Wearable Fitness Tracking Devices

Unsurprisingly, the early consumer class actions related to wearables have targeted the early brand winners in those categories, such as Nike, Fitbit, and Jawbone.

Nike's FuelBand

Nike launched its FuelBand activity tracker in 2012. The device converted a user's recorded data into “NikeFuel points,” a proprietary metric used to track activity and reward users. In 2013, some plaintiffs filed a class action complaint against Nike and Apple (which collaborated with Nike on the product). See Complaint, Levin v. Nike, Inc., Case No. BC 509 363 (Super. Ct. L.A. Cty. May 17, 2013). The plaintiffs initially alleged that the FuelBand failed to track accurately their calories burned. In an amended complaint, they also alleged that the FuelBand did not accurately track steps taken by users. The plaintiffs alleged that, together, these inadequacies led to an improper calculation of NikeFuel points. See Second Amended Complaint, Levin v. Nike, Inc., Case No. BC 509 363 (Super. Ct. L.A. Cty. May 28, 2015). In June 2015, the court approved a class action settlement of these claims in the form of either $15 cash or a $25 Nike gift card (together with $2.4 million in attorneys' fees and costs).

Jawbone's UP Tracker

Jawbone's first class claim involving its personal fitness devices arose in August 2014, when a plaintiff alleged that Jawbone had falsely advertised under California law that the Jawbone UP product would retain a battery charge for 10 days. See Complaint, Frenzel v. Aliphcom d/b/a Jawbone, No. 3:14-cv-03587-WHO (N.D. Cal. Aug. 7, 2014). After Jawbone won an initial motion to dismiss, see Frenzel v. Aliphcom (“Frenzel I“), 76 F. Supp. 3d 999 (N.D. Cal. 2014), the plaintiff amended to include new language about the battery life and claims about accuracy in tracking and measurement of activity. Jawbone again moved to dismiss, arguing among other things that California law should not apply because the plaintiff was a Missouri resident who purchased the device in that state. Motion to Dismiss First Amended Complaint, Frenzel, No. 3:14-cv-03587-WHO (N.D. Cal. Mar. 16, 2015) [PACER Dkt. 26].

This time, however, the court did not dismiss all of the plaintiff's claims. While it disagreed with the plaintiff that Jawbone's Website Terms of Use, which referenced a California choice of law provision, necessarily applied to the plaintiff's claim, it found that the Service and Software Terms of Use, which also included a California choice of law provision, “raise[d] factual issues that make the choice of law issue in this case better suited for resolution at class certification.” Frenzel v. Aliphcom (“Frenzel II“), No. 3:14-cv-03587-WHO, 2015 WL 4110811, at *8-9 (N.D. Cal. Jul. 7, 2015). It therefore refused to dismiss all of the plaintiff's claims for being California consumer protection claims ' at least with respect to battery life. The plaintiff had amended to add further allegations asserting that Jawbone's claims that its product held “up to” 10 days of charge could be misleading. The court held this was sufficient to support a claim. See id. at *11-12 (“the phrase 'up to' does not necessarily preclude [a] statement from providing the basis for a misrepresentation claim under California's consumer protection statutes. ' Multiple courts have found that 'up to' representations may materially mislead reasonable consumers. ' “) (quoting Herron v. Best Buy Co. Inc., 924 F.Supp.2d 1161, 1172-73 (E.D.Cal.2013)). On the other hand, the court dismissed with prejudice the plaintiff's claims based upon allegedly inaccurate tracking and measurement. This was because the plaintiff had alleged that he relied on the product box in making his purchase, and the box did not include the word “accurately” in defining what metrics the device would measure. The plaintiff simply could not maintain causes of action “based on statements that he does not allege he relied on in making his purchase.” Id. at *12. Although the plaintiff alleged that the devices “failed to 'accurately' track and measure ' he does not allege that they never tracked and measured at all.” Id.

In next month's issue, we will look at some additional wearable fitness tracking device cases, and discuss aspects of product liability law that may impact disputes involving such devices.

Christopher Mason and Kristin Jamberdino are partners at Nixon Peabody LLP. Mr. Mason is co-chair of Nixon Peabody's Class Action Group, and Ms. Jamberdino is a member of the Financial Services and Private Fund Dispute teams.