Got A Fitbit Or Other Gadget For Christmas? It’s Time To Opt Out Of Mandatory Arbitration!

Customers have filed a class action suit against Fitbit, claiming that the company’s Charge HR and Surge fitness bands don’t accurately measure users’ heart rate during vigorous exercise. We’ll keep an eye on the lawsuit and let you know if it goes anywhere, but it probably won’t, and that’s what got our attention. The users filed a class action against Fitbit despite signing (well, clicking) away their right to do so when they registered their devices.

Without registering and syncing your fitness tracker to a computer or smartphone, you might as well buy a pedometer at the dollar store and use that instead. To sync your device, you have to register an account on Fitbit.com, which requires you to agree to terms of service. One of those terms that you agree to is that you and Fitbit will resolve any disputes either informally or through arbitration, and that you waive your right to sue the company, including in a class action.

If you choose to use arbitration, that’s fine, but it should be your right to choose the venue that you prefer if you ever have a dispute with Fitbit. Keep in mind that in arbitration, the company chooses the arbitrator, and other consumers who might encounter the same problem won’t know about your case or what the outcome was.

As we publish this on January 6, you still have time to opt out if you registered your Fitbit on or after December 7, 2015. That leaves the many fitness trackers given as Christmas gifts well within the window to opt out, which you can do by e-mailing legal@fitbit.com. Simply write, “I, [your first and last name], decline Fitbit’s arbitration agreement.”

Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting legal@fitbit.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement. Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, San Francisco, California, or any other location we agree to.

This isn’t unique to Fitbit, as our regular readers know. Competitor Jawbone’s Up fitness tracker, for example, has the same policy. While you’re at it, check any other product you’ve purchased or subscription that you’ve signed up for recently. Lots of the agreements that we all scroll past on our way to register for a website or register a product or sign up for TV service have arbitration requirements, though there aren’t always opt-out clauses.

While the class action system is flawed, right now we don’t have a better way for consumers to fight back when many people have been wronged in small ways. That brings us back to the Fitbit heart rate monitors: in the Charge HR and Surge case, the plaintiffs say that the dispute resolution section shouldn’t apply to them, since they weren’t informed of this policy before purchasing their devices.

In a statement to the Verge, a Fitbit representative said that the company “strongly disagrees with the statements made in the complaint and plans to vigorously defend the lawsuit.” At least one of the lead plaintiffs has received a letter from Fitbit informing her that since she did not opt out, the case must go to arbitration. (PDF download)

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If Fitbit succeeds in moving the case to arbitration, the dispute may be resolved, but that will be no help to other users who have the same problem. A U.S. Supreme Court decision less than a month ago affirmed companies’ right to keep consumer complaints out of court.

Fight back: check for these clauses whenever you see a new user agreement, and opt out if possible.

Fitbit hit with class-action suit over inaccurate heart rate monitoring [The Verge]