John H. Gomez (SBN 171485) John P. Fiske (SBN 249256) Bibianne U.

Fell (SBN 234194)

GOMEZ TRIAL ATTORNEYS 655 West Broadway, Suite 1700 San Diego, California 92101 Telephone: (619) 237-3490 Facsimile: (619) 237-3496
John A. Corr (Pro Hac Vice Pending) Stephen A. Corr (Pro Hac Vice Pending) lan S. Abovitz (Pro Hac Vice Pending)

STARK & STARK 777 Township Line Road, Suite 120

Yardley, PA 19Q67

1Q

(267) 907-9600 (Telephone) (26?) 907-9659 (Facsimile)

Robert M. Foote (Pro Hac Vice Pending) Kathleen C. Chavez (Pro Hac Vice Pending)

12

14
15

FOOTE, MIKLKK, CHAVEZ & O'NEIL, LLC 10 West State Street, Suite 200 Geneva, IL 60134 Telephone: (630) 232-7450 Facsimile: (630) 232-7452
Attorneys for Plaintiff

i6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
18
IN ANID FOR THE COUNTY OF SAN DIEGO

19
JIM SPIVEY, on behalf of himself and all others
similarly situated;

22

Plaintiff,

24
25

FITBIT, INC4 and DOES

inclusive,
Defendants.

through 100,

) Case Noz ) ) CLASS ACTION COMPLAINT FOR: ) ) 1. False Advertising Bus. & Prof. Code ) IJ 17500, et ) 2. Unfair Competition Bus. &. Prof. Code ) 17200, et seq. tt )

st.

3. Intentional Misrepresentation
4. Negligent Misrepresentation 5. Strict Products LiabiTity 6. Negligence

) )
)

)
28
'll 11% 111111 Allot. Ill

) DEMAND FOR A JURY TRIAL

CLASS ACTION COMPLAINT

Plaintiff Jim Spivey,

following:

on behalf

of himself

and

all others

similarly

situated,

alleges

the

INTRODUCTION

4
5
similarly

1.

JIM SPIVEY, ("Spivey" or "Plaintiff',

individually

and

on behalf

of

all others

situatedbrings

this Complaint
with

to challenge

the actions

of FITBIT INC. ("Fitbit"'r

false and
promotion,

6
7
8

"Defendant" collectively

Does 1-100, "Defendants" ) with regard to Defendant's

misleading promotion and advertisement

marketing, and selling

of its Fitbit

Force. The

nationwide

advertising,

of the

Fitbit Forcer~ constitute a violation

of California's False advertising Law

Unfair Competition
Law

9
10
11
12

("FAL"), Business
("UCL"), Business
misrepresentation,

and Professions
and Professions

Code Code

ss

17500, er seq.; California's

tj

17200, er seq., common law negligent

and intentional

and strict products

liability. This conduct caused Plaintiff and the putative

class

members damages, and requires restitution to remedy and/or prevent further damages.

JURISDICTION AND VENUE

14
15

2.
California.

This Court has jurisdiction over this matter because Plaintiff Jim Spivey is a citizen of

16 17
18

3.

This Court has personal

jurisdiction

over the Defendants

because Defendants

do

business in California> Defendants

avail

have minimum
in this

contacts in California, and otherwise purposefully

the research,

themselves

of

the markets

state through

development,

manufacture,

19

promotionadvertising,

sale, and marketing

of the

product in California,

to render the exercise of

20
21

jurisdiction by this Court permissible under traditional notions of fair play and substantial justice.

4.

Venue is further proper in this Court in that the subject acts and transactions

giving risc

22

to this action occurred in the County of San Diego for the following reasons;

a. Defendants

conduct business

in the County

of San Diego

and have intentionally

availed themselves

of the laws

and markets within San Diego County by selling the

25

Fitbit Forcer~ to consumers living there;

26

b. Defendants do substantial business within the County of San Diego;

c. Defendants are subject to personal jurisdiction

28
>>>>>Z TRIAL

in the County

of San Diego;

and

///

>">>

I-

CLASS ACTION COMPLAINT

d. The injury and harm to Plaintiff, a San Diego County resident, occurred within the
County

of San Diego because Plaintiff

purchased

the Fitbit

Force while

residing

there, wore it there, and suffered the injury while there.

5,

Plaintiff brings this action on behalf

California
residents

of current

California residents only, and on behalf

the Fitbit

of

those same current

who purchased

Forcer~'hile

a resident

of

California.

PARTIES

6.

Plaintiff Jim Spivey is a citizen

purchased the Fitbit

of the State of California

and a resident

of the

County

of San Diego. Plaintiff

10

Force~

in California, making venue proper in California.

7.
Delaware with

Defendant

FITBIT, INC, is a corporation

place

organized

and existing

under the laws

of

its principal

of business

in San Francisco. California

located at 150 Spear

12

Street, San Francisco, California

marketed
and distributed

94105. The Fitbit ForcerM is one of the products manufactured,

FITBf1', IlvC.
A Fitbit

by Defendant

Force is an

activity tracker: a
quality

14
15

wireless-enabled

wearable device that measures

data such as the number

of steps walked,

of

sleep, 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.

19

8.
inclusive,

The true names and capacities

whether
individual,

of the

defendants

named herein as Does I through

100,
to

20

corporate,

governmental,

associate

or otherwise,

are unknown

Plaintiff, who therefore sues such Defendants by fictitious names.

to allege their true names and capacities when ascertained,

Plaintiff will amend this complaint

Each of the Doe Defendants is responsible

23

in some mannereither

by act or omission, strict liability, Iraud, negligence

or otherwise,

for the

occurrences herein alleged, and Plaintiff's harm was legally caused by conduct

of the Doe Defendants.

At

25

Does I through 100, inclusive, are responsible to Plaintiff on thc facts and theories herein alleged.
all relevant times, each Defendant,

26

including those fictitiously named, was the agent, servant, and/or

employee

of each of the

remaining

Defendants,

and was acting within the course and scope

of said

28
GIAIE7 IMAI At1OR I'YS

agency and employment.

Each of the Defendants

is in some manner responsible

for the events and

-2CLASS ACTION COMPLAINT

happenings

to which reference is made herein, and each Defendant

caused injury and damage to

and are the acts

Plaintiff as herein alleged. The acts

Defendants.
Defendants,
and each

of Defendants

and each

of them were

of the

other

of themratified, authorizedand/or

approved

of the acts of the

other Defendants.

FACTUAL ALLEGATJOPIS

6
7
8

A.

Fitbit. Inc.

9.
Friedman.

Fitbit, inc. was founded in 2007 in San FranciscoCalifornia by James Park and Eric

9
10
11

10.

James Park and Eric Friedman also manage the company, as Chief Executive Officer

and Chief Technology Oflicer respectively.

11.

Fitbit, inc, is a company known for its products

of the same

name, which are activity

12
13

trackers, wireless-enabled
quality

wearable devices that measure data such as the number

of

steps walked,

of sleep,

and other personal metrics.

14
15

B.

The Force
12.
The

Fitbit

("Force") Force

is a product

designed,

developed,
the State

manufactured,

16 17 18

promoted, sold, advertised, distributed,

and marketed by Fitbit throughout

of California. The

Force product was launched and offered to the general public in the fall of 2013.

13.

Fitbit advertised

and marketed

its Force product

as "our most advanced

activity

19

tracker." The Fitbit Force was advertised as follows:

a. LED display shows you your stats on the go; wristband

your computer and leading smartphones

wirelessly

syncs stats to

so you can watch your trends over time;

b. %ster-resistant

wristband

records steps taken, distance traveled,

the day;

calories burned,

stairs climbed, and active minutes throughout

c. %hen
25

the day's over, track how long and how well you sleep, and wake with a

silent vibrating alarm that won't disturb your partner;

26
27 28
Ill

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

CLASS ACTION COMPLAINT

e. Set goals, view progress

and earn badges

from Fitbit; share and compete with

friends and family throughout

the day; and

f. The Fitbit Force Activity+ Sleep wristband features a rechargeable battery. 4

14.

There are two Force sizes:

a. Small: fits wrists 5.5 to 6.9 inches; and

b. Large: fits wrists 6.3 to 8.2 inches.

7 8

15.

At no time during the promotion,

did Fitbit warn

marketing,

advertising,

distributing,

or selling of the
health

Fitbit Force product

its customers

or the general

public

of

any adverse

consequences such as skin imtation, rashes, burns, blisters, cuts, boils, open wounds, redness, itching,

10
11

cracking, peeling, or any other physical injuries.

16.
wellness
improvmg

Fitbit promoted, marketed,

advertiseddistributed,
interested

and sold the Fitbit as a health and

12
13

product

to consumers

specifically

in tracking,

monitoring,

measuring,

and

their overall health and wellness.

14
15 16
included

17.

When

worn

and operated

as intended,

the Force product

causes physical

injuries

but not limited to skin irritation,

rashes, burns, blisters, cuts, boils, open wounds,

redness,

itching. cracking, peeling, or any other physical injuries.

17
18
only

18.

Defendant

Fitbit admits

in an online

website,

www.fitbit.corn/forcesupport,
we care about every one

"While

1.7% of Force users have reported

any type

of skin

irritation,

of our

19

customers. On behalf

of the

entire Fitbit team, I want to apologize to anyone affected."

20
21

C.

Fltblt. Inc,'s Misrepresentations

and False Advertising

19.
wireless-enabled

Fitbit, Inc. advertises the Fitbit

Force as the

latest in their line

of activity

trackers,

22

wearable devices that measure data such as the number

of steps

walked, quality

of

23

sleep, and other personal metrics.

24
25

20.

Fitbit, Inc. lures its customers in by advertising

the newest and most up to date activity

in

trackers, including the Fitbit

Force~,

as a device one can safely wear all day every day, including

26 27
28

the shower and while sleeping.

21.

Fitbit, Inc. advertises

that the Fitbit Forcer~ is a safe, comfortable,

non-hazardous

device one can wear on his/her wrist in order to monitor particular activity levels.
4

CLASS ACTION COMPLAINT

22.

Fitbit, Inc. did not warn Plaintiff, its consumers or the public

of the physical,

bodily,

health or safety dangers

of using the product, including any physical injuries.

23.

Fitbit, Inc. advertised the safety

of the

Fitbit Force product.

4
5

D.

Plaintiff Jim Snivev

24.

Upon seeing advertisements

and marketing/promotion

materials,

Plaintiff Jim Spivey

6
7 8

purchased dte Fitbit

Force directly
of $ 139.70.

from Fitbit, Inc.'s website on or about January

2014.
$ 9.75 paid for

25.

Plaintiff purchased

the Fitbit Force'rM for $ 129.95, with an additional

sales tax, for a total

26. 27.
approximately

Plaintiff purchased the Fitbit Plaintiff

February
began
wearing

Force with
Fitbit
discontinued

a credit card.
upon

10
II

the

Force immediately
use/wear

receipt

up

until

of 2014. Plaintiff

of the Fitbit

Force at 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 to

14

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.

CAUSES OF'CTIOIvl
17 18
F'irst Cause of Action

California Business A Professions Code

tJ

17500, et seq.

19

(California's False Advertising I.aw)

(Against All Defendants)

21

29.

Plaintiff realleges and incorporates

I

by reference as though fully set forth herein the

22
23

preceding paragraphs

through

28.

30.
class.

Plaintiff brings this cause of action on behalf of himself and on behalf

of the

putative

24
25

31.

The misrepresentations,

acts, concealments,

and non-disclosures

by Defendants

of the

26 27

material facts detailed above constitute false and misleading

and Professions Code section 17500, et seq.

advertising

and therefore violate Business

MMI
A

'le.

I tM*l
IKS

-5CLASS ACTION COMPI.AINT

32.

At all times

relevant,

Defendants'dvertising

and promotion

regarding

the Fitbit

2
3

ForcerM was untrue, incomplete,

misleading,

and likely to deceive the public and/or has deceived the

Plaintiff and California consumers similarly situated by representing

wearable device, free

that the Fitbit

Force is a safe
alleged

4
5

of unreasonable risks of injury.

engaged in the false and/or misleading
advertising
and marketing

33.

Defendants

6
7
8

herein with the intent, to directly induce the purchase

of the Fitbit Forcer~.

34.

In making and disseminating

the statement and/or omissions alleged herein, Defendants

and/or

knew or should

have known

that the statements

omissions

were untrue

or misleading

or

9
10
11

incompleteand Defendants

acted in violation

of California

Business and Professions Code section

17500, et seq.

35.

Plaintiff and members

of the

putative class have suffered injury in fact and have lost

12
13

money or property and time and opportunity set forth herein. Plaintiff and members

as a result

of Defendants'alse

advertising,

as more fully

of the

putative class have been injured because the paid for the

14
15 16 17 18
19

Fitbit

Force unaware

that it was a defective device that increased the risk

of injury

through its use.

Plaintiff and members of the putative class have been injured because had they been made aware that
the Fitbit

Force was

a defective product that created an increased risk

of injury

to its users, they

would not have purchased the Fitbit

Force.
to Plaintiff, but at least within the four years prior to the
have committed acts

36.
filing

At a date presently unknown

of this actionand

as set forth above, Defendants

of untrue

and misleading

20
21

advertising

and promotion

of the Fitbit

Force, as
and

defined by California Business and Professions

Code section 17500, et seq., as alleged above.

22
23

37.
advertising

The fraudulent,

unlawful

unfair

business

practices

and false and

misleading
in that they

of Defendants, as described above,

presents a continuing

threat to consumers

24

will continues to mislead consumers

to purchase or keep the Fitbit

result

Force under

false pretenses.

25

38.

As a direct and proximate

of

the aforementioned

acts and representations

of

26
27
28
Otj IFZ TMAl

Defendants, Defendants received and continues to hold monies rightfully belonging to Plaintiff and the
putative class who did not receive complete reimbursement

for their Fitbit

Force~ or

compensation

for physical or emotional injuries.

wnv~

CLASS ACTION COMPLAINT

39,
fraudulent,

Unless Defendants
untrue,

are enjoined

from continuing

to engage in the unlawful,

unfair,

2
3

and deceptive business

acts and practices as described hereinconsumers residing

false advertising.

within California will continue to be exposed to and damaged by Defendants

Second Cause of Action

California Business

k Professions

Code

()

17200, er seq.

(California's Unfair Competition Law)

(Against All Defendants)
8

40.

Plaintiff realleges and incorporates

1

by reference as though fully set forth herein the

9
10
11

preceding paragraphs

through

39.
is defined in Business and Professions

41.
encompassing

"'Unfair competition"
any one

Code section 17200 as

are at issue here:

of the five

types

of business "wrongs,'*

three

of which

(1) an

12

"unlawful" business act or practice; (2) an "unfair" business act or practice; and (3) a "fraudulent"
business act or practice. The definitions
three "wrongs*'perates
independently
in section 17200 are disjunctive,

13

meaning

that each

of the

14
15 16

from the others.

42.
Professions
individual

Plaintiff and Defendants

are both "personjs]" as defined by California

a private
right

Business and
both an

Code section 17201. Section 17204 authorizes

and representative

of action on

17
18
19

basis.
to further Defendants'etdtimate
business

43.

There were reasonably available alternatives

interests, other than the conduct described herein.

20
21

44.

Plaintiff and the putative class reserve the right to allege other violations

of law,

which

constitute other unlawful

business practices or acts, as such conduct is ongoing and continues to this

22

date.

23

Unfair Prone

24
25

45.

Defendants'ctions

and representations

constitute an "unfair" business act or practice

injurious to consumers, offends public

under section 17200, in that Defendants

conduct is substantially

26 27
28

policy, and is immoral,

unethical,

oppressive,

and unscrupulous

as the gravity

of

the conduct

outweighs any alleges benefits attributable

to such conduct. Without limitation, it is an unfair business

and knowingly

act or practice for Defendants

to negligently

represent

to the consuming

public,

-7CLASS ACTION COMPLAINT

including

Plaintiff, that the Fitbit

Force is a safe,

effective, risk-free wearable device and activity

2
3

tracker when, in truth and in fact, and Defendants well knew, the Fitbit
risk

Force caused

an increased

of skin

irritation, rash, burns, blistering, bleeding, cracking, peeling, open wounds, and boils from

4
5

the Fitbit

Force. Defendants'usiness
are immoral,
unethical,
in that consumers

practices are unfair because they offend established

oppressive,
unscrupulous,

public

policy and/or
consumers

and'or

substantially

injurious

to

6 7
8

are led to believe that the Fitbit

Force is safe,

effective, and free of

such health hazards.

46.
filing

At a date presently unknown

to Plaintiff, but at least within the four years prior to the

9
10
11

of this

action, and as set forth aboveDefendants have committed acts

of unfair

competition

as

defined by Business and Professions Code section 17200, et seq. by engaging in the false advertising
and promotion

of the Fitbit

Force as fully

outlined above.

12

47.

Plaintiff and the putative class members could not have reasonably avoided the injury

13

suffered by each of them.

Plaintiff reserves the right to allege further conduct that constitutes other

14
15

unfair business acts or practices. Such conduct is ongoing and continues to this date.

48.

Defendants

could have and should have furthered their legitimate business interests by

16
17

expressly indicating that use

of the Fitbit Parce brought

with it an increased risk

of skin

irritation,

rash, burns, blistering, boils, cracking, peeling, and bleeding from the Fitbit

Force and

alternatively,

18

not selling an unreasonably

dangerous product.

Fraudulent

Prone
were false, misleading,
and/or likely to

49.
21

Defendants'laims

and misleading

statements

deceive the consuming

fraudulent

public within

the meaning

of

section 17200,

Without

limitation it is a

22

act or practice for Defendants to knowingly or negligently represent to Plaintiff, whether by

23

conduct, orally, or in writing by:

(1) intentionally

and misleadingly

advertising

the safety

of the Fitbit

24
25

Force~, (2)

intentionally

and misleadingly

minimizing
advertising

the reported the efficacy

injuries

caused by the Fitbit

ForcerM, (3) and intentionally

and misleadingly

of the Fitbit

Force.
other fraudulent

26

50.

Plaintiff reserves the right to allege further conduct that constitutes

27
28
(i<lMIJ fM
Al'tflR

business acts or practices. Such conduct is ongoing and continues to this date.

1:W

-sCLASS ACTION COMPLAINT

51.
2
advertising

The fraudulent,

unlawful,

and unfair

business

practices

and

false and misleading

in that they

of Defendants.

as described above, presents a continuing

threat to consumers

will continue to be misled into using the Fitbit

Force.
Prone

Unlawful
5

52.

As otherwise herein alleged, Defendants" conduct violates California law.

6
7 8

53.

There were reasonably available alternatives

to further Defendants'egitimate

business

interest, other than the conduct described herein,

54.

Plaintiff and the putative class reserve the right to allege other violations

of law,

which

9
10

constitute other unlawful

business practices or acts, as such conduct is ongoing and continues to this

date.

ll
12
13

55.
Defendants,

As a direct and proximate

Defendants

result

of

the aforementioned

acts and representations

belonging

of

received and continue to hold monies rightfully

to Plaintiff and

other similarly situated consumers. Further, consumers

of the Fitbit

ForcerM have been and continue to

14
15

be physically injured by its use.

56.
entitling

Defendants have engaged in unlawful,

and equitable

unfair, and fraudulent

business acts or practices,

16
17

Plaintiff to judgment

relief against Defendants,

as set forth in the Prayer for

Relief. Pursuant to Business

k Professions

Code section 17203, as a result

of each

and every violation

18
19

of

the UCL, which are continuing,

Plaintiff and the putative

class are entitled to restitution

from

against Defendants.

20
21

57.

Defendants,

through

their acts

of

unfair competition,

have unfairly

acquired money
the

from Plaintiff and members

of the

putative class.

lt is impossible

for the Plaintiff to determine

22

exact amount of money that Defendants have obtained without a detailed review

of the

Defendants"

23

books and records. Plaintiff requests that this Court restore this money to Plaintiff and the members of
the Class and enjoin Defendants from continuing to violate the law as described above.

24
25 26

58.

Plaintiff further seeks an order requiring

Defendants

to make full restitution

of

all

moneys wrongfully
thereupon.
///

obtained and disgorge all ill-gotten revenues and/or profits, together with interest

27
28
K Ml'J IRM Al'ftWIFY'I

9
CLASS ACTION COMPLAINT

59.
fraudulent,

Unless Defendants
untrue,

are enjoined

from continuing

to engage in the unlawful,

unfair,

2
3

and deceptive business acts and practices as described herein, consumers

residing

within California will continue to be exposed to and damaged by Defendants'nfair

competition.
a public information

60.

Plaintiff also seeks an order requiring

Defendants

to undertake

campaign to inform members

of the

putative class

of its

prior acts or practices.

Third Cause of Action

Intentional Misrepresentation
(Against All defendants)

61.
10
11

Plaintiff realleges and incorporates

1

by reference as though fully set forth herein the

preceding paragraphs

thmugh

60.
to Plaintiff, but at least within the four years prior to the

62.
filing

At a date presently unknown

12
13

of

this action, and as set forth above,

Defendants

intentionally

represented

to the public,

including

Plaintiff, by online and print materials and by other means, that the Fitbit

Force is a safe,
of inducing
the

14
15

hazard-free, effective wearable device and activity tracker.

63.

Defendants

made the representations

herein alleged with the intention

16 17
18

public, including Plaintiff, to purchase the Fitbit

Force.
persons in California

64.

Plaintiff and other similarly

representations,

situated

saw, believed,

and relied

upon Defendants'dvertising

and in reliance upon them, purchased the Fitbit

Force,

19

as described above.

20
21
22

65.

As a proximate result
similarly

of the Defendants'ntentional

misrepresentations,

Plaintiff and
determined
at

other consumers
trial on the Fitbit

situated were induced to spend an amount

of money to be

Force.
alleges that Defendants
and incomprehensive

23

66.

Plaintiff is informed, and believes and thereupon

inadequate

knew that the

24
25

Fitbit Forcer~ was and is incomplete, insufficient,

an increased risk

because it causes

of skin

irritation,

rash, burns, blistering,

bleeding,

open wounds, cracking, peeling

intended
that

26 27
28

and boils from the Fitbit

Force, yet
herein.

represented

the complete opposite. Defendants

consumers and the unknowing

representations
as alleged

public should and would and did rely on such representations

and other

Plaintiff and other similarly

situated

consumers

including

the

-10CLASS ACTION COMPLAINT

putative
detriment

class, in purchasing
and/or

the Fitbit

Force, did

rely on Defendants'epresentations,

all to their

damage,

as herein alleged.

By engaging in such acts, Defendants

are guilty

of

malice, oppression,

and fraud, and Plaintiff and the putative

class are therefore entitled to recover

exemplary or punitive damages.

Fourth Cause of Action

Negligent Misrepresentation

(Against All Defendants)

8

67.

Plaintiff reallcges and incorporates

1

by reference as though

fully set forth herein the

9
10
11

preceding paragraphs

through

66.
to Plaintiffbut within at least four years prior to the filing
represented

68.

At a ilate presently unknown

of this

action, and as set forth above, Defendants

to the public, including Plaintiff, with

12
13

online and print materials and by other means, that the Fitbit

Force is a safe,

hazard-free,

effective

wearable device and activity tracker,

14
15

69.

Defendants

made representations

herein

alleged

with the intention

of

inducing

the

public, including Plaintiff, to purchase the Fitbit

Force.
representations,
and in reliance on them,

16

70.

Plaintiff and other similarly situated persons, including the putative class in California

17
18

saw, believed, and relied upon the Defendants'dvertising

purchased the Fitbit

Force as described
times
relevant,

above.
Defendants
made

19
20

71.

At all

the

misrepresentations
to be true.

herein

alleged,

Defiendants had no reasonable grounds for believing the representations

72.
22

As a proximate result

of Defendants"

negligent misrepresentations,

Plaintiff and other

acts

consumers similarly situated were induced to purchase the Fitbit

Defendants, in an amount to be determined

Force, due

to the unlawful

of

23

at trial, during the Class Period as defined herein.

Fifth Cause of Action

25 26
27 28
(NW 7 R
I%I.
YL'

Strict Products Liability

(Against All Defendants)

73.

Plaintiff realleges
1

and incorporates

by reference as though

fully set forth herein the

preceding paragraphs

through

72.

)RM

IICLASS ACTION COMPLAINT

74.
manufactured,

At all times relevant

and material

to this action, the Defendants

promoted,

designed,

tested,

2
3

packages,

marketed,

advertised,

distributed,

and sold the Fitbit

Force,

placing the products into the stream

of commerce.
and material,

4
5

75.
manufactured,

At all times relevant

the Fitbit Forcer~ was designed,

tested, inspected,
promoted,

assembled,
supphed

developed,
and/or

labeled,

sterilized,

licensed, marketed,
in a defective

advertised,
and/or

6 7
8

sold,

packaged,

distributed

by Defendants

unreasonably

dangerous condition.

76.
including

The Fitbit ForcerM was expected to reach, and did reach, users and/or
Plaintiff,
without substantial

consumers,
dangerous

9
10
11

change

in the defective

and/or

unreasonably

condition.

77.

The Fitbit ForcerM was used by Plaintiff in the foreseeable manner normally intended,
and/or marketed by Defendants.

12

recommendedpromoted,

13

78.
stream

The Fitbit
in one

Force was

defective

and unreasonably

dangerous

when

it entered

the

14
15

of commerce

or more of the following particulars:

The Fitbit

Force contained
of experiencing

manufacturing

defects in that caused

and/or

16 17

increased the risk

an adverse cardiovascular

event, including but

cracking,

not limited to increased risk

of skin

irritation,

rash, burns, blistering,

peeling, bleeding, oozing, boils, and other physical injuries.

The Fitbit ForcerM was not safe because the health

risks associated

with it

20

outweighed

the benefits.

The Fitbit
unreasonable

Force was Force was

marketed

and promoted

for use when

it carried an

and unnecessary risk

of injury.
and/or inadequately

The Fitbit

insufficiently

tested by Defendants.
and/or

The Fitbit

Force was
and inadequate

not safe due, in part, to inadequate

and defective warnings

defective

25

instructions

provided by Defendants.

26

The Fitbit

Force was

marketed and promoted

for use as safe when it was not.

It was unreasonably

dangerous

in that, as designed,

it failed to perform safely

IIMI
ATM

MMIM'1728
II

when used by ordinary consumers, including Plaintiff.

CLASS ACTION COMPLAINT

g.

The Fitbit
injury

Force was

unreasonably

dangerous

in that, as designed, the risks

of

posed by using

the product

exceeded

any benefits

the product

was

designed to or might in fact bestow.

h.

The Fitbit

Force was
with,

defective in design in that the product neither bore, nor

by, warnings
risks associated
adequate
with

was packaged

nor accompanied

to alert users,

including

Plaintiff,

of

the increased

using the product

including, but not limited to, the risk

of injury.
by
adequate
warnings
and/or

i.

The Fitbit
instructions

Force was

not

accompanied
inadequate
and

for use that included

information

to fully apprise the

consumers

10

medical,

and/or

scientific communities,

users and/or

of

the

potential risks and side effects associated with using the product.

12

j.

The Fitbit
product

Force was

unsafe for normal or reasonably

and/or

anticipated
in design,

use. Said

was defective

unreasonably

dangerous

construction

14
k.

and/or composition.

The Fitbit Forcerw was defective and/or

unreasonably

dangerous

because the
about the

product did not conform to an express warranty

of the manufacturer

product.
I.

The Fitbit Forcer"i was defective

inadequate
warnings,

and/or

unreasonably

dangerous

due

to
the

testing and study, and inadequate

reporting

regarding

20
2I

results

of the

clinical trials, testing and/or study.

and supplied by the Defendants

79.
inadequate
known

The Fitbit
post-marketing
risk

Force, as manufactured
warnings

was defective due to

have

or instructions

because, aAer Defendants

knew or should

of the

of injuries

from use, Defendants

failed to provide adequate warnings to the community

and advertising;
and, further,

24
25

and the consumers,

to whom it was directly marketing

it continued

to

affirmatively

promote the Fitbit

Force as safe and

have concluded

effective.

26
27

80.

A reasonable

person who had actual knowledge

of the increased risks associated

with

using the Fitbit

Force would

that the FitBit Force product

should not have been

marketed and'or sold to consumers.

MME
n

nurse.

tel

13-

CLASS ACTION COMPLAINT

I
2

81.

Despite the fact that Defendants

knew or should have known

of

the defective nature

of

the Fitbit

Force, Defendants

continued

to design, manufacture

and sell the Fitbit ForcerM so as

to maximize sales and profits at the expense

with conscious and deliberate

of the

public health and safety.

Defendants

thus acted

4
5

disregard

of the

foreseeable harm caused by the Fitbit ForcerM.

82.

Plaintiff could not, through the exercise of reasonable care, have discovered the risk of

6
7 8

injury associated with and/or caused the Fitbit

Force.
of
the defective
and/or

83.
condition

As a direct and proximate

cause

unreasonably

dangerous

of the Fitbit Forcer~,

the product was used by Plaintiff.

As a result, Plaintiff suffered the

9
10

injuries and damages alleged herein.

84.
the Fitbit

Information

given by Defendants
the information

to the consumers concerning the safety and efftcacy of

contained
in the advertising

11
12

Force~, especially

and promotional

material,

did not accurately reflect the risks associated with using the product.

13

85.
Plaintiff,

Had

adequate

information

regarding

the safety

of the products
warnings

been provided
and/or

to

14
15
16

she would not have used the Fitbit

Force'"". Had adequate

instructions

been provided,

Plaintiff would not have used the Fitbit

Defendants

Force.
disregard

86,
caused by use

acted with conscious and'or deliberate

of

the foreseeable harm

17

of its products.
As a direct and proximate

IS
19
20
21

87.

consequence

of Defendants

negligence,

willful,

wanton,

and/or intentional

acts, omissions, misrepresentations

and/or otherwise culpable acts Plaintiff suffered

the injuries and damages alleged herein.

88.
and punitive

Plaintiffs

demand

judgment

against

Defendants

and seek compensatory, and

exemplary

22

damages, together with interest, the costs

of suit

attorneys'ees

and such other and

23

further relief as this Court deems just and proper,

///
///

24
25

26 27
28
MWIC 1MAI Ai It)l kYi

///
///

///

14

CLASS ACTION COMPLAINT

Sixth Cause of Action

Negligence

(Against All Defendants)

89.
5

Plaintiff realleges and incorporates by reference as though fully set forth herein the
1

preceding paragraphs

through 88.

90.
7

Defendants negligently

manufactureddesigned,

tested, researched, developed, labeled

packaged, distributed, promoted, marketed, advertised, and sold the Fitbit

Force in this

district and

8
thmughout

the United States.

9
91,
10
care in the design, manufacture,
research and development,
promotion and sale
At all times relevant and material hereto, Defendants had a duty to exercise reasonable

ll
labeling, packaging, distribution,

testing, pmcessing, advertising,

marketing,

of the Fitbit

Force.

12

92.
13

Defendants breached their duty and were negligent in their actions, misrepresentations,
ways including the following:

and omissions in numerous

14
a.
15
product on the market;

Failing to test the Fitbit

Force properly

and thoroughly

before releasing the

16
b.
Failing to analyze properly and thoroughly
marketing tests

the data resulting from the prc-

of the

Fitbit

Force;

Failing to report to the general public those data which indicated risks associated

19
with using the product;

Failing to conduct adequate post-market monitoring and surveillance

of

21
the Fitbit Forcer~ and analysis

of adverse

events;
and selling the

Designing, manufacturing,

marketing,

advertisingdistributing,

Fitbit

Force to consumers

including Plaintiff, without an adequate warning

of

24
risks associated with using the products and without proper and/or adequate

25
instructions

to avoid the harm which could foresee ably occur as a result

of using

the product;

27
Failing to exercise due care when advertising
and promoting the Fitbit

Force;

28
N3tll

TRIAI.

KANS'tA

-15CLASS ACTTON COMPLAtNT

g.

Negligently

continuing to manufacture,

market, advertise, and distribute the

Fitbit

Force aAer

Defendants knew or should have known

of the risks of

serious injury and/or death associated with using the products;

h.

Failing to use due care in the preparation,

design and development

of the

Fitbit

Force to prevent
i.

and/or avoid and/or minimize the risk

of injury

to individuals

when the product was used;

Failing to conduct adequate testing and research, post-marketing

and exposure studies to determine the safety

surveillance,

of the Fitbit

ForcerM;

j.

Failing to completely, accurately and in a timely fashion, disclose the results

testing and surveillance
community;
and testing to Plaintiff, consumers, the medical

12

k.

Failing to accompany the Fitbit Forcer~ with proper warnings regarding all

13
1.

possible risks associated with using the product;

Failing to use due care in the manufacture,

inspection, and labeling

of the

Fitbit

Force to prevent
m.
17
prevent the risk

risk

of injuries

to individuals

who used the products:

Failing to use due care in the promotion and selling

of the Fitbit Force'"~

to

of injuries

to individuals

when the product was used;

Failing to provide adequate and accurate training and information to those who
sold the products;
2Q

Failing to provide adequate and accurate training and information

about the Fitbit

to consumers

Force
entities and the public about the safest use

Failing to educate non-defendant

of

23

the product; Failing to give non-defendant

entities adequate information

to weigh the risks

of

25

injury associated with the product;

26

Failing to test and inspect the Fitbit

Force in a reasonable

manner in order to

ascertain whether or not it was safe and proper for the purpose for which it was
designed, manufactured,
Vl I&2 Ail 1R,EM

and sold;

le

-16CLASS ACTION COMPLAINT

s.

Failing to utilize and implement

the Fitbit

a reasonably safe design in the manufacture

of

Force Force to adequately

warn the Plaintiff

u.

Failing to label the Fitbit

increased risk

of the
of

of injury associated

with the product including an increased risk

skin irritation, rash, burns, blistering, cracking, peeling, boils, bleeding, open

wounds, itching and other physical injuries;

v.

Defendants knew or should have known that the Fitbit Forcer~ had unreasonable

risks and caused side effects of'which Plaintiff would not have been aware.

9
10
11

93.

Defendants advertised, marketed, sold and dismbuted

the Fitbit Force'iM despite the fact

that the Defendants knew or should have known

of the increased

risks associated with using the product.

and public about the

94.
increased risks

Defendants had a duty to warn its customers, the medical community

12

of injury

and refused to do so placing profits, stock options and bonuses ahead

of

13

consumer safety.

14
15 16 17 18

95.
dangerous risks

Defendants knew or should have known that the Fitbit

Force had

unreasonably

of which consumers

would not be aware. Defendants nevertheless

advertised, marketed,

sold and distributed the Fitbit

Force.

96.

Despite the fact that Defendants knew or should have known that the Fitbit

Force

increased the risk of injury, Defendants continued to manufacture,

distribute the Fitbit

market, advertise, promote, sell and

19

Force to consumers,

including Plaintiff.

20
21

97.

Defendants recklessly, and/or negligently

represented to Plaintiff, as well as all

consumers, and those who Defendants knew would justifiably rely and accept, that the Fitbit
was safe that the utility

Force

22

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,

material facts about the Fitbit

24
25

important safety and efficacy information,

thereby suppressing

Force

while having a duty to disclose such information,

which duty arose from their actions

of making,

26
27 28
Ik/
IRIAf

marketing, promoting,

distributing

and selling the Fitbit

99.
///

Defendants led Plaintiff to rely upon the

Force as alleged. safety of the Fitbit Force in its use.

IIDA I

-17CLASS ACTION COMPLAINT

100.
Fitbit

Defendants'alse

representations

were recklessly

and/or

negligently

made in that the

by

Force in fact
101.

caused injury, was unsafe, and the benetits

of its

use was far outweighed

the risk associated

with use thereof.

Defendants knew or should have known that its representations

and/or

omissions

were false. Defendants

made such false, negligent

and/or

reckless representations

with the intent

or purpose that Plaintiff, and any consumer would rely upon such representations,

leading to the use

of the Fitbit
102.

Force as described.
Defendants recklessly and/or
negligently

misrepresented

and/oromitted

information

with respect to the Fitbit

Force as set forth

with the use

above.
the dangers

10
and risk

103.

Defendants omitted, suppressed and/or concealed material facts concerning

of injuries associated

of the Fitbit Forcer~.

Furthermore,

Defendants'urpose
the nature

12

was willfully blind to, ignored, downplayed,

avoided, and/or otherwise understated

of the

risks associated with the Fitbit

Force~

in order to increase sales.

14
15

104.

At the time Defendants made these misrepresentations

and/or omissions, they knew or

should have known that the Fitbit ForceTM was unreasonably

dangerous.
with an intent that

16
17

105.

Defendants'isrepresentations

and/or omissions were undertaken

Plaintiff rely upon them.

106.
19

As a direct and proximate consequence of Defendants'egligent,

willful, wanton,

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 Fitbit

Force and
23

the relative efficacy

of the Fitbit ForcerM compared

with other readily available products,

Plaintiff would not have used the Fitbit

108.
and/or

Force.
consequence

As a direct and proximate

of Defendants"
and/or

negligence, willful, wanton,

culpable acts described

intentional

acts, omissions, misrepresentations

otherwise

26 27

herein, Plaintiff sustained the injuries and damages alleged herein.

'I IEZ NiAt I1QRNEY

-18CLASS ACTION COMPLAINT

WHEREFOREPlaintiff demands judgment against Defendants and seeks compensatory

damages, and exemplary and punitive damages together with interest, the costs
and such other and further relief as this Court deems just and proper.

of suit

and
attorneys'ees

KOlilTABLE TOLLING ALLEGATIONS

109.
At all times relevant

herein when Defendants

misleading

induced Plaintiff and members

of the

Class to purchase the Fitbit

Def'endants

Force through
As a result

misrepresentations

and under false pretenses,

concealed relevant
misrepresentations.

facts that would have allowed Plaintiff to discovery

the false and

misleading

of these

misrepresentations,

equitable tolling

of the

statute

10

of limitations
limitations

applies as to the claims asserted by Plaintiff and the Class. Any applicable

statute

of

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 the

13

Fitbit

Force as described
110.

herein and above.

14

Plaintiff and members

of

the Class exercised due diligence to discover

and/or

Defendants'5

wrongdoing.

However, such wrongdoing

the full extent and degree

of such wrongdoing

was

not 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

filing this Complaint

through

misrepresentation.

Plaintiff

exercised due diligence by promptly

after discovering

the facts giving rise to

19

these claims.

CLASS ACTION ALLEGATIONS

111. PlaintitI'and the members of the Class have

Defendants'nlawful
and misleading

all suffered injury in fact as a result

of the

conduct.

112.
24
25

The '"Class Period*'eans four years prior to the filing

this lawsuit

of this action.
residents

113. Plaintiff brings

on behalf

of himself

and the other current

of

California who purchased the Fitbit

under Code

Force while

residents California

and who are similarly

situated

26 27
28

of Civil

Procedure section 382. Subject to additional information

obtained through further

investigation

and/or discovery, the proposed "Class'* consists

of the following:

-19CLASS ACTION COMPLAINT

"All current residents of California who purchased the Fitbit Forcern while a resident of
California within four years prior to the filing

2
3

of this action."
Plaintiff
whether

Excluded Rom the putative class are Defendants and their officers, directors, and employees.
reserves
the right to modify

4
5 6 7
g

or amend the Class definition

before the Court determines

certification is appropriate.

114.

Ascertainability.
and/or

The members

of

the Class are readily

ascertainable

by resort to

Defendants'ecords

Defendants'gents'ecords

including but not limited to partner records,

as well as through puMic notice,

115.
impracticable.

Numerosity.

The members of the Class are so numerous that their individual joinder is

10
11

Plaintiff is informed and believes, and on that basis alleges, that the proposed Class

contains several thousands

of members.
of Common Questions of Law and Fact. Common of the Class
predominate

12

116.
questions

Existence and predominance

13

of law

and fact that exist as to all members

over any questions

14
15

affecting only individual

class members.

All members

of the Class have been subject to the same

marketing,

conduct and their claims are based on the standardized

advertisements

and promotions.

16 17

The common legal and factual questions include, but are not limited to, the following:

a.

Whether Defendants

marketed the Fitbit Forccrn as a safe, comfortable,

and effective

device;

19

b.

Whether Defendants'laims

alleged herein are untrue, misleading,

or reasonably likely

20
21
22

to deceive

c.

Whether Defendants concealed or omitted a material fact; Whether the Fitbit

Force~

is an unreasonably

dangerous product;

23

e.

Whether the Fitbit ForcerM, Whether

if used

as intended, causes injury:

24
25 26 27 28
///

f.

Defendants'onduct

is an unlawful

act or practice within the meaning

of

California Business and Professions Code section 17200, et seqq

g.

Whether

Defendants'onduct

is a deceptive act or practice within the meaning

of

Califoinia Business and Professions Code section 17200, et seq.;

7P

CLASS ACTION COMPI AINT

h.

Whether

Defendants"

conduct

is an unfair

act or practice within

the meaning

of

California Business and Professions Code section 17200, cr seq.;

3

i.

Whether
meaning

Defendants'dvertising

and marketing

is untrue

or misleading

within

the

of California Business
Defendants,
through

and Professions Code section 17500;

j.
k.

Whether

its conduct as alleged herein, received money that, in

equity and good conscience, belongs to Plaintiff and members

of the Class;

and,

Whether Plaintiff and proposed members restitution, and/or disgorgement

of the Class

are entitled to injunctive relief,

of Defendants*

unjust profits.
members

9
10

117.

Typicality.

Plaintiff's claims are typical

of the claims of the

of the Class

in

that Plaintiff is a member

of the Class
the

that Plaintiff sees to represent.

Plaintiff, like members

the

of the

11

proposed

Class, purchased

Fitbit

Force aller
and hazardous.

exposure

to virtually

same

material

12

misrepresentations

and/or omissions appearing

on the Fitbit, Inc. website and in printed materials and

13
14
15

purchased

a product that was inadequate

Defendants

have no defenses unique

to

Plaintiff.

118.

Adequacy of Representation.

Plaintiff will fairly and adequately protect the interests

16 17
~

of the

members

of the Class. Plaintiff

has retained counsel experienced in consumer protection laws,

including class actions. Plaintiff has no adverse or antagonistic

interests to those in the Class and v:ill

18 'airly and adequately protect the interests of the Class. Plaintiff's attorneys are aware of no interests

19

adverse or antagonistic to those

of the Plaintiff

and proposed Class.

20
21

119. Superiority.
efficient adjudication
inconsistent

A class action is superior to all other available means for the fair and

of

this controversy.

Individualized

litigation

would

create the danger

Individualized

of

22

or contradictory judgments

arising from the same set

of facts.

litigation

23
24
25

would also increase the delay and expense to all parties and the court system and the issues raised by
this action.

The damages or other financial detriment

suffered by individual

Class members may be

litigation

relatively small compared to the burden and expense that would be entailed by individual
the claims against the Defendants.

of

26 27
28
IIIMI

The injury suffered by each individual

to the burden
and expense

member

of the

proposed

class is relatively
complex
and

small

in comparison

of

individual

prosecution

of

the

extensive

litigation

necessitated

by Defendants'onduct.

It would

be virtually

"I IIIAI Ik'k

-21CLASS ACTION COMPLAINT

impossible for members

of the proposed Class to

individually

redress effectively the wrongs to them.

2
3

Even

if the

members

of the proposed Class could afford

increases

such litigation, the court system could not.

and to the court system,

Individualized

litigation

the delay and expense to all parties,

4
5 6 7 8

presented by the complex legal and factual issues

presents far fewer management

of the case. By contrast,

the class action device

difficulties, and provides the benefits ol'single adjudication,

supervision

economy

of scale,

and comprehensive

by a single court. Therefore, a class action is maintainable

under Civil Code section

382.
Defendants
alleged
will retain

120.

Unless

a class is certified,
and deceptive

monies

received as a result
restitution

of
is
the
and

Defendants'nlawful

conduct

herein.

Unless

a class-wide

10
11

permitted as compensation

and as a deterrent, Defendants

will also likely continue to misrepresent

safety

of

its product

and make material

omissions

in an unlawful

and misleading

manner,

12
13

members

of the Class will continue to be misled

Further,

and denied their rights under California law.

121.

Defendants

have

acted or refused

to act on grounds

that

are generally

14
15

applicable to the class so that declaratory and injunctive relief is appropriate

making class certification appropriate under Civil Code
ll

to the Class as a whole,

382.

PRAYER FOR RELIEF

17
18

WHEREFORE, Plaintiff prays that judgment be entered against Defendants, and each of them,
and that Plaintiff and the Class members

be awarded

equitable

relief, and damages

under all other

19

causes

of action,

from Defendant, and each of them, as follows:

20
21

a. Certifying the Class as requested herein;

b. Under all Causes of Action as allowable by law, a temporary,
permanent

preliminary
to

and'or

order

for injunctive

relief requiring
the Fitbit

Defendants

(1)

discontinue

advertisingmarketing,

and pmmoting

Force as a safe,

hazard-free;

(2)

disclose the true risks posed by the Fitbit ForcerM including

increased risk
peeling,

but not limited to an

of skin

irritation, rash, burn, blistering, bleeding, skin cracking, skin

boils, and other physical

campaign

injuries;

(3) undertake

an immediate

public

27

information

to inform members

of

the Class as to Fitbit lnc.'s prior

practices; and (4) correct any erroneous

o

impression

consumers

may have derived

fl.

CLASS ACTION COMPLAINT

concerning the nature, characteristics,

without

or qualities of the Fitbit

advertising

Force, including
written

limitation,

the placement

of corrective

and providing

notice to the public.;

c. Under the First

constructive

through

Fourth Causes

of Action,

an order requiring

imposition

of a

trust to pay restitution

to Plaintiff and all members

of the Class

and to

restore to the Plaintiff and all members

of the Class

all funds acquired by means

of

any act or practice declared by this Court to be an unlawful,

fraudulent,

or unfair

business act or practice, in violation

unfair competition;

of laws, statutes, or regulations, or constituting

10

d. Distribution
recovery

of any monies recovered

where

on behalf

of members of the Class via

and

fluid

or cy pres recovery

necessary

as applicable,

to prevent

Defendants from retaining the benefits

of their

wrongful

conduct;

13

e. Statutory post-judgment

interest allowable by law;

14
15

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

172014
By:

COMEZ TRI L.ATTORNEYS

19

20
21

Jot&1. Gomez
John P. Fiske Bibianne U. Fell

STARK
23

dk

STARK

John A. Corr Stephen A. Corr Ian S. Abovitz

25

FOOTE, MIELKE, CHAVEZ

Robert M. Foote Kathleen C. Chavez
Attorneys

Ec

O'EIL, LLC

26 27

for Plaintiff

&1 EZIRM
ATX|IINI YS

-73CLASS ACTION COMPLAINT

Trial bv Jurv
2
3
Pursuant to the Seventh Amendment

to the Constitution

of the

United States

of America,

Plaintiff is entitled to, and demands, a trial by jury,

DATED: March 17, 2014

5

GOMEZ TRIAL,ATTOI&1EYS

By:

'V. V~

John Itl. G~ez John P. Fiske Bibianne U. Fell

STARK

dk

STARK

John A. Corr Stephen A. Corr lan S. Abovitz

FOOTE, MIELKE, CHAVEZ

12
Robert M. Foote Kathleen C. Chavez
Attorneys for Plaintiff

dk

O'EIL,

LLC

13

14
15

16

20

22

25

27

)Vt 11 I 1'8 IRN1 Y

-24CLASS ACTION COMPLAINT