Fitbit may be facing civil contempt charges for what U.S. District Judge James Donato says is “gamesmanship” after the company leveraged an arbitration agreement to shrink the class action lawsuit over alleged deficiencies in its heart rate monitors then quit the arbitration when the plaintiff didn’t like its settlement offer (hearing transcript). As reported by Law360, Judge Donato had directed Fitbit and the arbitrator to determine whether 12 plaintiffs’ claims about the Fitbit devices, which consistently mis-record heart rates, particularly during the vigorous exercise for which many consumers purchase the devices, should be heard in open and fair court or just in closed arbitration.
After Fitbit asked the arbitrator to drop the matter, calling the plaintiff irrational, Judge Donato returned a sharp reply, noting that Fitbit could not unilaterally moot a claim and that he was “taken aback” that the company persisted in focusing on the value of the Fitbit device.
“I am developing a very slow burn from an unacceptable level of gamesmanship by Fitbit,” the Judge said. “For Fitbit to now say, ‘This is not arbitrable because it’s too cheap and she’s crazy as a result of that,’ strikes me as profoundly troubling, to the point where I’m beginning to wonder if this is a form of civil contempt. … I will tell you that if I find Fitbit has forced this case out of court only to play games at arbitration, there will be an accounting.” Read a copy of the hearing transcript.
Plaintiffs’ complaint argues that Fitbit avoids alerting customers that its technology only works properly at reduced and resting heart rates and quite to the contrary runs ads showing users counting on the wristborne tracking devices during elevated and intense physical activity. The judge’s original decision directing the proceedings to review in arbitration had previously reduced the size of the class from what might have been millions of consumers to approximately 200 who had expressly opted out of arbitration provisions relating to device purchase.
Lieff Cabraser partner Jonathan D. Selbin, who represents plaintiffs in the litigation, commented that the company’s conduct shows “what a farce the whole arbitration is for Fitbit.”
Judge Donato requested further information on what occurred during the arbitration, particularly with regard to the timing of the discussions as they unfolded. Despite Fitbit’s separate attempts to dismiss claims in the case, the consumer plaintiffs remain confident about the case’s merits. Lieff Cabraser partner Kevin R. Budner told Law360 that his client had alleged “detailed representations” backing up warranty and misrepresentation claims against Fitbit: “They said the devices would allow users to accurately track workout intensity, and track their heart rate all day,” Budner said. “There was a clear and consistent message that the devices would provide some modicum of accuracy.”