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$7.3M in Attorney Fees in Fitbit Class Action

March 20, 2020 | Posted in : Class Action / MDL, Expenses / Costs, Fee Award, Fee Award Factors, Fee Reduction, Lodestar / Multiplier

A recent Law 360 story by Mike Curley, “Atty Awarded $7M Fee in Fitbit Sleep-Tracker Class Suit,” reports that a California federal judge approved just over $7 million in fees to attorneys representing a class that sued Fitbit over an allegedly faulty sleep-tracking function in its wrist-mounted devices, trimming the initially requested award by about $300,000.  In a final order approving a settlement between the class, led by named plaintiff James P. Brickman, and Fitbit, U.S. District Judge James Donato slashed the lodestar amount for the suit from $3.85 million to $2.75 million, but increased the multiplier from 1.9 to 2.5, resulting in a dip from the initially requested $7.3 million to just more than $7 million.  The $7 million includes $6.9 million in fees, and $151,610 for all costs, according to the order.

In a separate order approving the attorney fees, Judge Donato noted the unusually good recovery in the settlement, which sees each class member receiving a $12.50 payment, while the maximum recovery they could have expected through litigation would have been $15.  Also included in the settlement are $5,000 service awards for named plaintiffs Brickman and Margaret Clingman and $500 service awards for each of the other seven named plaintiffs.

Patrick J. Perotti of Dworken & Bernstein Co. LPA, representing the proposed class, told Law360 that the judge recognized it was a very complicated case as well as the amount of work that class counsel put into litigating the unusual claim.  "The outcome is excellent and extraordinary because there's never been a case in history which has addressed and challenged sleep-tracking in an app or otherwise, as a consumer function," Perotti said.  "The case was extremely hotly contested by Morrison & Foerster and its client."

Customer James P. Brickman filed suit in May 2015, claiming customers paid extra — at least $30 more than what they would've paid for the basic Fitbit Zip — for Fitbit's premium sleep-tracking products, according to court filings.  But an academic study found that Fitbit devices overcount sleep time by about 67 minutes per night compared to the most accurate sleep-measuring technology, Brickman said in the complaint.  Margaret Clingman, another lead plaintiff, joined the suit later.  They alleged Fitbit violated California and Florida consumer protection statutes by falsely claiming the devices track sleep time, sleep quality and when users wake up.

Following several rounds of pleading and Fitbit's failed motion to dismiss, the court certified a Florida class and California class in November 2017. The classes included consumers who purchased and registered online a Fitbit Flex, a Fitbit One or a Fitbit Ultra between 2009 and October 2014, according to the filings.  In August 2018, Fitbit reached a deal with customers, which was then rejected before an amended deal garnered approval in October 2018.

In May 2019, class counsel for the customers requested the $7.3 million in attorney fees along with $367,000 in reimbursement of out-of-pocket costs, according to the plaintiffs' motion.  In June, Fitbit moved to reduce the fees, arguing the $7.3 million request for fees and court costs amounts to 133% of the total $5.52 million settlement and was "excessive, unsupported and disproportionate" to the class' recovery.