Kyla Asbury Mar. 25, 2014, 2:11pm
SAN DIEGO, Calif. (Legal Newsline) - A class action lawsuit has been filed against Fitbit for injuries allegedly sustained by consumers who purchased the Fitbit Force bracelet.
The lawsuit alleges that Fitbit did not do a good enough job alerting consumers about possible rashes caused by the bracelet in its promotional and advertising material.
On Feb. 20, Fitbit issued a voluntary recall on the Force after 1.7 percent of Force users had reported a skin irritation.
Jim Spivey, the lead plaintiff in the lawsuit, purchased the Fitbit Force for $129.95, with an additional $9.75 for sales tax for a total of $139.70.
Spivey, a 49-year-old aviation instructor, claims he and members of the putative class have suffered injury and have lost money or property and time and opportunity as a result of the defendant's false advertising.
The plaintiff and members of the class were injured because they paid for the Fitbit Force and it was a defective device that increased the risk of injury through its use, according to the suit.
Spivey claims at least within the four years prior to the filing of this action, Fitbit has committed acts of untrue and misleading advertising and promotion of the Fitbit Force.
"The fraudulent, unlawful and unfair business practices and false and misleading advertising of defendants...presents a continuing threat to consumers in that they will continue to mislead consumers to purchase or keep the Fitbit Force under false pretenses," the complaint states.
As a direct and proximate result of the defendant's acts and representations, the defendant received and continues to hold monies rightfully belonging to Spivey and the putative class who did not receive complete reimbursement for their Fitbit Force or compensation for physical or emotional injuries.
Spivey claims the defendant violated California's Unfair Competition Law and intentionally misrepresented the Fitbit Force as a safe, hazard-free, effective wearable device and activity tracker.
The Fitbit Force contained manufacturing defects in that it caused and increased the risk of experiencing an adverse cardiovascular event, including increased risk of skin irritation, rash, burns, blistering, cracking, peeling, bleeding, oozing, boils and other physical injuries, according to the suit.
Spivey is seeking certification of the class; for an order of injunctive relief requiring Fitbit to discontinue advertising, marketing and promoting the Fitbit Force as safe and hazard-free, disclose the true risks posed by the Fitbit Force and undertake an immediate campaign to inform members of the class; and post-judgment interest.
He is being represented by John H. Gomez, John P. Fiske and Bibianne U. Fell of Gomez Trial Attorneys; John A. Corr, Stephen A. Corr and Ian S. Abovitz of Stark & Stark; and Robert M. Foote and Kathleen C. Chavez of Foote, Mielke, Chavez & O'Neil.
Upon being notified of the lawsuit, Fitbit issued a statement to the Wall Street Journal stating: "Based on our initial review of the lawsuit, the complaint asks for a recall of Force and a refund to consumers. Fitbit took initiative long before this complaint was filed, publicly offered refunds, and worked closely with the CPSC on its voluntary recall program. We strongly disagree with the statements about the product and the company."
Superior Court of the State of California in the County of San Diego case number: 37-2014-00007109