Now, consumers are raising questions in court about whether the company misled consumers and sold them a defective product. Fitbit is pushing back: It has sought to defang a class-action lawsuit over the issue and has driven some complaints toward a private venue for individual disputes known as arbitration. But it has also dragged its feet with the arbitration process, according to a federal judge, who accused Fitbit last week of litigating in “bad faith” and perpetuating the notion that private arbitration is where consumer lawsuits “go to die.”
Kate McLellan, who bought a $150 Fitbit Charge HR in 2015, is at the center of the ongoing controversy. She said that the device underreported her heart rate compared with readings she obtained from her usual chest-mounted strap monitor.
McLellan said she knew not to demand scientific quality from her Charge HR, but after multiple calls to Fitbit’s customer support, not even the company’s staff could get the device working as she expected. So she took legal action.
“I don’t need it to be 100 percent valid,” she said. “I’m not going to be comparing it in a lab against the gold standard. But I needed it to be reliable.”
How the monitors work
Wearable heart-monitoring devices have become increasingly commonplace as the miniaturization of components, the falling cost of computing and the growing usefulness of data have combined to make portable health trackers more convenient and affordable. Wearables such as Fitbits and the Apple Watch work by measuring the amount of light emitted by built-in LEDs that bounces off a wearer’s artery and back into the device, where software then calculates the user’s heartbeats per minute.
Users should not expect medical-grade accuracy from these consumer gadgets, experts say, but they ought to be reliable enough for most everyday movements and activities.
“For resting heart rate, it’s pretty darn good, and for moderate exercise,” said Eric Topol, a cardiologist and professor at the Scripps Research Institute. “But it could well be that if you’re doing very intensive interval training it’s not accurate in the signal detection.”
According to McLellan’s complaint, outside studies by the Cleveland Clinic, the University of Leeds and other institutions had observed inaccuracies in Fitbit’s detection technology.
“People are going to be relying on this information as the gospel truth. This could be a problem, health-impact-wise,” said McLellan, who holds a PhD in exercise science. “They need to change their marketing until they can fix the technology.”
Fitbit declined to comment for this report.
The unfolding legal battle, explained
McLellan and her lawyers first brought a class-action lawsuit against Fitbit more than two years ago. The company convinced court officials last month that only those who had complied with the company’s fine print could participate in the lawsuit. There is only one way for Fitbit customers to opt out of the arbitration track and become eligible for the class action: by writing to a corporate email address within the first 30 days of accepting the company’s terms of service, a step users go through when setting up their devices. Those who missed that legalese — or who didn’t understand it — must process their complaints through arbitration, as Fitbit lays out in its terms, said Judge James Donato of the U.S. District Court for the Northern District of California, according to court documents.
These kinds of arbitration clauses are by now a ubiquitous feature of America’s commercial landscape. Banks, private schools, companies and organizations nationwide have taken to slipping arbitration agreements into their consumer contracts as a way to resolve customer disputes quickly and without the lawyers’ fees that can accompany big class actions. But critics of arbitration say the practice puts an unnecessary burden on consumers to make their case and pits well-resourced companies against the relatively weak.
“When they force cases into one-on-one arbitration, most people go away,” said Lauren Saunders, associate director of the National Consumer Law Center. “And that’s what companies count on.”
Despite first arguing that McLellan’s complaint could only be resolved through arbitration, Fitbit told the judge it didn’t expect to go through with the arbitration after all. It offered McLellan a settlement of about $1,000 plus legal fees and told the court it made no sense to go to arbitration over what amounted to a customer refund.
“The Court ought to understand that a claim that is $162 — an individual claim — is not one that any rational litigant would litigate,” Fitbit’s lawyers said, according to court transcripts. The trivial sum, Fitbit said, also explained why it did not pay its arbitration fees on time and instead told McLellan it considered the complaint “closed,” according to court documents.
Donato concluded last week that McLellan’s arbitration process can continue after Fitbit ultimately paid the processing fees it owed. But he minced no words as he excoriated Fitbit’s “abuse of the judicial process” that he said created the situation in the first place.
“It’s no surprise that many people, including judges, are skeptical about arbitration agreements in light of situations like this one,” he wrote. “Fitbit’s conduct undermines the public’s confidence in getting a fair shake when arbitration is compelled.”
