10.  In contrast, the non-Zip Fitbit devices –  the Fitbit Force, Fitbit Flex, Fitbit One, Fitbit  Ultra, Fitbit Charge, Fitbit Charge HR, and Fitbit Surge (herein “Fitbit devices”) – charge at least an  additional $30 for the 'sleep tracker' function which is not available on the Fitbit Zip. The Fitbit  Force, Fitbit Flex, Fitbit One, Fitbit Ultra, Fitbit Charge, Fitbit Charge HR, and Fitbit Surge all claim  to “track hours slept,” track “times woken up”, and track the “quality of sleep” of the wearer. These  claims are on Fitbit Inc.’s website (www.fitbit.com) as well as on the actual physical packaging of  the device itself.   11.  On its always-available website, www.fitbit.com, Fitbit Inc. advertises claims that  these sleep-tracking devices will “measure your sleep quality. Once the data syncs, graphs on your  (device) dashboard will reveal how long you slept and the number of times you woke up, giving you  a ‘sleep quality score.’”   12.  Even more, the functional displays of information (see below) present even further  detail and specific claims. These images claim to identify exactly what time and for how long the  Case4:15-cv-02077-DMR   Document1   Filed05/08/15   Page3 of 29 37.  Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.   38.  Plaintiff brings this action on behalf of himself and all other similarly situated persons  (hereinafter referred to as “putative class members”), to wit:  All individuals who have purchased a Fitbit Force, a Fitbit Flex, a Fitbit One,  a Fitbit Ultra, a Fitbit Charge, a Fitbit Charge HR, and/or a Fitbit Surge within  the applicable statute of limitations.   39.  The class numbers over one-hundred (100) persons and is so numerous that joinder of  all members is impracticable, and it is further impracticable to bring all such persons before this  Court.   40.  The injuries and damages to these class members present questions of law and fact  that are common to each class member, and that are common to the class as a whole.   41.  Defendant has engaged in the same conduct regarding all of the other members of the  classes asserted in this suit.   42.  The claims, defenses, and injuries of the representative Plaintiff is typical of the  claims, defenses, and injuries of all those in the class he represents, and the claims, defenses, and  injuries of each class member are typical of those of all other members in the class.   43.  The representative Plaintiff will fully and adequately protect and represent the entire  class, and all of its putative class members.   44.  The identity of all members of the class cannot be determined at this time, but will be  so determined at a later time upon obtaining discovery from Defendant and others.   45.  The prosecution of separate actions by each member of these classes would create a  substantial risk of inconsistent or varying adjudications with regard to individual members of the  class that would establish incompatible standards of conduct for Defendant.   46.  The prosecution of separate actions would also create a substantial risk of  adjudication with respect to individual members of the class which, as a practical matter, would be  dispositive of the interest of other members not parties to the adjudication, thereby substantially  impairing and impeding their ability to protect these interests.  Further, the maintenance of this suit  Case4:15-cv-02077-DMR   Document1   Filed05/08/15   Page8 of 29 47.  Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.   48.  At all times relevant hereto, Defendant’s alleged actions constitute a business practice  under California law.   49.  The California Unfair Competition Law (“UCL”) defines unfair business competition  to include “unlawful, unfair, or fraudulent” acts or practices, as well as any unfair, deceptive, untrue,  or misleading advertising. Bus & Prof. Code, § 17200.   50.  The California Supreme Court has emphasized that the “[s]ubstantive right extended  to the public by the UCL is the right to protection from fraud, deceit, and unlawful conduct, and the  focus of the statute is on the defendant’s conduct.”  a. “Unlawful” Prong of the UCL   51.  Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.   52.  A business act or practice is “unlawful” if it violates any established state or federal  law.   53.  The Federal Trade Commission Act prohibits unfair methods of competition, and  unfair or deceptive acts or practices in or affecting commerce, which includes, inter alia, false  advertising. 15 U.S.C. § 41 et seq.; 15 U.S.C. § 52(a) & (b).   54.  Defendant has violated and continues to violate the “unlawful” prong of the UCL by  violating the FTC Act’s prohibition on false advertising and deceptive acts and practices when it  represented to consumers that the sleep-tracking function of its Fitbit devices can and does make  specific, mathematical measurements and calculations as to the amount and quality of the wearer’s  sleep, as stated above.  Case4:15-cv-02077-DMR   Document1   Filed05/08/15   Page9 of 29 7.  Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.   76.  Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.   77.  The California False Advertising Law (FAL) prohibits unfair, deceptive, untrue, or  misleading advertising.  Case4:15-cv-02077-DMR   Document1   Filed05/08/15   Page12 of 29 8.  Defendant markets and sells to consumers, directly and through large retail stores  throughout the country, distinctly branded personal fitness-tracking devices. These are called the  Fitbit Force, Fitbit Flex, Fitbit One, Fitbit Zip, and Fitbit Ultra; as well as Fitbit’s second-generation  products, the Fitbit Charge, Fitbit Charge HR, and Fitbit Surge.   81.  Plaintiff realleges and incorporates herein all previous paragraphs of this Complaint.   82.  At all relevant times hereto, including at all times during the transactions between  Plaintiff Brickman and Defendant, and the consumer transactions between the putative class  members and Defendant, Plaintiff Brickman and each of the putative class members were  “consumers”, and the transactions were “consumer transactions”, within the meaning of the CLRA.   83.  In connection with the consumer transactions alleged herein, including the consumer  transaction between Plaintiff and Defendant, and the consumer transactions between the putative  class members and Defendant, Defendant’s representations, acts, and/or practices regarding the  Fitbit sleep-tracking function’s purported abilities were unfair and deceptive, to wit:  a. Defendant made very specific representations that the Fitbit sleep function will  precisely track, to the minute, the amount a user sleeps and the quality and  efficiency, to an exact percentage point, of that sleep.  Case4:15-cv-02077-DMR   Document1   Filed05/08/15   Page13 of 29 9.  The basic model of the devices, the Fitbit Zip, does not have the 'sleep-tracking  function' and the price for this base-model device does not reflect any extra charge for that function.   California’s Unfair Competition Law  Bus & Prof. Code, § 17200 et seq.   California False Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq.   Consumer Legal Remedies Act, Cal Civ. Code § 1750 et seq.  