the safety of the Fitbit Forcen its use.28 ///

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100. Defendants'alse representations were recklessly and/or negligently made in that theFitbit Forcen fact caused injury, was unsafe, and the benetits of its use was far outweighed bythe risk associated with use thereof.

101. Defendants knew or should have known that its representations and/or omissionswere false. Defendants made such false, negligent and/or reckless representations with the intentor purpose that Plaintiff, and any consumer would rely upon such representations, leading to the useof the Fitbit Forces described.

102. Defendants recklessly and/or negligently misrepresented and/oromitted informationwith respect to the Fitbit Forces set forth above.

10 103. Defendants omitted, suppressed and/or concealed material facts concerning the dangersand risk of injuries associated with the use of the Fitbit Forcer~. Furthermore, Defendants'urpose

12 was willfully blind to, ignored, downplayed, avoided, and/or otherwise understated the nature of therisks associated with the Fitbit Force~ in order to increase sales.

14 104. At the time Defendants made these misrepresentations and/or omissions, they knew or15 should have known that the Fitbit ForceTM was unreasonably dangerous.16 105. Defendants'isrepresentations and/or omissions were undertaken with an intent that17 Plaintiff rely upon them.

106. As a direct and proximate consequence ofDefendants'egligent, willful, wanton,19 and'or intentional acts, omissions, misrepresentations and/or otherwise culpable acts described herein,20 Plaintiff sustained injuries and damages as alleged herein.

107. Had Plaintiff been aware of the increased risk of injury associated with the FitbitForcend the relative efficacy of the Fitbit ForcerM compared with other readily available products,

23 Plaintiff would not have used the Fitbit Force.108. As a direct and proximate consequence ofDefendants negligence, willful, wanton,26

and/or intentional acts, omissions, misrepresentations and/or otherwise culpable acts describedherein, Plaintiff sustained the injuries and damages alleged herein.

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WHEREFOREPlaintiff demands judgment against Defendants and seeks compensatorydamages, and exemplary and punitive damages together with interest, the costs of suit and

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and such other and further relief as this Court deems just and proper.

KOlilTABLE TOLLING ALLEGATIONS109. At all times relevant herein when Defendants induced Plaintiff and members of the

Class to purchase the Fitbit Forcehrough misleading misrepresentations and under false pretenses,Def'endants concealed relevant facts that would have allowed Plaintiff to discovery the false andmisleading misrepresentations. As a result of these misrepresentations, equitable tolling of the statute

10 of limitations applies as to the claims asserted by Plaintiff and the Class. Any applicable statute oflimitations that might otherwise bar certain of the claims at issue should be tolled because Defendants

12 actively misled Plaintiff and the Class with respect to the true nature, quality, and hazards of use of the13 Fitbit Forces described herein and above.14 110. Plaintiff and members of the Class exercised due diligence to discover

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wrongdoing. However, such wrongdoing and/or the full extent and degree of such wrongdoing wasnot discoverable prior to the date of the filing of this action and/or prior to four years prior to the filing

17 of this action since Defendants concealed their wrongdoing through misrepresentation. Plaintiffexercised due diligence by promptly filing this Complaint after discovering the facts giving rise to

19 these claims.CLASS ACTION ALLEGATIONS

111. PlaintitI'and the members of the Class have all suffered injury in fact as a result of theDefendants'nlawful and misleading conduct.

112. The ' Class Period*'eans four years prior to the filing of this action.24 113. Plaintiff brings this lawsuit on behalf of himself and the other current residents of25 California who purchased the Fitbit Forcehile residents California and who are similarly situated26 under Code of Civil Procedure section 382. Subject to additional information obtained through further27 investigation and/or discovery, the proposed Class'* consists of the following:28



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1 All current residents of California who purchased the Fitbit Forcern while a resident of2 California within four years prior to the filing of this action.3 Excluded Rom the putative class are Defendants and their officers, directors, and employees. Plaintiff4 reserves the right to modify or amend the Class definition before the Court determines whether5 certification is appropriate.6 114. Ascertainability. The members of the Class are readily ascertainable by resort to7 Defendants'ecords and/or Defendants'gents'ecords including but not limited to partner records,g as well as through puMic notice,9 115. Numerosity. The members of the Class are so numerous that their individual joinder is

10 impracticable. Plaintiff is informed and believes, and on that basis alleges, that the proposed Class11 contains several thousands ofmembers.12 116. Existence and predominance of Common Questions of Law and Fact. Common13 questions of law and fact that exist as to all members of the Class predominate over any questions14 affecting only individual class members. All members of the Class have been subject to the same15 conduct and their claims are based on the standardized marketing, advertisements and promotions.16 The common legal and factual questions include, but are not limited to, the following:17 a.

19 b.2021 c.22

23 e.24 f.2526 g.27

Whether Defendants marketed the Fitbit Forccrn as a safe, comfortable, and effectivedevice;Whether Defendants'laims alleged herein are untrue, misleading, or reasonably likelyto deceiveWhether Defendants concealed or omitted a material fact;Whether the Fitbit Force~ is an unreasonably dangerous product;Whether the Fitbit ForcerM, if used as intended, causes injury:Whether Defendants'onduct is an unlawful act or practice within the meaning ofCalifornia Business and Professions Code section 17200, et seqqWhether Defendants'onduct is a deceptive act or practice within the meaning ofCalifoinia Business and Professions Code section 17200, et seq.;

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I h. Whether Defendants conduct is an unfair act or practice within the meaning ofCalifornia Business and Professions Code section 17200, cr seq.;

3 i. Whether Defendants'dvertising and marketing is untrue or misleading within themeaning ofCalifornia Business and Professions Code section 17500;

5 j. Whether Defendants, through its conduct as alleged herein, received money that, inequity and good conscience, belongs to Plaintiff and members of the Class; and,

7 k. Whether Plaintiff and proposed members of the Class are entitled to injunctive relief,restitution, and/or disgorgement ofDefendants* unjust profits.

9 117. Typicality. Plaintiff's claims are typical of the claims of the members of the Class in10 that Plaintiff is a member of the Class that Plaintiff sees to represent. Plaintiff, like members of the11 proposed Class, purchased the Fitbit Forceller exposure to virtually the same material12 misrepresentations and/or omissions appearing on the Fitbit, Inc. website and in printed materials and13 purchased a product that was inadequate and hazardous. Defendants have no defenses unique to14 Plaintiff.15 118. Adequacy of Representation. Plaintiff will fairly and adequately protect the interests16 of the members of the Class. Plaintiff has retained counsel experienced in consumer protection laws,17

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including class actions. Plaintiff has no adverse or antagonistic interests to those in the Class and v:ill18 'airly and adequately protect the interests of the Class. Plaintiff's attorneys are aware of no interests19 adverse or antagonistic to those of the Plaintiff and proposed Class.20 119. Superiority. A class action is superior to all other available means for the fair and21 efficient adjudication of this controversy. Individualized litigation would create the danger of22 inconsistent or contradictory judgments arising from the same set of facts. Individualized litigation23 would also increase the delay and expense to all parties and the court system and the issues raised by24 this action. The damages or other financial detriment suffered by individual Class members may be25 relatively small compared to the burden and expense that would be entailed by individual litigation of26 the claims against the Defendants. The injury suffered by each individual member of the proposed27 class is relatively small in comparison to the burden and expense of individual prosecution of the28 complex and extensive litigation necessitated by Defendants'onduct. It would be virtually

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I impossible for members of the proposed Class to individually redress effectively the wrongs to them.2 Even if the members of the proposed Class could afford such litigation, the court system could not.3 Individualized litigation increases the delay and expense to all parties, and to the court system,4 presented by the complex legal and factual issues of the case. By contrast, the class action device5 presents far fewer management difficulties, and provides the benefits ol'single adjudication, economy6 of scale, and comprehensive supervision by a single court. Therefore, a class action is maintainable7 under Civil Code section 382.8 120. Unless a class is certified, Defendants will retain monies received as a result of9 Defendants'nlawful and deceptive conduct alleged herein. Unless a class-wide restitution is

10 permitted as compensation and as a deterrent, Defendants will also likely continue to misrepresent the11 safety of its product and make material omissions in an unlawful and misleading manner, and12 members of the Class will continue to be misled and denied their rights under California law.13 121. Further, Defendants have acted or refused to act on grounds that are generally14 applicable to the class so that declaratory and injunctive relief is appropriate to the Class as a whole,15 making class certification appropriate under Civil Code ll 382.

PRAYER FOR RELIEF17 WHEREFORE, Plaintiff prays that judgment be entered against Defendants, and each of them,18 and that Plaintiff and the Class members be awarded equitable relief, and damages under all other19 causes of action, from Defendant, and each of them, as follows:2021

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a. Certifying the Class as requested herein;b. Under all Causes of Action as allowable by law, a temporary, preliminary and'or

permanent order for injunctive relief requiring Defendants to (1) discontinueadvertisingmarketing, and pmmoting the Fitbit Forces a safe, hazard-free; (2)disclose the true risks posed by the Fitbit ForcerM including but not limited to anincreased risk of skin irritation, rash, burn, blistering, bleeding, skin cracking, skinpeeling, boils, and other physical injuries; (3) undertake an immediate publicinformation campaign to inform members of the Class as to Fitbit lnc.'s priorpractices; and (4) correct any erroneous impression consumers may have derived



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concerning the nature, characteristics, or qualities of the Fitbit Force,ncludingwithout limitation, the placement of corrective advertising and providing writtennotice to the public.;

c. Under the First through Fourth Causes of Action, an order requiring imposition of aconstructive trust to pay restitution to Plaintiff and all members of the Class and torestore to the Plaintiff and all members of the Class all funds acquired by means ofany act or practice declared by this Court to be an unlawful, fraudulent, or unfairbusiness act or practice, in violation of laws, statutes, or regulations, or constitutingunfair competition;

d. Distribution of any monies recovered on behalf of members of the Class via fluidrecovery or cy pres recovery where necessary and as applicable, to preventDefendants from retaining the benefits of their wrongful conduct;

e. Statutory post-judgment interest allowable by law;f. Costs of this suit allowable by law;g, Reasonable attorneys'ees pursuant to, inter alia, Califorma Code of Civil

Procedure section 1021.5,as allowed by law; and,h. Awarding any and all other relief that this Court deems necessary or appropriate.

18 DATED: March 172014192021

COMEZ TRI L.ATTORNEYSBy: Jot&1.GomezJohn P. FiskeBibianne U. Fell

23STARK dk STARKJohn A. CorrStephen A. CorrIan S.Abovitz

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FOOTE, MIELKE, CHAVEZ Ec O'EIL, LLCRobert M. FooteKathleen C. ChavezAttorneys for Plaintiff

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Trial bv Jurv2 Pursuant to the Seventh Amendment to the Constitution of the United States ofAmerica,3 Plaintiff is entitled to, and demands, a trial by jury,

DATED: March 17, 20145 GOMEZ TRIAL,ATTOI&1EYSBy: 'V. V~

John Itl. G~ezJohn P. FiskeBibianne U. FellSTARK dk STARKJohn A. CorrStephen A. Corrlan S.Abovitz

121314

FOOTE, MIELKE, CHAVEZ dk O'EIL, LLCRobert M. FooteKathleen C. ChavezAttorneys for Plaintiff

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fitbit lawsuit seeks class-action status

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