Brickman v. Fitbit, Inc.

MOTION for Summary Judgment

N.D. Cal.April 20, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD sf-3758132 WILLIAM L. STERN (CA SBN 96105) WStern@mofo.com ALEXANDRA E. LAKS (CA SBN 291861) ALaks@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105 Telephone: 415.268.7000 Facsimile: 415.268.7522 ERIN M. BOSMAN (CA SBN 204987) EBosman@mofo.com JULIE Y. PARK (CA SBN 259929) JuliePark@mofo.com KAI S. BARTOLOMEO (CA SBN 264033) KBartolomeo@mofo.com MORRISON & FOERSTER LLP 12531 High Bluff Drive San Diego, California 92130-2040 Telephone: 858.720.5100 Facsimile: 858.720.5125 Attorneys for Defendant FITBIT, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JAMES P. BRICKMAN, individually and as a representative of all others similarly situated, Plaintiff, v. FITBIT, INC., Defendant. Case No. 3:15-cv-2077-JD DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Date: May 25, 2017 Time: 10:00 a.m. Ctrm: 11, 19th Floor Trial: July 10, 2017 The Honorable James Donato Date Action Filed: May 8, 2015 REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 1 of 37 TABLE OF CONTENTS Page FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD i sf-3758132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES ......................................................................................................... iii NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT ................................... 1 STATEMENT OF THE ISSUES TO BE DECIDED ..................................................................... 1 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1 I. INTRODUCTION .............................................................................................................. 1 II. FACTUAL AND PROCEDURAL HISTORY ................................................................... 2 A. Fitbit’s Fitness and Activity Trackers Have a Variety of Features ......................... 2 B. Fitbit’s Proprietary Sleep Tracking Technology ..................................................... 3 C. Plaintiffs’ Contentions. ........................................................................................... 4 D. Relevant Procedural History ................................................................................... 5 III. LEGAL STANDARD ......................................................................................................... 5 IV. ARGUMENT ...................................................................................................................... 6 A. Plaintiffs Have No Evidence That the Devices Cannot “Track Sleep” .................. 6 1. Plaintiffs’ Various Theories of “Does Not Work,” Dissected. ................... 7 2. Plaintiffs Have No Evidence That Actigraphy Cannot “Track Sleep.” ......................................................................................................... 8 3. Plaintiffs Have No Evidence That the Devices Cannot “Track Sleep.” ......................................................................................................... 9 a. Plaintiffs Have No Direct Evidence of Product Defect. ................. 9 b. Plaintiffs’ Circumstantial Evidence Fails to Raise a Fact Issue. ............................................................................................. 10 B. Plaintiffs Have No Evidence That “Tracks Sleep” Is “Likely to Deceive,” Is Material, or Induced Consumer Reliance. ......................................................... 13 1. Plaintiffs Have No Evidence That “Track Sleep” Deceived Them, Was Material to Their Purchases, or Induced Their Reliance. ................. 14 2. Plaintiffs Have No Evidence That Class Members Were Deceived. ........ 15 C. “Sleep Mode” (and User Error) Precludes Class Evidence of Damages and Causation ............................................................................................................... 20 D. Plaintiffs Have No Evidence That They Are Entitled to Monetary Relief, Individually or Classwide. .................................................................................... 21 1. The Right to Monetary Relief Is an Element of All Claims. .................... 22 2. Plaintiffs Seek “Restitutionary Disgorgement” for All Six Claims. ......... 22 3. The Law-What Plaintiffs Call “Restitution” Is Really “Disgorgement of Profits” and Is Not Allowed. ....................................... 22 4. The Facts-Plaintiffs Have No Common Evidence to Support Entitlement to Restitution or Damages. .................................................... 24 5. Plaintiffs Are Not Entitled to Injunctive Relief. ....................................... 25 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 2 of 37 TABLE OF CONTENTS (continued) Page FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077 ii sf-3758132 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION ................................................................................................................. 25 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 3 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD iii sf-3758132 TABLE OF AUTHORITIES Page(s) Cases Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988) .......................................................................................................8 Anderson v. Deloitte & Touche, 56 Cal. App. 4th 1468 (1997) ...................................................................................................13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ....................................................................................................................5 Asnaashari v. PNY Techs., Inc., No. C 13-1308 PJH, 2013 WL 2403605 (N.D. Cal. May 31, 2013) .........................................22 Astiana v. Kashi Co., 291 F.R.D. 493 (S.D. Cal. 2013) .........................................................................................23, 24 Baghdasarian v. Amazon.com, Inc., 458 F. App’x 622 (9th Cir. 2011) .............................................................................................15 Berger v. Home Depot USA, Inc., 741 F.3d 1061 (9th Cir. 2014) ...................................................................................................22 Bias v. Wells Fargo & Co., 942 F. Supp. 2d 915 (N.D. Cal. 2013) ......................................................................................22 Binning v. Louisville Ladder, Inc., No. 2:11-cv-03058-MCE-CK, 2014 WL 4249667 (E.D. Cal. Aug. 27, 2014) .........................10 Brazil v. Dole Packaged Foods, LLC, 660 F. App’x 531 (9th Cir. 2016) .............................................................................................23 Caro v. Procter & Gamble Co., 18 Cal. App. 4th 644 (1993) .....................................................................................................20 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....................................................................................................................7 Churchill Vill., L.L.C. v. Gen. Elec. Co., 169 F. Supp. 2d 1119 (N.D. Cal. 2000) ....................................................................................17 Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008) .............................................................................................15, 16 Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663 (2006) ...................................................................................................23 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 4 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD iv sf-3758132 Cortez v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163 (2000) ..............................................................................................................23 Davis v. Chase Bank U.S.A., N.A., 650 F. Supp. 2d 1073 (C.D. 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Cal. 2003) ....................................................................................17 Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107 (9th Cir. 2003) ...................................................................................................11 Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir. 2013) .............................................................................................14, 15 In re Facebook, Inc., PPC Advert. Litig., 282 F.R.D. 446 (N.D. Cal. 2012) ..............................................................................................23 In re First Alliance Mortg. Co., 471 F.3d 977 (9th Cir. 2006) .....................................................................................................23 In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Practice Litig., 955 F. Supp. 2d 1311 (S.D. Fla. 2013) .....................................................................................16 In re Tobacco Cases II, 240 Cal. App. 4th 779 (2015), rev. denied (Dec. 9, 2015) ..................................................22, 24 In re Tobacco II Cases, 46 Cal. 4th 298 (2009) ........................................................................................................13, 20 In re Toyota Motor Corp. Hybrid Brake Mktg., Sales Practices & Prods. Liab. Litig., 915 F. Supp. 2d 1151 (C.D. Cal. 2013) ......................................................................................7 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 5 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD v sf-3758132 In re Vioxx Class Cases, 180 Cal. App. 4th 116 (2009) .............................................................................................19, 23 Howard v. Omni Hotels Mgmt. Corp., 203 Cal. App. 4th 403 (2012) ...................................................................................................10 Humana, Inc. v. Castillo, 728 So. 2d 261 (Fla. Dist. Ct. App. 1999) ................................................................................20 Jovine v. Abbott Labs., Inc., 795 F. Supp. 2d 1331 (S.D. Fla. 2011) .....................................................................................13 Khasin v. Hershey Co., No. 5:12-CV-1862-EJD, 2014 WL 1779805 (N.D. Cal. May 5, 2014) ..............................15, 16 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003) ............................................................................................................23 Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310 (2011) ........................................................................................................14, 23 Lanovaz v. Twinings N. Am., Inc., No. C-12-02646-RMW, 2014 WL 1652338 (N.D. Cal. Apr. 24, 2014) ...................................22 Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496 (2003) ...................................................................................................16 Lee v. Toyota Motor Sales, U.S.A., Inc., 992 F. Supp. 2d 962 (C.D. Cal. 2014) ....................................................................................6, 7 Leslie G. v. Perry & Assocs., 43 Cal. App. 4th 472 (1996) .....................................................................................................11 Lombardo v. Johnson & Johnson Consumer Cos., 124 F. Supp. 3d 1283 (S.D. Fla. 2015) ...................................................................13, 20, 21, 22 Luke v. Family Care & Urgent Med. Clinics, 246 F. App’x 421 (9th Cir. 2007) .............................................................................................12 Major v. Ocean Spray Cranberries, Inc., No. 5:12-CV-03067-EJD, 2015 WL 859491 (N.D. Cal. Feb. 26, 2015) ........................7, 15, 16 McKissack v. Swire Pac. Holdings, Inc., No. 09-22086-Civ., 2011 WL 1233370 (S.D. Fla. Mar. 31, 2011) ...........................................23 McLaughlin v. Monaco RV LLC, No. 8:14-cv-703-T-36TGW, 2015 WL 5355465 (M.D. Fla. Sept. 14, 2015) ..........................10 Ochoa v. McDonald’s Corp., 133 F. Supp. 3d 1228 (N.D. Cal. 2015) (Donato, J.) ..................................................................6 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 6 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD vi sf-3758132 Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220 (5th Cir. 1991) .....................................................................................................12 Paine v. Domino’s Pizza, LLC, No. 10-23158-CIV, 2011 WL 1102788 (S.D. Fla. Mar. 24, 2011) ..........................................22 Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F.2d 1129 (9th Cir. 1977) ...................................................................................................21 Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095 (9th Cir. 2015) .....................................................................................................9 People ex rel. Dep’t of Motor Vehicles v. Cars 4 Causes, 139 Cal. App. 4th 1006 (2006) .................................................................................................16 Perrine v. Sega of Am., Inc., No. 13-cv-01962-JD, 2015 WL 2227846 (N.D. Cal. May 12, 2015) (Donato, J.) ................................................................................................................................19 Persson v. Smart Inventions, Inc., 125 Cal. App. 4th 1141 (2005) .................................................................................................23 Philips v. Ford Motor Co., No. 14-CV-02989-LHK, 2017 WL 635469 (N.D. Cal. Feb. 16, 2017) ....................................25 Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979 (9th Cir. 2015), cert. denied, 136 S. Ct. 2410 (2016) ...................................22, 23 Rahman v. Mott’s LLP, No. CV 13-3482 SI, 2014 WL 5282106 (N.D. Cal. Oct. 15, 2014) .............................16, 17, 18 Rhynes v. Stryker Corp., No. 10-5619 SC, 2011 WL 2149095 (N.D. Cal. May 31, 2011) ..............................................25 Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003) .............................................................................................15, 17 Ries v. Ariz. Beverages USA LLC, No. 10-01139 RS, 2013 WL 1287416 (N.D. Cal. Mar. 28, 2013) ................................17, 18, 23 Rodas v. Porsche Cars N. 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Various Slot Machines on Guam, 658 F.2d 697 (9th Cir. 1981) .....................................................................................................12 Victor v. R.C. Bigelow, Inc., No. 13-cv-02976-WHO, 2015 WL 5569716 (N.D. Cal. Sept. 21, 2015) .................................23 Waters v. Int’l Precious Metals Corp., 172 F.R.D. 479 (S.D. Fla. 1996) ...............................................................................................20 Webb v. Carter’s, Inc., 272 F.R.D. 489 (C.D. Cal. 2011) ..............................................................................................20 Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008) .................................................................................................6, 13 Statutes Cal. Bus. & Prof. Code § 17200 ........................................................................................................................................5 Cal. Civ. Code § 1750 et seq. ..............................................................................................................................5 § 1780(a)(1) ...............................................................................................................................22 § 3343 ........................................................................................................................................23 Fla. Stat. § 501.201 .....................................................................................................................................5 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 8 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD viii sf-3758132 Rules Fed. R. Civ. P. 56 ..............................................................................................................................5 Fed. R. Civ. P. 56 advisory committee’s note to 2010 amendments ................................................6 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 9 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD 1 sf-3758132 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT TO PLAINTIFFS AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 25, 2017 at 10:00 a.m., or as soon thereafter as the matter may be heard, in the courtroom of the Honorable James Donato, United States District Judge, Northern District of California, located at the Philip Burton Federal Building, 450 Golden Gate Avenue, San Francisco, California, Defendant Fitbit, Inc. (“Fitbit”) will and hereby does move this Court for summary judgment or partial summary judgment pursuant to Fed. R. Civ. P. 56(a) as to the claims of Plaintiffs James P. Brickman and Margaret Clingman (“Plaintiffs”) for: (1) violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.; (2) violation of California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq.; (3) violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. § 501.201 et seq.; (4) common law fraud; (5) negligent misrepresentation; and (6) unjust enrichment, as set forth in the “Fourth Amended Class Action Complaint” (ECF No. 60). In the alternative, if the Court does not grant all the relief requested by the motion, Fitbit will seek an order stating that certain material facts are not genuinely in dispute and treating the facts as established. Fitbit seeks summary judgment as to both Plaintiffs’ individual and classwide claims on the grounds that Plaintiffs and the class fail to demonstrate that Fitbit’s sleep tracking representations were false or misleading, and that Plaintiffs and the class fail to put forth any evidence demonstrating they are entitled to monetary relief. This motion is based on this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, and the Declarations of William L. Stern, Shelten Yuen and Conor Heneghan in support thereof, and other related documents filed in connection with this Motion, the papers and records on file in this action, and such other written and oral argument as may be presented to the Court. Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 10 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD 2 sf-3758132 Dated: April 20, 2017 MORRISON & FOERSTER LLP By: /s/ William L. Stern WILLIAM L. STERN Attorneys for Defendant FITBIT, INC. Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 11 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD 1 sf-3758132 STATEMENT OF THE ISSUES TO BE DECIDED Fitbit’s motion raises the following four issues: 1. Is Fitbit entitled to summary judgment on Plaintiffs’ individual and classwide claims that Fitbit’s sleep tracking representations are false and misleading where Plaintiffs have no evidence that “tracks sleep” is false, and where the undisputed evidence demonstrates that Fitbit uses a valid methodology to track sleep and that its devices track sleep as a matter of practice? 2. Is Fitbit entitled to summary judgment on Plaintiffs’ individual and classwide claims that Fitbit’s sleep tracking representations are false and misleading where Plaintiffs have no evidence that “tracks sleep” is otherwise deceptive, material, or induced reliance? 3. Is Fitbit entitled to summary judgment on Plaintiffs’ individual and classwide claims that Fitbit’s sleep tracking representations are false and misleading where Plaintiffs have no evidence that any aberrant readings were not caused by user error? 4. Is Fitbit entitled to summary judgment on Plaintiffs’ individual and classwide claims where Plaintiffs present no legally viable method of calculating monetary relief, and where Plaintiffs have presented no evidence that they are entitled to such relief? Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 12 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 1 sf-3758132 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A decade ago, Fitbit began as a small start-up company with a singular mission: help people lead healthier, more active lives by empowering them with data, inspiration, and guidance to reach their personal fitness goals. While many associate Fitbit with its wearable devices, Fitbit is, in fact, an entire platform-an ecosystem of connected health and fitness devices and software and services, including an online dashboard and mobile apps, data analytics, motivational and social tools, personalized insights, and virtual coaching through customized fitness plans and interactive workouts. Fitbit’s devices are both wrist-worn and “clippable.” Depending on the particular model, they can track a host of information, such as daily steps, calories burned, distance traveled, active minutes, floors climbed, sleep duration and quality, heart rate, and GPS- based information such as speed, distance, and exercise routes. This lawsuit concerns a subset of Fitbit’s legacy devices-the One, Ultra, and Flex (the “Devices”)-equipped with Fitbit’s proprietary sleep-tracking technology. Fitbit developed this technology using its own expertise in engineering and by tracking users’ movement through accelerometers. Measuring sleep via movement is universally accepted science, as even Plaintiffs and their experts admit. Yet, Plaintiffs James P. Brickman and Margaret Clingman (“Plaintiffs”) claim the Devices are incapable of tracking sleep because they use movement as a proxy for sleep and/or because they “do not work at all.” This, Plaintiffs assert, renders Fitbit’s packaging statements false or misleading in violation of California and Florida law. But after two years of litigation and extensive discovery, Plaintiffs have no evidence of either claim. The Court should now grant summary judgment on Plaintiffs’ individual and classwide claims for four independent reasons. First, Plaintiffs cannot show that Fitbit’s “tracks sleep” representations are “false.” The undisputed evidence demonstrates that Fitbit’s representations are truthful: Fitbit’s methodology, actigraphy, is a scientifically valid technique of tracking sleep. Moreover, the Devices work. They do track sleep-as advertised. Plaintiffs cannot prove otherwise. Second, Plaintiffs have no evidence that “tracks sleep” deceived consumers into thinking Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 13 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 2 sf-3758132 they were getting polysomnography technology (a machine used in a lab where electrodes are placed on the head and body). Even Plaintiffs admit they never interpreted “tracks sleep” to mean polysomnography. Importantly, they have no evidence that “it is probable that a significant portion of the general consuming public” thought that. Third, Plaintiffs have no evidence that any aberrant readings were not caused by user error: Plaintiffs’ (and class members’) failure to correctly enable or disable Sleep Mode. It is Plaintiffs’ burden to negate user error as a cause. They have failed to do so. Fourth, Plaintiffs cannot prove entitlement to classwide or individual monetary relief. They lay claim to disgorgement of Fitbit’s profits, but that measure fails as a matter of law. Damages, including restitution, must measure the premium consumers paid, not the “profit” Fitbit earned. Moreover, Plaintiffs withdrew their damages expert at class certification and have no damages expert for trial. While reliance on a defendant’s documents and witnesses might be enough in some cases to prove monetary relief, it is not here. There are no disputed material issues of fact. The Court should grant summary judgment. II. FACTUAL AND PROCEDURAL HISTORY A. Fitbit’s Fitness and Activity Trackers Have a Variety of Features Fitbit is the market leader in activity and fitness trackers. (See Declaration of Shelten Yuen In Support of Fitbit’s Motion for Summary Judgment (“Yuen Declaration”), ¶ 3.) At the time the 4AC was filed, Fitbit’s trackers included Zip, One, Flex, Charge, Charge HR, and Surge. (See ECF No. 63-3.) At issue here are the Fitbit One, Ultra, and Flex. (See ECF No. 119-4 (Mot. for Class Cert.), 1:7-11 (limiting class to purchasers of these devices).) All Fitbit trackers count steps (see, e.g., ECF No. 63-3 at 8; 4AC, ¶ 30; ECF No. 119-12), but they vary significantly in design and additional features and functionality. Zip, the lowest priced, has a clip-on design, a clock, a replaceable battery, Bluetooth capability, and an LCD display. (See ECF Nos. 63-3, 63-4 at 2, 8; ECF No. 119-12.) Zip tracks activity but not sleep. (ECF No. 63-3.) Fitbit One and Ultra, like Zip, are clip-on trackers that count steps. (ECF Nos. 63-3; 119- 12.) But each possesses a different suite of features. The One provides multiple features that Zip Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 14 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 3 sf-3758132 does not, including tracking sleep, floors climbed, vibrating alarm, rechargeable battery, and a display that can be read in the dark. (See ECF Nos. 63-3, 63-5, p. 9, 119-12.) Ultra (a legacy product) also tracks sleep and floors climbed. It includes a rechargeable battery but no silent alarm. (ECF No. 119-12.) Unlike Zip, Ultra does not sync to Bluetooth devices. (Id.) Fitbit Flex-unlike Zip, One, and Ultra-is worn on the wrist. In addition to Zip’s features, Flex (also a legacy product) tracks sleep, has a silent alarm, and a rechargeable battery. (Id.) But unlike Zip, Flex does not include a clock (ECF No. 63-3); it displays users’ progress towards their daily step goal with LED lights. (ECF No. 63-6, pp. 2-3.) Flex does not have a LCD display or a display that can be read in the dark. B. Fitbit’s Proprietary Sleep Tracking Technology Fitbit tracks sleep using a combination of hardware and software. (Yuen Decl., ¶ 7.) The hardware consists of a 3-axis accelerometer to detect movement and its absence. (Id.; 4AC, ¶ 34.) (Yuen Decl., ¶ 7.) . (Declaration of William L. Stern (“Stern Decl.”), Ex. A (Expert Report of Michael A. Grandner, Ph.D (“Grandner Report”), ¶¶ 42-43.) The Devices use actigraphy. (Yuen Decl., ¶ 8.) According to the American Academy of Sleep Medicine, “[a]ctigraphy is reliable and valid for detecting sleep in normal, healthy adult populations.” (ECF No. 63-13 at 338.) It “uses accelerometers…to study sleep-wake patterns and circadian rhythms by assessing movement, most commonly of the wrist.” (Id. at 337-38; see also Stern Decl. Ex. A, ¶ 26 (actigraphy “measure[s] a subject’s movement and determine[s] the amount and quality of the subject’s sleep and [] sleep interruptions.”).) Another method for detecting sleep is polysomnography, but that is not available as a consumer wearable technology. It is a clinician’s tool that records various biophysiological changes that occur during sleep and is used in a doctor’s office or in a laboratory setting. Even Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 15 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 4 sf-3758132 Plaintiffs agree. (4AC, ¶ 33; see also Stern Decl. Ex. A, ¶ 25.) This is an example of a patient being monitored using PSG:1 C. Plaintiffs’ Contentions. In the 4AC, Plaintiffs allege that, shortly after wearing the devices “it became obvious [] that the device only tracked [] motion and did not actually track the hours [they] slept, the times [they] woke up, or the quality of [their] sleep.” (4AC, ¶¶ 12-13.) They contend Fitbit’s package representations are false and misleading because the Devices use actigraphy, which only measures movement. (Id., ¶ 4.) To truly “track sleep,” they say, Fitbit needed to use polysomnography: “The Fitbit devices do not record any of those functions [that polysomnography does], and only uses an accelerometer . . . . But, that only tracks a wearer’s movement, not sleep and . . . tracking movement is “not measuring sleep, simply motion.” (Id., ¶ 34) Consequently, this function “does not work” (id., ¶ 9) and the Devices did not “perform as advertised.” (Id., ¶ 5.) Plaintiffs allege they were harmed and paid a premium because, in effect, 1 Photographic depictions of patients wearing the extensive, cumbersome equipment, including electrodes, required to perform a polysomnographic evaluation can be found throughout the Internet, including on Wikipedia (https://en.wikipedia.org/wiki/Polysomnography). Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 16 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 5 sf-3758132 Fitbit used the wrong noun-“tracks sleep” instead of “tracks movement.” (Id., ¶ 40.) Importantly, their sleep expert admits that polysomnography does not measure sleep directly either. (Stern Decl. Ex. B (Punjabi Dep.), 58:24-59:7.) Plaintiffs have dropped three claims,2 leaving six: (i) violations of California’s unfair competition law (Cal. Bus. & Prof. Code § 17200 (UCL) (id., ¶¶ 70-98); (ii) Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq. (CLRA) (id., ¶¶ 104-109); (iii) violation of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat. § 501.201 et. seq. (id., ¶¶ 134- 140); (iv) Common Law Fraud (id., ¶¶ 141-109); (v) Negligent Misrepresentation (id., ¶¶ 149- 154); and (vi) Unjust Enrichment/Quasi-Contract (id., ¶¶ 155-164).3 D. Relevant Procedural History Brickman sued May 8, 2015. (ECF No. 1 (Complaint).) Plaintiffs filed the operative Fourth Amended Complaint on Dec. 22, 2015. (ECF No. 60.) The crux of the 4AC is that “tracking movement is not tracking sleep.” (ECF No. 67 (Opp’n to MTD) at 2:9 (emphasis added)). Plaintiffs moved for class certification. (ECF No. 119-4.) Fitbit opposed the motion (ECF No. 122), and the Court held oral argument on March 30, 2017. The Court has not yet issued an order, but indicated it was likely to grant certification. (See, e.g., Stern Decl. Ex. C, 4:13-5:3.) III. LEGAL STANDARD Summary judgment is appropriate when the pleadings, discovery, and affidavits show “no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are facts that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. Once the moving party meets its initial burden, the nonmoving party must, by affidavits or discovery, set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 2 Plaintiffs abandoned the second, fourth and fifth claims for relief (ECF No. 119-4, 4, n.1; (See Stern Decl. Ex. C (March Hearing Tr.), 4:4-12), and the Court dismissed those claims. (Id., 4:8-10.) 3 The Court has noted unjust enrichment “is not a claim. It’s a remedy.” (Id., 4:10-12.) Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 17 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 6 sf-3758132 56. “It is not the task of the district court to scour the record in search of a genuine issue of triable fact.” Ochoa v. McDonald’s Corp., 133 F. Supp. 3d 1228, 1232 (N.D. Cal. 2015) (citing Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996)). “Summary judgment may be granted if ‘the evidence is merely colorable . . . or is not significantly probative.’” Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997) (citations omitted). There is no genuine issue of material fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion. See id. (citing Anderson, 477 U.S. at 248).4 IV. ARGUMENT Plaintiffs must present evidence demonstrating that Fitbit’s representations that its Devices “tracks sleep” is false or misleading and, if so, that such misrepresentations were material, induced reliance, and caused injury and/or damages. Plaintiffs fail to raise a material issue of fact as to any of these four elements, either for their own individual claims or their classwide claims. The Court should grant summary judgment. A. Plaintiffs Have No Evidence That the Devices Cannot “Track Sleep” The 4AC alleges that Fitbit’s representation that its Devices “track sleep,” including “hours slept,” times woken up” and “sleep quality” is false because “[t]he device does not, and cannot, track sleep.” (4AC ¶ 8). This Court has observed that all of Plaintiffs’ claims “amount to [] slightly different ways of saying ‘you lied to me.’” (Order (ECF No. 84), 2 n.1.) As all six claims are grounded in deception, Plaintiffs must identify a representation that is either false or “‘has a capacity, likelihood or tendency to deceive or confuse the public.’” Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (citations omitted). Stated differently, Plaintiffs lose if the allegedly false statements are actually true and not otherwise misleading. See, e.g., Lee v. Toyota Motor Sales, U.S.A., Inc., 992 F. Supp. 2d 962, 974 (C.D. Cal. 2014); Rooney v. Cumberland Packing Corp., No. 12-CV-0033-H (DHB), 2012 WL 4 The current version of Rule 56 authorizes a Court to grant partial summary judgment to dispose of less than the entire case and even just portions of a claim or defense. See Fed. R. Civ. P. advisory committee’s note to 2010 amendments; see also Smith v. State of Cal. Dep’t of Highway Patrol, 75 F. Supp. 3d 1173, 1179 (N.D. Cal. 2014). “Now the Court can, when warranted, selectively fillet a claim or defense without dismissing it entirely.” Ochoa, 133 F. Supp. 3d at 1232. Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 18 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 7 sf-3758132 1512106, at *4 (S.D. Cal. Apr. 16, 2012); Major v. Ocean Spray Cranberries, Inc., No. 5:12-CV- 03067-EJD, 2015 WL 859491, at *5 (N.D. Cal. Feb. 26, 2015). Likewise, Plaintiffs lack Article III standing if they received the benefit of the bargain and suffered no injury-in-fact. In re Toyota Motor Corp. Hybrid Brake Mktg., Sales Practices & Prods. Liab. Litig., 915 F. Supp. 2d 1151, 1159 (C.D. Cal. 2013) (granting summary judgment as to CLRA and UCL claims where the “undisputed evidence before the Court establishes that [plaintiff] received precisely what he bargained for with Toyota.”); Lee, 992 F. Supp. 2d at 972 (same); Simpson v. Cal. Pizza Kitchen, Inc., 989 F. Supp. 2d 1015, 1021-23 (S.D. Cal. 2013) (same). 1. Plaintiffs’ Various Theories of “Does Not Work,” Dissected. Plaintiffs have said different and contradictory things about how the package statements for the Devices are misleading. One of their theories is that, no matter how precise the measurement, Fitbit simply cannot say “tracks sleep” if it uses accelerometry-i.e., actigraphy- because that “only measure[s] movement and not sleep.” (4AC, ¶ 4; see also ECF No. 84, 2:3-5.) Plaintiffs’ second theory is that how the Device tracks sleep doesn’t matter; they simply “do not work.” (See, e.g., 4AC, ¶ 10.) (There was a third theory, that the Devices “do not work” because they aren’t sufficiently accurate, but Plaintiffs have abandoned this theory.5) Conceptually, one might view the first theory-“movement, not sleep”-as a false advertising theory (“You promised to track sleep but you only track movement”). The second theory-“it does not work at all”-is a product defect theory (“You sold me a product whose feature fails on grounds of core functionality”). Under either theory, liability is Plaintiffs’ burden to prove. And because this is their burden, Fitbit on this motion needs only to identify the absence of a genuine issue of material fact, i.e., “that there is an absence of evidence to support” Plaintiffs’ case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986). As we will show, Plaintiffs cannot raise a material fact issue to support either theory. 5 Plaintiffs said at class certification that their claims “have nothing to do with accuracy.” (ECF No. 131-4 (Reply iso Class Cert.), 1:6; see also 2:12-13 (“It is not a question of accuracy but of core functionality”); see also 13:27-14:1 (“Fitbit tries to spin this into an accuracy question . . . . [I]t is not a question of accuracy, it is a question of functionality.”).) Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 19 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 8 sf-3758132 2. Plaintiffs Have No Evidence That Actigraphy Cannot “Track Sleep.” Plaintiffs allege that the phrase “tracks sleep” is false because “tracking movement is ‘not measuring sleep, simply motion.’” (4AC, ¶¶ 9, 34.) While this theory survived the pleading stage (see ECF NO. 84, 5:14-16), it cannot survive summary judgment. As Plaintiffs admit, actigraphy is one of “two widely accepted sleep-monitoring technologies used by sleep scientists (Compl., ¶ 15) and “actigraphy is a scientifically accepted technology.” Plaintiffs are stuck with these admissions. Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (“A statement in a complaint, answer or pretrial order is a judicial admission . . . .”).) That ought to be conclusive on the question of whether actigraphy, as a technology, can track sleep via movement. Clearly, it can.6 Lest there be any doubt, the scientific literature ends that debate. (See ECF Nos. 63-13 - 63-16.) The testimony of Plaintiffs’ sleep experts also confirms that actigraphy can track sleep via movement. In his expert report, Dr. Punjabi admits that “[a]ctigraphy can provide a proxy or a surrogate assessment of total sleep time which has been in numerous studies correlated with polysomnographic measures of total sleep time in healthy populations” and he notes the “general acceptance of actigraphy in the field of Sleep Medicine.” (Cf. ECF No. 116, ¶ 4.) In deposition, he admitted that actigraphy “is a suitable surrogate for measuring sleep” and is “generally accepted in the scientific community.” (Stern Decl. Ex. B (Punjabi Dep.), 10:6-19, 63:7-9).) Plaintiffs’ other sleep expert, Dr. Montgomery-Downs, . Stern Decl. Ex. D (Montgomery-Downs Dep.), 58:12-59:7, 77:22-78:5, 79:24-5; see also ECF No. 63-16 (2011 Montgomery-Downs Study), p. 3 (“Actigraphy has been validated to identify sleep/wake times and patterns among adults . . . .”). In her Report, she admits using actigraphy in conducting her own sleep studies. (ECF No. 118 (Montgomery-Downs Report), p. 1.)7 6 By this theory, as this Court noted, Plaintiffs need to prove that actigraphy is not a valid method for sleep monitoring. (See ECF No. 84, 5:14-17.) 7 Fitbit’s experts concur. (See Stern Decl. Ex. E, 4:6-11; Stern Decl. Ex. A, ¶¶ 26, 37; Stern Decl. Ex. F (Grandner Rebuttal Report), ¶ 7; Stern Decl. Ex. G, 79:5-15; see also Stern Decl. Ex. H (Heneghan Dep.), 84:19-85:5.) Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 20 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 9 sf-3758132 Dr. Punjabi goes further. He admits that actigraphy can track hours slept, times woken up, and quality of sleep-all package phrases that Plaintiffs assail. (Stern Decl. Ex. B, 61:22-62:13 (confirming that “actigraphy can be used to infer the number of awakenings, wake after sleep onset, and sleep efficiency.”) Indeed, he has used actigraphy in his own studies to measure these very metrics. (Id.; see also Stern Decl. Ex. D, 67:9-15, 80:7-20.) Moreover, when sleep researchers (including Dr. Punjabi) need to track sleep over longer periods of time, they prefer actigraphy over polysomnography-the alleged “gold standard” of measures-because polysomnography requires bulky, specialized equipment and a laboratory or hospital setting and, therefore, is impractical. (Stern Decl. Ex. B, 13:20-14:1, 15:1-7, 15:15-25); see also Stern Decl. Ex. D, 71:12-75:14; Stern Decl. Ex. E (Winter Report), 4:12-5; Stern Decl. Ex. A, ¶ 29.) Fitbit’s Devices are intended for long-term use. To the extent Plaintiffs’ case challenges that actigraphy is incapable of doing what the package statement says-“tracks sleep,” “hours slept,” “times woken up,” and “sleep quality”- there is no fact issue. It is undisputed that actigraphy can do, and does, all of these things. 3. Plaintiffs Have No Evidence That the Devices Cannot “Track Sleep.” Plaintiffs may claim that their quarrel is not with actigraphy as a technology, but with Fitbit’s Devices, which purportedly “do not work at all” or, as they put it, contain a defect in the core functionality. (See, e.g., 4AC, ¶ 10; ECF No. 131-4, 2:12-14.) Plaintiffs characterize this as a product defect case (despite having abandoned their defect and warranty claims). (ECF No. 119-4 at 25 n. 4.) Proof that a product is defective may be direct or circumstantial. Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 n.3 (9th Cir. 2015). Plaintiffs have no evidence, direct or circumstantial, that the Devices are defective. a. Plaintiffs Have No Direct Evidence of a Product Defect. It is not Fitbit’s burden on this motion (or at trial) to affirmatively prove that its sleep- tracking technology works. Yet, it does work. Fitbit’s expert, Dr. Grandner, examined the technology, reviewed Fitbit’s proprietary sleep tracking algorithm, evaluated the technical specifications of the accelerometers, read Fitbit’s internal studies, testing and Fitbit deposition testimony, and conducted his own independent studies of Fitbit’s Devices. (See Stern Decl. Ex. Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 21 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 10 sf-3758132 A, ¶¶ 46-53 & n.25.) He concludes that (1) “the Fitbit Devices are able to translate movement into a measurement of sleep that is reliable and scientifically based”; and (2) “[b]ased on the fact that the Fitbit Devices can measure sleep . . . the statements on the product packaging regarding the Devices’ ability to track ‘sleep,’ ‘hours slept,’ ‘sleep quality,’ and ‘times woken up’ are truthful and reasonable and inform consumers about the Fitbit Devices’ ability to measure sleep.” (Id., ¶¶ 51, 53.) Plaintiffs submitted no rebuttal testimony to Dr. Grander. Thus, to the extent Plaintiff’s “does not work” theory relies on a supposed flaw in Fitbit’s algorithm or source code, summary judgment must be granted in favor of Fitbit because Plaintiffs cannot meet their burden of proof. Cf. Binning v. Louisville Ladder, Inc., No. 2:11-cv-03058-MCE-CK, 2014 WL 4249667, at *6 (E.D. Cal. Aug. 27, 2014) (granting summary judgment where plaintiff “offers no clue as to how an expert could discount [opposing expert’s] opinion were one to be retained and permitted to testify” and confirming expert testimony is required to rebut opposing expert’s conclusion that there is no design defect); see also McLaughlin v. Monaco RV LLC, No. 8:14-cv-703-T-36TGW, 2015 WL 5355465, at *5 n.4 (M.D. Fla. Sept. 14, 2015) (granting summary judgment where plaintiffs failed to produce expert to rebut opposing expert’s testimony that there was no defect). b. Plaintiffs’ Circumstantial Evidence Fails to Raise a Fact Issue. Plaintiffs are relying on circumstantial evidence that sleep tracking “does not work.” But none of that evidence raises a material fact issue. First, Plaintiffs will cite their own deposition testimony that they experienced false positives (sleep when supposedly awake) and false negatives (awake when supposedly asleep). But a failure of “core functionality,” as alleged here, requires experts. It is “beyond the experience of laymen,” Rodas v. Porsche Cars N. Am., Inc., No. CV14-3747 PSG (MRWx), 2016 WL 6033535, at *6 (C.D. Cal. Apr. 4, 2016) (citation omitted) (requiring expert testimony). “[D]etermining whether a defectively designed or manufactured suspension component was the cause of the accident (as opposed to, for example, driver error) is outside the purview of a layperson.” Id. This is precisely the kind of “standardless reference to the ‘expectations’ of an ‘ordinary consumer,’” Howard v. Omni Hotels Mgmt. Corp., 203 Cal. App. 4th 403, 426 (2012) Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 22 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 11 sf-3758132 (citation omitted), that is insufficient to raise a fact issue. Plaintiffs’ testimonials are also highly suspect, given Fitbit’s records of Plaintiffs’ actual sleep data. These show that the Devices did track the hours they slept, the times they awoke during sleep, and the quality of their sleep. As the Court noted, if Fitbit prevails in demonstrating Plaintiffs’ sleep data is unrebutted-and here it is-then “everybody in that class will be foreclosed.” (Cf. Stern Decl. Ex. C, 13:5-7.) Such is the case here. Mr. Brickman’s and Ms. Clingman’s Devices recorded sleep data that is both internally consistent and consistent with their testimony regarding their respective sleep patterns. Mr. Brickman’s Device recorded sleep consistently % of the time, with an average of hours of sleep, whereas in deposition he estimated hours on average-just a % difference. Ms. Clingman recorded sleep consistently % of the time, with an average of hours of sleep. (See Declaration of Conor Heneghan in Support of Fitbit’s Motion for Summary Judgment (“Heneghan Decl.”), ¶¶ 6-8.)8 The data suggest that the sleep tracking did work, even for them. Plaintiffs might point to the few aberrant readings in their sleep data. But as the Heneghan Declaration shows, these are consistent with user error-i.e., Plaintiffs’ occasional failure to manually turn Sleep Mode on and off.9 User error is not product failure. Under California law, a party may rely on reasonable inferences drawn from direct and circumstantial evidence to satisfy its burden on summary judgment, but courts may not draw inferences of product defect from thin air. Leslie G. v. Perry & Assocs., 43 Cal. App. 4th 472, 483 (1996). Plaintiffs have no evidence to rule out user error. See Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1116 (9th Cir. 2003) (affirming summary judgment where plaintiff’s declaration was contradicted by defendant’s documentary evidence). 8 See also Heneghan Decl. Exs. Y (Brickman’s records) and Z (Clingman’s records).) 9 Sleep tracking was not automatic. For all Devices sold during the class period, a user had to switch it on and off. (Yuen Decl., ¶ 6.) For the Flex, you simply tapped rapidly on the face for one or two seconds, which causes it to vibrate and flash two lights that signal Sleep Mode is activated. (Id.; see also id. Ex. A at 19.) You disabled Sleep Mode the same way. (Id.) For the One, Sleep Mode was (and still is) activated by “hold[ing] the tracker’s button for 2+ seconds.” (Id. Ex. B at 9.) Ultra and Classic also required the user to manually activate Sleep Mode. (Id., ¶ 6.) A user could also activate Sleep Mode (or edit the period during which the Device is in Sleep Mode) through Fitbit’s online Dashboard. (Id.) Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 23 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 12 sf-3758132 Just as Plaintiffs cannot rule out user error even as to their own experience, they have no evidence to prove that the entire class always used Sleep Mode correctly. Cf. Rodas, 2016 WL 6033535, at *6; accord Roper v. Kawasaki Heavy Indus., Ltd., No. 1:13-CV-03661-ELR, 2015 WL 11236553, at *13 (N.D. Ga. June 29, 2015) (excluding plaintiff’s product defect expert because he “did nothing to rule out excessive speed or user error as the cause of Plaintiff’s [motorcycle] accident because “he assumed Plaintiff was being truthful”), cert. denied, 137 S. Ct. 186 (2016). Third, Plaintiffs will rely on the Montgomery-Downs Report for circumstantial proof that sleep tracking “does not work.” The Montgomery-Downs Report grades Fitbit validation studies and decides which to discredit based on nothing more than her own (Stern Decl. Ex. D, 110:21-111:9.) This isn’t science, it is her own personal conviction and cannot defeat summary judgment. United States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir. 1981) (“[I]n the context of a motion for summary judgment, an expert must back up his opinion with specific facts.”); Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 225 (5th Cir. 1991) (“unsupported” opinion “setting forth ultimate or conclusory facts and conclusions of law [is] insufficient to . . . defeat a motion for summary judgment.”) (citation omitted); Luke v. Family Care & Urgent Med. Clinics, 246 F. App’x 421, 424 (9th Cir. 2007) (“An expert opinion that is merely a conclusory statement without adequate supporting facts is insufficient to defeat a summary judgment motion.”). Fitbit has accordingly moved to strike this Report. Even if admissible, the Montgomery-Downs Report provides no evidence for Plaintiffs’ functionality contention. The Report’s premise addresses an issue not before this Court (the Devices’ “accuracy” compared to polysomnography and medical-grade actigraphy).10 (See footnote 5, above.) Expert evidence that addresses an irrelevant issue does not create a material 10 See ECF No. 118 (Montgomery-Downs Report), p. 4 (purpose of Report is to determine whether “Fitbit consumer wearable tracker is able to accurately track: hours slept, times awakened, or sleep quality); see also ECF NO. 63-16 (2011 Montgomery Study), p. 2 (“[t]he purpose of this study was to evaluate the reliability and validity of a novel activity monitoring device (Fitbit) compared to both polysomnography and standard actigraphy”). Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 24 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 13 sf-3758132 fact dispute. Montgomery-Downs simply concludes that she would not recommend the Devices to consumers. (ECF No. 118, p. 3.) Whether or not she would “recommend” the Devices is not the test. The Montgomery-Downs Report must support Plaintiffs’ theory that the Devices “do not work.” Her Report doesn’t do that. In fact, her own 2011 Study concludes that Fitbit “may be an acceptable activity measurement instrument for use with normative populations.” (See ECF No. 63-16, p. 2.)11 Plaintiffs cannot prove that Fitbit’s Devices are incapable of “tracking sleep” either as a matter of methodology (actigraphy) or as a matter of practice. Because the Devices do track sleep, Plaintiffs fail to raise a material issue of fact, and the Court should enter summary judgment. B. Plaintiffs Have No Evidence That “Tracks Sleep” Is “Likely to Deceive,” Is Material, or Induced Consumer Reliance. Regardless of whether this case is about accuracy or about core functionality, all of Plaintiffs’ claims require proof that (i) members of the public were “likely to be deceived”, (ii) reliance, (iii) materiality, (iv) causation, and (v) resulting injury. See, e.g., Williams, 552 F.3d at 938 (UCL, FAL, and CLRA); In re Tobacco II Cases, 46 Cal. 4th 298, 312, 314-15, 321, 326 (2009) (reliance and materiality required for UCL and CLRA claims, and plaintiffs must show “misrepresentation or nondisclosure was an immediate cause of the injury-producing conduct”); Lombardo v. Johnson & Johnson Consumer Cos., 124 F. Supp. 3d 1283, 1287 (S.D. Fla. 2015) (“FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages”); see also Jovine v. Abbott Labs., Inc., 795 F. Supp. 2d 1331, 1342 (S.D. Fla. 2011) (noting that “in a FDUTPA action the issue is . . . whether the practice was likely to deceive a consumer acting reasonably in the same circumstances” )(citation omitted).12 Even Plaintiffs’ 11 Moreover, Montgomery Downs’ Report demonstrates that Fitbit is able to identify when an individual is asleep 97.8% of the time. (See ECF No. 118, p. 6.) 12 Common law fraud and negligent misrepresentation require even stricter proofs. See Anderson v. Deloitte & Touche, 56 Cal. App. 4th 1468, 1474 (1997) (fraud elements are: “(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) (Footnote continues on next page.) Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 25 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 14 sf-3758132 unjust enrichment claim requires proof of deception, as it is based on Fitbit’s alleged misrepresentations. (4AC, ¶ 156.) Plaintiffs have no evidence even they were deceived, let alone that members of the public were “likely to be deceived,” that such representations were material to their purchases, or that they relied on representations about tracking sleep. The Court should enter summary judgment on their individual and classwide claims. 1. Plaintiffs Have No Evidence That “Track Sleep” Deceived Them, Was Material to Their Purchases, or Induced Their Reliance. In the 4AC, Plaintiffs aver that “[a]fter a short period of wearing the device, it became obvious . . . that the device only tracked [] motion and did not actually track the hours [they] slept, the times [they] awoke during sleep, or [the] quality of [their] sleep.” (4AC, ¶¶ 12, 13, 49.) They contend they would not have purchased the Devices “in the absence of Defendant’s misrepresentations.” (Id., ¶ 51.) The evidence establishes otherwise. Both named Plaintiffs admitted that they were not misled by the fact that Fitbit uses movement to track sleep. At the time of purchase, Mr. Brickman had “no idea” whether Fitbit tracked sleep by measuring brain waves or other polysomnographic measurements. (See ECF No. 122-12 (Brickman Dep.), 34:3-24, 51:24-52:9.) Neither did Ms. Clingman, who was not aware of any method of sleep tracking and had never heard of actigraphy. (ECF No. 122-13 (Clingman Dep.), 31:19-32:10.) Because Plaintiffs attached no importance to how the Devices track sleep, “track sleep” cannot have been material to Plaintiffs’ purchases. Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1107 (9th Cir. 2013). Nor can they show that they would not have purchased the Devices had they known this. See, e.g., Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 330 (2011) (materiality demonstrated by proving consumers “would not have bought the product but for the (Footnote continued from previous page.) resulting damage.”); Fox v. Pollack, 181 Cal. App. 3d 954, 962 (1986) (elements of negligent misrepresentation are “(1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages.”). Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 26 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 15 sf-3758132 misrepresentation.”). A representation must also be material. Rice v. Fox Broad. Co., 330 F.3d 1170, 1181-82 (9th Cir. 2003). “A representation is ‘material,’ . . . if a reasonable consumer would attach importance to it or if ‘the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action.” Hinojos, 718 F.3d at 1107 (quoting Kwikset, 51 Cal. 4th at 333.) Just as you can’t be deceived by the attribute of a product you didn’t care about, neither can that attribute have been material to your decision to purchase. As discussed above, Plaintiffs cannot prove deception, materiality, or reliance, and summary judgment against these individual Plaintiffs is appropriate. See Swearingen v. Pac. Foods of Or., Inc., No. 13-cv-04157-JD, 2014 WL 3767052, at *2 (N.D. Cal. July 31, 2014) (Donato, J.) (UCL and CLRA claims fail due to lack of reliance); Major, 2015 WL 859491, at *4 (granting summary judgment where plaintiff “simply [] rais[ed] allegations or theories which are unsupported by any actual evidence,” especially when “(1) the theory differs from the one disclosed in the Amended Complaint,” and (2) where plaintiff’s deposition testimony demonstrated that the alleged misrepresentation was not a factor in her decision to purchase the products); see also Graham v. VCA Antech, Inc., No. 2:14-cv-8614-CAS-JC, 2016 WL 5958252, at *8 (C.D. Cal. Sept. 12, 2016) (granting summary judgment on UCL claim where plaintiff’s deposition testimony established that she could not show actual reliance).13 2. Plaintiffs Have No Evidence That Class Members Were Deceived. When it comes to evidence of classwide deception, Plaintiffs’ challenge is greater still. They “must produce evidence showing ‘a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care.’” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir. 2008) (emphasis added) (citation omitted). California law requires proof that “it is probable that a significant portion of the general consuming public or of targeted 13 See also Khasin v. Hershey Co., No. 5:12-CV-1862-EJD, 2014 WL 1779805, at *4 (N.D. Cal. May 5, 2014) (granting summary judgment on UCL claims where plaintiff’s deposition testimony revealed that he did not rely on and was not injured by the challenged statements); Baghdasarian v. Amazon.com, Inc., 458 F. App’x 622, 623-24 (9th Cir. 2011) (same) Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 27 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 16 sf-3758132 consumers, acting reasonably in the circumstances, could be misled.” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003) (emphases added). “The ‘likely to be deceived’ standard requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” People ex rel. Dep’t of Motor Vehicles v. Cars 4 Causes, 139 Cal. App. 4th 1006, 1016 (2006) (emphasis added) (citation omitted).14 Likewise, the FDUTPA “requires a showing of ‘probable, not possible deception’ that is ‘likely to cause injury to a reasonably relying consumer.’” In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Practice Litig., 955 F. Supp. 2d 1311, 1331-32 (S.D. Fla. 2013) (citation omitted). A “few isolated examples of actual deception are insufficient” to survive summary judgment. Clemens, 534 F.3d at 1026 (citation omitted). In other words, Plaintiffs must prove that more than 50% of the population was likely to have been misled by Fitbit’s package statements. Plaintiffs’ evidence of classwide deception fails for six independent reasons. First, Plaintiffs’ own testimony confirms that Plaintiffs did not know or care how the Devices tracked sleep. That the named Plaintiffs in a class action case don’t endorse the operative theory is worse than no evidence, because they purport to be “typical” of absent class members. This reason alone is fatal. See, e.g., Major, 2015 WL 859491, at *4; Khasin, 2014 WL 1779805, at *4. Second, Plaintiffs have no evidence that consumers interpreted Fitbit’s sleep tracking statements to mean something other than actigraphy (measurement of movement as a proxy for sleep). And because Plaintiffs’ own anecdotal testimony impeaches the allegations of the 4AC, their testimony cannot supply evidence of classwide deception. See, e.g., Mar. Hearing Tr., 13:2- 7; Rahman v. Mott’s LLP, No. CV 13-3482 SI, 2014 WL 5282106, at *9 (N.D. Cal. Oct. 15, 2014) (plaintiff’s testimony, standing alone, was insufficient to “to draw a conclusion as to whether a reasonable consumer would have been similarly misled,” especially where “the 14 See also Hataishi v. First Am. Home Buyers Prot. Corp., 223 Cal. App. 4th 1454, 1460 (2014) (finding that plaintiff’s claims of deception were negated based on consumer survey results showing that 61.6% of respondents were not deceived). Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 28 of 37 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 29 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 18 sf-3758132  60.5% of respondents who viewed the sleep-tracking feature described on the actual package “correctly understood that the Device tracks motion. (Id. at 7, 76.)  There was a “net confusion rate” of only 6%. (Id.)18 Plaintiffs have no other evidence and no survey of their own. True, they hired a rebuttal expert, Mr. Sowers, to criticize Mr. Poret’s work, but rebuttal testimony is not affirmative evidence, and Mr. Sowers did not refute or undermine the validity of Mr. Poret’s conclusions. Rahman, 2014 WL 5282106, at *10 (“criticizing the methodology of a survey that tends to show a reasonable consumer would not be deceived, is no substitute for introducing evidence which arrives at the opposite conclusion.”). Fourth, Plaintiffs’ sleep experts provide no support for “likely to mislead,” reliance, or materiality. If anything, Plaintiffs’ own experts debunk these elements. Montgomery-Downs, . (Stern Decl. Ex. D, 76:10-24.) Notably, Fitbit never said it “measured” sleep. Dr. Punjabi believes “measuring” sleep requires polysomnography (see ECF No. 116, ¶ 4) but, again, Fitbit never promised to “measure” sleep. Moreover, he is not an expert in consumer behavior and his “Medical Review Report” tells us nothing about how reasonable consumers interpret “tracks sleep,” or whether they expected Fitbit’s tracker to provide the same information about their brain waves, eye movements, or muscle activity from a polysomnogram just because the packaging says “track sleep.” As this Court noted, no one thinks Fitbit is a “sleep lab on your wrist.” (ECF No. 123-5, 14:3-6.) Plaintiffs’ other sleep expert, Montgomery-Downs, evaluates the Devices for scientific use. That is not the issue raised in this lawsuit, and she admits “it is reasonable to ask whether (Footnote continued from previous page.) tracking language as is versus statements describing sleep tracking in terms of tracking motion which is then used to estimate sleep. (See, e.g., Stern Decl. Ex. K (Poret Dep.), 35:12-37:8; see also Stern Decl. Ex. I, ¶ 45.) 18 Mr. Poret explains: “21.7% expected the Device tracked sleep using a method other than movement, but, notably, 15.7% of respondents who noticed the sleep-tracking feature on the altered package had this belief, which means (by subtracting the latter from the former to account for the control rate or “noise”), there is a net confusion rate of only 6%.” (Stern Decl. Ex. I., p. 7.) Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 30 of 37 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 31 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 20 sf-3758132 116, 133 (2009) (presumption of reliance requires “common evidence as to what consumers perceived or what they would find material.”).20 We already know that this is not the case based on Plaintiffs’ own testimony. We also know that plain meaning of “track” is to “observe or follow the course of progress of” (see http://www.dictionary.com/browse/track)-which is at odds with the definition Plaintiffs would have this Court apply and defeats any claim of classwide reliance. A consumer applying this definition would expect general information about her sleep length and duration over time, exactly what Fitbit provides. Moreover, Florida law does not allow for presumptions of reliance. Humana, Inc. v. Castillo, 728 So. 2d 261, 265 (Fla. Dist. Ct. App. 1999). This “requires a party asserting fraud to establish that but for the alleged misrepresentation or nondisclosure, the party would not have entered the transaction.” Id; see also Waters v. Int’l Precious Metals Corp., 172 F.R.D. 479, 502-03 (S.D. Fla. 1996) (“[T]his Court finds that Florida does not recognize the presumption of reliance in omissions cases brought under Florida common law. As such, Plaintiffs must affirmatively prove reliance in both omissions and misrepresentations cases. It is well recognized that proof of reliance in an omissions case is often more difficult than in a misrepresentations case given the difficulty of proving what a person would have done had they been given certain information.”). C. “Sleep Mode” (and User Error) Precludes Class Evidence of Damages and Causation All of Plaintiffs’ claims require a showing that any alleged injury was caused by the allegedly deceptive statement or misrepresentation. See, e.g., In re Tobacco II Cases, 46 Cal. 4th at 326 (“[P]laintiff must show that the misrepresentation was an immediate cause of the injury- producing conduct” for UCL claims); Davis v. Chase Bank U.S.A., N.A., 650 F. Supp. 2d 1073, 1087 (C.D. Cal. 2009) (“causation is ‘a necessary element of proof’ for relief.”) (citing Wilens v. TD Waterhouse Grp., Inc., 120 Cal. App. 4th 746, 754 (2003)); Lombardo, 124 F. Supp. 3d at 1290 (“causation is a necessary element of the FDUTPA claim”; Small v. Fritz Cos., 30 Cal. 4th 20 See also, e.g., Webb v. Carter’s, Inc., 272 F.R.D. 489, 502-03 (C.D. Cal. 2011); Caro v. Procter & Gamble Co., 18 Cal. App. 4th 644, 667-68 (1993). Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 32 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 21 sf-3758132 167, 202 (2003) (“damage causation is an essential element of any cause of action for fraud or negligent misrepresentation.”) Plaintiffs cannot demonstrate causation. For all Devices sold during the class period, sleep tracking was not automatic: a user had to switch it on and off. (See ECF No. 122, 3:24-5 (citing Yuen Decl., ¶ 6).) That means that not all class members even used Sleep Mode, or that someone could mistakenly enable Sleep Mode (resulting in false positives) or disable Sleep Mode (resulting in false negatives). In fact, user error likely explains the tiny number of aberrant readings about which Mr. Brickman21 and Ms. Clingman22 testified. As discussed at page 11, above, Plaintiffs cannot show that these aberrant readings were not the result of their own error. As for Plaintiffs’ classwide claims, they cannot prove that all consumers always used sleep mode properly. As part of their burden of proving causation, Plaintiffs must negate user error as a cause. Cf. Rodas, 2016 WL 6033535, at *6 (expert testimony required to demonstrate defect caused accident, as opposed to driver error); Lombardo, 124 F. Supp. 3d at 1290 (granting summary judgment on FDUTPA claim where plaintiffs failed to demonstrate direct or indirect causation); see also Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F.2d 1129, 1139 (9th Cir. 1977) (defendant is not liable for harm caused by plaintiff’s contribution to his own loss or injury). They have no such evidence. D. Plaintiffs Have No Evidence That They Are Entitled to Monetary Relief, Individually or Classwide. The Court should enter summary judgment on another ground. Plaintiffs cannot prove that they are entitled to classwide or individual monetary relief. 21 Mr. Brickman testified that his Flex “recorded hours slept,” when, in fact, he “was actually watching a movie . . . and . . . did not sleep at all during that period of time.” (ECF No. 122-12, 19:21-22:11.) If so, given his otherwise consistent sleep patterns, a logical explanation is that he may have turned on Sleep Mode when he shouldn’t have. (See Heneghan Decl., ¶ 7.) Similarly, Ms. Clingman observed instances in which the Flex recorded her asleep during the day, as when she was pushing a “stroller or a grocery cart.” (ECF No. 122-13, 43:14-22.) But like Mr. Brickman, that was likely the result of her turning on Sleep Mode by accident. (See Heneghan Decl., ¶ 9 (describing how vibrations from handle of stroller or cart could activate sleep mode).) 22 Ms. Clingman testified that her Fitbit gave her “odd” readings about her sleep, such as when it “said I woke up 50 times.” (ECF No. 122-13, 26:19-24, 77:8-10.) But even Ms. Clingman characterized that reading as “extreme” and “abnormal.” (Id. at 77:10-18.) Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 33 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 22 sf-3758132 1. The Right to Monetary Relief Is an Element of All Claims. Entitlement to monetary relief is an element of all of Plaintiffs’ six claims. For the UCL claim, they must proffer “substantial evidence” that they are entitled to restitution. In re Tobacco Cases II, 240 Cal. App. 4th 779, 792 (2015), rev. denied (Dec. 9, 2015). The CLRA requires proof of “actual damages” (Cal. Civ. Code § 1780(a)(1)) as well as loss-causation and reliance. Tucker v. Pac. Bell Mobile Servs., 208 Cal. App. 4th 201, 222 (2012); Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1069-70 (9th Cir. 2014); see also Davis, 650 F. Supp. 2d at 1087 (same); Lanovaz v. Twinings N. Am., Inc., No. C-12-02646-RMW, 2014 WL 1652338, at*6 (N.D. Cal. Apr. 24, 2014) (same). Likewise, damages are an element of Plaintiffs’ Florida count23 as well as fraud and negligent misrepresentation.24 2. Plaintiffs Seek “Restitutionary Disgorgement” for All Six Claims. Plaintiffs contend that their request for “[r]elief is confined to restitution, instead of damages.” (ECF 119-4, 25:2-6.) Though they use the word “restitution,” in fact they lay claim to Fitbit’s “net profits” and contend that this was “approximately 50% of the price it sells the devices to retailers.” (Id., 1:14-15; 3:14-19; see also ECF No. 131-4, 14:18-22.) Plaintiffs’ evidence of their right to monetary relief fails both on the law and the facts. 3. The Law-What Plaintiffs Call “Restitution” Is Really “Disgorgement of Profits” and Is Not Allowed. Plaintiffs seek to recover Fitbit’s profits. They cannot. Their proposed “net profit”/disgorgement measure is not available under any of their six claims. First, disgorgement is the wrong theory. Alleged fraudulent advertising is properly viewed from the consumer’s perspective and is based “on what a purchaser would have paid at the time of purchase had the purchaser received all the information.” Pulaski & Middleman, LLC 23 Lombardo, 124 F. Supp. 3d at 1287. 24 Bias v. Wells Fargo & Co., 942 F. Supp. 2d 915, 944 n.23 (N.D. Cal. 2013) (damages are an element of fraud claim in California); Asnaashari v. PNY Techs., Inc., No. C 13-1308 PJH, 2013 WL 2403605, at *1 (N.D. Cal. May 31, 2013) (same, negligent misrepresentation); Paine v. Domino’s Pizza, LLC, No. 10-23158-CIV, 2011 WL 1102788, at *3 n.4 (S.D. Fla. Mar. 24, 2011) (same, fraud and negligent misrepresentation). Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 34 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 23 sf-3758132 v. Google, Inc., 802 F.3d 979, 989 (9th Cir. 2015), cert. denied, 136 S. Ct. 2410 (2016). As the Ninth Circuit said, the focus is on the difference between what was paid and what a reasonable consumer would have paid at the time of purchase without the fraudulent or omitted information.” Id.; accord Kwikset, 51 Cal. 4th at 330; Cortez v. Purolator Air Filtration Prods. Co., 23 Cal. 4th 163, 174 (2000). This theory, for shorthand, is called “price-premium,” and is not what Plaintiffs are seeking. Without exception, every court agrees that the exclusive measure of monetary relief in this case is price-premium-not disgorgement.25 Florida law is in accord too. McKissack v. Swire Pac. Holdings, Inc., No. 09-22086-Civ., 2011 WL 1233370, at *5 (S.D. Fla. Mar. 31, 2011). Second, “profit” is the wrong measure. See Theme Promotions, Inc. v. News Am. Mktg. FSI, 546 F.3d 991, 1009 (9th Cir. 2008). After surveying the law, Judge Orrick concluded: “[N]one of [the cases] found that profits-based recovery models are appropriate as an unjust enrichment remedy in a mislabeling case.” Victor v. R.C. Bigelow, Inc., No. 13-cv-02976-WHO, 2015 WL 5569716, at *2 (N.D. Cal. Sept. 21, 2015). Third, Plaintiffs’ model is not “restitution,” which is the only available remedy and means giving back what consumers gave up. Cortez, 23 Cal. 4th at 172; Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1148 (2003); Day v. AT & T Corp., 63 Cal. App. 4th 325, 340 (1998). Fitbit customers did not give up Fitbit’s profits. They allegedly gave up a premium for the sleep tracking feature. Plaintiffs disagree and say their model is a proper form of “restitutionary disgorgement” (ECF No. 131-4, 14:7-8 (citing Astiana v. Kashi Co., 291 F.R.D. 493 (S.D. Cal. 2013)).) But 25 See Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663, 700 (2006); In re Vioxx Class Cases, 180 Cal. App. 4th at 131; In re First Alliance Mortg. Co., 471 F.3d 977, 997 (9th Cir. 2006); In re Facebook, Inc., PPC Advert. Litig., 282 F.R.D. 446, 461 (N.D. Cal. 2012); Astiana v. Kashi Co., 291 F.R.D. 493, 506 (S.D. Cal. 2013); Ries, 287 F.R.D. at 532; Brazil v. Dole Packaged Foods, LLC, 660 F. App’x 531, 534 (9th Cir. 2016) (affirming district court’s limitation of damages to “the difference between the prices customers paid and the value of the [product] they bought.”) See also Opp’n to Class Cert., 24:25-28 (collecting cases demonstrating price premium is the proper measure of restitution in alleged mislabeling cases). This is also true of Plaintiffs’ common law claims of fraud and negligent misrepresentation. Cf. Cal. Civ. Code § 3343 (damages for common law fraud measured by difference in value parted with and actual value received); see also Persson v. Smart Inventions, Inc., 125 Cal. App. 4th 1141, 1165 (2005). Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 35 of 37 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 36 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FITBIT’S MEMORANDUM OF POINTS AND AUTHORITIES Case No. 3:15-cv-2077-JD 25 sf-3758132 was only “guessing.”27 In any event, 5. Plaintiffs Are Not Entitled to Injunctive Relief. Plaintiffs are not entitled to injunctive relief given that they have an adequate remedy at law. Philips v. Ford Motor Co., No. 14-CV-02989-LHK, 2017 WL 635469, at *10 n.2 (N.D. Cal. Feb. 16, 2017) (dismissing claims for injunctive relief because Plaintiffs had an ‘adequate remedy at law.’”) (citation omitted)); Rhynes v. Stryker Corp., No. 10-5619 SC, 2011 WL 2149095, at *4 (N.D. Cal. May 31, 2011) (“Where the claims pleaded by a plaintiff may entitle her to an adequate remedy at law, equitable relief is unavailable.”). V. CONCLUSION For all of the foregoing reasons, Fitbit respectfully requests that the Court grant its motion for summary judgment as to Plaintiffs’ individual and classwide claims. Dated: April 20, 2017 MORRISON & FOERSTER LLP By: /s/ William L. Stern William L. Stern Attorneys for Defendant FITBIT, INC. 27 Case 3:15-cv-02077-JD Document 153 Filed 04/20/17 Page 37 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING FITBIT’S MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD sf-3752784 WILLIAM L. STERN (CA SBN 96105) WStern@mofo.com ALEXANDRA E. LAKS (CA SBN 291861) ALaks@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105 Telephone: 415.268.7000 Facsimile: 415.268.7522 ERIN M. BOSMAN (CA SBN 204987) EBosman@mofo.com JULIE Y. PARK (CA SBN 259929) JuliePark@mofo.com KAI BARTOLOMEO (CA SBN 264033) KBartolomeo@mofo.com MORRISON & FOERSTER LLP 12531 High Bluff Drive San Diego, California 92130-2040 Telephone: 858.720.5100 Facsimile: 858.720.5125 Attorneys for Defendant FITBIT, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JAMES P. BRICKMAN, individually and as a representative of all others similarly situated, Plaintiff, v. FITBIT, INC., Defendant. Case No. 3:15-cv-2077-JD [PROPOSED] ORDER GRANTING DEFENDANT FITBIT, INC.’S MOTION FOR SUMMARY JUDGMENT Date: May 25, 2017 Time: 10:00 a.m. Ctrm: 11, 19th Floor Trial: July 10, 2017 The Honorable James Donato Date Action Filed: May 8, 2015 Case 3:15-cv-02077-JD Document 153-1 Filed 04/20/17 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING FITBIT’S MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD 1 sf-3752784 Defendant Fitbit, Inc.’s (“Fitbit’s”) Motion for Summary Judgment (“Motion”) came on for hearing on May 25, 2017. Counsel for both parties appeared. Having considered all of the papers filed by the parties in connection with Fitbit’s Motion, the papers and records on file in this action, the parties’ arguments at the hearing on this matter, and good cause appearing, it is hereby ordered that: Fitbit’s Motion for Summary Judgment is GRANTED. IT IS SO ORDERED. DATED: _____________, 2017 Honorable James Donato United States District Court Judge Case 3:15-cv-02077-JD Document 153-1 Filed 04/20/17 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 YUEN DECL ISO FITBIT’S MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD sf-3759508 WILLIAM L. STERN (CA SBN 96105) WStern@mofo.com ALEXANDRA E. LAKS (CA SBN 291861) ALaks@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105 Telephone: 415.268.7000 ERIN M. BOSMAN (CA SBN 204987) EBosman@mofo.com JULIE Y. PARK (CA SBN 259929) JuliePark@mofo.com KAI BARTOLOMEO (CA SBN 264033) KBartolomeo@mofo.com MORRISON & FOERSTER LLP 12531 High Bluff Drive San Diego, California 92130-2040 Telephone: 858.720.5100 Facsimile: 858.720.5125 Attorneys for Defendant FITBIT, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JAMES P. BRICKMAN, individually and as a representative of all others similarly situated, Plaintiff, v. FITBIT, INC., Defendant. Case No. 3:15-cv-2077-JD DECLARATION OF SHELTEN YUEN IN SUPPORT OF FITBIT, INC.’S MOTION FOR SUMMARY JUDGMENT Date: May 25, 2017 Time: 10:00 a.m. Ctrm: 11, 19th Floor Trial: July 10, 2017 The Honorable James Donato Date Action Filed: May 8, 2015 REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED Case 3:15-cv-02077-JD Document 153-2 Filed 04/20/17 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 YUEN DECL ISO FITBIT’S MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077 1 sf-3759508 I, Shelten Yuen, hereby declare as follows: 1. I am the Vice President of Research for Defendant Fitbit, Inc. (“Fitbit”). I have personal knowledge of the matters stated herein, and if called as a witness, could and would competently testify thereto. 2. In my role as Vice President of Research for Fitbit, I am familiar with the development, operation, and functionality of Fitbit’s devices and associated technology. Fitbit and Its Wearable Devices 3. Fitbit is a leading manufacturer of wearable activity trackers designed to help people set and achieve their health and fitness goals. 4. Fitbit launched its first device-known simply as the “Fitbit Tracker” or retrospectively and informally called the “Classic”-in September 2009. Today, Fitbit offers a number of wearable fitness trackers and other products with a multiple, different features sold at different price points. Fitbit sells its products in brick-and-mortar retail stores, through internet retailers, and through its own Fitbit.com website. The Devices at Issue 5. I am familiar with Plaintiffs’ allegations in this matter. In particular, I understand that this litigation concerns a subset of Fitbit devices equipped with Fitbit’s proprietary sleep- tracking technology that were released between May 8, 2011 and October 27, 2014. Those are Classic, “Ultra,” “One,” and “Flex” (the “Devices”). Fitbit released Ultra in or around October 2011, One in or around September 2012, and Flex in or around January 2013. “Sleep Mode” 6. For Devices sold and used during the relevant period, sleep tracking generally worked the same way across the Devices. First, the user was required to manually enable “sleep mode” when he or she wanted to begin sleep tracking. Likewise, the user was required to manually disable sleep mode when he or she wanted to stop sleep tracking. For Fitbit Flex, users enabled sleep tracking by rapidly tapping the face of the Device for one to two seconds, after which the Flex would vibrate and display two slowly dimming lights to indicate that sleep mode had begun. The diming lights would be displayed for the duration of the time the Device is in Case 3:15-cv-02077-JD Document 153-2 Filed 04/20/17 Page 2 of 4 Case 3:15-cv-02077-JD Document 153-2 Filed 04/20/17 Page 3 of 4 Case 3:15-cv-02077-JD Document 153-2 Filed 04/20/17 Page 4 of 4 EXHIBIT A Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 1 of 38 Product Manual Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 2 of 38 Table of Contents Getting Started . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 What’s included ....................................................................................................................................... 1 How to put on your Flex ...................................................................................................................... 1 Choosing your wristband ................................................................................................................ 1 Removing the clasp ........................................................................................................................... 1 Putting the clasp in securely .......................................................................................................... 1 Inserting the tracker ......................................................................................................................... 2 How to secure your wristband ..................................................................................................... 3 Care and wearing tips ......................................................................................................................... 4 Setting up Fitbit Flex on a Computer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Mac and PC requirements .................................................................................................................. 5 Installing Fitbit Connect on a computer ....................................................................................... 5 Mac installation ................................................................................................................................... 5 PC Installation ..................................................................................................................................... 5 Pairing to a computer .......................................................................................................................... 5 Mac pairing .......................................................................................................................................... 6 PC pairing ............................................................................................................................................. 7 Wireless sync to a computer ............................................................................................................ 8 Setting up Fitbit Flex on a Mobile Device . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Mobile device requirements ............................................................................................................. 9 Before you begin .............................................................................................................................. 9 Installing the Fitbit app .................................................................................................................. 9 iOS pairing ............................................................................................................................................... 9 iOS syncing ............................................................................................................................................ 10 Force sync .......................................................................................................................................... 10 Real-time dashboard ....................................................................................................................... 11 Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 3 of 38 All-day sync ........................................................................................................................................ 11 Android pairing ..................................................................................................................................... 12 Android syncing ................................................................................................................................... 12 Tap to sync using Near-Field Communication (NFC) ....................................................... 12 Force sync .......................................................................................................................................... 13 Background Sync ............................................................................................................................. 13 Using your Flex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Wearing your Flex ............................................................................................................................... 14 Wearing on your Dominant vs. Non-dominant wrist ......................................................... 14 Using your Flex in wet conditions ............................................................................................. 14 LED indicator lights ............................................................................................................................ 14 Goal tracking ..................................................................................................................................... 14 Sleep mode ........................................................................................................................................ 15 Charging .............................................................................................................................................. 15 Updating ............................................................................................................................................. 15 Alarms .................................................................................................................................................. 15 Battery life and power ....................................................................................................................... 15 Battery life .......................................................................................................................................... 15 Charging your Flex .......................................................................................................................... 16 Memory .................................................................................................................................................... 16 What Fitbit Flex tracks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Setting goals with Flex ...................................................................................................................... 17 Checking your goal progress .......................................................................................................... 18 Tracking sleep with Flex ................................................................................................................... 19 Tracking sleep on your mobile device .................................................................................... 19 Silent Alarms ......................................................................................................................................... 20 Setting silent alarms from a computer ................................................................................... 20 Setting silent alarms from an iOS device .............................................................................. 20 Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 4 of 38 Setting silent alarms from an Android device ...................................................................... 21 Dismissing silent alarms ................................................................................................................ 21 Your Fitbit.com Dashboard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Browser requirements ...................................................................................................................... 22 Using your dashboard ....................................................................................................................... 22 Logging food, activities, and sleep .......................................................................................... 22 Device info ......................................................................................................................................... 23 Managing your Flex from fitbit.com ........................................................................................ 23 Updating Fitbit Flex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Updating Flex on a computer ........................................................................................................ 24 Updating Flex on an iOS device ................................................................................................... 24 Updating Flex on an Android device .......................................................................................... 25 Fitbit Flex General Info & Specifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Sensors and motors ........................................................................................................................... 26 Size and weight ................................................................................................................................... 26 Environmental conditions ................................................................................................................ 26 Help .......................................................................................................................................................... 26 Return policy and warranty ............................................................................................................ 27 Regulatory and Safety Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 USA: Federal Communications Commission (FCC) Statement ........................................ 28 Canada: Industry Canada (IC) Statement ................................................................................. 28 EU (European Union) ........................................................................................................................ 29 Other ........................................................................................................................................................ 29 Safety Statement ................................................................................................................................ 30 Important Safety Instructions ........................................................................................................ 30 Built-in Battery Precautions ............................................................................................................ 31 Disposal and Recycling Information ............................................................................................. 31 Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 5 of 38 1 Getting Started What’s included Your Fitbit Flex Wireless Activity + Sleep Wristband box includes: • Flex tracker • Charging cable • Wireless sync dongle • 1 small and 1 large wristband Flex tracker Charging cable Wireless sync dongle Wristbands How to put on your Flex Choosing your wristband Your Flex comes with a large and a small wristband. Choose the wristband that fits most comfortably on your wrist. If you choose the small wristband, please note you’ll need to remove the clasp from the large wristband and put it into the small wristband. Removing the clasp Push the clasp out with one thumb from the inside of the wristband, then pull out the clasp. Putting the clasp in securely Insert the clasp into the wristband and press a few times with both thumbs to ensure that the clasp is flat and in line with the wristband. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 6 of 38 2 NOTE: If there is a bulge on the inside of the band between the two inside prongs of the clasp, find a small object like a credit card to push it flat. Inserting the tracker Hold the tracker in your hand with the grey arrow facing up. Insert this end into the wristband, with the arrow pointing toward the holes in the wristband. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 7 of 38 3 How to secure your wristband 1. Put on the wristband so the window of lights are closest to the outside of your wrist and facing you. 2. Align both ends of the wristband so they are directly overlapping each other with the clasp over the two holes that best fit your wrist. 3. Squeeze both the clasp and the wristband between your thumb and forefinger until you hear a click. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 8 of 38 4 You’ll know your Flex wristband is securely fastened if both ends of the wristband are fully inserted. NOTE: If you’re having trouble, try securing the wristband off your wrist to get a feel for how it securely clasps and then try again on your wrist. Care and wearing tips Keep the following tips in mind when caring for your Flex: • Clean and dry the Flex regularly, particularly under the band. • Wear your Flex band loosely enough to allow air circulation. • Use skin care products sparingly on the areas of the wrist covered by the Flex. • If you notice any signs of skin irritation or experience any discomfort, please discontinue use. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 9 of 38 5 Setting up Fitbit Flex on a Computer Mac and PC requirements Software Mac OS 10.5 or later Internet Connection Hardware USB port Software Windows XP, Vista, 7, 8 Internet Connection Hardware USB port Installing Fitbit Connect on a computer Fitbit Connect is the software application that connects your Flex tracker to your Fitbit.com Dashboard. It is available to download at no cost from Fitbit.com. NOTE: If you already have Fitbit Connect installed on your computer, you will need to download the latest version to set up your Flex. Mac installation 1. Go to http://www.fitbit.com/setup. 2. Verify that Mac is highlighted and click the Download Here button below Flex. 3. Double-click the .dmg file in your Downloads folder. NOTE: If the file does not appear on your desktop, search for “Fitbit Connect” using the Spotlight search feature. 4. Run the Fitbit Connect installation package by double-clicking Install Fitbit Connect.pkg. 5. Follow the onscreen instructions to complete setup. PC Installation 1. Go to http://www.fitbit.com/setup. 2. Verify that PC is highlighted and click the Download Here button below Flex. 3. Go to your Downloads folder and double-click the FitbitConnect_Win.exe file. 4. Choose your language and follow the onscreen instructions. Pairing to a computer Once Fitbit Connect is installed on your computer, you can pair your Flex to your account. This will sync your data, allow you to manage device settings, and set goals. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 10 of 38 6 Mac pairing 1. On the Menu Bar of your Mac, click the Fitbit Connect icon and choose Open Main Menu. 2. From the Main Menu, select Set Up a New Fitbit Device. 3. Account Setup: a. Select New to Fitbit if you don’t already have a Fitbit.com account. b. Select Existing User to log into your existing Fitbit.com account. NOTE: Only one Fitbit tracker can be paired to an account. If you currently have another Fitbit tracker paired to your account and want to continue using it, choose Don’t Replace to continue setup using a different email address. Choose Replace Tracker to remove your other tracker from the account, and replace it with your Flex. 4. Enter or confirm your personal information and click Next. This information personalizes your Fitbit experience and improves the accuracy of your calorie burn and distance data. This personal information is, by default, only visible to your friends, but you can adjust your privacy settings from your Fitbit.com account to control what information is shared with others. 5. Choose Flex as the device you’re setting up. 6. Follow the onscreen instructions to remove the Flex tracker from the wristband, charge, and reinsert the tracker into your preferred wristband. 7. Insert the wireless sync dongle and click Next. 8. Fitbit Connect will search for your Flex. Once found, the lights on your Flex will begin to blink. Tap the window of your Flex two times with your finger until it vibrates. If Fitbit Connect can’t find your Flex, click Not working and follow the onscreen instructions for further help. NOTE: If you experience trouble setting up your Flex, you can get support at http://help.fitbit.com. 9. Once Fitbit Connect shows that linking is complete, you Next to continue. 10. You’re all set. Click Go to Dashboard to track your activity and configure your account settings. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 11 of 38 7 PC pairing 1. In the Windows System Tray, right-click the Fitbit Connect icon and choose Open Main Menu. 2. From the Main Menu, select Set Up a New Fitbit Device. 3. Account Setup: a. Select New to Fitbit if you don’t already have a Fitbit.com account. b. Select Existing User to log into your existing Fitbit.com account. NOTE: Only one Fitbit tracker can be paired to an account. If you currently have another Fitbit tracker paired to your account and want to continue using it, choose Don’t Replace to continue setup using a different email address. Choose Replace Tracker to remove your other tracker from the account, and replace it with your Flex. 4. Enter or confirm your personal information and click Next. This information personalizes your Fitbit experience and improves the accuracy of your calorie burn and distance data. This personal information is, by default, only visible to your friends, but you can adjust your privacy settings from your Fitbit.com account to control what information is shared with others. 5. Choose Flex as the device you’re setting up. 6. Follow the onscreen instructions to remove the Flex tracker from the wristband, charge, and reinsert the tracker into your preferred wristband. 7. Once you’ve inserted the wireless sync dongle, click Next. 8. Fitbit Connect will search for your Flex. Once found, the lights on your Flex will begin to blink. Tap the window of your Flex two times with your finger until it vibrates. If Fitbit Connect can’t find your Flex, click Not working and follow the onscreen instructions for further help. NOTE: If you experience trouble setting up your Flex, you can get support at http://help.fitbit.com. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 12 of 38 8 9. Once Fitbit Connect shows that linking is complete, click Next to continue. 10. You’re all set. Click Go to Dashboard to track your activity and configure your account settings. Wireless sync to a computer Wireless syncing to Fitbit.com is automatic, as long as: • Your computer is powered on, awake, and connected to the internet • The wireless sync dongle is plugged in • Fitbit Connect is installed and running Your Flex tracker will sync whenever it is within 20 feet of your computer. You can Force Sync your Flex by clicking on the Fitbit Connect icon, which is located by the time and date on your computer. Select Sync Now to start the force sync. NOTE: If you experience any trouble syncing your Flex with your computer, you can visit http://help.fitbit.com for further help. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 13 of 38 9 Setting up Fitbit Flex on a Mobile Device Mobile device requirements The Fitbit Flex is capable of setting up and syncing with select mobile devices that support Bluetooth 4.0 technology. To see if your mobile device is compatible with your Flex, visit http://www.fitbit.com/devices. NOTE: If your mobile device is not compatible to sync via Bluetooth, you can still use the Fitbit App to view your data and track your progress, however you will need to complete setup using a Mac or PC. Before you begin Your Flex must be charged before you can set up on your mobile device. 1. Remove your Flex from the wristband it came in. 2. Plug your charging cable into a USB port on your computer. 3. Insert your Flex into the charging cable. You can begin setup once your Flex displays four lights during charging. Installing the Fitbit app You can find the Fitbit app on the iOS App store or Google Play store by searching for “Fitbit.” If you already have the Fitbit app installed, check for available updates to make sure you have the latest version. iOS pairing Unlike most Bluetooth accessories, like headsets, your Flex must be paired directly through the Fitbit App, not through the Settings app on your iOS device. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 14 of 38 10 1. Open the Fitbit App. 2. Create an account: a. Select Join Fitbit if you don’t already have a Fitbit.com account. NOTE: Click Log In if you’re an existing Fitbit app user. Only one Fitbit tracker can be paired to an account. If you’re replacing an existing tracker, tap Account > Set Up a New Fitbit device. b. Tap Flex as the device you’re setting up. c. Tap Set up your Flex. On the next few screens, enter your personal details. This information personalizes your Fitbit experience and improves the accuracy of your calorie burn and distance data. This personal information is, by default, only visible to your friends, but you can adjust your privacy settings on the Fitbit website to control what information is shared with others. d. Enter your name and the email address and password you’d like to use for your Fitbit account. 3. Tap All done! and follow the instructions to remove the Flex tracker from the wristband and charge the device. 4. Tap I’m Ready to start pairing your Flex. 5. Once found, the lights on your Flex will begin to blink. Tap the window of your Flex repeatedly with your finger until it vibrates. 6. Tap Next to finish setup and go to your dashboard. NOTE: If you experience trouble pairing your Flex, you can get support at http://help.fitbit.com. iOS syncing Your Flex can sync directly to supported iOS devices via Bluetooth. To see if your iOS device is compatible with your Flex, go to http://www.fitbit.com/devices. Syncing occurs automatically every time you open the Fitbit App, as long as Bluetooth is enabled in the iOS device Settings app. Force sync You can force your Flex to sync while the app is already open. 1. Open the Fitbit App. 2. At the top of the dashboard, tap Flex. 3. Tap Sync Now. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 15 of 38 11 Real-time dashboard You can use the Fitbit app to see your stats update in real time. Open the Fitbit app. Once your Flex syncs, the message “Connected to your Flex” will appear at the top of the screen. Take a few steps to see your stats update instantly. All-day sync The Fitbit app also supports all-day sync. This setting allows your Flex to sync with your iOS device while the Fitbit app is running in the background. Tap Account and then Flex to toggle All-Day Sync on or off. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 16 of 38 12 Android pairing Unlike most Bluetooth accessories, your Flex must be paired directly through the Fitbit App, and not through your Android device’s Bluetooth preferences. 1. Open the Fitbit App. 2. Account Setup: a. Select Get started if you don’t already have a Fitbit.com account. b. Select Log in to log into your existing Fitbit.com account. NOTE: Are you an existing Fitbit App user? Only one Fitbit tracker can be paired to an account. If you’re replacing an existing tracker on your account press the Menu button > Device Settings > Set up new device. When prompted, tap Replace and skip to step 6. 3. Enter the email address and password for your Fitbit account and tap Sign Up. 4. Enter your personal details, then tap Save. This information personalizes your Fitbit experience and improves the accuracy of your calorie burn and distance data. This personal information is, by default, only visible to your friends, but you can adjust your privacy settings on the Fitbit website to control what information is shared with others. 5. Tap Set up Now. 6. Choose Flex and follow the onscreen prompts. 7. Tap I’m Ready to begin searching for your Flex. 8. Once found, the lights on your Flex will begin to blink. Tap the window of your Flex repeatedly with your finger until it vibrates. If you have trouble finding your Flex, tap Try Again and follow the onscreen instructions for help. 9. Once the Fitbit App shows the message “You’re all set!” you can tap Go To Dashboard to complete setup. NOTE: If you experience trouble pairing your Flex, you can get support for this and other questions at http://help.fitbit.com. Android syncing Your Flex can sync directly to supported Android devices via Bluetooth. To check if your Android device is compatible with your Flex, see http://www.fitbit.com/devices. Syncing will occur automatically when you open the Fitbit app, as long as Bluetooth is enabled in both the Android device settings and the Fitbit app. To turn on Bluetooth in the Fitbit app, tap the Menu button > Device Settings > check Use Bluetooth. Tap to sync using Near-Field Communication (NFC) Your Flex is equipped with Near-Field Communication (NFC) technology, allowing it to interact with Android devices that support this feature. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 17 of 38 13 With the screen on and unlocked, tap your Android device to the top of your Flex. You may need to adjust the location based on where your Android device’s NFC chip is located. After a moment, the Fitbit app will automatically open. If you haven’t opened the Fitbit app recently, launching will automatically sync via Bluetooth. Force sync Tapping the Sync icon on the top-right of the menu will initiate a force (manual) sync with your Flex and Fitbit.com. You can also force sync your Flex through the Devices menu. 1. Open the Fitbit App. 2. Tap the menu button. 3. Tap Device Settings. NOTE: Make sure Use Bluetooth is checked. 4. Tap Flex. 5. Tap the Sync Now icon. Background Sync The Fitbit app also supports background sync. This setting allows your Flex to sync with your Android device while the Fitbit app is in the background, or minimized. To turn on background sync, tap the menu button > Device Settings > choose your Flex > tap Background Sync. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 18 of 38 14 Using your Flex Wearing your Flex Your Flex is designed to be most accurate when worn on your wrist. If you need help securing your wristband, see How to put your Flex on. Wearing on your Dominant vs. Non-dominant wrist To get the most accurate reading from your Flex, you can configure whether you are wearing the wristband on your dominant or non-dominant wrist. NOTE: Your dominant wrist is that which you use for most day-to-day activities, e.g.; writing, washing dishes, throwing a ball, etc. To configure this setting: 1. Log in to Fitbit.com. 2. Click the gear in the top-right corner of the Dashboard. 3. Click Settings. 4. Click Device Settings on the left sidebar. 5. Under Dominant Hand choose the correct setting. NOTE: Changes to this setting will not appear until you sync your Flex. Using your Flex in wet conditions Your Flex can be worn while you are in the shower or working out. It is sweat-proof, rain-proof, water resistant, and can be submerged in water up to ten meters. LED indicator lights Your Flex features a display that consists of 5 LED indicator lights. The lights behave differently depending on what the tracker is doing. Goal tracking The indicator lights illuminate as you hit 20% increments towards your goal. Tap your Flex to see your progress. When you reach your goal, Flex will celebrate by buzzing and flashing its lights. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 19 of 38 15 Sleep mode When you tap your Flex rapidly for one or two seconds to enter sleep mode, it will vibrate and display two slowly dimming lights. During sleep mode, two blinking lights alternate. After you tap your Flex rapidly to exit sleep mode, it will vibrate and flash all five lights three times and then display a spinning light pattern. Charging While your Flex is charging, an indicator light will pulse to show the battery level every few seconds. Each indicator light represents progress towards the total charge. When the Flex has charged completely, all 5 indicator lights will blink. Updating If an update fails to complete, your Flex's LED indicator lights may cycle back and forth repeatedly, from left to right, and your Flex no may longer respond to taps, charging, or resets. Alarms When a silent alarm goes off, the Flex vibrates and the center light flashes. Battery life and power Battery life Your Flex comes equipped with a rechargeable lithium-polymer battery. With normal use, your Flex should last about five days before needing a charge. You can check the level of your battery by logging in to Fitbit.com and clicking on the gear icon on the top-right corner of the page. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 20 of 38 16 Charging your Flex To charge your Flex, plug the charging cable into the USB port on your computer. Remove the tracker from the wristband, and insert it into the charging cable, with the LED indicator lights facing up. The LED indicator lights will progressively illuminate on your Flex as it charges. Each light represents 20% of the maximum charge. Once all five lights pulse in unison, your Flex will be fully charged. Charging completely can take up to three hours. Memory When you sync your Flex, your activity data is uploaded to your Fitbit.com Dashboard. Your Flex holds detailed minute-by-minute information for the most recent 7 days, and up to 30 days of daily activity summaries. Your recorded data consists of steps taken, calories burned, distance traveled and active minutes. Sync your Flex regularly to have the most detailed data available to view on your Fitbit.com dashboard. NOTE: Your Flex starts tracking your goal for the next day at 12:00AM for the time zone selected in your personal settings on your Fitbit.com account. You can adjust your time zone at http://www.fitbit.com/user/profile/edit. This does not delete the previous day’s data: that data will be uploaded to your Fitbit.com dashboard the next time you sync your Flex. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 21 of 38 17 What Fitbit Flex tracks Your Flex tracks: • Steps taken • Calories burned • Distance traveled • Very Active Minutes • Time asleep • Number of times awoken Setting goals with Flex Your Flex is designed to track your progress towards one specific goal that you define on your Fitbit.com dashboard. Goals can be set for steps taken, calories burned, or distance traveled. To choose the specific goal you want to track: 1. Log in to your Fitbit.com dashboard. 2. Click the gear icon in the top-right corner of the page. 3. Click Settings. 4. Click Devices. 5. Under Daily Goal Progress, choose the goal you would like to track. 6. Sync your Flex to send the new goal to your tracker. NOTE: You can only select one goal to track at a time, but you can change this goal or its value at any time on your Fitbit.com dashboard. Once you’ve chosen which goal you want to track, you can set a specific value for that goal on the Fitbit.com Dashboard page or using the Fitbit app for mobile. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 22 of 38 18 Checking your goal progress When you tap your Flex twice with your finger, the LED indicator lights will show how much of your goal you’ve accomplished. Each fully lit indicator represents 20% of your total goal. A blinking light shows the current segment of the goal you’re working on. In the example below, two lights are solid and the third is blinking. This means you’ve achieved between 40% and 60% of your overall goal. When you reach your goal, your Flex will vibrate and flash the LED indicator lights to celebrate. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 23 of 38 19 Tracking sleep with Flex Your Flex can track the hours you sleep, as well as your activity during sleep to help you understand your sleep quality. To enter sleep mode, tap your Flex rapidly for one to two seconds. Your Flex will vibrate and display two slowly dimming lights to indicate that sleep mode has begun. NOTE: During sleep mode, your Flex will not display goal progress when you tap twice. Instead, it will alternate two blinking lights, back-and-forth, to indicate that you are in sleep mode. When you wake up, tap your Flex rapidly for one to two seconds to exit sleep mode. Upon exiting sleep mode, your Flex will vibrate and flash all five LED indicator lights. If you forget to put your Flex into sleep mode, you can always enter your sleep time at http://www.fitbit.com/sleep. After creating a record, you will be able to view your sleep efficiency. Tracking sleep on your mobile device You can track your sleep using the Fitbit App on your mobile device. If you use your device as an alarm, the sleep tracking feature will still operate if the Fitbit App is not on your screen. To track sleep on your iOS device: 1. Open the Fitbit app 2. Tap the sleep tile on the dashboard. 3. Tap the + button in the top-right corner 4. Tap Begin Sleep Now To track sleep on your Android device: 1. Open the Fitbit App 2. Tap the menu next in the top-left corner of the app 3. Tap Sleep 4. Tap the + button in the top-right corner 5. Tap Begin Sleep Now If you minimize the Fitbit app by pressing the home button, your sleep will continue to be tracked. When you wake up, just open the Fitbit app again, tap I'm Awake, then tap View Summary to see a summary of your sleep. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 24 of 38 20 Silent Alarms Your Flex gently vibrates to wake or alert you with its Silent Alarm feature. You can set alarms using your computer or a compatible mobile device. Silent Alarms can be configured to recur every day, or on particular days of the week. You can set up to eight alarms on your Flex. NOTE: Setting multiple alarms may diminish the battery life of your Flex. Setting silent alarms from a computer You can set silent alarms from your computer by using the Fitbit.com dashboard. 1. Log in to your Fitbit.com dashboard. 2. Click the gear icon in the top-right corner of the page. 3. Click Settings. 4. Click Silent Alarms. 5. Click the Add Alarm button. 6. Enter the time you want the alarm to alert you. 7. Choose how often you want the alarm to occur: a. Once - Your alarm will alert you at the specified time, and not repeat. b. Repeats - Choose which days you want this alarm to repeat every week. 8. Click Save. Your new alarm will be synced to your Flex the next time you sync your tracker. NOTE: If you want to sync the alarm immediately, open Fitbit Connect and select Sync Now. Setting silent alarms from an iOS device To set silent alarms using the Fitbit app for iOS, Bluetooth must be enabled in your iOS Settings app. Your iOS device also must support wireless sync. To see if your device is supported, go to http://www.fitbit.com/devices. 1. Open the Fitbit app. 2. Tap Account. 3. Tap Silent Alarms. 4. Tap Set a New alarm. 5. Set the time by adjusting the click-wheel. 6. If applicable, tap the days of the week you want this alarm to repeat. (for example, at 7:00 AM, every weekday) 7. Tap Save. 8. Sync your tracker to ensure that the alarm information is sent to it. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 25 of 38 21 Your iOS device will now sync the alarm to your Flex. NOTE: Make sure your Flex is nearby in order to sync your alarm. To force sync the alarm to it, tap Account > Flex > Sync Now. Setting silent alarms from an Android device To set silent alarms using the Fitbit app for Android, Bluetooth must be enabled in your Android device settings, as well as the Fitbit app Devices screen. Your mobile device also must support wireless sync. To check if your device is supported, see http://www.fitbit.com/devices. 1. Open the Fitbit App. 2. Tap the menu button. 3. Tap Device Settings. 4. Choose Flex. 5. Tap Silent Alarm. 6. Tap Add a new alarm. 7. Tap Next. 8. Tap Add a new alarm. 9. Tap the time to enter a time. 10. If you prefer, tap the Repeats checkbox and tap the days of the week you want this alarm to repeat. 11. Tap Done. 12. Tap the Sync tracker to save alarms button. NOTE: Make sure your Flex is nearby in order to sync your alarm. To Force Sync the alarm, tap the menu button > Device Settings > choose Flex > tap the Sync Now icon. Dismissing silent alarms Your Flex will vibrate and the LEDs will illuminate when your silent alarm goes off. This notification will repeat three times or until dismissed. You can dismiss the alarm by tapping a few times after the vibration has stopped. You’ll know your alarm has been dismissed when one light appears in the middle of your Flex’s display, then slowly fades. If you do not dismiss the alarm, your Flex alarm will repeat in nine minutes. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 26 of 38 22 Your Fitbit.com Dashboard Browser requirements Browser Mac Version Windows Version Apple Safari 5.0.5 and higher Not Supported Google Chrome 12 and higher 12 and higher Microsoft Internet Explorer Not Supported 8 and higher Mozilla Firefox 3.6.18 and higher 3.6.18 and higher Using your dashboard Fitbit provides you with a free online tool to help track, manage, and evaluate your fitness progress. When you log into Fitbit.com, you will automatically be taken to your dashboard. Your dashboard shows an overview of your progress towards your goals, as well as graphs with historical data. Logging food, activities, and sleep From your dashboard, you can launch individual log pages to keep track of your food, activities, sleep, and other custom trackers. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 27 of 38 23 Device info You can see a quick preview of your tracker’s last sync, battery level and upcoming alarms if you click on the gear icon in the top-right corner of the page. Managing your Flex from fitbit.com Manage your tracker from Fitbit.com by clicking the gear icon in the top-right corner of the page, clicking Settings, and choosing Devices from the left sidebar. The Device Settings screen allows you to change: • Daily Goal Progress: Choose which of the goals you want your Flex to display when checking your progress. You can edit the value of this goal from the Fitbit.com Dashboard, or your mobile device using the Fitbit App. • Dominant Hand: Choose which wrist you wear your Flex on to get the most accurate data readings. More information on this topic is located here. • Sleep Tracking: Set the sensitivity of your sleep tracking by changing this setting. The Normal setting is sufficient for most people. If you are a sound sleeper, you can choose Sensitive to capture the smallest movements of your body. You can manage silent alarms by clicking Silent Alarms from the left sidebar. NOTE: You must sync your Flex in order to apply any changed settings to your tracker. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 28 of 38 24 Updating Fitbit Flex Fitbit may release free updates for your Flex. You can update your flex using Fitbit Connect on your computer,or the Fitbit app on your mobile device. It is recommended that you keep your Flex updated. The latest feature enhancements and product improvements are made through updates. NOTE: Updating your Flex can take up to five minutes and requires a minimum battery level. We recommend that you charge your Flex prior to updating, or while the update is in progress. Updating Flex on a computer To update your Flex on a Mac or PC. 1. Click the Fitbit Connect icon near the time and date. 2. From the Main Menu, choose Check for device update. 3. Log in to your account using your Fitbit.com credentials. 4. Fitbit Connect will now look for your Flex. NOTE: Make sure your wireless sync dongle is plugged in. You can make your Flex easier to find by tapping it twice to wake it up. 5. If an update has been found for your Flex, Fitbit Connect will display a progress bar indicating that the update is in progress. Keep your Flex close to your computer while you perform the update. 6. When the update completes, Fitbit Connect will display, “You’re all set!” If you have trouble updating your Flex on a computer, see http://help.fitbit.com. Updating Flex on an iOS device Your Flex can be updated using the Fitbit app for iOS, if your iOS device is compatible with the Wireless Sync feature. To see if it is compatible, go to http://www.fitbit.com/devices. 1. Open the Fitbit app. 2. Tap your tracker name at the top of the app dashboard. You'll be taken to your tracker's device settings page. 3. Tap Sync Now. 4. If a device update is available, you will see the option to update. If your tracker is already up to date, “Update Available” will not be an option on your mobile device. NOTE: Make sure your Flex remains near your iOS device while finding and updating it. You can make your Flex easier to find by tapping it twice to wake it up. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 29 of 38 25 When the update completes, the Fitbit app will say, “You’re all set!” If you have trouble updating your Flex with the Fitbit app for iOS, see http://help.fitbit.com for more information. Updating Flex on an Android device Your Flex can be updated using the Fitbit app for Android, if your Android device is compatible with the wireless sync feature. To see if it is compatible, go to http://www.fitbit.com/devices. 1. Open the Fitbit app. 2. Tap the Menu button. 3. Tap Device Settings. NOTE: Make sure Use Bluetooth is checked. 4. Choose Flex from the menu. 5. If there is an update available, tap the Update Available button at the top of this screen. NOTE: Make sure your Flex remains near your Android device while finding and updating it. You can make your Flex easier to find by tapping it twice to wake it up. 6. When the update completes, the Fitbit app will say, “You’re all set!” If you have trouble updating your Flex with the Fitbit app for Android, see http://help.fitbit.com for more information. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 30 of 38 26 Fitbit Flex General Info & Specifications Sensors and motors Your Flex uses a MEMS 3-axis accelerometer that measures your motion patterns to determine your calories burned, distance traveled, steps taken, and sleep quality. Flex also contains a vibration motor, which allows it to vibrate when alarms go off. Size and weight Length Width Weight Small wristband (incl. tracker) 5.5 - 6.9 in 140 - 176 mm 0.6 in 13.99 mm 13.4 grams Large wristband (incl. tracker) 6.3 - 8.2 in 161 - 209 mm 0.6 in 13.99 mm 14.6 grams Environmental conditions Operating Temperature -4° to 113° F (-20° to 45° C) Non-operating Temperature -22° to 140° F (-30° to 60° C) Water Resistant Device is water resistant, and can be submerged up to 10 meters. Maximum Operating Altitude 30,000 feet (9,144 m) Help Troubleshooting and assistance for your Fitbit Flex tracker can be found at http://help.fitbit.com. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 31 of 38 27 Return policy and warranty Warranty information and the Fitbit.com Store Return Policy can be found online at http://www.fitbit.com/returns. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 32 of 38 28 Regulatory and Safety Notices Model Name: FB401 USA: Federal Communications Commission (FCC) Statement This device complies with FCC part 15 FCC Rules. Operation is subject to the following two conditions: 1. This device may not cause harmful interference and 2. This device must accept any interference, including interference that may cause undesired operation of the device. FCC Warning Changes or modifications not expressly approved by the party responsible for compliance could void the user’s authority to operate the equipment. Note: This equipment has been tested and found to comply with the limits for a Class B digital device, pursuant to part 15 of the FCC Rules. These limits are designed to provide reasonable protection against harmful interference in a residential installation. This equipment generates, uses and can radiate radio frequency energy and, if not installed and used in accordance with the instructions, may cause harmful interference to radio communications. However, there is no guarantee that interference will not occur in a particular installation. If this equipment does cause harmful interference to radio or television reception, which can be determined by turning the equipment off and on, the user is encouraged to try to correct the interference by one or more of the following measures: • Reorient or relocate the receiving antenna. • Increase the separation between the equipment and receiver. • Connect the equipment into an outlet on a circuit different from that to which the receiver is connected. • Consult the dealer or an experienced radio/TV technician for help. This device meets the FCC and IC requirements for RF exposure in public or uncontrolled environments. Canada: Industry Canada (IC) Statement IC Notice to Users English/French in accordance with RSS GEN Issue 3: This device complies with Industry Canada license exempt RSS standard(s). Operation is subject to the following two conditions: 1. this device may not cause interference, and 2. this device must accept any interference, including interference that may cause undesired operation of the device. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 33 of 38 29 Cet appareil est conforme avec Industrie Canada RSS standard exempts de licence (s). Son utilisation est soumise à Les deux conditions suivantes: 1. cet appareil ne peut pas provoquer d’interférences et 2. cet appareil doit accepter Toute interférence, y compris les interférences qui peuvent causer un mauvais fonctionnement du dispositive This Class B digital apparatus complies with Canadian ICES-003. Cet appareil numérique de la classe B est conforme à la norme NMB-003 du Canada. FCC ID XRAFB401 IC ID 8542A-FB401 EU (European Union) Declaration of Conformity with Regard to the EU Directive 1999/5/EC Fitbit Inc. is authorized to apply the CE Mark on Flex, Model FB401, thereby declaring conformity to the essential requirements and other relevant provisions of Directive 1999/5/EC. Compliant with the standard R&TTE 99/CE/05 Conforme à la norme R&TTE 99/CE/05 Other אישור התאמה 51-37156 אי לבצע כל שינוי טכני בחלק המודולארי של המוצר. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 34 of 38 30 Safety Statement This equipment has been tested to comply with safety certification in accordance with the specifications of EN Standard: EN60950-1:2006 + A12: 2011. The complete Declaration of Conformity can be found at www.fitbit.com/flex/specs Important Safety Instructions • Read these instructions. • Keep these instructions. • Heed all warnings • Follow all instructions • Do not attempt to open the tracker. Substances contained in this product and/or its battery may damage the environment and/or human health if handled and disposed of improperly. • Do not tamper with your Flex. • Do not use abrasive cleaners to clean your Flex. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 35 of 38 31 • Do not place your Flex in a Dishwasher, Washing Machine or Dryer. • Do not expose your Flex to extremely high or low temperatures. • Do not use your Flex in a sauna or steam room. • Do not leave your Flex in direct sunlight for an extended period of time. • Do not leave your Flex near open flames. • Do not dispose of your Flex in a fire. The battery could explode. • Do not attempt to disassemble your Flex, it does not contain serviceable components. • Never allow children to play with the Flex; the small components may be a choking hazard! Built-in Battery Precautions • Do not attempt to replace your Flex’ battery. It is built-in and not changeable. • Charge the battery in accordance with the instructions supplied with this guide. • Use only the charger that shipped with your product to charge the battery. • Charge your Flex using a certified computer, powered hub or power supply • Do not attempt to force open the built-in battery For the most up-to-date Safety and Regulatory Information, please visit the product specific section at http://help.fitbit.com Disposal and Recycling Information The symbol on the product or its packaging signifies that this product has to be disposed separately from ordinary household wastes at its end of life. Please kindly be aware that this is your responsibility to dispose electronic equipment at recycling centers so as to help conserve natural resources. Each country in the European Union should have its collection centers for electrical and electronic equipment recycling. For information about your recycling drop off point, please contact your local electrical and electronic equipment waste management authority or the retailer where you bought the product. Le symbole sur le produit ou sur son emballage signifie que ce produit à la fin de sa vie doit être recyclé séparément des déchets ménagers ordinaires. Notez que ceci est votre responsabilité d'éliminer les équipements électroniques à des centres de recyclage afin d'aider à préserver les ressources naturelles. Chaque pays de l'Union européenne a ses centres de collecte et de recyclage pour le recyclage des équipements électriques et électroniques. Pour plus d'informations ou trouver un centre de recyclage, contactez votre commune ou le magasin où vous avez acheté le produit. • Do not dispose of the Flex with household waste. Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 36 of 38 32 • Batteries are not to be disposed of in municipal waste stream and require separate collection. • Disposal of the packaging and your Flex should be done in accordance with local regulations. For additional information on disposal and recycling, including contact details of a distributor in your region, please visit http://help.fitbit.com Pour plus amples renseignements sur le recyclage, y compris les coordonnees d'un distributeur dans votre region, visitez http://help.fitbit.com Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 37 of 38 33 Case 3:15-cv-02077-JD Document 153-3 Filed 04/20/17 Page 38 of 38 EXHIBIT B Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 1 of 26 Product Manual Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 2 of 26 Table of Contents Getting Started ........................................................................................................................................... 1 What you’ll find in the box ................................................................................................................. 1 What’s in this document ..................................................................................................................... 1 Setting up your Fitbit One .................................................................................................................... 3 Setting up your tracker on your mobile device ........................................................................ 3 Setting up your tracker on your PC (Windows 10 only) ....................................................... 3 Setting up your tracker on your PC (Windows 8.1 and below) .......................................... 4 Setting up your tracker on your Mac ............................................................................................ 4 Syncing your tracker data to your Fitbit account ................................................................... 5 Getting to know your Fitbit One ......................................................................................................... 6 Placement ................................................................................................................................................ 6 Changing the display for left-handed use ................................................................................... 6 Battery life and charging ................................................................................................................... 6 Determining your current battery level ................................................................................... 7 Charging your tracker ..................................................................................................................... 7 Tracking with Fitbit One ........................................................................................................................ 8 Viewing all-day stats ........................................................................................................................... 8 Using the display ................................................................................................................................... 8 Tracking sleep ........................................................................................................................................ 8 Tracking exercise .................................................................................................................................. 9 Using the fitbit.com Dashboard ........................................................................................................ 10 Browser requirements ....................................................................................................................... 10 Adding and removing tiles .............................................................................................................. 10 Managing your One from fitbit.com .............................................................................................. 11 Using silent alarms ................................................................................................................................... 12 Setting silent alarms ........................................................................................................................... 12 Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 3 of 26 Dismissing silent alarms .................................................................................................................... 12 Updating your Fitbit One ...................................................................................................................... 13 Troubleshooting your Fitbit One ....................................................................................................... 14 Return Policy and Warranty ................................................................................................................ 15 Regulatory and Safety Notices ........................................................................................................... 16 USA: Federal Communications Commission (FCC) statement ......................................... 16 Canada: Industry Canada (IC) statement ................................................................................... 17 European Union (EU) ......................................................................................................................... 17 China ......................................................................................................................................................... 18 Wireless sync dongle ..................................................................................................................... 18 One ........................................................................................................................................................ 18 Israel .......................................................................................................................................................... 19 Serbia ........................................................................................................................................................ 19 South Korea ........................................................................................................................................... 19 Taiwan .................................................................................................................................................... 20 Other ....................................................................................................................................................... 20 Safety statement ................................................................................................................................ 20 Important safety instructions ........................................................................................................ 20 Built-in battery precautions ........................................................................................................... 20 Disposal and recycling information .............................................................................................. 21 Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 4 of 26 1 Getting Started Welcome to the Fitbit One™ Wireless Activity + Sleep Tracker. What you’ll find in the box Your Fitbit One box includes: 1. Fitbit One Wireless Activity + Sleep Tracker 2. Clip 3. Wireless sync dongle 4. Sleep wristband 5. Charging cable What’s in this document We get you started quickly by creating a Fitbit® account and making sure the tracker can synchronize the data it collects with your Fitbit dashboard. The dashboard is where you can analyze your data, see historical trends, set goals, log food and water, keep up with friends, and much more. As soon as you’re done setting up your tracker, you’re ready to start moving. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 5 of 26 2 Next, we explain how to find and use the features that interest you and adjust your preferences. To find more information, tips, and troubleshooting, please browse our comprehensive articles at http://help.fitbit.com. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 6 of 26 3 Setting up your Fitbit One To make the most of your One, use the free Fitbit app available for iOS®, Android™, and Windows® 10 mobile devices. If you don’t have a compatible mobile device, you can use a computer and fitbit.com instead. Setting up your tracker on your mobile device The Fitbit app is compatible with more than 200 mobile devices that support iOS, Android, and Windows 10 operating systems. To get started: 1. Make sure the Fitbit app is compatible with your mobile device by checking http://www.fitbit.com/devices. 2. Find the Fitbit app in one of these locations, depending on your device: • The Apple® App Store® for iOS devices such as an iPhone® or iPad®. • The Google Play™ Store for Android devices such as the Samsung® Galaxy® S5 and Motorola Droid Turbo. • The Microsoft® Windows Store for Windows 10 mobile such as the Lumia™ phone or Surface™ tablet. 3. Install the app. Note that you’ll need an account with the applicable store before you can download even a free app such as Fitbit. 4. When the app is installed, open it and tap Join Fitbit to get started. You’ll be guided through the process of creating a Fitbit account and connecting (pairing) your One to your mobile device. Pairing makes sure the tracker and mobile device can communicate with one another (sync their data). Note that the personal information you’re asked during setup is used to calculate your basal metabolic rate (BMR), which helps determine your estimated calorie expenditure. This information is private unless you go into your Privacy settings and opt to share age, height, or weight with Fitbit friends. After setup you’re ready to get moving. Setting up your tracker on your PC (Windows 10 only) If you don’t have a mobile device, you can set up and sync your tracker on your Windows 10 PC using the same Fitbit app available for Windows mobile devices. To get the app, click the Start button and open the Windows Store (called Store). Search for “Fitbit app.” Note that if you’ve never downloaded an app from the store to your computer, you’ll be prompted to create an account. Open the app and follow the instructions to create a Fitbit account and set up your One. You can set up and sync wirelessly if your computer has Bluetooth®, otherwise you’ll need to use the wireless sync dongle that came in the box with your Fitbit One. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 7 of 26 4 Setting up your tracker on your PC (Windows 8.1 and below) If you don’t have a compatible mobile device, you can set up your tracker with a computer and see your Fitbit stats on fitbit.com. To use this setup method you’ll first install a free software application called Fitbit Connect that lets One sync its data with your fitbit.com dashboard. To install Fitbit Connect and set up your tracker: 1. Go to http://www.fitbit.com/setup. 2. Scroll down and click the option to download. 3. When prompted, save the file that appears. 4. Double-click the file (FitbitConnect_Win.exe). The Fitbit Connect installer opens. 5. Click Continue to move through the installer. 6. When prompted, choose Set up a New Fitbit Device. 7. Follow the onscreen instructions to create a Fitbit account and connect your One. If your computer has Bluetooth, setup can take place wirelessly. If not you’ll be prompted to plug in the wireless sync dongle that came in the box with your Fitbit One. Note that the personal information you’re asked during setup is used to calculate your basal metabolic rate (BMR), which helps determine your estimated calorie expenditure. This information is private unless you go into your Privacy settings and opt to share age, height, or weight with Fitbit friends. Setting up your tracker on your Mac If you don’t have a compatible mobile device, you can set up your tracker with a computer and see your Fitbit stats on fitbit.com. To use this setup method you’ll first install a free software application called Fitbit Connect that lets One sync its data with your fitbit.com dashboard. To install Fitbit Connect and set up your tracker: 1. Go to http://www.fitbit.com/setup. 2. Scroll down and click the option to download. 3. When prompted, save the file that appears. 4. Double-click the file (Install Fitbit Connect.pkg). The Fitbit Connect installer opens. 5. Click Continue to move through the installer. 6. When prompted, choose Set up a New Fitbit Device. 7. Follow the onscreen instructions to create a Fitbit account and connect your One. Note that the personal information you’re asked during setup is used to calculate your basal metabolic rate (BMR), which helps determine your estimated calorie expenditure. This information is private unless you go into your Privacy settings and opt to share age, height, or weight with Fitbit friends. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 8 of 26 5 Syncing your tracker data to your Fitbit account Once you've set up and started using One, you'll need to make sure it regularly transfers (syncs) its data to Fitbit so you can track your progress, see your exercise history, earn badges, analyze your sleep logs, and more on your Fitbit dashboard. A daily sync is recommended but not required. The Fitbit apps use Bluetooth Low Energy (BLE) technology to sync with your Fitbit tracker. Each time you open the app it will sync if the tracker is nearby, and the app will also sync periodically throughout the day if you have the all-day sync setting enabled. If you’re running the Fitbit app on a Windows 10 PC that doesn’t have Bluetooth, you’ll need to make sure the tracker is connected to the computer. Fitbit Connect on a Mac® also uses Bluetooth for syncing (if available), otherwise you’ll need to make sure your wireless sync dongle is plugged into the computer. Fitbit Connect on a PC requires that you plug in your wireless sync dongle. You can force Fitbit Connect to sync at any time or it will happen automatically every 15 minutes if: • Your tracker is within 20 feet of your computer and has new data to upload (meaning that if you haven’t moved, an automatic sync won’t occur). • The computer is powered on, awake, and connected to the Internet. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 9 of 26 6 Getting to know your Fitbit One This section tells you how best to wear and recharge your tracker. Placement The One is most accurate when worn on or very close to your torso. A clip designed to keep the tracker secured to your clothing is included in your package. A sleep wristband for your One is also included in your package. To avoid losing your tracker, we recommend that you wear it in your pocket, clipped to your pocket, or clipped to your bra. The One is not designed to be worn in direct contact with the skin. Always use the silicone holder when clipping it to a bra or waistband, with the display facing outward. Do not wear the One inside your bra. Some users may experience skin irritation even when wearing the One as instructed on the bra or waistband. If this occurs we recommend clipping it on your pocket, belt, or other external piece of clothing. The One is sweat-proof and rainproof. It is not waterproof and should not be taken swimming. Changing the display for left-handed use By default your tracker is oriented for right-handed individuals. If you’re left handed, you can reorient the display to make it easier to read. To do so, log into your fitbit.com dashboard and click the gear icon in the upper right. Click Settings > Devices and then find and adjust the Left-handed button. Battery life and charging The One is powered by a rechargeable built-in battery. Your fully charged One has a battery life of up to two weeks. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 10 of 26 7 Determining your current battery level You can check your battery level in a couple places: • While charging your One, press the button on your tracker to view the battery indicator on screen. • On your fitbit.com dashboard. Charging your tracker To charge your One, align the gold contacts on your tracker with the gold contacts on the inside of the charging cable, then plug the cable into your computer’s USB port. Charging typically takes about an hour. Note: Every night at midnight, your tracker will reset itself. This means your goal progress and daily data will begin at zero again. This does not delete the data stored on your tracker. That data will be uploaded to your dashboard the next time you sync your tracker. The time this reset occurs is based on the time zone set on your fitbit.com profile. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 11 of 26 8 Tracking with Fitbit One Your One tracks a variety of stats automatically whenever you’re wearing it. Your tracker’s latest data is uploaded to your Fitbit dashboard whenever you sync. Viewing all-day stats Press the button on your One to see the time of day and cycle through these all-day stats: • Steps taken • Floors climbed • Recent activity levels (represented by an expanding flower) • Distance traveled • Calories burned Note that your One resets at midnight according to the time zone you’ve selected for your account. The reset ensures that One can track your daily totals correctly, and does not delete the previous day’s data. All your data will appear on your dashboard when you sync your tracker. Using the display When you first set up your One and press the button to scroll through your stats, you see the stat category (e.g. STEPS) followed by the stat and its icon. After you’ve cycled through each screen 5 times and can recognize the stat icon, the stat category no longer appears so that you can scroll more quickly. Any time your tracker is reset, it will enter “beginner mode” and show the stat category again for the first 5 cycles. This will happen if you shut down and then restart your tracker, upgrade your tracker, or charge your tracker after the battery drained completely. Tracking sleep You can use your One to track how long and how well you sleep. The One will track your movement throughout the night to provide you with information about the quality of your sleep. 1. Place your tracker into the slot in your wristband and wrap it around your non-dominant wrist. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 12 of 26 9 2. Once you are in bed and ready to fall asleep, press and hold the tracker’s button for 2+ seconds. You will see a blinking stopwatch and clock. The other icons will also blink, indicating that your tracker is in sleep mode. 3. When you wake up, press and hold the button for 2+ seconds to stop the sleep recording. The icons will stop blinking to indicate you’ve exited sleep mode. Once you exit sleep mode, your tracker will resume, displaying your daily totals. Once the data syncs, graphs on your dashboard will reveal how long you slept and the number of times you woke up. You can also use your dashboard to set a goal for hours slept. Note: If you forgot to press the button on your tracker, but were wearing it while you slept, you can enter your sleep times manually in your online sleep log. Tracking exercise Though your One automatically tracks several stats throughout the day, you can also track stats for a specific exercise or workout as well. Similar to the trip mode on a car’s odometer, activity mode brings closer scrutiny to a specific time period. For example, if you put your One in activity mode and go for a run, you can view stats measured for that run, such as calories burned or steps taken. When you end activity mode at the end of the run and sync your data, your can log in to your fitbit.com dashboard and see a summary of the activity's stats such as pace, duration, and more. To start a recording, hold your tracker’s button down for 2-3 seconds until a flashing stopwatch and running numbers appear as they do in sleep mode. During the activity the display icons will blink. When you press the tracker’s button to cycle between screens, the stats represent the activity that has occurred since the recording started. To exit activity mode, hold your tracker’s button down for 2-3 seconds until the icons and numbers on the display stop flashing. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 13 of 26 10 Using the fitbit.com Dashboard Fitbit provides a free online tool - the fitbit.com dashboard - to help you track, manage, and evaluate your fitness progress. Use the dashboard to see your daily totals, analyze details about specific activities, view historical graphs, and log food. Browser requirements Browser Mac Version Windows Version Apple Safari 5.0.5 and higher Not Supported Google Chrome 12 and higher 12 and higher Microsoft Internet Explorer Not Supported 8 and higher Mozilla Firefox 3.6.18 and higher 3.6.18 and higher Adding and removing tiles Information on the dashboard appears in tiles. Add or remove tiles to customize the dashboard. If you remove a tile, you can add it back at any time. To add a tile: 1. Click the grid icon on the upper left side of the dashboard. 2. Check the tile(s) you want to add, then click Done. To delete a tile: 1. Hover over a tile until you see the gear icon at the lower left. 2. Click the gear icon, then click Remove Tile. 3. When prompted, confirm that you want to remove the tile. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 14 of 26 11 Managing your One from fitbit.com To manage various settings for your account, click the gear icon in the top right corner of your fitbit.com dashboard and select Settings. From here you can edit your personal information, your notification preferences, your privacy settings, and much more. The Devices page allows you to monitor or edit: • The date and time of your last sync. • Your tracker’s battery level. • The firmware version running on your tracker. • Your time zone. • Your sleep tracking sensitivity option. • Your handedness preference: left-handed or right-handed. • Your tracker’s greeting. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 15 of 26 12 Using silent alarms You can set up to eight gently vibrating silent alarms on your One. Silent alarms can be configured to recur every day, or on particular days of the week. Note: Setting multiple alarms may drain the battery life of your One. Each alarm increases battery use by a small percentage. Setting silent alarms You can add, edit, and delete silent alarms from the Fitbit app or in the fitbit.com dashboard. To set silent alarms using your fitbit.com dashboard: 1. Log in to your fitbit.com dashboard. 2. Click the gear icon in the top right corner of the screen. 3. Click Settings and find Silent Alarms. 4. Click the Add Alarm button. 5. Enter the time you want the alarm to alert you. 6. Choose how often you want the alarm to occur: a. Once - Your alarm will alert you at the specified time and not repeat. b. Repeats - Choose which days you want this alarm to repeat every week. 7. Click Save. 8. Sync your Fitbit One to update your tracker with the new alarms: a. Click the Fitbit Connect icon located near the date and time on your computer. b. With your Fitbit One nearby, click Sync Now. 1. Tap Done. 2. Tap the Sync alarms with your tracker button. Your Android device will now sync the alarm to your One. Dismissing silent alarms When your silent alarm goes off, your One will vibrate. This notification will repeat several times until dismissed. You can dismiss the alarm by pressing the button. If you miss your alarm, your One will alert you again after a few minutes. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 16 of 26 13 Updating your Fitbit One Free feature enhancements and product improvements are occasionally made available through firmware updates. We recommend keeping your One up to date. You’ll be notified in the Fitbit app when an update is available. After you start the update, you’ll see a progress bar on your tracker and in the Fitbit app until the process is complete, followed by a confirmation message. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 17 of 26 14 Troubleshooting your Fitbit One If your tracker is not working properly, review our troubleshooting information below. For other problems or more details, visit http://help.fitbit.com. If your One is experiencing one of the following problems, it may be fixed by restarting your tracker: • Not syncing • Not tracking your steps • Not responding to battery charge • Not responding to button presses Note: Restarting your tracker as described below reboots the device. Note that restarting your tracker does not delete any data. To restart your tracker: 1. Plug your charging cable into your computer. 2. Plug your One tracker into the charging cable, making sure that the gold contacts on your tracker align with the gold contacts in the inside of the charger. 3. Hold down your tracker's button for 10-12 seconds. 4. Remove your tracker from the charging cable and press its button until the screen turns on. Your tracker should now work normally. For additional troubleshooting or to contact Customer Support, see http://help.fitbit.com. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 18 of 26 15 Return Policy and Warranty Warranty information and the fitbit.com Store Return Policy can be found online at http://www.fitbit.com/returns. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 19 of 26 16 Regulatory and Safety Notices Model Name: FB103 USA: Federal Communications Commission (FCC) statement This device complies with FCC part 15 FCC Rules. Operation is subject to the following two conditions: 1. This device may not cause harmful interference and 2. This device must accept any interference, including interference that may cause undesired operation of the device. FCC Warning Changes or modifications not expressly approved by the party responsible for compliance could void the user’s authority to operate the equipment. Note: This equipment has been tested and found to comply with the limits for a Class B digital device, pursuant to part 15 of the FCC Rules. These limits are designed to provide reasonable protection against harmful interference in a residential installation. This equipment generates, uses and can radiate radio frequency energy and, if not installed and used in accordance with the instructions, may cause harmful interference to radio communications. However, there is no guarantee that interference will not occur in a particular installation. If this equipment does cause harmful interference to radio or television reception, which can be determined by turning the equipment off and on, the user is encouraged to try to correct the interference by one or more of the following measures: • Reorient or relocate the receiving antenna. • Increase the separation between the equipment and receiver. • Connect the equipment into an outlet on a circuit different from that to which the receiver is connected. • Consult the dealer or an experienced radio/TV technician for help. This device meets the FCC and IC requirements for RF exposure in public or uncontrolled environments. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 20 of 26 17 Canada: Industry Canada (IC) statement IC Notice to Users English/French in accordance with RSS GEN Issue 3: This device complies with Industry Canada license exempt RSS standard(s). Operation is subject to the following two conditions: 1. this device may not cause interference, and 2. this device must accept any interference, including interference that may cause undesired operation of the device. Cet appareil est conforme avec Industrie Canada RSS standard exempts de licence (s). Son utilisation est soumise à Les deux conditions suivantes: 1. cet appareil ne peut pas provoquer d’interférences et 2. cet appareil doit accepter Toute interférence, y compris les interférences qui peuvent causer un mauvais fonctionnement du dispositive This Class B digital apparatus complies with Canadian ICES-003. Cet appareil numérique de la classe B est conforme à la norme NMB-003 du Canada. FCC ID XRAFB103 IC ID 8542A-FB103 European Union (EU) Declaration of Conformity with Regard to the EU Directive 1999/5/EC Fitbit Inc. is authorized to apply the CE Mark on One, Model FB103, thereby declaring conformity to the essential requirements and other relevant provisions of Directive 1999/5/EC. Compliant with the standard R&TTE 99/CE/05 Conforme à la norme R&TTE 99/CE/05 Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 21 of 26 18 China Wireless sync dongle One Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 22 of 26 19 Israel אישור התאמה 51-37309 אי לבצע כל שינוי טכני בחלק המודולארי של המוצר. Serbia H005 15 South Korea Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 23 of 26 20 Taiwan Other Safety statement This equipment has been tested to comply with safety certification in accordance with the specifications of EN Standard: EN60950-1:2006 + A12: 2011. Important safety instructions • Read these instructions. • Keep these instructions. • Heed all warnings • Follow all instructions • Do not attempt to open the tracker. Substances contained in this product and/or its battery may damage the environment and/or human health if handled and disposed of improperly. • Do not tamper with your One. • Do not use abrasive cleaners to clean your One. • Do not place your One in a Dishwasher, Washing Machine or Dryer. • Do not expose your One to extremely high or low temperatures. • Do not use your One in a sauna or steam room. • Do not leave your One in direct sunlight for an extended period of time. • Do not leave your One near open flames. • Do not dispose of your One in a fire. The battery could explode. • Do not attempt to disassemble your One, it does not contain serviceable components. • Never allow children to play with the One; the small components may be a choking hazard! Built-in battery precautions • Do not attempt to replace your One’s battery. It is built-in and not changeable. Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 24 of 26 21 • Charge the battery in accordance with the instructions supplied with this guide. • Use only the charger that shipped with your product to charge the battery. • Charge your One using a certified computer, powered hub or power supply. • Do not attempt to force open the built-in battery • Your product uses a California Energy Commission charger. Disposal and recycling information The symbol on the product or its packaging signifies that this product has to be disposed separately from ordinary household wastes at its end of life. Please kindly be aware that this is your responsibility to dispose electronic equipment at recycling centers so as to help conserve natural resources. Each country in the European Union should have its collection centers for electrical and electronic equipment recycling. For information about your recycling drop off point, please contact your local related electrical and electronic equipment waste management authority or the retailer where you bought the product. • Do not dispose of the One with household waste. • Batteries are not to be disposed of in municipal waste stream and require separate collection. • Disposal of the packaging and your One should be done in accordance with local regulations. Please recycle! Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 25 of 26 22 Case 3:15-cv-02077-JD Document 153-4 Filed 04/20/17 Page 26 of 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HENEGHAN DEC ISO FITBIT MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077-JD sf-3760907 WILLIAM L. STERN (CA SBN 96105) WStern@mofo.com ALEXANDRA E. LAKS (CA SBN 291861) ALaks@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105 Telephone: 415.268.7000 ERIN M. BOSMAN (CA SBN 204987) EBosman@mofo.com JULIE Y. PARK (CA SBN 259929) JuliePark@mofo.com KAI BARTOLOMEO (CA SBN 264033) KBartolomeo@mofo.com MORRISON & FOERSTER LLP 12531 High Bluff Drive San Diego, California 92130-2040 Telephone: 858.720.5100 Facsimile: 858.720.5125 Attorneys for Defendant FITBIT, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JAMES P. BRICKMAN, individually and as a representative of all others similarly situated, Plaintiff, v. FITBIT, INC., Defendant. Case No. 3:15-cv-2077-JD DECLARATION OF CONOR HENEGHAN IN SUPPORT OF FITBIT, INC.’S MOTION FOR SUMMARY JUDGMENT Date: May 25, 2017 Time: 10:00 a.m. Ctrm: 11, 19th Floor Trial: July 10, 2017 The Honorable James Donato Date Action Filed: May 8, 2015 REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED Case 3:15-cv-02077-JD Document 153-5 Filed 04/20/17 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HENEGHAN DEC ISO FITBIT MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077 1 sf-3760907 I, Conor Heneghan, hereby declare as follows: 1. I am the Director of Research, Algorithms, for Fitbit, Inc. (“Fitbit”), the Defendant in the above captioned action. Statements made in this Declaration are based on my personal knowledge except where stated on information and belief, and I could and would so testify if called as a witness in this matter. 2. I have a Ph.D. in electrical engineering with a focus on biomedical signal processing and biomedical sensors and instrumentation. I have worked in the field of sleep research since 2003. Fitbit’s Sleep Data 3. I have been informed that the products at issue in this litigation are Fitbit’s wireless trackers equipped with Fitbit’s proprietary sleep-tracking technology, and sold by Fitbit between May 8, 2011 and October 27, 2014. 4. When users purchase one of the Fitbit trackers, they have the ability to “pair” their device and review their activity and sleep patterns through the Fitbit dashboard on their computers or smartphones. Fitbit is able to provide this feature because it stores user data, consistent with its Privacy Policy that each user must accept as a condition of creating a Fitbit account. 5. The company maintains those records in the ordinary course of business. As part of this litigation, we have been asked to retrieve those records for the two named plaintiffs. I have personally reviewed those records for Mr. Brickman and Ms. Clingman, which have been kept as part of the company’s ordinary course of business. True and correct copies of the sleep records of the named plaintiffs are attached to this Declaration as Exhibits Y (Brickman) and Z (Clingman). Mr. Brickman’s Sleep Records 6. According to Fitbit’s records, Mr. Brickman set up a Fitbit account, paired a Fitbit Flex, and began tracking his sleep in Attached as Exhibit Y is a true and correct copy of an excerpt from Mr. Brickman’s Fitbit data records from his Fitbit Flex. I understand Case 3:15-cv-02077-JD Document 153-5 Filed 04/20/17 Page 2 of 6 Case 3:15-cv-02077-JD Document 153-5 Filed 04/20/17 Page 3 of 6 Case 3:15-cv-02077-JD Document 153-5 Filed 04/20/17 Page 4 of 6 Case 3:15-cv-02077-JD Document 153-5 Filed 04/20/17 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HENEGHAN DEC ISO FITBIT MOTION FOR SUMMARY JUDGMENT Case No. 3:15-cv-2077 5 sf-3760907 I declare under penalty of perjury that the foregoing is true and correct. Executed on April 20, 2017, in San Francisco, California. Conor Heneghan Case 3:15-cv-02077-JD Document 153-5 Filed 04/20/17 Page 6 of 6 EXHIBIT Y (Filed Under Seal) Case 3:15-cv-02077-JD Document 153-6 Filed 04/20/17 Page 1 of 1 EXHIBIT Z (Filed Under Seal) Case 3:15-cv-02077-JD Document 153-7 Filed 04/20/17 Page 1 of 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STERN DECLARATION IN SUPPORT OF FITBIT’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:15-CV-2077-JD sf-3752801 WILLIAM L. STERN (CA SBN 96105) WStern@mofo.com ALEXANDRA E. LAKS (CA SBN 291861) ALaks@mofo.com MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105 Telephone: 415.268.7000 Facsimile: 415.268.7522 ERIN M. BOSMAN (CA SBN 204987) EBosman@mofo.com JULIE Y. PARK (CA SBN 259929) JuliePark@mofo.com KAI BARTOLOMEO (CA SBN 264033) KBartolomeo@mofo.com MORRISON & FOERSTER LLP 12531 High Bluff Drive San Diego, California 92130-2040 Telephone: 858.720.5100 Facsimile: 858.720.5125 Attorneys for Defendant FITBIT, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JAMES P. BRICKMAN, individually and as a representative of all others similarly situated, Plaintiff, v. FITBIT, INC., Defendant. Case No. 3:15-cv-2077-JD DECLARATION OF WILLIAM L. STERN IN SUPPORT OF FITBIT, INC.’S MOTION FOR SUMMARY JUDGMENT Date: May 25, 2017 Time: 10:00 a.m. Ctrm: 11, 19th Floor Trial: July 10, 2017 The Honorable James Donato Date Action Filed: May 8, 2015 Case 3:15-cv-02077-JD Document 153-8 Filed 04/20/17 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STERN DECLARATION IN SUPPORT OF FITBIT’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:15-CV-2077-JD 1 sf-3752801 I, William L. Stern, hereby declare as follows: 1. I am an attorney admitted to practice law in the courts of the State of California and a member of the Bar of this Court. I am a Senior Counsel at Morrison & Foerster LLP, counsel of record for Defendant Fitbit, Inc. (“Fitbit”) in the above captioned action. I have personal knowledge of the matters stated herein, and if called upon to do so, I could and would testify competently thereto. 2. Attached hereto as Exhibit A is a true and correct copy of the Expert Report of Michael A. Grandner, Ph.D., including exhibits, submitted by Fitbit in this action. 3. Attached hereto as Exhibit B is a true and correct copy of excerpts from the certified transcript of the March 24, 2017 deposition of Dr. Naresh M. Punjabi in this action. 4. Attached hereto as Exhibit C is a true and correct copy of the March 30, 2017 Hearing Transcript on Plaintiffs’ Motion for Class Certification and Fitbit’s Motion to Strike the Expert Testimony of Burke & Rosen. 5. Attached hereto as Exhibit D is a true and correct copy of excerpts from the certified transcript of the March 3, 2017 deposition of Dr. Hawley E. Montgomery-Downs in this action. 6. Attached hereto as Exhibit E is a true and correct copy of the Expert Report of William Christopher Winter, M.D., including exhibits, submitted by Fitbit in this action. 7. Attached hereto as Exhibit F is a true and correct copy of the Rebuttal Expert Report of Michael A. Grandner, Ph.D., including exhibits, submitted by Fitbit in this action. 8. Attached hereto as Exhibit G is a true and correct copy of excerpts from the certified transcript of the March 17, 2017 deposition of Michael Grandner, Ph.D., in this action. 9. Attached hereto as Exhibit H is a true and correct copy of excerpts from the certified transcript of the November 14, 2016 deposition of Conor Heneghan, Ph.D., in this action. 10. Attached hereto as Exhibit I is a true and correct copy of excerpts from the certified transcript of the January 18, 2017 deposition of Shelten Yuen in this action. Case 3:15-cv-02077-JD Document 153-8 Filed 04/20/17 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STERN DECLARATION IN SUPPORT OF FITBIT’S MOTION FOR SUMMARY JUDGMENT CASE NO. 3:15-CV-2077-JD 2 sf-3752801 11. Attached hereto as Exhibit J is a true and correct copy of excerpts from the certified transcript of the March 22, 2017 deposition of Hal Poret in this action. 12. Attached hereto as Exhibit K is a true and correct copy of excerpts from the certified transcript of the March 8, 2017 deposition of Colin Weir in this action. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 20, 2017, in San Francisco, California. /s/ William L. Stern William L. Stern Case 3:15-cv-02077-JD Document 153-8 Filed 04/20/17 Page 3 of 3 EXHIBIT A (Redacted Version of Document Sought to be Sealed) Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 1 of 71 HIGHLY CONFIDENTIAL Brickman v. Fitbit, Inc. (N.D. Cal. Case No. 3:15-cv-02077-JD) EXPERT REPORT OF MICHAEL A. GRANDNER, PH.D. January 31, 2017 Michael A. Grandner, Ph.D. 1501 N. Campbell Avenue, AHSC Room 7326A PO Box 245002 Tucson, AZ 85724-5002 Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 2 of 71 1 I. INTRODUCTION 1. My name is Michael A. Grandner. I am a research director, professor, and independent consultant specializing in sleep, sleep-related behavioral issues, and sleep tracking technology. 2. I have been retained by Fitbit, Inc. (“Fitbit”) in this action. The following is my written Report detailing the opinions I will offer in this case and the bases and reasons for those opinions. II. BACKGROUND AND SCOPE OF ASSIGNMENT 3. I understand that Plaintiffs James P. Brickman and Margaret Clingman (collectively, “Plaintiffs”) have sued Fitbit in this action because they claim that Fitbit made certain false or misleading statements regarding the sleep tracking feature on certain Fitbit devices. Specifically, I understand that Mr. Brickman purchased a Fitbit Flex-a device that comes equipped with Fitbit’s sleep tracking function-on or about November 29, 2013 for $99.00.1 Ms. Clingman claims to have purchased a Fitbit Flex in or around June 2014 for approximately $120.00.2 Plaintiffs claim that they signed up for Fitbit accounts and used their respective devices.3 Both Plaintiffs claim that they noticed shortly after starting to use their devices that the devices “only tracked . . . motion and did not actually track the hours . . . slept, the times [they] awoke during sleep, or the quality of [their] sleep.”4 4. Plaintiffs contend that Fitbit’s statements regarding its devices’ ability to track sleep were false or misleading. In particular, they claim that Fitbit’s sleep tracking devices, including the Flex, do not and cannot track sleep because they track only movement, and 1 Fourth Am. Compl. ¶¶ 43, 44. 2 Id. ¶¶ 53, 54. 3 Id. ¶¶ 48, 55. 4 Id. ¶¶ 12, 13. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 3 of 71 2 “movement is not sleep.”5 I also understand that Plaintiffs generally contend that the devices simply do not work because of different purported errors they experienced when attempting to use the sleep tracking function on their Fitbit Flexes. 5. I have been asked to review the method by which the Fitbit devices at issue in this lawsuit track sleep and opine as to whether that method is reasonable and valid, given my experience with sleep, sleep tracking, and sleep tracking methodology validation (discussed below). I have also been asked to opine regarding the errors that Plaintiffs claim to have experienced and whether those errors are attributable to a fundamental problem with the method by which the devices at issue track sleep. 6. For my work as an expert, I am being compensated at the hourly rate of $350. My compensation is not contingent on the opinions I reach. 7. In the past four years, I have previously testified as an expert witness in one case: United States of America v. Jim Gallardo, Case No. 2:15-cr-01290-NVW, in the United States District Court for the District of Arizona. I testified at trial in that case. III. PREPARATION FOR THIS REPORT 8. In forming my opinions, in addition to relying on my experience and personal knowledge of the pertinent field (i.e., sleep and sleep tracking technology), I reviewed and considered a number of documents and materials, including: (i) Plaintiffs’ operative Fourth Amended Complaint, filed on December 22, 2015; (ii) Fitbit’s motion to dismiss Plaintiffs’ Fourth Amended Complaint, filed on January 8, 2016; (iii) Plaintiffs’ opposition to Fitbit’s motion to dismiss the Fourth Amended Complaint, filed on February 5, 2016; (iv) Fitbit’s reply in support of the motion to dismiss the Fourth Amended Complaint, filed on February 23, 2016; (v) the Court’s order denying Fitbit’s motion to dismiss, dated July 15, 2016; (vi) the transcripts 5 Id. ¶ 35. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 4 of 71 3 from Plaintiffs’ depositions, taken on January 17, 2017; and (vi) various documents produced by the parties in the course of the litigation. Exhibit A to this report lists the documents that I have reviewed and/or relied upon in forming the opinions expressed in this Report. 9. This Report presents my opinions to date concerning the matters set forth above. As additional data, information, and/or testimony is provided to me, I intend to consider that information and may find it appropriate to revise or to supplement my analysis, opinions, and conclusions. As such, I reserve the right to modify or supplement this Report or the opinions stated in it. I also reserve the right to revise my opinions subject to any Orders provided by the Court in this action or to respond to any new arguments or opinions advanced by any rebuttal expert designated by Plaintiffs. Further, if Plaintiffs assert additional claims or theories in this action, I reserve the right to supplement my Report to address such other claims and theories. 10. If asked to testify at trial, I may study additional documents, materials, and/or testimony and may supplement the opinions stated in this Report. I may also be called upon to, and intend to if asked, provide expert testimony in rebuttal to any evidence offered by Plaintiffs or any opinions expressed by experts on behalf of Plaintiffs. Finally, if asked to testify, I may refer to materials similar to those included with this Report, and I may provide graphic materials, summaries of documents, or other materials on which I may rely. IV. QUALIFICATIONS 11. I have worked in the field of Behavioral Sleep Medicine for over 17 years. My work involves the study of sleep and the development and implementation of behavioral interventions for insufficient sleep and sleep disorders. These studies include home-based assessments of sleep using actigraphy. 12. My qualifications are set forth in my curriculum vitae attached as Exhibit B to this Report, which includes a list of publications that I have authored, studies I have conducted, Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 5 of 71 4 positions I have held, grants I have received, and professional affiliations relative to the subject matter of this Report. 13. I received a Bachelor of Arts degree in Clinical and Social Sciences in Psychology from the University of Rochester in 2001. In 2005, I received an MS in Clinical Psychology from San Diego State University, and in 2007, I received my PhD in Clinical Psychology, Behavioral Medicine Track, jointly from San Diego State University and the University of California, San Diego (UCSD). I completed an accredited pre-doctoral psychology internship at the San Diego Veterans Healthcare system and UCSD’s Outpatient Psychiatry Services clinic from 2006-2007. I went on to an accredited postdoctoral fellowship in Behavioral Sleep Medicine at the University of Pennsylvania (2007-2010), as well as a postdoctoral fellowship in Sleep and Circadian Neurobiology at the University of Pennsylvania funded by the National Institutes of Health (2007-2012). In 2014, I received my Master of Science degree in Translational Research (MTR) from the University of Pennsylvania. 14. I am a licensed psychologist and am certified in Behavioral Sleep Medicine by the American Board of Sleep Medicine and am at present a member of several professional organizations, including the American Academy of Sleep Medicine (AASM) (member and elected fellow), the American Heart Association (member and serve on the Healthful Behavior Change Committee), the Sleep Research Society (member and serve on the Scientific Review Committee), the Society of Behavioral Sleep Medicine (founding member and current member of the Board of Directors), the American Thoracic Society (member and serve on the Sleep and Respiratory Neurobiology Planning Committee), the American Psychological Association (member), the Arizona Sleep Society (member), and other organizations. I was also a founding member, committee chair, and past member of the Board of Directors and Past President of the Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 6 of 71 5 Pennsylvania Sleep Society. I was invited to join the Sleep Time Recommendations Consensus Panel, a joint effort of the Sleep Research Society and AASM, to develop recommendations for sleep time in the population (these recommendations were published in 2015). I am also a member of the Mental Health Task Force of the National Collegiate Athletic Association (NCAA) and assisted in the preparation of Mental Health Best Practices guidelines for all NCAA institutions and the development of a mental health handbook (I developed the sleep health components). I am Associate Editor for the peer-reviewed journal Sleep Health and serve on the editorial board for the journal SLEEP. I was an invited co-author of a position paper that represented a joint statement by the Sleep Research Society and the National Institute of Diabetes, Digestive, and Kidney Disorders (NIDDK) on sleep and circadian science in diabetes. I was also a co-author on a position statement by the American Heart Association on the role of sleep duration and quality for heart health. In 2014, I was an invited member of the Sleep Research Society’s strategic planning group, to help outline the strategic goals of the leading scientific organization related to sleep. In addition to these, I have served on and/or chaired many academic and scientific committees related to sleep health. 15. Since 1999, I have trained in at least a dozen clinical settings with a focus on sleep and sleep therapy. From 1999-2001, I studied in the Sleep and Neurophysiology Research Laboratory at the University of Rochester. 16. From 2001-2007, I was a graduate research assistant to Dr. Daniel F. Kripke in the Circadian Pacemaker Laboratory at UCSD. In that position I studied the role of sleep and circadian rhythms in health. In particular, this experience focused on the use of movement-based sleep estimation based on devices worn on the wrist. Dr. Kripke’s lab is arguably the most influential in the world regarding the development of actigraphy; not only did Dr. Kripke first Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 7 of 71 6 use the word actigraphy to describe this approach, but he has been involved with the development of this technology over the past 40 years, including development of the first published scoring algorithm and several others since. During my time at the lab, I was mentored by Dr. Kripke regarding the history, development, and science behind the use of wrist-based movement to measure sleep. He trained me on the use of the technology, how to evaluate the technology, and how to read and score hundreds of recordings. The majority of this was using the Actillume devices from Ambulatory Monitoring, Inc. (AMI), but I was also trained on using Motionlogger devices (also from AMI) and Actiwatch devices (from MiniMitter, Inc., now Philips Respironics). I used these devices in studies run by Dr. Kripke, as well as my own studies. Taken together, in the six years I spent in Dr. Kripke’s lab I was extensively trained on the history, development, technology, and applications of actigraphy, I scored hundreds of nights of actigraphic recordings using a combination of algorithms and hand scoring, and I employed these devices to record hundreds of nights of sleep for research studies that I directly assisted with and/or ran. 17. After leaving Dr. Kripke’s lab at UCSD in 2007, I joined the Center for Sleep and Circadian Neurobiology at the University of Pennsylvania, directed by Dr. Allan Pack. During my time at the University of Pennsylvania (Penn), I was a postdoctoral fellow (described above), a clinical fellow at the Philadelphia Veterans Affairs Medical Center, a Research Associate in Medicine, an Instructor in the department of Psychiatry (performing research, not leading classes), and a staff Psychologist at the Philadelphia VA Medical Center. During this time, I used actigraphy in my clinical practice, consulted with other clinical providers on their use of actigraphy with specific patients, provided lectures and workshops on actigraphy (see below), trained other researchers on the use of actigraphy for their studies, and used actigraphy in my Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 8 of 71 7 own research. During this time, I worked with several other sleep actigraphic devices, including the GENEactiv device (GENEactiv, Inc.), the GT3x and ActiSleep devices (from Actigraph, Inc.), the MotionWatch (from Cam-N-Tech, Inc.), and the WatchPAT (Itamar Medical, Inc.). I also broadened my experience with the actiwatch devices now manufactured by Philips Respironics, including the Actiwatch-2 and Actiwatch Spectrum. I used these devices for teaching, in clinic, and/or in research studies I assisted with and/or directed. 18. In 2015, I left Penn for a faculty position at the University of Arizona. At the University of Arizona, I am currently an Assistant Professor in Psychiatry, in the College of Medicine. I currently hold joint appointments in the Department of Medicine (College of Medicine), Department of Psychology (College of Science), and Department of Nutritional Studies (College of Agriculture and Life Sciences). I am Director of the Sleep and Health Research Program at the University and Director of the Behavioral Sleep Medicine Clinic at the Banner-University Medical Center in Tucson, Arizona. I use actigraph devices regularly in my clinic (see below) and in my research. For example, I have several ongoing research studies that utilize actigraph devices to measure sleep. 19. My current clinical affiliation related to the study of sleep includes the Banner- University Medical Center in Tucson, where I am Director of the Behavioral Sleep Medicine Clinic in the Department of Psychiatry. This clinic diagnoses and treats sleep disorders using empirically-supported non-medication treatments. We use actigraphy in the clinic as a diagnostic tool and as an aid in treatment. 20. I have published 77 peer-reviewed articles, 14 journal commentaries, and seven chapters on issues relating to sleep and health. These include articles appearing in peer-reviewed journals in the sleep research field, including SLEEP, Sleep Medicine, Sleep Medicine Reviews, Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 9 of 71 8 Behavioral Sleep Medicine, Sleep Health, Journal of Clinical Sleep Medicine, Nature and Science of Sleep, Clinics in Sleep Medicine, Sleep Disorders, Journal of Sleep Research, and others. I have also published sleep-related articles in medical journals not specifically targeted to sleep research, including Appetite, Obesity, International Journal of Obesity, Circulation, Nutrition, Frontiers in Neurology, Journal of Occupational and Environmental Medicine, and the Journal of the American Medical Association (JAMA). 21. I specialize in the area of actigraphy and movement-based approaches for measuring sleep. I have conducted several studies using actigraphy as a method for measuring sleep, including a study that is ongoing in which the home-assessment phase involves subjects wearing a device on the wrist that records movement, which the study uses to measure sleep. 22. I have given a dozen lectures on actigraphy and movement-based approaches for estimating sleep, including a four-part lecture series called Movement-Based Approaches for Estimating Sleep: Actigraphy and Beyond. In Part 2 of the series, called Devices, Scoring Algorithms and Validation, I discuss the validation of actigraphy devices. In addition to this lecture series which I delivered on two separate occasions (with a third planned for 2017), I have provided individual lectures on actigraphy and movement-based sleep measurement on several occasions and regularly train students, trainees, and professionals in the principles and practice of using actigraphy in their research and clinical work. In 2016, I was invited to chair a half-day course on sleep measurement using actigraphy for the annual SLEEP scientific conference (the main scientific meeting devoted to sleep science). 23. The opinions that I express in this Report are true and are based upon standards commonly used in my profession and in the sleep medicine industry. V. SUMMARY OF OPINION A. Actigraphy Overview Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 10 of 71 9 24. In measuring sleep, sleep continuity refers to the timeline of sleep across a night; it refers to ways of measuring when someone is awake or asleep. Important aspects of sleep continuity include sleep timing (when people got in and out of bed), sleep latency (how long it takes to fall asleep), number of awakenings, duration of awakenings, total sleep time, and sleep efficiency (proportion of time in bed spent asleep). These constructs are particularly important for determining whether someone is getting enough sleep (measured with total sleep time), at the right time (measured with sleep timing), of sufficient quality (measured with awakenings, duration of awakenings, and sleep efficiency). 25. There are multiple scientifically accepted methods for tracking sleep, which include methods such as polysomnography (“PSG”) and actigraphy. PSG is a term that refers to measuring multiple (“poly”) biological signals during sleep (“somno”) and displaying those signals graphically (“graphy”). It is typically comprised of several key measurements. Electroencephalography (“EEG”) is a method where electrodes are affixed to specific parts of the scalp, usually using a conductive paste, in order to measure “brain waves.” “Brain waves” are a term used to describe the graphical representation of changes in voltage recorded from these surface electrodes over time. Note that this does not measure brain cells directly; rather, it represents the spatial and temporal averaging of many cells, as recorded through skin, muscle, bone, and layers of protection around the skull. Also, this technique does not record cells “firing” but rather other types of activity produced by the cells, and it also can only detect activity in the very outer layers of the cortex, closest to the electrode. Despite their limitations, these recordings are quite useful, and different patterns of “brain waves” are used to differentiate between wake and all of the stages of sleep. Still, since the neurological control of sleep and wake is quite deep in the brain, these recordings are a very indirect measure of “actual” sleep and are still just an Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 11 of 71 10 estimate. In addition to EEG, several other signals are routinely employed. Electrooculography (EOG) refers to electrodes placed near the eyes, to record neuronal activity indicative of eye movements, which is useful for measuring slow eye movement (SEM) activity at night, as well as rapid eye movement (REM) activity indicative of the sleep stage that bears its name. Electromyography (EMG) signals are also used in PSG, including at least one electrode affixed to an area that typically does not lose much muscle tone during sleep (usually jaw muscle); this is used to also detect REM sleep, where muscle activity changes. Other signals that are often employed are electrocardiography (ECG) and measures of respiration to detect sleep-related breathing disorders. Taken together, PSG can provide a very detailed picture of sleep across multiple signals and provide important information regarding both sleep continuity and sleep architecture. 26. Unlike PSG, actigraphy, employs a small device-the actigraph-to measure a subject’s movement and determine the amount and quality of the subject’s sleep and identify sleep interruptions. The way actigraphy works is quite different from PSG. Inside the actigraph device is an accelerometer. This detects and quantifies acceleration in space (acceleration is different than just movement, which is why sitting in a moving vehicle and sitting on a couch appear essentially the same in an actigraph recording). The accelerometer records acceleration levels many times per second and (usually) calculates some sort of summary score in a recording window (usually each second). These values are often evaluated to assess how much a person moved in that time window. If a person was quite still, then it would record little to no movement. If that person was quite active, it would record much movement. Thus, actigraphy measures sleep through movement, not brain activity. Like PSG, it is still an estimate of sleep that relies on scientifically established physiological inputs associated with sleep. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 12 of 71 11 27. It is commonly believed that actigraphy will often record any kind of sedentary activity as sleep. In fact, this is often not the case. Most sedentary activity does not include the kind of sustained stillness needed for a given period of time to be seen as sleep. This is because we often make small movements even when resting that look quite different from sleep. 28. Movement at the wrist has been demonstrated to be a reliable and valid way to estimate sleep. Studies that have compared placement of the actigraph on other parts of the body (e.g., head, ankle, and hip) found that the wrist was the ideal location. This is likely because the wrist is one of the most often-moved parts of the body, even during sedentary activity. Thus, it is quite sensitive to picking up movements distinguishable from sleep. 29. There are several key differences between PSG and actigraphy. If the definition of sleep is that it is (1) naturally-recurring, (2) associated with reduced or absent consciousness and perceptual disengagement, and (3) associated with general immobility, PSG is ideally suited to measure #2 and #3, whereas actigraphy is ideally suited to measure #1 and #3. Both techniques establish sleep continuity relatively well (see below). Only PSG can indirectly capture consciousness and disengagement, since these are not correlated with movement. Actigraphy, on the other hand, is superior to PSG in its ability to characterize real-world sleep, since it does not require the use of many wires and electrodes and can be done in the home. PSG provides a great deal of precision in a number of biological signals. But if the goal is to estimate sleep continuity, PSG and actigraphy are both accepted approaches. Further, if the goal is to estimate habitual sleep continuity, actigraphy is superior to PSG. 30. Actigraphy is a scientifically accepted method for tracking sleep; it has been used to study sleep for more than forty years, since researchers reported a significant and substantial correlation between movement and wakefulness measured by an actigraph and PSG-measured Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 13 of 71 12 movement and wakefulness in 1972.6 It is often said that PSG is the “gold standard” for sleep assessment because it typically is administered in a sleep lab using multiple types of data input. But since the promulgation of actigraphy as a method for measuring sleep, these same studies that refer to PSG as the gold standard also note that “[a]ctigraphy performed over multiple nights may provide more reliable data on sleep measures than PSG . . . .”7 In fact, the accuracy of actigraphy, as compared to PSG, is the subject of many validation studies over the past few decades. These studies uniformly show that actigraphy is not only an accurate and acceptable method for tracking sleep, but also that “actigraphic estimates of total sleep time and sleep efficiency correlate[] highly with PSG scores . . . .” 8 31. The actigraph converts information into data that can be “scored,” which translates the data into an objective measurement by which the subject’s sleep is assessed. Manual scoring is based on visual inspection of the raw actigraphic-activity data-a human controller exercises judgment to translate the data into a sleep assessment, in much the same way a radiologist views an x-ray and diagnoses a patient. Because raw actigraphic data is digitized by the actigraph, scientists and researchers have developed computer algorithms to automatically score the data. Final results of relevant studies indicate that automatic scoring “is not only fast and objective, but also yields high agreement rates with PSG scoring . . . .”9 32. Actigraphy shows good correlation in comparison to PSG. Specifically, when research subjects undergo PSG while wearing an actigraph, minute-to-minute agreement regarding whether an individual was asleep or awake is typically 85-90%. This rate of agreement 6 See Warren W. Tryon, Issues of Validity in Actigraphic Sleep Assessment, 27(1) Sleep 158 (2004). 7 Terri Blackwell, et al., Comparison of Sleep Parameters from Actigraphy and Polysomnography in Older Women: The SOF Study, 31(2) Sleep 283 (2008). 8 Roger J. Cole, et al., Automatic Sleep/Wake Identification from Wrist Activity, 15(5) Sleep 461 (1992); see also Girardin Jean-Louis, et al., Determination of Sleep and Wakefulness with the Actigraph Data Analysis Software (ADAS), 19(9) Sleep 739, 742 (1996) (finding overall agreement between actigraphy and PSG of 97%). 9 Avi Sadeh, et al., The Role of Actigraphy in the Evaluation of Sleep Disorders, 18(4) Sleep 288, 290 (1995). Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 14 of 71 13 (around 85-90%) is seen in all age ranges from infancy to old age, in men and women, across racial groups, and even across sleep disorders. These numbers tend to be higher (up to 95% or higher) in samples without sleep disturbances/disorders and with less diverse samples. Although anecdotal reports focus on periods where perceived sleep and wake differed from the actigraphic report, not only is it not clear that the perceived wakefulness would not have been actually recorded as sleep with PSG (which often occurs in insomnia, for example), but these periods usually refer to relatively small stretches of time. For example, if an individual spends eight hours in bed, and the actigraph records 20 minutes of time awake despite a perceived awakening duration of 45 minutes (i.e., an extra 25 minutes of laying awake, immobile), this would still yield an agreement rate of around 94.5%. This may subjectively feel like quite a large discrepancy, but scientifically speaking, this is still quite accurate. In this example, the individual was in bed for eight hours, or 480 minutes. The device recorded 20 minutes awake, but the individual perceived 45 minutes awake. That 25-minute discrepancy represents only 5% of the night (25/480 = 0.05). Thus, even a perceived 25-minute discrepancy, taken into a whole-night context, only represents an error of 5%. In real-world examples, there are movements that the actigraph records as brief awakenings and periods of stillness mis-scored as sleep. But in the context of a whole night, the accuracy is quite high. 33. From a scientific standpoint, this is an acceptable variance. The sleep research community relies on actigraphy to measure sleep, knowing that it is a reliable method for translating motion into sleep in subjects and patients. 34. One of the key features of actigraphy algorithms is that an individual minute is not examined in isolation. This feature improves the algorithms’ validity across many situations or multiple devices. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 15 of 71 14 35. Specifically, when algorithms for various actigraph devices have been independently derived, in many cases they take into account the previous four and subsequent two minutes when making a determination of sleep or wake. This has remained quite constant across devices and actigraphic technology. Several previous studies have shown that when applying an algorithm derived for one type of device on a different device, the algorithm usually performed nearly identically well compared to algorithms mathematically optimized for the second device. This is because there is much similarity among actigraphic algorithms across devices, and as long as an algorithm has been validated and is within the range of other validated algorithms, some or all of those algorithms would perform equally well on any one of those devices. 36. This was illustrated in a recent study, where the GENEactiv device was compared to the Actiwatch device. Although the Actiwatch is regarded as an industry standard device, the exact algorithm is not published (it is property of the manufacturer and regarded as a trade secret). To develop an algorithm for the GENEactiv, the investigators simply used an algorithm that roughly approximated existing algorithms without trying to replicate them exactly. The study showed that the GENEactiv device, using the resulting approximated algorithm, performed just as well as the industry-standard Actiwatch, using a proprietary algorithm. This showed that the exact algorithm used may not even be important as long as it approximates existing, validated algorithms. 37. Actigraphy has long been accepted as a scientifically valid way to measure habitual sleep continuity. In fact, it is the most accepted, objective way to measure habitual sleep. Although PSG is the most accepted objective measure of sleep in the laboratory, it does not approximate habitual sleep patterns in the real world. Because of this, several of the leading Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 16 of 71 15 scientific organizations have formally endorsed actigraphy as a scientifically valid approach. For example, in 2003, AASM published, “Practice Parameters for the Role of Actigraphy in the Study of Sleep and Circadian Rhythms: An Update for 2002.” The authors representing the AASM concluded that, “[a]ctigraphy is reliable and valid for detecting sleep in normal, healthy populations…” and that “[a]ctigraphy is an effective means of demonstrating multiday human rest-activity patterns and may be used to estimate sleepwake patterns in clinical situations where a sleep log, observations, or other methods cannot provide similar information.” This document was accompanied by a comprehensive scientific review, officially endorsed by the AASM, entitled, “The Role of Actigraphy in the Study of Sleep and Circadian Rhythms.” This paper notes, “[t]he advantage of actigraphy over traditional polysomnography (PSG) is that actigraphy can conveniently record continuously for 24-hours a day for days, weeks or even longer,” and “… wrist actigraphy can usefully approximate sleep versus wake state during 24 hours ….” Twelve years later, the Society of Behavioral Sleep Medicine updated this report with “The SBSM Guide to Actigraphy Monitoring: Clinical and Research Applications,” which included many of the authors of the original AASM documents. This update noted that, “[w]hile polysomnography (PSG) continues to be the gold standard for recording sleep, wrist actigraphy offers the advantages of being easier to use and less expensive and cumbersome. Although actigraphy should not be viewed as a substitute for PSG when an overnight sleep study is indicated (e.g., when EEG parameters are needed or sleep disorders requiring PSG are suspected), actigraphy allows for extended continuous recording of both nocturnal and daytime sleep periods for days or weeks in the patient’s home sleep environment. Actigraphy can therefore yield information that is not captured during a single night in the sleep laboratory or via portable ambulatory monitoring. These features are particularly advantageous in select patient Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 17 of 71 16 groups such as those with suspected circadian rhythm sleep disorders or insomnia complaints, in pediatric patients with sleep difficulties, and in older adults.” The document goes on to define guidelines for actigraph hardware, patient instructions and materials, scoring and algorithm use, and data interpretation. The scientific acceptance of actigraphy for measuring sleep is also evident in that the use of actigraphy to assess sleep is specifically called for and/or lauded in position statements on sleep health made by AASM, the Sleep Research Society, the National Sleep Foundation, the American Thoracic Society, and the American Heart Association. The experts that made up the consensus panels of all of these organizations recognized the scientific validity of actigraphy as an accepted (and in many cases even preferred) way of measuring sleep. B. Fitbit’s Sleep Tracking Devices 38. I understand that Fitbit markets a number of personal fitness and activity devices that track certain personal metrics, including steps, distance, calories burned, floors climbed, and heart rate. In addition, these fitness trackers are also advertised to track “hours slept,” “times woken up,” and “sleep quality.”10 I understand that between May 8, 2011 and October 27, 2014, the Company marketed the following products with sleep-tracking features: Fitbit (n/k/a “Classic”), Ultra, One, Flex, and Force (referred to collectively herein as the “Devices”).11 39. The sleep tracking function on the Devices works using a combination of hardware and software components. The Devices come equipped with a 3-axis accelerometer, which tracks movement, as well as the absence of movement. The Device then gathers that raw movement, or actigraphic, data and, using an algorithm and microprocessor, translates it into 10 Fourth Am. Compl. ¶ 3. 11 Fitbit’s Responses and Objections to Plaintiffs’ first Set of Requests for Admissions, Requests for Production of Documents, and Interrogatories, Response to Interrogatory No. 6, dated July 26, 2016. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 18 of 71 17 sleep patterns-a minute-by-minute label as to whether that person is asleep or awake in that minute.12 This process is, in brief, actigraphy. 40. During the relevant time period (up to October 2014), Fitbit’s Devices required the user to manually enable the sleep tracking function if the user desired to track his or her sleep. For the Fitbit Flex in particular (the Devices Plaintiffs purchased), in order to enable “sleep mode,” the user was required to “tap your Flex rapidly for one to two seconds,” after which the Flex would “vibrate and display two slowly dimming lights to indicate that sleep mode has begun.”13 Manual activation was required until approximately late 2015, when Fitbit released a software update that gave the user the option of setting the Flex to detect sleep automatically.14 After the auto-sleep update, the user could continue to use the manual activation method if he or she so chose.15 I also understand that users could activate or edit their sleep periods online, either on a computer or on the Fitbit app, through the Fitbit dashboard.16 41. In addition, between 2009 and 2014, Fitbit switched from using an analog accelerometer17 to a digital accelerometer.18 I understand that the Fitbit Flex used a microelectromechanical system (MEMS) 3-axis digital accelerometer.19 I reviewed the technical 12 See Nov. 14, 2016 Deposition of Conor Heneghan (“Heneghan Deposition”) at 49:11-50:2, 160:23-161:4. 13 Fitbit Flex, Wireless Activity + Sleep Wristband, Product Manual, at 19 (“Tracking sleep with Flex”). 14 See Fitbit Help, What’s changed in the latest tracker update?, Flex, Version 81, available at https://help.fitbit.com/articles/en_US/Help_article/1372. 15 Fitbit Help, What's changed in the latest tracker update?, Flex, Version 81, available at https://help.fitbit.com/articles/en_US/Help_article/1372. 16 Fitbit Flex, Wireless Activity + Sleep Wristband, Product Manual, at 19 (“Tracking sleep with Flex”). 17 Heneghan Deposition, Exhibit 11 (Data Sheet: Technical Data for MMA7341LC accelerometer). 18 See LIS3DH, MEMS digital output motion sensor: ultra-low-power high-performance 3-axis “nano” accelerometer datasheet, available at http://www.st.com/content/ccc/resource/technical/document/datasheet/3c/ae/50/85/d6/b1/46/fe/CD00274221.pdf/file s/CD00274221.pdf/jcr:content/translations/en.CD00274221.pdf (“LIS3DH”); see also Heneghan Deposition at 156:1-9. 19 Heneghan Deposition at 92:6-11, 154:17-155:12; Jan. 18, 2017 Deposition of Shelten Yuen (“Yuen Deposition”) at 143:-144:6; Fitbit Flex, Wireless Activity + Sleep Wristband, Product Manual, at 26 (“Fitbit Flex General Info & Specifications”). I understand that the deposition or Mr. Yuen is available in “rough” form only at this time. I reserve my right to correct any citations to his transcript upon receipt of the final version. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 19 of 71 18 details of both accelerometers, which show that the device performs consistently with established accelerometry principles. 42. I have reviewed the algorithm used to track sleep in Fitbit’s devices, which has been used since the sleep tracking functionality was implemented in 2009.20 I understand that the algorithm was derived following Fitbit’s review of background literature.21 In particular, Fitbit selected an algorithm derived from a paper authored by Girardin Jean-Louis, Daniel F. Kripke, William J. Mason, Jeffrey A. Elliott, and Shawn D. Youngstedt, entitled, Sleep estimation from wrist movement quantified by different actigraphic modalities, published in the Journal of Neuroscience Methods in 2001 (“Jean-Louis 2001 Paper”).22 43. The scientific community acknowledges that the algorithm (commonly referred to as either the Jean-Louis algorithm or the UCSD algorithm) is one of the most reliable accelerometer-based algorithms for measuring sleep. The Jean-Louis algorithm is based on previous algorithms developed on older devices. A sequence of validation algorithms was developed in the lab of Dr. Kripke, the inventor of actigraphy and the investigator whose lab I trained in. Dr. Kripke developed multiple algorithms using accelerometer products, all of which were validated in his lab and were shown to measure sleep. The Jean-Louis algorithm is the most recently published algorithm in this sequence. Based on the development of this algorithm, it is my opinion that the algorithm is reliable for use across a range of applications and devices, including for Fitbit’s Devices. 20 See Yuen Deposition at 112:6-14, 144:19-145:16, 148:5-11. 21 Yuen Deposition at 113:15-23; see also Sept. 23, 2008 Presentation, Shelten Yuen, “‘Actigraphy’ in Sleep Research (Literature Highlights) (FB_BRICKMAN_0062390 - FB_BRICKMAN_0062402). 22 FB_BRICKMAN_0146046 - FB_BRICKMAN_0146052. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 20 of 71 19 44. Notably, dozens of peer-reviewed studies conducted using actigraphs have measured sleep using the Jean-Louis algorithm.23 These studies further confirm that the Jean- Louis algorithm is widely recognized as one of the most accurate and scientifically accepted algorithms for actigraphic sleep tracking. 45. Fitbit performed validation studies comparing the output of its devices to the “Motionlogger,” a wrist-worn actigraph manufactured by AMI.24 These studies showed that the outputs of Fitbit’s Devices were virtually identical to that of the Motionlogger, thus validating Fitbit’s outputs. C. Fitbit’s Devices Use a Method of Tracking Sleep that Is Valid and Acceptable 46. It is my opinion that Fitbit’s method of tracking sleep, including the accelerometer and algorithm used in connection with its Devices, is valid and acceptable from a scientific perspective. Indeed, Fitbit’s algorithm has been validated by multiple independent studies for use in different devices since its original publication in 2001 and is a widely accepted version of a series of algorithms that have been used across many devices for over 30 years. 47. Further, Fitbit’s decision to validate its algorithm against other existing actigraphs-specifically, the Motionlogger-is a scientifically accepted validation method. Since the Motionlogger is accepted as validated instruments, using them as a “gold standard” to compare against is a common and acceptable approach. Sleep scientists, including myself, regularly use existing actigraphs as comparators in ensuring that outputs are similar and, by extension, the device being tested is providing accurate, reliable readings. For example, scientists have published peer-reviewed papers that have taken this approach to validate devices such as 23 See, e.g., Susan M. McCurry, et al., Nighttime Insomnia Treatment and Education for Alzheimer’s Disease: A Randomized, Controlled Trial, 53 JOURNAL OF THE AMERICAN GERIATRICS SOCIETY 793 (May 2005); Nicole K.Y. Tang, Correcting distorted perception of sleep in insomnia: a novel behavioural experiment?, 42 BEHAVIOUR RESEARCH AND THERAPY 27 (2004). 24 Yuen Deposition at 134:24-135:6; Heneghan Deposition at 120:4-18. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 21 of 71 20 the GENEactiv, GT3x, and other devices. Comparing against a known standard is called “criterion validity” and is a widely used practice. 48. Based on my review of Fitbit’s comparison of the outputs of its Devices against other, existing actigraphs, Fitbit’s Devices provide comparable, reliable readings. 49. I reviewed documents produced by Fitbit in the litigation, which detail the development of the Company’s sampling scheme and how that sampling scheme eventually was used to generate actigraphic output.25 In my opinion, this was a sound approach and is supported by (1) the data created by Fitbit, using Fitbit’s software, which was almost identical to the data created by the industry-standard Motionlogger when it also used Fitbit’s software (both produced raw data that, when overlayed, look nearly identical; further, both devices generated values of 16 minutes awake in the sample record, resulting in 91.67% sleep efficiency); and (2) the data created by the Motionlogger, which, using the Motionlogger’s own software, produced comparable numbers (17 minutes awake in the same record, 91.57% sleep efficiency). Thus, the Fitbit device generated identical results to an industry-standard device in the same analytic conditions (e.g., in Fitbit’s software), and this was nearly identical to an industry-standard device’s data as it would be generated using its own, industry-standard software. Thus, the two devices are comparable and Fitbit’s Devices are thereby providing users with the sleep features advertised by Fitbit. 50. In my opinion, Fitbit’s decision to use the Jean-Louis algorithm was a scientifically reasonable decision. The Jean-Louis algorithm is the result of decades of scientific 25 See Shelten Yuen, “Burst Sampling, Noise Floor Reduction (Nov. 2, 2008) (FB_BRICKMAN_0062363 - FB_BRICKMAN_0062371); Shelten Yuen, “Moving Average to Reduce Floor Noise (Nov. 6, 2008) (FB_BRICKMAN_0062372 - FB_BRICKMAN_0062378); Shelten Yuen, “Sleep (Sampling and Results)” (Nov. 14, 2008) (FB_BRICKMAN_0062379 - FB_BRICKMAN_0062389); “Sleep Testing” (June 12, 2009) (FB_BRICKMAN_0062403 - FB_BRICKMAN_0062405). Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 22 of 71 21 research and has been shown to translate accelerometer outputs to reliable measures of sleep and wake periods. 51. From my review of Fitbit’s materials, it is also my opinion that the Fitbit Devices implement the Jean-Louis algorithm in a scientifically reasonable manner because the Fitbit accelerometer output is consistent with that of sleep-tracking actigraphs such as the Motionlogger. Therefore, I can conclude that the Fitbit Devices are able to translate movement into a measurement of sleep that is reliable and scientifically based. 52. My own independent research confirms the reliability of Fitbit Devices for tracking sleep as well. I recently participated in a validation study conducted by colleagues at the University of Texas Medical Branch, which was unfunded (neither Fitbit nor any other company or funding agency supplied funds for the study, provided devices for use, or even knew that the study was being performed; this was a completely independent study). During this study, my colleagues and I compared the Fitbit Flex to other actigraphy-based, wrist-worn sleep trackers available on the market, as well as an Actiwatch (which we used as a “gold standard” because this is a widely used device that is well-validated in the scientific literature). We asked 40 healthy adults to wear all devices simultaneously on the same arm for one week. Across the board, the Fitbit Flex produced data that was comparable to the Actiwatch and, when it was compared to other devices, in many cases, the Fitbit Flex outperformed those offered by other companies in terms of accuracy and reliability. For example, compared to the Actiwatch the Fitbit Flex overestimated sleep by only two minutes per night on average and overestimated sleep efficiency by only 5% on average. This is an acceptable variance in measuring sleep, and suggests that Fitbit’s Devices measure sleep comparably to the gold-standard Actiwatch device. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 23 of 71 22 53. I have reviewed Fitbit’s packaging materials attached to the Complaint. Based on the fact that the Fitbit Devices can measure sleep as discussed above, it is my opinion that the statements on the product packaging regarding the Devices’ ability to track “sleep,” “hours slept,” “sleep quality,” and “times woken up”26 are truthful and reasonable and inform consumers about the Fitbit Devices’ ability to measure sleep. D. Plaintiffs’ Experience with the Flex 54. I have reviewed the deposition testimony of Mr. Brickman and Ms. Clingman. 55. Mr. Brickman testified that, shortly after activating his Flex around late December 2013/early January 2014, he observed that the Device recorded as “hours slept” time that Mr. Brickman was in fact awake, lying in bed or in his work “sleep room,” and watching television or a movie.27 56. Ms. Clingman testified that she noticed that her Flex was providing “odd readings” and had several experiences where her Flex would enter into sleep mode during the day, while she was being active.28 On those occasions, she was “[p]ushing things, such as a stroller or a grocery cart.”29 Ms. Clingman also testified that she experienced an instance where her Fitbit Flex showed that she had woken up 50 times in a night, which she believed was inaccurate.30 Ms. Clingman described this experience as atypical.31 57. Based on my understanding of (i) how the Devices operate and (ii) the issues Plaintiffs claim to have encountered, Plaintiffs’ experiences are most likely the result of operator error or anomalous, Plaintiff-specific circumstances, rather than the result of a flaw in the Devices’ methodology for tracking sleep. 26 See Fourth Amended Complaint, Ex. 2. 27 Jan. 17, 2017 Deposition of James P. Brickman (“Brickman Deposition”), at 21:19-25:12, 43:10-17. 28 Jan. 17, 2017 Deposition of Margaret Clingman (“Clingman Deposition”), at 26:19-28:8, 43:14-22. 29 Clingman Deposition at 43:14-22. 30 Clingman Deposition at 26:19-24, 76:17-78:10. 31 Clingman Deposition at 77:11-24. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 24 of 71 23 58. First, instances in which Plaintiffs’ Devices entered into sleep mode while Plaintiffs were awake cannot be attributed, as a matter of principle, to a design flaw associated with the use of an actigraphy-based method for tracking sleep. Nor can they be attributed to actigraphy as a methodology, more generally. Because Plaintiffs’ Devices relied on manual activation, Plaintiffs themselves were responsible for informing the Device when to begin recording sleep. In other words, based on the information available to me, if Plaintiffs’ Devices entered into sleep mode while Plaintiffs were awake and active, it is most likely because Plaintiffs (perhaps accidentally) manually enabled sleep mode. Ms. Clingman, for example, may have inadvertently enabled sleep mode as a result of bumps, movement, or vibrations resulting from her pushing the stroller or a cart that simulated the rapid tapping activation trigger. Notably, any device that relies on some manual, affirmative step by the user to active sleep tracking has the potential for inadvertent activation. If Ms. Clingman believed that sleep mode had been triggered while she was awake, she also had the ability to revise her sleep periods through the Fitbit dashboard and delete those entries. 59. Second, Ms. Clingman’s experience with “odd readings” is consistent with ordinary sleep disturbances that are not related to any supposed flaw in the sleep-tracking method. It is absolutely possible that an individual can have a restless night with 50 or more recorded awakenings. For example, PSG recordings in otherwise healthy people can show 10-20 awakenings in a typical night; these awakenings are usually very brief and are not remembered. In the case where an individual experiences something that interferes with their sleep (e.g., some environmental disturbance, some physical disturbance like pain or illness, or some sleep-related respiratory problems), this can result in many episodes during the night which may be recorded by an objective sleep measurement approach (like PSG or actigraphy) but are not remembered by Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 25 of 71 24 the individual. Further, an individual who has sleep apnea, such as Ms. Clingman testified she had,32 can often experience 50 arousal times during the night due to her sleep disorder. Indeed, one would expect someone diagnosed with sleep apnea to wake up multiple times in a night.33 VI. CONCLUSIONS 60. It is my opinion that the Jean-Louis algorithm is a scientifically valid algorithm that can be used to measure sleep. The Fitbit Devices implement that algorithm in a scientifically appropriate manner, which is confirmed by Fitbit’s internal validation. In addition, external studies have also verified the capability of the Fitbit Devices to measure sleep. Fitbit’s representations about its devices’ ability to track sleep, hours slept, sleep quality, and times woken up are truthful and not misleading. 61. Finally, Plaintiffs’ experiences are most likely the result of operator error or unique, Plaintiff-specific circumstances (e.g., readings consistent with, and potentially attributable to, Ms. Clingman’s sleep apnea), rather than the result of a flaw in the Devices’ methodology for tracking sleep. VII. OTHER TESTIMONY 62. The opinions stated herein are based on my own analyses and conclusions. If I become aware of facts, evidence and/or other information not available to me for the preparation of this Report, I reserve the right to supplement and/or revise my Report and to revise my conclusions if necessary. I also reserve the right to correct typographical errors in this Report. 32 Clingman Deposition at 46:12-51:22. 33 Ms. Clingman testified that her physician instructed her to use a Continuous positive airway pressure machine, or “CPAP,” after being diagnosed with sleep apnea in or around 2011. However, she decided to stop using the CPAP machine in 2012 or 2013 without first consulting with her physician or performing independent research. Clingman Deposition at 46:12-51:16. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 26 of 71 25 I declare under penalty of perjury of the laws of the United States of America that the foregoing is true and correct. DATED: January 31, 2017 _____________________________ Michael A. Grandner Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 27 of 71 EXHIBIT A Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 28 of 71 1 DOCUMENTS CONSIDERED OR RELIED UPON 1. Sonia Ancoli-Israel et al., The Role of Actigraphy in the Study of Sleep and Circadian Rhythms 26(3) SLEEP 342, 342 (2003). 2. Sonia Ancoli-Israel et al., The SBSM Guide to Actigraphy Monitoring: Clinical and Research Applications 13 BEHAVIORAL SLEEP MEDICINE S1, S5 (2015). 3. Terri Blackwell, et al., Comparison of Sleep Parameters from Actigraphy and Polysomnography in Older Women: The SOF Study, 31(2) SLEEP 283 (2008). 4. Roger J. Cole, et al., Automatic Sleep/Wake Identification from Wrist Activity, 15(5) SLEEP 461 (1992). 5. Fitbit Flex, Wireless Activity + Sleep Wristband, Product Manual. 6. Fitbit Help, What's changed in the latest tracker update?, Flex, Version 81, available at https://help.fitbit.com/articles/en_US/Help_article/1372.. 7. Fitbit’s Responses and Objections to Plaintiffs’ first Set of Requests for Admissions, Requests for Production of Documents, and Interrogatories, dated July 26, 2016, Brickman v. Fitbit, Inc., No. 3:15-cv-02077-JD (N.D. Cal. filed December 22, 2015). 8. Fourth Amended Complaint, Brickman v. Fitbit, Inc., No. 3:15-cv-02077-JD (N.D. Cal. filed December 22, 2015). 9. Girardin Jean-Louis et al., Sleep estimation from wrist movement quantified by different actigraphic modalities, 105 JOURNAL OF NEUROSCIENCE METHODS 105, 185-191 (2001). 10. Girardin Jean-Louis, et al., Determination of Sleep and Wakefulness with the Actigraph Data Analysis Software (ADAS), 19(9) SLEEP 739, 742 (1996). Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 29 of 71 2 11. Bart H. W. te Lindert, et al., Sleep Estimates Using Microelectromechanical Systems (MEMS), 36(5) SLEEP 781 (2013). 12. LIS3DH, MEMS digital output motion sensor: ultra-low-power high-performance 3-axis “nano” accelerometer datasheet, available at http://www.st.com/content/ccc/resource/technical/document/datasheet/3c/ae/50/85/d6/b1/46/fe/C D00274221.pdf/files/CD00274221.pdf/jcr:content/translations/en.CD00274221.pdf (“LIS3DH”). 13. Miguel Marino, et al., Measuring Sleep: Accuracy, Sensitivity, and Specificity of Wrist Actigraphy Compared to Polysomnography, 36(11) SLEEP 1747 (2013). 14. Susan M. McCurry, et al., Nighttime Insomnia Treatment and Education for Alzheimer’s Disease: A Randomized, Controlled Trial, 53 JOURNAL OF THE AMERICAN GERIATRICS SOCIETY 793 (May 2005). 15. Avi Sadeh, et al., The Role of Actigraphy in the Evaluation of Sleep Disorders, 18(4) SLEEP 288, 290 (1995). 16. Shelten Yuen, ‘Actigraphy’ in Sleep Research (Literature Highlights) (Sept. 23, 2008) (FB_BRICKMAN_0062390 - FB_BRICKMAN_0062402). 17. Shelten Yuen, “Burst Sampling, Noise Floor Reduction (Nov. 2, 2008) (FB_BRICKMAN_0062363 - FB_BRICKMAN_0062371). 18. Shelten Yuen, “Moving Average to Reduce Floor Noise (Nov. 6, 2008) (FB_BRICKMAN_0062372 - FB_BRICKMAN_0062378). 19. Shelten Yuen, “Sleep (Sampling and Results)” (Nov. 14, 2008) (FB_BRICKMAN_0062379 - FB_BRICKMAN_0062389). 20. “Sleep Testing” (June 12, 2009) (FB_BRICKMAN_0062403 - FB_BRICKMAN_0062405) . Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 30 of 71 3 21. Nicole K.Y. Tang, Correcting distorted perception of sleep in insomnia: a novel behavioural experiment?, 42 BEHAVIOUR RESEARCH AND THERAPY 27 (2004). 22. Transcript of Jan. 17, 2017 Deposition of James P. Brickman, Brickman v. Fitbit, Inc., No. 3:15-cv-02077-JD (N.D. Cal. filed December 22, 2015). 23. Transcript of Jan. 17, 2017 Deposition of Margaret Clingman, Brickman v. Fitbit, Inc., No. 3:15-cv-02077-JD (N.D. Cal. filed December 22, 2015). 24. Transcript of Jan. 18, 2017 Deposition of Shelten Yuen, Brickman v. Fitbit, Inc., No. 3:15-cv-02077-JD (N.D. Cal. filed December 22, 2015. 25. Transcript of Nov. 14, 2016 Deposition of Conor Heneghan, Brickman v. Fitbit, Inc., No. 3:15-cv-02077-JD (N.D. Cal. filed December 22, 2015). 26. Warren W. Tryon, Issues of Validity in Actigraphic Sleep Assessment, 27(1) SLEEP 158 (2004). 27. All other documents cited or referenced herein. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 31 of 71 EXHIBIT B Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 32 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 1) Michael A. Grandner Updated: February, 2017 University of Arizona Lab: (520) 626 6346 Department of Psychiatry Direct: (520) 626 4746 1501 N Campbell Avenue Fax: (520) 626 3247 Banner University Medical Center, Suite 7326 grandner@email.arizona.edu PO Box 245002 grandner@psychiatry.arizona.edu Tucson, AZ 85724 5002 michaelgrandner.com Twitter (@michaelgrandner) | LinkedIn | ResearchGate | Academia.edu | Google Scholar | ORCiD Current Position Assistant Professor of Psychiatry, Tenure Eligible, College of Medicine, University of Ariona Assistant Professor of Psychology, College of Sciences, University of Arizona Assistant Professor of Medicine, College of Medicine, University of Arizona Assistant Professor of Nutritional Sciences, College of Agriculture and Life Sciences, University of Arizona Director, Sleep and Health Research Program, University of Arizona Director, Behavioral Sleep Medicine Clinic, Banner University Medical Center Research and Clinical Interests Broad application of Behavioral Sleep Medicine, including studies of sleep as a domain of health behavior and the development and implementation of behavioral interventions for insufficient sleep and sleep disorders. Specific areas of focus include: (1) Downstream cardiovascular, metabolic, and behavioral health outcomes associated with habitual sleep duration and/or insufficient sleep, (2) Upstream social, behavioral, and biological determinants of habitual sleep duration, insufficient sleep, and poor sleep quality, and (3) Development and implementation of behavioral interventions for sleep as a domain of health behavior. Education 2012 2014 MTR University of Pennsylvania Translational Research 2001 2007 PhD San Diego State University / University of California, San Diego Joint Doctoral Program in Clinical Psychology, Behavioral Medicine Track 2001 2005 MS San Diego State University Clinical Psychology 1997 2001 BA University of Rochester Clinical and Social Sciences in Psychology, Cum Laude, High Honors Fellowships and Internships 2007 2012 University of Pennsylvania Postdoctoral Fellowship, Center for Sleep and Circadian Neurobiology 2007 2010 University of Pennsylvania Behavioral Sleep Medicine Fellowship (AASM Accredited) 2006 2007 University of California, San Diego & San Diego VA Healthcare System Clinical Psychology Internship, Behavioral Medicine/Outpatient Psychiatry Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 33 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 2) Professional License and Certification Psychologist License (Arizona): 4706 (1/29/2016) Certification in Behavioral Sleep Medicine (CBSM; American Board of Sleep Medicine) National Provider Identification (NPI) Number: 1982809422 Academic Positions 2017 present Assistant Professor (Secondary Appointment ) Department of Nutritional Sciences, College of Agriculture and Life Sciences, University of Arizona 2016 present Assistant Professor (Secondary Appointment) Department of Medicine, College of Medicine, University of Arizona 2015 present Assistant Professor (Secondary Appointment) Department of Psychology, College of Sciences, University of Arizona 2015 present Assistant Professor, Tenure Eligible Department of Psychiatry, College of Medicine, University of Arizona 2014 2015 Psychologist Behavioral Healthcare Service, Philadelphia VA Medical Center 2012 2015 Instructor Department of Psychiatry, University of Pennsylvania 2012 Research Associate Division of Sleep Medicine, Department of Medicine, University of Pennsylvania 2011 2015 Psychologist, Behavioral Sleep Medicine Clinic Penn Sleep Centers, University of Pennsylvania Health System Research and Clinical Affiliations 2016 present Co Director Sports Psychiatry and Behavioral Health Clinic, Banner University Medical Center 2016 present Approval Holder, BSL 2 Laboratory Department of Psychiatry, University of Arizona 2016 present Member Center for Sleep and Circadian Sciences, University of Arizona 2016 present Member Sarver Heart Center, University of Arizona 2016 present Director Behavioral Sleep Medicine Clinic, Banner University Medical Center, Department of Psychiatry 2016 present Clinical Psychologist Banner University Medical Center, Outpatient Psychiatry Service, Departent of Psychiatry 2015 present Director Sleep and Health Research Program, University of Arizona 2012 2015 Member Occupational Sleep Medicine, Division of Sleep Medicine, University of Pennsylvania 2012 2015 Member Behavioral Sleep Medicine Program, Department of Psychiatry, University of Pennsylvania 2012 2015 Member Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 34 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 3) Center for Sleep and Circadian Neurobiology, University of Pennsylvania 2011 2015 Clinical Privileges Hospital of the University of Pennsylvania 2011 2015 Affiliate Member Cardiovascular Institute, University of Pennsylvania 2009 2015 Affiliate Member Institute for Translational Medicine and Therapeutics, University of Pennsylvania 2008 2015 Affiliate Member Institute for Diabetes, Obesity and Metabolism, University of Pennsylvania Training Positions Held 2008 2010 Sleep Medicine Fellow VISN 4 Regional Sleep Center, Philadelphia Veteran’s Affairs Medical Center 2008 Visiting Sleep Fellow Sleep Center, Division of Pulmonary Medicine, Children’s Hospital of Philadelphia 2007 2011 Postdoctoral Research Fellow Center for Sleep and Circadian Neurobiology, University of Pennsylvania 2006 2007 Psychology Intern, Behavioral Medicine Service San Diego Veteran’s Affairs Health System 2006 2007 Psychology Intern, Outpatient Psychiatry Clinic UCSD Outpatient Psychiatric Services (Gifford Clinic) 2004 2005 Clinical Sleep Medicine Practicum Student San Diego Veteran’s Affairs Health System & UCSD Medical Center 2003 2006 Research Assistant Department of Psychiatry, VA San Diego Healthcare System & University of California, San Diego. Supervisor: Sonia Ancoli Israel PhD. 2003 2004 Inpatient Psychiatry Practicum Student Neurobehavioral Medicine Unit, UCSD Medical Center 2002 2003 Student Therapist San Diego State University, Psychology Clinic 2001 2007 Graduate Research Assistant Circadian Pacemaker Laboratory, Department of Psychiatry, University of California, San Diego. Mentor: Daniel F. Kripke MD. 1999 2001 Research Assistant Depression Research Laboratory, University of Rochester. Supervisor: Donna E. Giles, PhD. 1999 2001 Research Assistant Sleep and Neurophysiology Research Laboratory, University of Rochester. Supervisor: Michael L. Perlis PhD. Teaching Experience 2016 present Statistics Instructor Psychiatry Residency Program, University of Arizona 2011 2015 Regular Guest Lecturer FRO 522 Frontiers in Sleep Medicine, Penn Medical School (most recent rating 4.6/5.0) 2008 present Mentor/Supervisor Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 35 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 4) Various students and research assistants (see below) 2008 present Guest Lecturer Various courses at various institutions (see below) 2005 2006 Course Instructor PSY 270 Statistical Methods in Psychology, San Diego State University (average rating 4.6/5.0) 2004 Invited Group Therapy Trainer Neurobehavioral Medicine Unit, University of California, San Diego 2000 2001 Psychology Tutor Center for Academic Support, University of Rochester 2000 Teaching Assistant CSP 260: Sleep Research and Sleep Medicine, University of Rochester Grants / Funding Pending Sleep and Cardiometabolic Health Disparities at the US/Mexico Border: The Nogales Cardiometabolic Health and Sleep (NoCHeS) Study. R01MD011600. National Institute of Minority Health and Health Disparities. Principal Investigator. Pending Effects of Systematic Sleep Time Extension on Cardiometabolic Health Risk Factors. R01HL135094. National Heart, Lung, and Blood Institute. Principal Investigator. Pending Effects of Sleep Expansion on Cardiovascular Disease Risk Factors in Insufficient Sleep. American Heart Association. Principal Investigator. Pending Acculturation, Sleep, and Cardiometabolic Disease Risk at the US/Mexico Border. Border Health Equity Collaborative. Principal Investigator. Pending Systematic Use of Mobile Based management of Insomnia Therapy (SUMMIT). PCORI. Co Investigator. PI: Sairam Parthasarathy. Pending Non Inferiority Study of Telemedicine versus Conventional CBT I in Recently Hospitalized Patients with Insomnia. American Sleep Medicine Foundation. Co Investigator. PI: Sairam Parthasarathy. Pending Identifying the Optimal Use of a Biomedical Blue Wavelength Light Exposure Headset for Sustaining Cognitive Resilience during Stress. Department of Defense. Co Investigator. PI: William D. S. Killgore. Pending Longitudinal Effects of Sleep on the American Heart Association’s “Simple 7” and Cardiovascular Disease Outcomes. American Heart Association. Co Investigator. PI: Freda Patterson. 2016 2017 Sleep, Health, and the Social Environment at the US/Mexico Border. UA Clinical Trial Award. Principal Investigator. Award: $20,000. 2016 2017 Promoting Healthy Sleep and Circadian Rhythms in Student Athletes: Mental Health, Social Functioning, and Physical Well Being. National Collegiate Athletics Association. Co Principal Investigator (with Amy B. Athey PsyD). 2016 2017 Peer Driven Intervention as an Alternate Model of Care Delivery and Coordination for Sleep Apnea. HIS 1306 02505. PCORI. Co Investigator. 2014 2015 A Cross Ethnic Comparison of Self Reported Sleep Disorders in Employed Adults. Contract with Bentley Systems, Inc. Principal Investigator. 2013 2015 Mobile Stress and Anger Management Tool. A2 5265. Department of Defense. Investigator. Award: $131,471. 2012 2015 Sleep and Health in the Social Environment. R21ES022931. National Institute of Environmental Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 36 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 5) Health Sciences. Principal Investigator. Award: $440,000. 2012 2017 Cardiovascular and Metabolic Risk Factors Associated with Short Sleep Duration. K23HL110216. National Heart, Lung and Blood Institute. Principal Investigator. Award: $803,790. 2012 2015 Cardiovascular and Metabolic Functioning in Habitual Short Sleepers. 12SDG9180007. Scientist Development Grant. American Heart Association. Principal Investigator. Award: $308,000. 2012 2014 Institute for Translational Medicine and Therapeutics Fellowship Award. University of Pennsylvania CTSA; L1RR024134. Principal Investigator. Award: $180,000. 2012 The Role Of Partial Reinforcement In The Long Term Management Of Insomnia. 5R01AT003332 05. National Center for Complementary and Alternative Medicine. Co Investigator (P.I. Michael Perlis). 2012 2013 Attention Bias As An Etiologic Factor In Primary And Secondary Insomnia. 5R01MH077900. National Institute of Mental Health. Co Investigator (P.I. Michael Perlis). 2010 2012 Health and Performance Outcomes Associated with Short Sleep Duration. University of Pennsylvania CTSA; UL1RR024134, National Center for Research Resources, NIH. Principal Investigator. Award: $20,000. 2010 2011 Sleep Extension for Short Sleepers. University of Pennsylvania CTSA; `, National Center for Research Resources, NIH. Co Investigator (PI: Allan I. Pack). Award: $2,640. 2010 AASM Young Investigator Forum. American Academy of Sleep Medicine. Travel Award: $1,200. 2008 2010 Neurobehavioral, Metabolic and Biopsychosocial Characteristics of Habitual Short Sleepers. University of Pennsylvania CTSA; UL1RR024134, National Center for Research Resources, NIH. Co Investigator (PI: Allan I. Pack). Award: $26,600. 2008 2010 CTRC Clinical Research Award. University of Pennsylvania CTSA; UL1RR024134, National Center for Research Resources, NIH. Co Investigator (PI: Allan I. Pack). Award: $3,200. 2008 2009 Population Burden of Sleep Disturbance - Biostatistical Support Award. Center for Sleep and Respiratory Neurobiology. Principal Investigator. Award: $6,000. 2007 2011 Training Program in Sleep and Respiratory Neurobiology. T32HL007713, National Heart, Lung and Blood Institute. NRSA Fellow (PI: Allan I. Pack). Honors and Awards 2016 Winner, Distinguished Service Award, Pennsylvania Sleep Society 2016 Winner, Early Career Award, AHA Council on Lifestyle and Cardiometabolic Health 2016 Selected, Eureka Institute for Translational Medicine Conference 2015 Travel Award for Attendance at NIDDK Sleep and Diabetes Workshop, Sleep Research Society 2015 Fellow, American Academy of Sleep Medicine 2014 Winner, Sleep Research Network Early Career Award 2014 Winner, Sleep Deprivation Section Award, American Academy of Sleep Medicine 2014 Lead article in annual “Research at Penn” report was focused on my work 2013 Winner, Distinguished Early Career Award, Society of Behavioral Sleep Medicine 2013 Obtanied official recognition of Sleep Awareness Week by PA Senate and Governor 2012 Award for Research Excellence, American Heart Association 2012 Finalist, AASM Sleep Deprivation Section Abstract Award 2012 Semifinalist, Penn’s Big Idea Innovation Tournament 2011 Winner, Poster Presentation Award, Population Association of America 2010 Invited to AASM Young Investigator Forum at NIH (1 of 21) 2009 Commendation for clinical service, Philadelphia VA Medical Center 2008 Selected for Organizing Committee of the PA Sleep Society (1 of 6 members) 2006 Outstanding Doctoral Teaching Award, SDSU Department of Psychology 2005 Outstanding Professor Award, AX , SDSU chapter Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 37 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 6) 2001 Cum Laude, University of Rochester 2001 High Honors, Research in Psychology from the University of Rochester 2000 Travel Award, Sleep Research Society 2000 2001 Rochester Psychology Honors Program (one of nine students) 1997 2001 Dean’s List, University of Rochester College of Arts and Sciences (all semesters) 1997 2001 Meliora Grant 1997 2001 Rush Rhees Scholarship Membership in Academic/Professional Organizations National: 1999 present American Academy of Sleep Medicine Member, Sleep Deprivation Section Member, Insomnia Section Member, Circadian Rhythm Section Fellow, 2015 present 2011 present American Heart Association Member, Council on Lifestyle and Cardiometabolic Health Member, Council on Cardiovascular Epidemiology and Prevention 1999 present Associated Professional Sleep Societies Via Sleep Research Society and American Academy of Sleep Medicine 2016 present American Psychological Association Member 2014 present American Thoracic Society Member, Sleep and Respiratory Neurobiology 1999 present Sleep Research Society Member, Sleep and Behavior Section Member, Sleep Disorders Research Section Member, Circadian Rhythm Section 2010 present Society of Behavioral Sleep Medicine Founding Member Local: 2015 present Arizona Sleep Society Member 2008 2015 Pennsylvania Sleep Society Founding Member Service to Academic and Professional Organizations Societal Committees and Service: 2016 present Sleep Research Society Scientific Review Committee, Member 2015 Sleep Research Society Special Task Force to respond to NCAA Mental Health Guidelines, Member 2015 present American Thoracic Society Program Committee, ATS Assembly on Sleep and Respiratory Neurobiology, Member 2015 present American Thoracic Society Abstract Reviewer 2015 2016 American Heart Association Program Committee, Epi|Lifestyle Sessions, Member 2015 present American Heart Association Abstract Reviewer 2014 Sleep Research Society Strategic Planning Conference Invited Member 2014 2015 American Academy of Sleep Medicine and Sleep Research Society (Joint) Sleep Duration Consensus Conference Invited Member 2014 present American Heart Association Behavioral Change Committee 2014 2016 American Heart Association Lifestyle and Cardiometabolic Health Early Career Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 38 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 7) Committee 2013 2014 Pennsylvania Sleep Society Immediate Past President 2013 2014 American Academy of Sleep Medicine Exam Question Writing Subcommittee, Member 2013 2016 Society of Behavioral Sleep Medicine Website and Communications Committee, Chair 2013 016 Sleep Research Society Membership and Communications Committee, Chair 2012 2013 Pennsylvania Sleep Society President 2012 2013 Society of Behavioral Sleep Medicine Website and Communications Committee, Member 2011 2013 Sleep Research Society Facebook Page, Administrator 2011 2012 Pennsylvania Sleep Society President Elect 2010 2013 Sleep Research Society Membership and Communications Committee, Member 2009 2011 Pennsylvania Sleep Society Communications Committee, Member 2008 2011 Pennsylvania Sleep Society Board of Directors, Founding Member 2008 Pennsylvania Sleep Society Organizing Committee, Member 2008 2010 Sleep Research Society Communications Committee, Member 2006 present Associated Professional Sleep Societies Abstract Reviewer 2006 2007 Sleep Research Society Trainee Subcommittee, Member Intramural Committees and Service (Arizona): 2017 present University of Arizona Psychiatry Department Executive Committee 2015 present Banner Healthcare Insomnia Clinical Consensus Group, Member 2015 present University of Arizona Institutional Review Board (IRB), Member Academic/Professional Committees and Service (Other): 2016 Canadian Space Agency Expert Panel on Establishing Priorities in Space Biomedical Analysis, Member 2014 present Harvard University Health Disparities Working Group, Sleep Apnea Patient Centered Outcomes Network (SAPCON), Member 2014 2015 Penn Behavioral Sleep Medicine Program Behavioral Sleep Medicine Mini Fellowship, Faculty 2014 2015 Penn Center for Sleep Website Planning Committee, Member 2014 Penn Center for Sleep Annual Research Retreat Committee, Chair 2013 2014 National Sleep Foundation Meaningful Use Advisory Committee, Member 2013 2014 National Sleep Foundation Sleep Time Recommendations Consensus Panel, Member 2013 present National Collegiate Athletics Association (NCAA) Mental Health Task Force, Member 2013 2015 Penn School of Medicine Institutional Review Board (IRB#3), Member 2013 present New York University Tailored Approach to Sleep Health Education (TASHE Study), Faculty Advisory Board Member 2012 present New York University Program to Increase Diversity in Behavioral and Sleep Research (NHLBI PRIDE Summer Training Institute), Program Faculty Member 2011 2015 Penn Center for Sleep Seminar Series Selection Committee, Member 2011 2012 SUNY Downstate Medical Center Program to Increase Diversity in Behavioral and Sleep Research (NHLBI PRIDE Summer Training Institute), Program Faculty Member 2010 2011 Penn Center for Sleep Annual Research Retreat Committee, Chair 2009 present BSM Online Group Managing Editor 2009 2011 Sleep Trainees Network Founding Moderator 2009 2010 Penn Center for Sleep Annual Research Retreat Committee, Member 2009 2015 University of Rochester Admissions Interviews 2007 2008 Penn Center for Sleep Annual Research Retreat Committee, Member 2007 VA/UCSD Internship Psychology Internship Interviews Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 39 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 8) 2003 SDSU/UCSD Joint Doctoral Program Research Design and Statistics Exam Prep Organizer 2002 2004 SDSU/UCSD Joint Doctoral Program Applicant Interviewer 2002 SDSU/UCSD Joint Doctoral Program Applicant Housing Committee Chair Advisory and Consultative Roles 2016 present MindSail Program development 2016 present CurAegis Technologies Advisory 2015 present Church & Dwight Advisory 2015 present FitBit Advisory 2015 present Kemin Advisory and research 2015 Bayer Advisory and research 2015 present Nexalin Technologies Advisory and research 2014 2015 Bentley Systems Program development and implementation 2014 2015 Philadelphia Eagles Program development and implementation 2014 2015 Etsy Program development and implementation 2013 2014 National Sleep Foundation Advisory and research 2011 2015 Philadelphia Police Department Program development and implementation 2011 2014 Friends Life Care Program development and speaking 2009 2010 Family Birthmark Program development and speaking 2008 2013 The Habit Change Company Program development and speaking Editorial Contributions Journal (Editorial Board): 2016 present Editorial Board SLEEP 2015 present Associate Editor Sleep Health 2014 2015 Editorial Board Sleep Health (Inaugural Editorial Board) Journal (Guest Editor): 2016 Guest Editor, Sleep Medicine, “NHLBI Workshop on Reducing Health Disparities: The Role of Sleep Deficiency and Sleep Disorders” Journals (Reviewer): 2015 present Advances in Nutrition 2010 present American Journal of Human Biology 2012 present American Journal of Industrial Medicine 2013 present Annals of Epidemiology 2014 present Annals of Internal Medicine 2012 present Appetite 2011 present Atherosclerosis 2014 present Behavioral Research in Nursing 2009 present Behavioral Sleep Medicine 2014 present BMC Psychiatry 2013 present BMC Public Health 2013 present BMJ Open 2012 present British Journal of Nutrition 2010 present Chronobiology International 2014 present Circulation 2013 present Clinical Cardiology 2010 present Depression and Anxiety 2010 present Diabetes, Metabolism and Obesity: Targets and Therapy 2012 present Emerging Health Threats 2012 present Epidemiology Reviews Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 40 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 9) 2013 present European Journal of Endocrinology 2012 present European Journal of Public Health 2010 present Faculty of 1000 Medicine Reports 2014 present Frontiers in Systems Neuroscience 2011 present Health Education Research 2013 present Health Reports 2013 present Healthy Aging and Clinical Care in the Elderly 2013 present Hypertension Research 2010 present Industrial Health 2012 present International Journal of Geriatric Psychiatry 2007 present JAMA (Journal of the American Medical Association) 2009 present Journal of Affective Disorders 2013 present Journal of the American Geriatric Society 2011 present Journal of Clinical Sleep Medicine 2013 present Journal of Development and Agricultural Economics 2013 present Journal of Epidemiology and Community Health 2012 present Journal of General Internal Medicine 2015 present Journal of Interpersonal Violence 2012 present Journal of Nutrition, Health, and Aging 2011 present Journal of Pain 2012 present Journal of Psychopharmacologyzzzz 2014 present Journal of Psychosomatic Research 2010 present Journal of Public Health 2008 present Journal of Sleep Research 2013 present Journal of Sports Science and Medicine 2013 present Journal of the American College of Nutrition 2014 present Journal of Thoracic Disease 2012 present Journal of Translational Medicine 2012 present Journal of Women’s Health 2016 present Nature Communications 2012 present Nature and Science of Sleep 2013 present Nutrition Research 2014 present Nutrition Reviews 2010 present Physiology and Behavior 2012 present PLoS ONE 2013 present Preventing Chronic Disease 2013 present Preventive Medicine 2010 present Progress in Neuro Psychopharmacology and Biological Psychiatry 2009 present Psychiatry Research 2010 present Psychological Medicine 2013 present Racial and Ethnic Health Disparities 2013 present Rejuvination Research 2007 present Research on Aging 2010 present Science of the Total Environment 2012 present Science Translational Medicine 2013 present Sensors 2008 present SLEEP 2014 present Sleep Health: Journal of the National Sleep Foundation 2010 present Sleep Medicine 2013 present Social Behavior and Personality 2012 present Social Science and Medicine 2014 present Traffic Injury Prevention 2011 present Vascular Health and Risk Management Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 41 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 10) 2014 present Women’s Health Issues Book Publisher (Prospectus Review): 2014 present APA Books Listserves/Online Groups (Moderator): 2011 2013 Sleep Trainees Network (Senior Moderator) 2009 present Behavioral Sleep Medicine Group (Managing Editor) 2008 2011 Sleep Trainees Network (Moderator) Journals (Mentored Reviewer): 2009 Behavioral Sleep Medicine 2009 Sleep Medicine Reviews 1999 2001 SLEEP Grant Review Panels 2016 National Institute of Occupational Safety and Health (NIOSH) 2016 Medical Research Fund, University of Ottawa 2016 present Department of Veterans Affairs, Health Services Research And Development, Scientific Merit Review Panel 4 (HSR4) 2015 South African Medical Research Council, Grant Reviewer 2015 present Department of Defense, Peer Reviewed Medical Research Program, Grant Reviewer 2015 Italian Ministry of Health, Grant Reviewer 2014 Michigan Metabolomics and Obesity Center, Ad Hoc Grant Reviewer 2013 Marsden Fund, New Zealand, Ad Hoc Grant Reviewer 2012 2013 National Institutes of Health, Health Disparities and Equity Promotion Study Section (HDEP), Mail In Grant Reviewer 2012 Dutch Technology Foundation, Ad Hoc Grant Reviewer 2012 Netherlands Organization for Health Research and Development, Ad Hoc Grant Reviewer 2011 Philips Research Foundation, Ad Hoc Grant Reviewer Peer Reviewed Publications 1. Grandner, M. A. (In Press). Sleep, health, and society. Clinics in Sleep Medicine. 2. Ji, X., Grandner, M. A., and Liu, J. (In Press). The relationship between micronutrient status and sleep patterns: A systematic review. Public Health Nutrition. 3. Lalley Chareczko, L. Segal, A. Perlis, M. L., and Grandner, M. A. (In Press). Sleep disturbance partially mediates the relationship between intimate partner violence and physical/mental health. Journal of Interpersonal Violence.PMCID: 4710553. 4. Li, J., Grandner, M. A., Chang, Y., Jungquist, C., and Porock, D. (In Press). Person centered dementia care and sleep in assisted living residents with dementia: A pilot study. Behavioral Sleep Medicine. 5. Shetty, S., Fernandes, A., Patel, S., Combs, D., Grandner, M. A., and Parthasarathy, S. (In Press). Unanticipated Nocturnal Oxygen Requirement during Positive Pressure Therapy for Sleep Apnea and Medical Comorbidities. Journal of Clinical Sleep Medicine. 6. St Onge, M P., Coons, M., Bhatt, D. L., Brown, D., Conroy, M. B., Grandner, M. A., and Jean Louis, G. (In press). Sleep duration and quality: Impact on lifestyle behaviors and cardiometabolic health: An advisory from the American Heart Association. Circulation. 7. Grandner, M. A., Alfonso Miller, P., Fernandez Mendoza, J., Shetty, S., Shenoy, S., and Combs, D. (2016). Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 42 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 11) Sleep: Considerations for the prevention of cardiovascular disease. Current Opinions in Cardiology, 31(5): 551 565. 8. Grandner, M. A., Seixas, A., Shetty, S., and Shenoy, S. (2016). Sleep duration and diabetes risk: Population trends and potential mechanisms. Current Diabetes Reports, 16:106. 9. Grandner, M. A., Williams, N., Knutson, K. L., Roberts, D., and Jean Louis, G. (2016). Sleep disparity, race/ethnicity, and socioeconomic position. Sleep Medicine, 18:7 18. PMCID: 4631795. 10. Chaudhary, N., Grandner, M. A., Jackson, N., and Chakravorty, S. (2016) Caffeine consumption, insomnia, and sleep duration: Results from a nationally representative sample. Nutrition, 32(11 12),1193 1199. 11. Lam, M. T., Grandner, M. A., and Malhotra, A. (2016). Lungs can tell time. Journal of Thoracic Disease, 8(Supplement 7): S579 S581. 12. Orzech, K. M., Roane, B., Grandner, M. A., and Carskadon, M. (2016). Digital media use in the 2 hours before bedtime is associated with sleep variables in university students. Computers in Human Behavior, 55: 43 50. NIHMSID: 748338. 13. Patterson, F. Malone, S. K., Lozano, A., Grandner, M. A., and Hanlon, A. L. (2016). Smoking, sedentary behavior, and diet associated with habitual sleep duration and chronotype: Data from the UK Biobank. Annals of Behavioral Medicine, 50(5):715 726. 14. Perlis, M. L., Grandner, M. A., Brown, G. K., Basner, M., Chakravorty, S., Morales, K. H., Gehrman, P. R., Chaudhary, N. S., Thase, M. E., and Dinges, D. F. (2016). Nocturnal wakefulness: A previously unrecognized risk factor for suicide. Journal of Clinical Psychiatry, 77(6):726 733. 15. Perlis, M. L., Grandner, M. A., Chakravorty, S., Bernert, R. A., Brown, G. K., and Thase, M. E. (2016). Suicide and sleep: Is it a bad thing to be awake when reason sleeps? Sleep Medicine Reviews, 29: 101 107. 16. Thomas, A. Grandner, M. A., Nesom, G., Corbitt, C., and Perlis, M. L. (2016). Where are the behavioral sleep medicine providers and where are they needed? A geographic assessment. Behavioral Sleep Medicine, 14(6): 687 698.. 17. Truong, K. K., Lam, M. T., Grandner, M. A., Sassoon, C. S., and Malhotra, A. (2016). Timing matters: Circadian rhythm in sepsis, asthma, and cancer. Annals of the American Thoracic Society, 13(7): 1144 1154. 18. Williams, N. J., Grandner, M. A., Wallace, D. M., Cuffee, Y., Airihenbuwa, C., Okuyemi, K., Ogedegbe, G., and Jean Louis, G. (2016). Social and behavioral predictors of insufficient sleep among African Americans and Caucasians. Sleep Medicine, 18:103 107. 19. Grandner, M. A., Jackson, N., Izci Balserak, B., Gallagher, R. A., Murray Bachmann, R., Williams, N., Patel, N. P., and Jean Louis, G. (2015). Social and behavioral determinants of perceived insufficient sleep. Frontiers in Neurology, 6:122. PMCID: 4456880. 20. Grandner, M. A., Schopfer, E. A., Sands Lincoln, M., Jackson, N., and Malhotra, A. (2015). The relationship between sleep duration and body mass index depends on age. Obesity, 23(12): 2491 2498. PMCID: 4526156. 21. Grandner, M. A., Smith, T. E., Jackson, N., Jackson, T., Burgard, S., and Branas, C. (2015). Geographic distribution of insufficient sleep across the US: A county level hotspot analysis. Sleep Health, 1: 158 165. PMCID: 4790125. 22. Arble, D. M., Bass, J., Diniz Behn, C. D., Butler, M. P., Challet, E., Czeisler, C., Depner, C. M., Elmquist, J., Franken, P., Grandner, M. A., Hanlon, E. C., Keene, A. C., Joyner, M. J., Karatsoreos, I., Kern, P. A., Klein, S., Morris, C. J., Pack, A. I., Panda, S., Ptacek, L., Punjabi, N. M., Sassone Corsi, P., Scheer, F. A., Saxena, R., Seaquest, E. R., Thimgan, M. S., Van Cauter, E., and Wright, K. P. (2015). Impact of sleep and circadian disruption on energy balance and diabetes: A summary of workshop discussions. SLEEP, 38(12): 1849 1860. PMCID: 4667373. 23. Chakravorty, S., Siu, H. Y. K., Oliver, L., Brown, G. K., Findley, J., Perlis, M. L., and Grandner, M. A. (2015). Sleep duration and insomnia symptoms as risk factors for suicidal ideation in a nationally representative sample. Primary Care Companion for CNS Disorders, 17(6): e1 e9. PMCID: 4805400. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 43 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 12) 24. Chaudhary, N. S., Kampman, K. M., Kranzler, H. R., Grandner, M. A., Debbama, S., and Chakravorty, S. (2015). Insomnia in alcohol dependent subjects is associated with greater psychosocial problem severity. Addictive Behaviors, 50: 165 172. PMCID: 4515378. 25. Hui, S. A. and Grandner, M. A. (2015). Associations between poor sleep quality and stages of change of multiple health behaviors among participants of an employee wellness program. Preventive Medicine Reports, 2: 292 299. PMCID: 4450439. 26. Hui, S. A., and Grandner, M. A. (2015). Trouble Sleeping Associated with Lower Work Performance and Greater Healthcare Costs: Longitudinal Data from Kansas State Employee Wellness Program. Journal of Occupational and Environmental Medicine, 57 (10): 1031 1038. PMCID: 4610176. 27. Jean Louis, G., Grandner, M. A., Youngstedt, S. D., Williams, N. J., Zizi, F., Sarpong, D., and Ogedegbe, G. (2015). Differential increase in prevalence estimates of inadequate sleep among Black and White Americans. BMC Public Health, 15: 1185. PMCID: 4661980. 28. Jean Louis, G., Youngstedt, S. D., Grandner, M. A., Williams, N. J., Sarpong, D., Zizi, F., and Ogedegbe, G. (2015). Unequal burden of sleep related obesity among black and white Americans. Sleep Health. 1: 169 176. PMCID: 4770938. 29. Jean Pierre, P., Grandner, M. A., Garland, S. N., Henry, E., Jean Louis, G., and Burish, T. G. (In Press). Self reported memory problems in adult onset cancer survivors in the United States: Effects of cardiovascular disease and insomnia. Sleep Medicine, 16:845 849. PMCID: 4466056. 30. Jen, R., Grandner, M. A., and Malhotra, A. (2015). Future of sleep disordered breathing therapy using a mechanistic approach. Canadian Journal of Cardiology, 31:880 888. PMCID: 4506311. 31. Pak, V. M., Keenan, B. T., Jackson, N., Grandner, M. A., Maislin, G., Teff, K., Schwab, R. J., Arnardottir, E. S., Juliusson, S., Benediktsdottir, B., Gislason, T., and Pack, A. I. (2015). Adhesion molecule increases in sleep apnea: Beneficial effect of positive airway pressure and moderation by obesity. International Journal of Obesity, 39: 472 479. PMCID: 4302066. 32. Perlis, M. L., Grandner, M. A., Zee, J., Bremer, E., Whinnery, J., Barilla, H., Andalia, P., Gehrman, P., Morales, K., Thase, M., Bootzin, R., and Ader, R. (2015). Durability of treatment response to zolpidem with three different maintenance regimens: A preliminary study. Sleep Medicine, 16 (9): 1160 1168. PMCID: 4709332. 33. Watson, N. F., Badr, M. S., Belenky, G., Bliwise, D. L., Buxton, O. M., Buysse, D., Dinges, D. F., Gangwisch, J., Grandner, M. A., Kushida, C., Malhotra, R. K., Martin, J. L., Patel, S. R., Quan, S., and Tasali, E. (2015). Joint consensus statement of the American Academy of Sleep Medicine and Sleep Research Society on the recommended amount of sleep for a healthy adult: Methodology and discussion. SLEEP, 38 (8): 1161 1183. PMCID: 4434546. 34. Watson, N. F., Badr, M. S., Belenky, G., Bliwise, D. L., Buxton, O. M., Buysse, D., Dinges, D. F., Gangwisch, J., Grandner, M. A., Kushida, C., Malhotra, R. K., Martin, J. L., Patel, S. R., Quan, S., and Tasali, E. (2015). Joint consensus statement of the American Academy of Sleep Medicine and Sleep Research Society on the recommended amount of sleep for a healthy adult: Methodology and discussion. Journal of Clinical Sleep Medicine, 11 (8): 931 952. PMCID: 4442216. 35. Watson, N. F., Badr, M. S., Belenky, G., Bliwise, D. L., Buxton, O. M., Buysse, D., Dinges, D. F., Gangwisch, J., Grandner, M. A., Kushida, C., Malhotra, R. K., Martin, J. L., Patel, S. R., Quan, S., and Tasali, E. (2015). Recommended amount of sleep for a healthy adult: A Joint statement of the American Academy of Sleep Medicine and Sleep Research Society. SLEEP, 38 (6): 843 844. PMCID: 4507722. 36. Watson, N. F., Badr, M. S., Belenky, G., Bliwise, D. L., Buxton, O. M., Buysse, D., Dinges, D. F., Gangwisch, J., Grandner, M. A., Kushida, C., Malhotra, R. K., Martin, J. L., Patel, S. R., Quan, S., and Tasali, E. (2015). Recommended amount of sleep for a healthy adult: A Joint statement of the American Academy of Sleep Medicine and Sleep Research Society. Journal of Clinical Sleep Medicine, 11 (6): 591 592. PMCID: 4513271. 37. Williams, N. J., Grandner, M. A., Snipes, A., Rogers, A., Williams, O., Airhihenbuwa, C., and Jean Louis, G. (2015). Racial/ethnic disparities in sleep health and healthcare: Importance of the sociocultural context. Sleep Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 44 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 13) Health, 1 (1): 28 35. PMCID: 4517599. 38. Grandner, M. A. (2014). Addressing sleep disturbances: An opportunity to prevent cardiometabolic disease? International Review of Psychiatry, 26(2): 155 176. PMCID: 4143456. 39. Grandner, M. A., Chakravorty, S., Perlis, M. L., Oliver, L., and Gurubhagavatula, I. (2014). Habitual sleep duration associated with self reported and objectively determined cardiometabolic risk factors. Sleep Medicine, 15(1):42 50. PMCID: 3947242. 40. Grandner, M. A., Jackson, N., Gerstner, J. R., and Knutson, K. L. (2014). Sleep difficulties associated with intake of specific dietary nutrients. Journal of Sleep Research, 23: 22 34. PMCID: 3866235. 41. Grandner, M. A., Jackson, N. J., Gooneratne, N. S., and Patel, N. P. (2014). The development of a questionnaire to assess sleep related practices, beliefs and attitudes. Behavioral Sleep Medicine, 12(2):123 142. PMCID: 3795978. 42. Grandner, M. A., Knutson., K. L., Troxel, W., Hale, L., Jean Louis, G., and Miller, K. E. (2014). Disparities in sleep and energy drink use, and implications for health disparities. Nutrition Reviews, 73 (S1), 14 22. PMCID: 4264529. 43. Chakravorty, S., Grandner, M. A., Mavandadi, S., Perlis, M. L., Sturgis, E. B., and Oslin, D. W. (2014). Suicidal ideation in veterans misusing alcohol: Relationships with insomnia symptoms and sleep duration. Addictive Behaviors, 39(2): 39 405. PMCID: 4406056. 44. Chakravorty, S., Jackson, N., Chaudhary, N., Kozak, P., Perlis, M., Shue, H., and Grandner, M. A. (2014). Daytime sleepiness: Associations with alcohol use and sleep duration in Americans. Sleep Disorders, 2014: 959152. PMCID: 3927862. 45. Pak, V. M., Grandner, M. A., and Pack, A. I. (2014). Circulating adhesion molecules in obstructive sleep apnea and cardiovascular disease. Sleep Medicine Reviews, 18(1):25 34. PMCID:3864978. 46. Petrov, M. E., Letter, A. J., Howard, V. J., Kleindorfer, D., Grandner, M. A., and Molano, J. R. (2014). Over the counter and prescription sleep medication and incident stroke symptoms: The REGARDS study. Journal of Stroke and Cerebrovascular Diseases, 23 (8): 2110 2116. PMCID: 4157947. 47. Schechter, A., Grandner, M. A., St Onge, M P. (2014). The role of sleep in the control of food intake. American Journal of Lifestyle Medicine, 8(6): 371 374. PMCID:4824633. 48. Whinnery, J., Jackson, N., Rattanaumpawan, P., and Grandner, M. A. (2014). Short and Long Sleep Duration Associated with Race/Ethnicity, Sociodemographics, and Socioeconomic Position. SLEEP, (3):601 611. PMCID: 3920327. 49. Grandner, M. A., Buxton, O. M., Jackson, N., Sands, M., Pandey, A., and Jean Louis, G. (2013). Extreme sleep durations and increased C reactive protein: Effects of sex and ethnoracial group. SLEEP, 36(5): 769 779. PMCID:3624831. 50. Grandner, M. A., Jackson, N., Gerstner, J. R., and Knutson, K. L. (2013). Dietary nutrients associated with short and long sleep duration: data from a nationally representative sample. Appetite, 64(1), 71 80. PMCID:3703747. 51. Grandner, M. A., Kripke, D. F., Elliott, J. A., and Cole, R. J. (2013). Short wavelength light administered just prior to waking: A pilot study. Biological Rhythm Research, 44(1):13 32. PMCID:3529958. 52. Grandner, M. A., Patel, N. P., Jean Louis, G., Jackson, N. J., Gehrman, P. R., Perlis, M. L., and Gooneratne, N. (2013). Sleep related behaviors and beliefs associated with race/ethnicity in women. Journal of the National Medical Association, 105(1), 4 15. PMCID: 3759527. 53. Grandner, M. A., Ruiter Petrov, M. E., Jackson, N., Rattanaumpawan, P., Platt, A., and Patel, N. P. (2013). Sleep symptoms, race/ethnicity, and socioeconomic position. Journal of Clinical Sleep Medicine, 9(9), 897 905. PMCID: 3746717. 54. Grandner, M. A., Sands Lincoln, M., Pak, V. M., and Garland, S. N. (2013). Sleep duration, cardiovascular disease, and pro inflammatory biomarkers. Nature and Science of Sleep, 5: 93 107. PMCID: 3724567. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 45 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 14) 55. Chakravorty, S., Grandner, M. A., Kranzler, H., Mavandadi, S., Kling, M. A., Perlis, M. L., and Oslin, D. W. (2013). Insomnia in alcohol dependence: Predictors of symptoms in a sample of veterans referred from primary care. American Journal on Addictions, 22(3), 266 270. PMCID: 4393849. 56. Culnan, E., Kloss, J. D., and Grandner, M. A. (2013). A prospective study of weight gain associated with chronotype among college freshmen. Chronobiology International, 30(5): 682 690. PMCID: 3759532. 57. Maia, Q., Grandner, M. A., Findley, J., and Gurubhagavatula, I. (2013). Short sleep duration associated with drowsy driving and the role of perceived sleep insufficiency. Accident Analysis and Prevention, 59: 618 622. PMCID: 3771664. 58. Sands Lincoln, M., Grandner, M. A., Whinnery, J., Keenan, B. T., Jackson, N., and Gurubhagavatula, I. (2013). The association between obstructive sleep apnea and hypertension by race/ethnicity in a nationally representative sample. Journal of Clinical Hypertension, 15(8): 593 599. PMCID: 3733493. 59. Grandner, M. A., Hale, L., Jackson, N., Patel, N. P., Gooneratne, N. S., and Troxel, W. (2012). Perceived racial discrimination as an independent predictor of sleep disturbance and daytime fatigue. Behavioral Sleep Medicine, 10(4):235 249. PMCID:3434973. 60. Grandner, M. A., Jackson, N. J., Pak, V. M., and Gehrman, P. R. (2012). Sleep disturbance is associated with cardiovascular and metabolic disorders. Journal of Sleep Research, 21(4):427 433. PMCID:3703752. 61. Grandner, M. A., Martin, J. L., Patel, N. P., Jackson, N. J., Gehrman, P. R., Pien, G. W., Perlis, M. L., Xie, D., Sha, D., Weaver, T., and Gooneratne, N. S. (2012). Age and sleep disturbances among American men and women: Data from the U.S. Behavioral Risk Factor Surveillance System. SLEEP, 35(3):395 406. PMCID:3274341. 62. Grandner, M. A., Jackson, N. J., Pigeon, W. R., Gooneratne, N. S., and Patel, N. P. (2012). State and regional prevalence of sleep disturbance and daytime fatigue. Journal of Clinical Sleep Medicine, 8(1):77 86. PMCID:3266332. 63. Altman, N. G., Schopfer, E., Izci Balserak, B., Jackson, N. J., Ratamaupawan, P., Gehrman, P. R., Patel, N. P., and Grandner, M. A. (2012). Sleep duration versus sleep insufficiency as predictors of cardiometabolic health outcomes. Sleep Medicine, 13(10):1261 1270. PMCID:3527631. 64. Gooneratne, N. S., Edwards, Y. Z., Zhou, C., Cuellar, N., Grandner, M. A., and Barrett, J. S. (2012). Melatonin pharmacokinetics following two different oral surge sustained release doses in older adults. Journal of Pineal Research, 52(4):437 445. PMCID:3682489. 65. Grandner, M. A., Patel, N. P., Perlis, M. L., Gehrman, P., R., Xie, D., Sha, D., Pigeon, W., Teff, K., Weaver, T., and Gooneratne, N. (2011). Obesity, diabetes and exercise associated with sleep related complaints in the American population. Journal of Public Health, 19:463 74. PMCID:3392306. 66. Grandner, M. A., Hale, L., Moore, M. and Patel, N. P. (2010). Mortality associated with short sleep duration: The evidence, the possible mechanisms and the future. Sleep Medicine Reviews, 14(3):191 203. PMCID:2856739. 67. Grandner, M. A., Kripke, D. F., Naidoo, N., and Langer, R. D. (2010). Relationships among dietary nutrients and subjective sleep, objective sleep, and napping in women. Sleep Medicine, 11(2):180 4. PMCID:2819566. 68. Grandner, M. A., Patel, N. P., Gehrman, P. R., Perlis, M. L. and Pack, A. I. (2010). Problems associated with short sleep: Bridging laboratory and epidemiological studies. Sleep Medicine Reviews, 14:239 47. PMCID:2888649. 69. Grandner, M.A., Patel, N. P., Gehrman, P. R., Xie, D., Sha, D., Weaver, T. and Gooneratne, N. (2010). Who gets the best sleep? Ethnic and socioeconomic factors related to sleep disturbance. Sleep Medicine, 11(4):470 8. PMCID:2861987. 70. Patel, N. P., Grandner, M. A., Xie, D., Branas, C. C., and Gooneratne, N. (2010). “Sleep Disparity” in the population: Poor sleep quality is strongly associated with poverty and ethnicity. BMC Public Health, 10:475. PMCID:2927542. 71. Grandner, M. A. and Drummond, S. P. A. (2007). Who are the long sleepers? Towards an understanding of the Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 46 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 15) mortality relationship. Sleep Medicine Reviews, 11(5):341 60. PMCID: 3755488. 72. Grandner, M. A., Kripke, D. F., Youngstedt, S. D., and Langer, R. D. (2006). Light exposure is related to social and emotional functioning and quality of life in older women. Psychiatry Research, 143:35 42. PMCID:3685148. 73. Grandner, M. A., Kripke, D. F., Yoon, I. Y., and Youngstedt, S. D. (2006). Criterion Validity of the Pittsburgh Sleep Quality Index: Investigation in a non clinical sample. Sleep and Biological Rhythms, 4:129 136. PMCID:3399671. 74. Loving, R. T., Kripke, D. F., Elliott, J. A., Knickerbocker, N. C., and Grandner, M.A. (2005). Bright light treatment of depression for older adults. BMC Psychiatry, 5:41. PMCID:1298312. 75. Loving, R. T., Kripke, D. F., Elliott, J. A., Knickerbocker, N. C., and Grandner, M.A. (2005). Bright green light treatment of depression for older adults. BMC Psychiatry, 5:42. PMCID:1309618. 76. Pandey, J., Grandner, M., Crittenden, C., Smith, M.T., and Perlis, M.L. (2005). Meteorologic factors and subjective sleep continuity: A preliminary evaluation. International Journal of Biometeorology, 49:152 155. 77. Grandner, M.A. and Kripke, D.F. (2004). Self reported sleep complaints with long and short sleep: A nationally representative sample. Psychosomatic Medicine, 66:239 41. PMCID:3687531. Commentaries and Editorials 1. Grandner, M. A. (2016). Healthy sleep for student athletes: A guide for athletics departments and coaches. NCAA Sport Science Institute Newsletter, 4(2). 2. Jean Louis, G. and Grandner, M. A. (2016). Importance of recognizing sleep health disparities and implementing innovative interventions to reduce these disparities. Sleep Medicine, 18(2):1 2. 3. Grandner, M. A., and Perlis, M. L. Treating insomnia disorder in the context of medical and psychiatric comorbidities: CBT I is effective. (2015). JAMA Internal Medicine. 4. Grandner, M. A. and Malhotra, A. (2015). Sleep as a vital sign: Why medical practitioners need to routinely ask their patients about sleep. Sleep Health, 1 (1): 11 12. 5. Grandner, M. A., Nowakowski, S., Kloss, J. D., and Perlis, M L. (2015). Insomnia symptoms predict physical and mental impairments among postmenopausal women. Sleep Medicine 16:317 318. 6. Grandner, M. A., Gallagher, R. A. L., and Gooneratne, N. S. (2013). The use of technology at night: Impact on sleep and health. Journal of Clinical Sleep Medicine, 9(2):1301 1302. 7. Grandner, M. A., and Perlis, M. L. (2013). Sleep duration and insomnia associated with hypertension incidence. Journal of Hypertension Research, 36:932 933. NIHMSID: 554523. 8. Grandner, M. A., and Perlis, M. L. (2013). Insomnia as a cardiometabolic risk factor. SLEEP, 36(1):11 12. PMCID:3524532. 9. Grandner, M. A., Patel, N. P., and Gooneratne, N. S. (2012). Difficulties sleeping: A Natural part of growing older? Aging Health, 8(3):219 221. PMCID: 3825262. 10. Grandner, M. A. (2012). Sleep duration across the lifespan: Implications for health. Sleep Medicine Reviews, 16(3):199 201. PMCID: 3726209. 11. Gooneratne, N. S., Grandner, M. A., and Platt, A. (2012). In memoriam: Nirav P. Patel MD MPH FCCP FAASM. Journal of Clinical Sleep Medicine, 8(4):465. 12. Grandner, M. A., and Pack, A. I. Sleep disorders, public health and public safety. (2011). JAMA: Journal of the American Medical Association, 306:2616 2617. PMCID:3685138. 13. Grandner, M. A. and Youngstedt, S. D. (2011). Sleep Duration and Cardiometabolic Risk. Atherosclerosis, 217:324 5. PMCID:3687528. 14. Grandner, M. A. and Patel, N. P. (2009). From Sleep Duration to Mortality: Implications of Meta Analysis and Future Directions. Journal of Sleep Research, 18:145 7. PMCID:3685145. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 47 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 16) Book Chapters 1. Grandner, M. A., and Mian, R. M. (In Press). Effects of Sleep Deprivation and Sleepiness on Society and Driving. In Chakravorty, S. (Ed.), Sleep Disorders Medicine, 4th Edition, 2. Grandner, M. A. (2015) Sleep Disparities in the American Population: Prevalence, Potential Causes, Relationships to Cardiometabolic Health Disparities, and Future Directions for Research and Policy. In Robin L. Kelly (Ed.), Kelly Report 2015: Health Disparities in America. Washington, DC: House of Representatives. pp 126 132. 3. Grandner, M. A. (2015). Sleep Deprivation: Societal Impact and Long Term Consequences. In S. Chokroverty and M. Billiard (Eds.), Sleep Medicine: A Comprehensive Guide to Its Development, Clinical Milestones, and Advances in Treatment. New York: Springer. pp 495 510. 4. Grandner, M. A. (2014). Sleeping Disorders. In Brown, G. T. (Ed.) Mind, Body, and Sport: Understanding and Supporting Student Athlete Mental Wellness. Indianapolis, IN: National Collegiate Athletics Association (NCAA). 5. Pigeon, W. R. and Grandner, M. A. (2013). Creating an Optimal Sleep Environment. In Kushida, C. A. (Ed.) Encyclopedia of Sleep. Oxford: Elsevier. pp 72 76. 6. Grandner, M. A. (2012). Short Sleep. In D. Barrett and P. McNamara (Eds.), Encyclopedia of Sleep and Dreams. Santa Barbara, CA: ABC CLIO. 7. Grandner, M. A. and Gehrman, P. R. (2012). Sleep. In J. M. Rippe (Ed.), Encyclopedia of Lifestyle Medicine and Health. Thousand Oaks, CA: Sage. Other Publications 1. Anderson, J., Carr, C., Chew, K. L., Davidson, J., Derevensky, J. L., Goldman, S., Grandner, M., Henderson, R., Jackson, J., Klenck, C., LeDonne, A., Lester, D., Maldonado, B., Miller Aron, C., Moore, A., Moore, N., Neal, T., Putukian, M., Ridpath, M., Saltys, T., Schwartz, V., Semala, P., Sharpe, R., Stevens, B., Stull, T., Taylor, A., Thompson, R., Webbe, F., Whitehead, J., Williams, G., Williams, T., Wilson, D., Wright Eger, C., Bell, L., Hainline, B., Kearns, A., Morrison, K., Paskus, T., Rexroat, M., Sales, L., and Wilfert, M., on behalf of the National Collegiate Athletics Association Mental Health Task Force. (2015).Mental Health Best Practices: Inter Association Consensus Document: Best Practices for Understanding and Supporting Student Athlete Mental Wellness. Indiannapolis, IN: National Collegiate Athletics Association. 2. Grandner, M. A. (2014). Sleep Duration, Pro Inflammatory Markers, and Metabolic Hormones. (Masters Thesis, University of Pennsylvania, 2014). 3. Grandner, M. A. (2014). Sleep as a Vital Sign? Assessment of Sleep in Medical Practice and Potential Ramifications for Health. National Sleep Foundation White Paper. 4. Grandner, M. A. (2013). Making the most of PubMed. Sleep Research Society Bulletin, 19 (1), 18 19. 5. Grandner, M. A. (2013). Get connected with LinkedIn. Sleep Research Society Bulletin, 18 (3), 16. 6. Grandner, M. A. (2012). The Sleep Research Society still “likes” Facebook. Sleep Research Society Bulletin, 18 (2), 24. 7. Grandner, M. A., Laposky, A. D., and Knutson, K. L. (2012). Sleep and health disparities: Follow up from the 2011 NHLBI workshop. Sleep Research Society Bulletin, 18 (2), 12 13. 8. Singletary, K., Gilliland, J., and Grandner, M. (2012). A survey of the consumption of energy and sleep promoting functional foods. Sleep Research Society Bulletin, 18 (2), 28 30. 9. Grandner, M. A. (2011). The Sleep Research Society “Likes” Facebook. Sleep Research Society Bulletin, 17 (2), 20. 10. Grandner, M. A., Anafi, R., Basner, M., & Brown, M. (2011). Center for Sleep and Circadian Neurobiology Research Retreat: Program and Abstracts (Vol, 8). University of Pennsylvania, Philadelphia, PA. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 48 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 17) 11. Friedman, E., Grandner, M., Crocker, A., Daley, J., & Souders, M. (Eds.). (2010). Center for Sleep and Respiratory Neurobiology Research Retreat: Program and Abstracts (Vol. 7). University of Pennsylvania, Philadelphia, PA. 12. Grandner, M. A. (2007). Sleep, Mood and Circadian Responses to Bright Green Light During Sleep. (Doctoral Dissertation, University of California, San Diego and San Diego State University, 2007). 13. Grandner, M. A. (2007). Healthy Sleep: A Group Based Intervention for Behavioral Medicine. [Manual]. La Jolla, CA: Behavioral Medicine Program, San Diego VA Healthcare System. 14. Grandner, M. A. (2005). Light Exposure is Related to Social and Emotional Functioning and Quality of Life in Postmenopausal Women. (Masters Thesis, San Diego State University, 2005). 15. Grandner, M. A. (2004). Inpatient Group Psychotherapy Manual. [Manual]. San Diego, CA: Neurobehavioral Medicine Unit, UCSD Medical Center. 16. Grandner, M. A. (2001). REM latency as a predictor of personality factors in Major Depression. (Honors Thesis, University of Rochester, 2001). Published Abstracts 1. Grandner, M. A., and Winkelman, J. W. (2016). Nocturnal leg cramps: Prevalence and associations with demographics, sleep disturbance symptoms, medical comorbidity, and cardiometabolic risk factors. SLEEP, 39 (Abstract Supplement): A. 2. Grandner, M. A., Killgore, W. D. S., Khader, W., and Perlis, M. L. (2016). Positive and negative mood ratings across 24 hours. SLEEP, 39 (Abstract Supplement): A296 297. 3. Alkozei, A., Grandner, M. A., and Killgore, W. D. S. (2016). Exposure to blue wavelength light reduces activation within the anterior cingulate cortex during anticipation of certain reward stimuli. SLEEP, 39 (Abstract Supplement): A32. 4. Alkozei, A., Grandner, M. A., and Killgore, W. D. S. (2016). Exposure to blue wavelength light is associated with increased dorsolateral prefrontal cortex responses, and increases in response times during a working memory task. SLEEP, 39 (Abstract Supplement): A28. 5. Brownlow, J., Grandner, M. A., Gehrman, P. R., Ross, R. J., and Mellman, T. A. (2016). Rapid eye movement sleep mediates the relationship between sleep duration and verbal learning. SLEEP, 39 (Abstract Supplement): A88. 6. Chakravorty, S., Grandner, M. A., Kranzler, H., Chaudhary, N., Brown, G., and Perlis, M. L. (2016). The Circadian Pattern of Suicides in Intoxicated Individuals with Alcohol Dependence. SLEEP, 39 (Abstract Supplement): A277. 7. Corbitt, C., Ellis, J. A., Morales, K., Nesom, G., Khader, W., Grandner, M. A., & Perlis, M. L. (2016). The Natural History of Insomnia: The Incidence of Acute Insomnia and Subsequent Progression to Chronic Insomnia or Recovery. SLEEP, 39 (Abstract Supplement): A195. 8. Davis, B., Yang, R., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Nightmares in a community sample: Prevalence and associations with daytime function independent of poor sleep quality and depression. SLEEP, 39 (Abstract Supplement): A296. 9. Fisseha, E., Havens, C., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Sleep duration’s important role in the relationship among difficulty concentrating, fatigue, stress, and depressed mood: Data from the SHADES study. SLEEP, 39 (Abstract Supplement): A297. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 49 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 18) 10. Forbush, S., Hui, S. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Longitudinal co occurrence of headaches and trouble sleeping: Data from the Kansas state employee wellness program. SLEEP, 39 (Abstract Supplement): A258. 11. Garland, S. N., Fowler, K., Zhou, E., Grandner, M. A. (2016). A decade of sleep in Canada. SLEEP, 39 (Abstract Supplement): A189. 12. Graham, P. M., Goldstein, M., David, B. M., Perlis, M. L., Perfect, M. M., Frye, S., Killgore, W. D. S., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Longitudinal analysis of sleep duration using actigraphy and sleep diary: Stability and agreement over 8 11 months. SLEEP, 39 (Abstract Supplement): A377. 13. Granados, K., Rojo Wissar, D. M., Chakravorty, S., Prather, A., Perfect, M. M., Frye, S., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Adverse childhood exposures associated with adult insomnia symptoms. SLEEP, 39 (Abstract Supplement): A280. 14. Haynes, P., Medici, K., Grandner, M. A., and Burgess, J. (2016). Ambient light exposure is positively associated with calmness in mental health care providers. SLEEP, 39 (Abstract Supplement): A53. 15. Jackson, N., Patterson, F., Seixas, A., Jean Louis, G., Killgore, W. D. S., and Grandner, M. A. (2016). Using big data to determine social, behavioral, and environmental determinants of sleep duration in the US population: Application of a machine learning approach to data from approximately 700,000 Americans. SLEEP, 39 (Abstract Supplement): A382. 16. Jaszewski, A., Meridew, C., Perlis, M. L., Kelly, M., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Sleep duration and insomnia associated with specific symptoms of depression. SLEEP, 39 (Abstract Supplement): A295. 17. Killgore, W. D. S., Tkachenko, O., Grandner, M. A., and Rauch, S. L. (2016). Default mode activation predicts vulnerability to sleep deprivation in the domains of mood, sleepiness, and vigilance. SLEEP, 39 (Abstract Supplement): A27. 18. Killgore, W. D. S., Weber, M., Grandner, M. A., and Penetar, D. M. (2016). Blue wavelength light therapy improves balance following mild traumatic brain injury. SLEEP, 39 (Abstract Supplement): A54 55. 19. Klingman, K., Grandner, M. A., Parthasarathy, S., Jungquist, C. R., and Perlis, M. L. (2016). Determinants of sleep health discussions between patients and providers. SLEEP, 39 (Abstract Supplement): A392. 20. Kotzin, M. D., Alkozei, A., Grandner, M. A., and Killgore, W. D. S. (2016). The effects of trait gratitude on quality of sleep, intrusiveness of pre sleep cognitions, and daytime energy in healthy individuals. SLEEP, 39 (Abstract Supplement): A67. 21. Markowski, S. M., Alkozei, A., McIntosh, M. B., Grandner, M. A., and Killgore, W. D. S. (2016). Chronotype and risk taking propensity. SLEEP, 39 (Abstract Supplement): A59 60. 22. McIntosh, M. B., Markowski, S. M., Grandner, M. A., and Killgore, W. D. S. (2016). Short term sleep duration is negatively associated with impulsivity in women. SLEEP, 39 (Abstract Supplement): A66. 23. Meridew, C. M., Jaszewski, A., Newman Smith, K., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Sleep practices, beliefs, and attitudes associated with overall health. SLEEP, 39 (Abstract Supplement): A268 269. 24. Nowakowski, S., Kloss, J. D., Perlis, M. L., Culnan, E. J., Meers. J. M., & Grandner, M. A. (2016). Insomnia associated with increased risk for pregnancies that do not result in live births in reproductive age women. SLEEP, 39 (Abstract Supplement): A217. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 50 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 19) 25. Nowakowski, S., Kloss, J. D., Perlis, M.L., Borahay, M., Meers. J. M., Culnan, E. J., & Grandner, M. A. (2016). Insomnia associated with age at hysterectomy and partially mediates relationship with depression. SLEEP, 39 (Abstract Supplement): A218. 26. Ocano, D., Jean Louis, G., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Sleep duration and decreased social support from family, friends, and significant other: Influence of insomnia and perceived stress level. SLEEP, 39 (Abstract Supplement): A188. 27. Okuagu, A., Perlis, M. L., Ellis, J. A., Prather, A. A., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Does thinking keep people awake? Or does it matter what they are thinking about? Self directed cognitions associated with insomnia and insufficient sleep. SLEEP, 39 (Abstract Supplement): A184. 28. Olivier, K., Gallagher, R. A., Killgore, W. D. S., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Development and initial validation of the assessment of sleep environment: A novel inventory for describing and quantifying the impact of environmental factors on sleep. SLEEP, 39 (Abstract Supplement): A367. 29. Paine, K. N., Forbush, S., Ellis, J. A., Nowakowski, S., Newman Smith, K., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Sleep duration and satisfaction with life, health, finances, and relationship. SLEEP, 39 (Abstract Supplement): A306 307. 30. Perlis, M. L., Ellis, J. A., Morales, K., Grandner, M. A., Corbitt, C., Nesom, G., & Khader, W. (2016). The Natural History of Insomnia: Does The 3rd P of The 3p Model Differentiate Between Recovery and the Transition from Acute Insomnia to Chronic Insomnia? SLEEP, 39 (Abstract Supplement): A181. 31. Rhee, J. U., Haynes, P., Chakravorty, S., Patterson, F., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Susceptibility to smoking during the day and its relationship with insomnia and sleep duration. SLEEP, 39 (Abstract Supplement): A189. 32. Roberts, S. E., Singh, P., Grandner, M. A., and Killgore, W. D. S. (2016). Later wake up time and impulsivity. SLEEP, 39 (Abstract Supplement): A59. 33. Roopchand Martin, S., Seixas, A., Jean Louis, G., Zizi, F., Carrazco, N., Alfonso Miller, P., and Grandner, M. A. (2016). Sex differences in sleep related practices, beliefs, and attitudes of university students in Jamaica. SLEEP, 39 (Abstract Supplement): A365. 34. Roopchand Martin, S., Seixas, A., Jean Louis, G., Zizi, F., Carrazco, N., Alfonso Miller, P., and Grandner, M. A. (2016). Sleep related oractices, beliefs, and attitudes associated with sleep duration among university students in Jamaica. SLEEP, 39 (Abstract Supplement): A190 191. 35. Saccone, J., Davis, B., Chakravorty, S., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Habitual caffeine use and motivation to consume caffeine: Associations with sleep duration, sleepiness, fatigue, and insomnia severity. SLEEP, 39 (Abstract Supplement): A69. 36. Seixas, A., Hencelwood, D., Newsome, V., Robbins, R., Grandner, M. A., Butler, M., Zizi, F., and Jean Louis, G. (2016). The impact of sleep and body mass index on stroke disparities between blacks and whites: A comparative analysis of structural equation modeling and Bayesian belief network machine learning analysis. SLEEP, 39 (Abstract Supplement): A260 261. 37. Singh, A., Fridman, A., Silveri, M. M., Grandner, M. A., and Killgore, W. D. S. (2016). Medial prefrontal GABA predicts hunger ratings during sleep deprivation for men but not women. SLEEP, 39 (Abstract Supplement): A95. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 51 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 20) 38. Sturgis, E., Perlis, M. L., Arnedt, J. T., Kranzler, H., Grandner, M. A., and Chakravorty, S. (2016). The effects of an 8 week CBT I treatment on psychiatric symptoms, alcohol craving, and relapse to drinking in patients with co occurring insomnia and alcohol dependence. SLEEP, 39 (Abstract Supplement): A306. 39. Vanuk, J. R., Alkozei, A., Grandner, M. A., and Killgore, W. D. S. (2016). The effects of light exposure on heart rate variability predict sleepiness and vigilance. SLEEP, 39 (Abstract Supplement): A45. 40. Vanuk, J. R., Alkozei, A., Smith, R., Grandner, M. A., and Killgore, W. D. S. (2016). Changes in heart rate variability due to light exposure predict frontoparietal connectivity. SLEEP, 39 (Abstract Supplement): A45. 41. Warlick, C., Chakravorty, S., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Timing of alcohol intake associated with insomnia symptoms. SLEEP, 39 (Abstract Supplement): A306. 42. Waugaman, D. L., Markowski, S. M., Alkozei, A., Grandner, M. A., and Killgore, W. D. S. (2016). Chronotype and emotional intelligence. SLEEP, 39 (Abstract Supplement): A85. 43. Weber, M., Grandner, M. A., and Killgore, W. D. S. (2016). Blue wavelength light therapy reduces daytime sleepiness following mild traumatic brain injury. SLEEP, 39 (Abstract Supplement): A54. 44. Weber, M., Grandner, M. A., and Killgore, W. D. S. (2016). Grey matter correlates of daytime sleepiness. SLEEP, 39 (Abstract Supplement): A96. 45. Yang, R., Ocano, D., Chakravorty, S., Killgore, W. D. S., Gallagher, R. A., Carrazco, N., Alfonso Miller, P., Gehrels, J., and Grandner, M. A. (2016). Relationship between insomnia and depression moderated by caffeine. SLEEP, 39 (Abstract Supplement): A295. 46. Grandner, M. A., Gallagher, R., Chakravorty, S., Hale, L., Barrett, M., Schuschu, J., Khader, W., and Perlis, M. (2015). Comparing different methods of assessing habitual sleep duration for epidemiologic research. SLEEP, 38 (Abstract Supplement): A431. 47. Grandner, M. A., Perlis, M., Petrov, M., and Jean Louis, G. (2015). Relationships among habitual sleep duration, race/ethnicity, and cardiometabolic disease outcomes: Data from > 450,000 us adults from the 2013 Behavioral Risk Factor Surveillance System. SLEEP, 38 (Abstract Supplement): A296 A297. 48. Chakravorty, S., Chaudhary, N. S., Grandner, M. A., Khawaja, I. S., and Oslin, D. W. (2015). The association of a family history of alcoholism with sleep disturbance and alcohol consumption in alcoholic subjects. SLEEP, 38 (Abstract Supplement): A338. 49. Chheda, J., Barilla, H., Gallagher, R., and Grandner, M. A. (2015). Physical activity and habitual sleep duration: Does the specific type of activity matter? SLEEP, 38 (Abstract Supplement): A89 A90. 50. Corbitt, C., Gehrman, P., Grandner, M., Perlis, M., and Nesom, G. (2015). What factors predict sleep continuity complaints? SLEEP, 38 (Abstract Supplement): A80 A81. 51. Gallagher, R., Perlis, M., Chakravorty, S., Hale, L., Barrett, M., Schuschu, J., Khader, W., and Grandner, M. A. (2015). Use of mobile electronic devices in bed associated with sleep duration, insomnia, and daytime sleepiness. SLEEP, 38 (Abstract Supplement): A78. 52. Gallagher, R., Perlis, M., Gurubhagavatula, I., Chakravorty, S., Barrett, M., Schuschu, J., Khader, W., Findley, J., and Grandner, M. A. (2015). Short sleep duration, insomnia, and snoring associated with drowsy driving. SLEEP, 38 (Abstract Supplement): A131. 53. Hui, S. and Grandner, M. A. (2015). The role of poor sleep quality in motivating and maintaining healthy behavior: Data from the Kansas state employee wellness program. SLEEP, 38 (Abstract Supplement): A294. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 52 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 21) 54. Hui, S. and Grandner, M. A. (2015). Poor sleep quality associated with lower work performance and greater healthcare costs: Longitudinal data from Kansas state employee wellness programs. SLEEP, 38 (Abstract Supplement): A129. 55. Khader, W., Brownlow, J., Chakravorty, S., Gehrman, P., Rana, S., and Grandner, M. A. (2015). Daytime cognitive function associated with habitual sleep duration. SLEEP, 38 (Abstract Supplement): A323. 56. Nesom, G., Corbitt, C., Andalia, P., Findley, J., Perlis, M., Gehrman, P., and Grandner, M. (2015). Case series review of CBT I outcomes: The relevance of medication use and morbidity. SLEEP, 38 (Abstract Supplement): A236. 57. Rana, S., Chakravorty, S., and Grandner, M. A. (2015). Binge drinking and habitual sleep duration, and the roles of depression and smoking: Data from the 2013 Behavioral Risk Factor Surveillance System. SLEEP, 38 (Abstract Supplement): A322. 58. Schuschu, J., Pigeon, W., Jean Louis, G., and Grandner, M. A. (2015). Where are the sleep duration disparities? The relationship between sleep duration and race/ethnicity depends on state of residence: Data from 50 states and the District of Columbia, BRFSS 2013. SLEEP, 38 (Abstract Supplement): A88 A89. 59. Schuschu, J., Pigeon, W., and Grandner, M. A. (2015). The relationship between sleep duration and obesity depends on state of residence: Data from 50 states and the District of Columbia, BRFSS 2013. SLEEP, 38 (Abstract Supplement): A311. 60. Wang, J., Perlis, M., Chakravorty, S., Gallagher, R., Hale, L., Barrett, M., Schuschu, J., Khader, W., Rana, S., Grandner, M. A. (2015). Anxiety symptoms predict short sleep duration, but only in individuals who are not “natural” short sleepers. SLEEP, 38 (Abstract Supplement): A322. 61. Williams, N. J., Youngstedt, S., Grandner, M. A., Sarpong, D., Zizi, F., Ogedegbe, G., and Jean Louis, G. (2015). Unequal burden of sleep related obesity among black and white Americans. SLEEP, 38 (Abstract Supplement): A80. 62. Grandner, M. A., Chakravorty, S., Perlis, M., Oliver, L., and Gurubhagavatula, I. (2014). Habitual short sleep duration associated with self reported and objectively determined cardiovascular andmetabolic risk factors: Data from NHANES. Circulation, 127 (Abstract Supplement). 63. Petrov, M. E. R., Howard, V. J., Kleindorfer, D. O., Grandner, M. A., Molano, J. R., and Howard, G. (2014). Sleep medication and incident stroke: The REGARDS study. Circulation, 127 (Abstract Supplement). 64. Jean Pierre, P., Grandner, M., Jean Pierre, A., Garland, S.N., Maciorowski, G., and Richards, E. (2014). Characterizing self reported memory problems in adult onset cancer survivors in the United States: Importance of sleep duration and insomnia. J Clin Oncol, 32(5s): abstr 9588. 65. Jean Pierre, P., Grandner, M., Jean Pierre, A., Garland, S.N., Richards, E, and Maciorowski, G. (2014). Clinical correlates of memory problems in middle aged adult onset cancer survivors in the United States: A national cross sectional study. J Clin Oncol 32 (Supplement): e20588. 66. Grandner, M. A., Chakravorty, S., Perlis, M. L., Oliver, L., and Guribhagavatula, I. (2014). The relationship between sleep duration and cardiometabolic risk factors depends on race/ethnicity and whether risk factors were self reported or objectively determined. SLEEP, 37 (Abstract Supplement): A76 77. 67. Bhatt, S., Chakravorty, S., Guribhagavatula, I., and Grandner, M. A. (2014). Sleep duration is associated with access to healthcare but relationships depend on race/ethnicity. SLEEP, 37 (Abstract Supplement): A375 376. 68. Chaudhary, N., Grandner, M. A., Perlis, M. L., Kampman, K. M., and Chakravorty, S. (2014). Psychosocial problems are greater among alcoholics who complain of insomnia. SLEEP, 37 (Abstract Supplement): A207 208. 69. Chheda, J., Chakravorty, S., and Grandner, M. A. (2014). Patterns of marijuana (cannabis) use and sleep symptoms in American adults. SLEEP, 37 (Abstract Supplement): A286. 70. Corbitt, C. B., Andalia, P. A., Brownlow, J. A., Findley, J. C., Nesom, G. L., Grandner, M. A., and Perlis, M. L. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 53 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 22) (2014). Case series review of pre post CBT I outcomes. SLEEP, 37 (Abstract Supplement): A207. 71. Corbitt, C. B., Nesom, G. L., Gehrman, P. R., Grandner, M. A., and Perlis, M. L. (2014). A comparative analysis of multiple artifact rejection methods. SLEEP, 37 (Abstract Supplement): A96. 72. Culnan, E., Mosti, C., Zamzow, J., Daly, B. P., Grandner, M. A., and Kloss, J. D. (2014). The significance of social jetlag on a college campus. SLEEP, 37 (Abstract Supplement): A44. 73. Culnan, E., Zamzow, J., Mosti, C., Daly, B. P., Grandner, M. A., and Kloss, J. D. (2014). Social jetlag and chronotype as risk factors of substance use among college students. SLEEP, 37 (Abstract Supplement): A45. 74. Huang, S., and Grandner, M. A. (2014). Predictors of perceived insufficient sleep among habitual short sleepers. SLEEP, 37 (Abstract Supplement): A295. 75. Mian, R., Chakravorty, S., and Grandner, M. A. (2014). Ratio of low to high density lipoproteins associated with insomnia in the American population. SLEEP, 37 (Abstract Supplement): A296 297. 76. Mian, R., Martin, J. L., Garland, S. N., Jean Pierre, P., and Grandner, M. A. (2014). Age mediated relationship between prostate specific antigen levels and short and long sleep duration: A cross sectional study of the United States. SLEEP, 37 (Abstract Supplement): A260 261. 77. Perlis, M. L., Grandner, M. A., Basner, M., Chakravorty, S., Brown, G. K., Morales, K. H., Thase, M. E., Dinges, D. F., Gehrman, P. R., and Chaudhary, N. (2014). When accounting for wakefulness, completed suicides exhibit an increased likelihood during circadian night. SLEEP, 37 (Abstract Supplement): A268. 78. Perlis, M. L., Zee, J., Bremer, E., Whinnery, J., Barilla, H., Andalia, P., Gehrman, P. R., Morales, K. H., Grandner, M. A., and Ader, R. (2014). Durability of treatment response to zolpidem with three different maintenance regimens: Nightly, intermittent, and partial reinforcement dosing. SLEEP, 37 (Abstract Supplement): A171. 79. Schuschu, J., Pigeon, W., and Grandner, M. A. (2014). The relationship between race/ethnicity and sleep duration depends on geographical region. SLEEP, 37 (Abstract Supplement): A294. 80. Williams, N. J., Grandner, M. A., Palfrey, A. P., Kumar, N., Chaplin, W. F., Shallcross, A., Ogedegbe, G., and Jean Louis, G. (2014). Exploring mediators of the relationship between sleep duration and body mass index. SLEEP, 37 (Abstract Supplement): a79. 81. Grandner, M. A., Sands, M., Jackson, N., and Gurubhagavatula, I. (2013). Sleep apnea symptoms help screen for risk of metabolic syndrome in a nationally representative sample. Circulation, 126 (12 Supplement): AP196. 82. Grandner, M. A., Jackson, N., Gerstner, J. R., and Knutson, K. L. (2013). Dietary nutrient intake associated with short and long sleep duration: Data from a nationally representative sample. SLEEP, 36 (Abstract Supplement): A327. 83. Grandner, M. A., Smith, T., Jackson, N., Jackson, T., Burgard, S., and Branas, C. (2013). Geographic distribution of insufficient sleep across the US: A county level hotspot analysis. SLEEP, 36 (Abstract Supplement): A335 336. 84. Barilla, H. E., Corbitt, C. B., Perlis, M. L., Chakravorty, S., and Grandner, M. A. (2013). Are those with more physically demanding jobs more likely to exhibit short/long sleep duration? SLEEP, 36 (Abstract Supplement): A325 326. 85. Barilla, H. E., Grandner, M. A., Perlis, M. L., and Gehrman, P. (2013). Insomnia with and without depression associated with daytime dysfunction and occupational performance. SLEEP, 36 (Abstract Supplement): A63 86. Chakravorty, S., Grandner, M. A., Chaudhary, N., and Perlis, M. L. (2013). The association of serum lipids with insomnia and alcohol consumption in Americans. SLEEP, 36 (Abstract Supplement): A201. 87. Corbitt, C. B., Barilla, H., Knutson, K. L., Gerstner, J. R., Perlis, M. L., and Grandner, M. A. (2013). Energy balance and sleep duration: Data from NHANES. SLEEP, 36 (Abstract Supplement): A326 327. 88. Corbitt, C. B., Sturgis, E., Staley, B., Whinnery, J., Grandner, M. A., and Perlis, M. L. (2013). Sleep architecture differences among those with initial, middle, and late insomnia. SLEEP, 36 (Abstract Supplement): A211. 89. Kay, M., Grandner, M. A., Bauer, J., Lang, R. A., Watson, N. F., and Kientz, J. (2013). Initial validation of an Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 54 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 23) Android based psychomotor vigilance task. SLEEP, 36 (Abstract Supplement): A108. 90. Lam, B., Maia, Q., Grandner, M. A., Lang, R. A., Chakravorty, S., Gooneratne, N. S., Perlis, M. L., and Gurubhagavatula, I. (2013). Sleep duration items from nationally representative surveys: Validation relative to established measures. SLEEP, 36 (Abstract Supplement): A409. 91. Maia, Q., Lam, B., Grandner, M. A., Findley, J., and Gurubhagavatula, I. (2013). Short sleep duration associated with drowsy driving and the role of perceived sleep insufficiency. SLEEP, 36 (Abstract Supplement): A328. 92. Oliver, L., Segal, A., Grandner, M. A., and Perlis, M. L. (2013). Sleep disturbance partially mediates the relationship between intimate partner violence and physical/mental health. SLEEP, 36 (Abstract Supplement): A308. 93. Oliver, L., Segal, A., Prifitanji, F., Grandner, M. A., and Perlis, M. L. (2013). Sleep duration as a predictor of moderate/high (vs low) suicide risk in insomnia. SLEEP, 36 (Abstract Supplement): A313. 94. Pak, V. M., Jackson, N., Grandner, M. A., Keenan, B., Schwab, R. J., Arnardottir, E. S., Benediktsdottir, B., Gislason, T., and Pack, A. I. (2013). Obstructive sleep apnea, obesity and cellular adhesion molecules: Impact of 2 years of CPAP treatment. SLEEP, 36 (Abstract Supplement): A120. 95. Perlis, M. L., Sturgis, E., Corbitt, C. B., Staley, B., Findley, J., Grandner, M. A., Ellis, J., and Sharman, R. (2013). Explicit and implicit memory correlates of sleep state misperception. SLEEP, 36 (Abstract Supplement): A213. 96. Siu, H. K., Chakravorty, S., Perlis, M. L., and Grandner, M. A. (2013). Growing Up with a Depressed Family Member is Associated with Insufficient Sleep and Moderates the Relationship between Insufficient Sleep and Mental Health. SLEEP, 36 (Abstract Supplement): A299. 97. Siu, H. K., Oliver, L., Chakravorty, S., Findley, J., Perlis, M. L., and Grandner, M. A. (2013). Suicidal ideation associated with insomnia symptoms and sleep duration. SLEEP, 36 (Abstract Supplement): A209. 98. Sturgis, E. B., Corbitt, C. B., Staley, B., Whinnery, J., Findley, J., Grandner, M. A., and Perlis, M. L. (2013). Polysomnographic predictors of subjective objective discrepancies. SLEEP, 36 (Abstract Supplement): A213. 99. Whinnery, J., Schopfer, E., Jackson, N., Perlis, M. L., and Grandner, M. A. (2013). Short and long sleep duration in the US: Associations with race/ethnicity, country of origin, socioeconomic position, and acculturation. SLEEP, 36 (Abstract Supplement): A336 337. 100.Whinnery, J., Sturgis, E., Staley, B., Corbitt, C. B., Grandner, M. A., and Perlis, M. L. (2013). Sleep architecture differences between good sleepers and patients with primary insomnia. SLEEP, 36 (Abstract Supplement): A212. 101.Grandner, M. A., Buxton, O. M., Pandey, A., Jackson, N. J., Pak, V. M., and Jean Louis, G. (2012). C reactive protein (CRP) and habitual sleep duration: A complex, non linear relationship dependent on sex, race/ethnicity, and presence of sleep disorder and/or medical comorbidity. SLEEP, 35:A294. 102.Grandner, M. A., Rattanaumpawan, P., Jackson, N. J., and Patel, N. P. (2012). Sleep disparity, race/ethnicity, and socioeconomic status. SLEEP, 35:A348. 103.Abastillas, A. F., Rattanaumpawan, P., Jackson, N. J., and Grandner, M. A. (2012). Sleep duration and sleep symptoms associated with exposure to environmental toxins. SLEEP, 35:A303. 104.Chakravorty, S., Jackson, N. J., Gehrman, P. R., Perlis, M. L., and Grandner, M. A. (2012). Sleep duration and alcohol consumption: Results from a nationally representative sample. SLEEP, 35:A320 A321. 105.Izci Balserak, B., Jackson, N. J., Gerstner, J. R., Knutson, K. L., Pien, G. W., and Grandner, M. A. (2012). Differences in relationships among dietary nutrients and sleep symptoms in pre/peri menopausal versus post menopausal women. SLEEP, 35:A421. 106.Izci Balserak, B., Jackson, N. J., Gerstner, J. R., Knutson, K. L., Pien, G. W., and Grandner, M. A. (2012). Gender differences in relationships among dietary nutrients and sleep symptoms in the American population. SLEEP, 35:A418. 107.Knutson, K. L., Jackson, N. J., Gerstner, J. R., and Grandner, M. A. (2012). Dietary nutrients associated with Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 55 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 24) sleep symptoms in the American population. SLEEP, 35:A346. 108.Patel, N. P., Jackson, N. J., and Grandner, M. A. (2012). Development and initial validation of a questionnaire to assess sleep related practices, attitudes, and beliefs. SLEEP, 35:A425 A426. 109.Schopfer, E., Jackson, N. J., Patel, N. P., and Grandner, M. A. (2012). Relationship between sleep duration and body mass index depends on age. SLEEP, 35:A346 A347. 110.Sobowole, A., Jackson, N. J., Gerstner, J. R., Knutson, K. L., and Grandner, M. A. (2012). Habitual intake of iron and ferritin associated with sleep symptoms: Data from NHANES. SLEEP, 35:A345 A346. 111.Vergara, A., Jackson, N. J., Patel, N. P., and Grandner, M. A. (2012). Sleep related beliefs and prctices in depressed versus non depressed adults. SLEEP, 35:A322 A323. 112.Barilla, H., Jackson, N. J., Grandner, M. A., Gehrman, P. R., Gooneratne, N. S., and Perlis, M. L. (2012). Relationships between age and insomnia symptoms. SLEEP, 35:A23 A24. 113.Barilla, H. Waldron, E. A., Plaskin, J. R., Segal, A., Findley, J., Gehrman, P. R., Jackson, N. J., Grandner, M. A., and Perlis, M. L. (2012). Recruitment strategies: What methods yield the most potential participants? SLEEP, 35:A236 A237. 114.Beqiri, E. Jackson, N. J., Grandner, M. A., Gehrman, P. R., and Perlis, M. L. (2012). Multiple symptom insomnia compared to single symptom insomnia. SLEEP, 35:A235. 115.Berkowitz Sturgis, E., Jackson, N. J., Gehrman, P. R., Grandner, M. A., and Perlis, M. L. (2012). Insomnia symptoms and problematic sleep duration. SLEEP, 35:A236. 116.Berkowitz Sturgis, E., Jackson, N. J., Gehrman, P. R., Grandner, M. A., and Perlis, M. L. (2012). Do patents with insomnia get less sleep than subjects without insomnia? SLEEP, 35:A236. 117.Bremer, E., Beqiri, E. Ramirez, A., Grandner, M. A., Jackson, N. J., Gehrman, P. R., and Perlis, M. L. (2012). What events serve as precipitating factors for chronis insomnia and are some events associated with greater illness severity? SLEEP, 35:A237. 118.Bremer, E., McKay, G., Jackson, N. J., Grandner, M. A., Gehrman, P. R., and Perlis, M. L. (2012). Is illness severity greater in idiopathic insomnia vs. adult onset insomnia? SLEEP, 35:A231 A232. 119.McKay, G. D., Berkowitz Sturgis, E., Grandner, M. A., Gehrman, P. R., and Perlis, M. L. (2012). Response and remission definitions for CBT I: A quantitative review. SLEEP, 35:A219. 120.McKay, G. D., Grandner, M. A., Gehrman, P. R., Bremer, E. M., and Perlis, M. L. (2012). Where are the CBSMs and where are they needed? A cartographic assessment. SLEEP, 35:A446. 121.Orzech, K. M., Grandner, M. A., Roane, B. M., and Carskadon, M. A. (2012). Electronic media use within 2 hours of bedtime predicts sleep variables in college students. SLEEP, 35:A73. 122.Pak, V. M., Grandner, M. A., Jackson, N. J., and Gehrman, P. R. (2012). Sleep disturbance is associated with cardiovascular and metabolic disorders. SLEEP, 35:A417 A418. 123.Ramirez, A., Gehrman, P. R., Jackson, N. J., Grandner, M. A., and Perlis, M. L. (2012). Is subjective daytime impairment in insomnia related to insomnia severity or sleep duration? SLEEP, 35:A235. 124.Segal, A., Gehrman, P. R., Findley, J., Jackson, N. J., Grandner, M. A., and Perlis, M. L. (2012). Mental health history and insomnia severity. SLEEP, 35:A324. 125.Waldron, E. A., Barilla, H., Segal, A. G., Plaskin, J. R., Findley, J. C., Gehrman, P. R., Grandner, M. A., Jackson, N. J., and Perlis, M. L. (2012). Evaluation of county of residence on insomnia symptoms and severity. SLEEP, 35:A240. 126.Waldron, E. A., Byrne, M., Barilla, H., Gehrman, P. R., Findley, J., Grandner, M. A., Jackson, N. J., and Perlis, M. L. (2012). Differences in insomnia symptoms among primary insomnia, insomnia comorbid with depression or insomnia comorbid with pain. SLEEP, 35:A240. 127.Grandner, M. A., Rattanaumpawan, P., Perlis, M. L., Gehrman, P. R., Jackson, N. J., and Pack, A. I. (2012). Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 56 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 25) Insomnia symptoms associated with cardiometabolic risk factors. Circulation, 125 (10 Supplement): AP205. 128.Grandner, M. A., Hale, L., Jackson, N. J., Patel, N. P., Gooneratne, N. S., and Troxel, W. M. (2011). Sleep disturbance and daytime fatigue associated with perceived racial discrimination. Sleep, 34, Abstract Supplement: A262. 129.Grandner, M. A., Lang, R. A., Jackson, N. J., Patel, N. P., Murray Bachmann, R., and Jean Louis, G. (2011). Biopsychosocial predictors of insufficient rest or sleep in the American population. Sleep, 34, Abstract Supplement: A260. 130.Altman, N. G., Zhao, Z., Jackson, N. J., Gehrman, P. R., Patel, N. P., and Grandner, M. A. (2011). Sleep duration versus sleep insufficiency as predictors of cardiometabolic health outcomes. Sleep, 34, Abstract Supplement: A51. 131.Culnan, E., Horsey, S., Grandner, M. A., and Kloss, J. D. (2011). A prospective study of weight gain associated with chronotype in college freshmen. Sleep, 34, Abstract Supplement: A63. 132.Gooneratne, N. S., Patel, N. P., Perlis, M. L., Gehrman, P. R., Xie, D., Sha, D., Pigeon, W. R., Teff, K., Weaver, T., and Grandner, M. A. (2011). Overweight, obesity, diabetes and exercise associated with sleep disturbance and daytime fatigue in the American population. Sleep, 34, Abstract Supplement: A239. 133.Kington, A. G., Schopfer, E., Jackson, N. J., Patel, N. P., and Grandner, M. A. (2011). Does healthy behavior predict better sleep? Healthy diet, exercise, smoking and alcohol associated with insufficient sleep. Sleep, 34, Abstract Supplement: A264. 134.Kozak, P. J., Paer, A., Jackson, N. J., Chokroverty, S., and Grandner, M. A. (2011). Alcohol, smoking, caffeine and drug use associated with sleep duration and sleep quality. Sleep, 34, Abstract Supplement: A9. 135.Murray Bachmann, R., Henry, K., Ward, K., Zizi, F., Nunes, P., Ogedegbe, G., and Jean Louis, G. (2011). Social determinants of short sleep among Black and White Americans. Sleep, 34, Abstract Supplement: A261. 136.Paer, A., Kozak, P. J., Jackson, N. J., Patel, N. P., Platt, A., and Grandner, M. A. (2011). Signs and symptoms of sleep apnea associated with cardiometabolic outcomes in a nationally representative sample. Sleep, 34, Abstract Supplement: A126. 137.Paer, A., Kozak, P. J., Jackson, N. J., Patel, N. P., Platt, A., and Grandner, M. A. (2011). Snoring as an independent risk factor for cardiometabolic disorders after adjusting for other signs and symptoms of sleep apnea. Sleep, 34, Abstract Supplement: A150 1. 138.Patel, N.P., Grandner, M. A., Pigeon, W. R., Jackson, N. J., and Gooneratne, N. S. (2011). Prevalence rates for subjective sleep disturbance and daytime fatigue across the USA. Sleep, 34, Abstract Supplement: A259. 139.Altman, N. G., Schopfer, E., Jackson, N. J., Gehrman, P. R., Patel, N. P., and Grandner, M. A. (2011). Sleep duration versus sleep insufficiency as predictors of cardiometabolic health outcomes. CSCN Research Retreat Program and Abstracts, 8. 140.Kington, A. G., Schopfer, E., Jackson, N. J., Patel, N. P., and Grandner, M. A. (2011). Does healthy behavior predict better sleep? Healthy diet, exercise, smoking and alcohol associated with insufficient sleep. CSCN Research Retreat Program and Abstracts, 8. 141.Kozak, P. J., Paer, A., Jackson, N. J., Chokroverty, S., and Grandner, M. A. (2011). Alcohol, smoking, caffeine and drug use associated with sleep duration and sleep quality. CSCN Research Retreat Program and Abstracts, 8. 142.Paer, A., Kozak, P. J., Jackson, N. J., Patel, N. P., Platt, A., and Grandner, M. A. (2011). Signs and symptoms of sleep apnea associated with cardiometabolic outcomes in a nationally representative sample. CSCN Research Retreat Program and Abstracts, 8. 143.Paer, A., Kozak, P. J., Jackson, N. J., Patel, N. P., Platt, A., and Grandner, M. A. (2011). Snoring as an independent risk factor for cardiometabolic disorders after adjusting for other signs and symptoms of sleep apnea. CSCN Research Retreat Program and Abstracts, 8. 144.Grandner, M. A., Lang, R. A., Jackson, N. J., Patel, N. P., Murray Bachmann, R., and Jean Louis, G. (2011). Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 57 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 26) Biopsychosocial predictors of insufficient rest or sleep in the American population. CSCN Research Retreat Program and Abstracts, 8. 145.Grandner, M. A., Hale, L., Jackson, N. J., Patel, N. P., Gooneratne, N. S., and Troxel, W. M. (2011). Sleep disturbance and daytime fatigue associated with perceived racial discrimination. CSCN Research Retreat Program and Abstracts, 8. 146.Grandner, M. A., Hale, L., Jackson, N. J., Patel, N. P., Gooneratne, N. S., and Troxel, W. M. (2011). Perceived racial discrimination as an independent predictor of sleep disturbance and daytime fatigue. Population Association of America Final Program and Abstracts, 71: 41. 147.Grandner, M. A., Perlis, M. L., Martin, J., Gehrman, P. R., Patel, N. P., Xie, D., Sha, D., Weaver, T., and Gooneratne, N. (2010). Sleep Complaints and Fatigue Decline Across the Lifespan: Getting Older Does Not Necessarily Mean Poor Subjective Sleep and Daytime Fatigue. CSRN Research Retreat Program and Abstracts, 7: 19. 148.Grandner, M. A., Patel, N. P., Gehrman, P. R., Perlis, M. L., Jean Louis, G., and Gooneratne, N. (2010). Sleep Related Attitudes, Beliefs and Practices in Black and White Adults. CSRN Research Retreat Program and Abstracts, 7: 20. 149.Juarascio, A., Grandner, M. A., Patel, N., Gurubhagavatula, I., Joffe, M., and Gooneratne, N. (2010). Validation of single item sleep measures from epidemiological studies. CSRN Research Retreat Program and Abstracts, 7: 26. 150.Grandner, M. A., Perlis, M. L., Martin, J., Gehrman, P. R., Patel, N. P., Xie, D., Sha, D., Weaver, T., and Gooneratne, N. (2010). Is aging a risk factor for sleep initiation and maintenance problems or daytime fatigue? AASM Young Investigator Research Forum Program and Abstracts, 2. 151.Grandner, M. A., Perlis, M. L., Martin, J., Gehrman, P. R., Patel, N. P., Xie, D., Sha, D., Weaver, T., and Gooneratne, N. (2010). Sleep Complaints and Fatigue Decline Across the Lifespan: Getting Older Does Not Necessarily Mean Poor Subjective Sleep and Daytime Fatigue. Sleep, 33 (Abstract Supplement): A345. 152.Grandner, M. A., Patel, N. P., Gehrman, P. R., Perlis, M. L., Jean Louis, G., and Gooneratne, N. (2010). Sleep Related Attitudes, Beliefs and Practices in Black and White Adults. Sleep, 33 (Abstract Supplement): A211. 153.Patel, N. P., Grandner, M. A., Gehrman, P. R., Xie, D., Sha, D., Weaver, T., and Gooneratne, N. (2010). Effects of Sociodemographic and Socioeconomic Factors on Sleep Complaints Depend on an Individual’s Race/Ethnicity. Sleep, 33 (Abstract Supplement): A307. 154.Grandner, M. A., Patel, N. P., Gehrman, P. R., Xie, D., Sha, D., Weaver, T., and Gooneratne, N. (2009). Ethnicity and Socioeconomic Factors Related to Sleep Complaints in the American Population. University of Pennsylvania Biomedical Research Symposium Program and Abstracts, 8. 155.Grandner, M. A., Patel, N. P., Gehrman, P. R., Xie, D., Sha, D., Weaver, T., and Gooneratne, N. (2009). Gender differences in sleep disturbance patterns associated with aging. Sleep, 32 (Abstract Supplement): A122. 156.Grandner, M. A., Patel, N. P., Gehrman, P. R., Xie, D., Sha, D., Weaver, T., and Gooneratne, N. (2009). Who sleeps better? Socioeconomic differences in reports of sleep disturbance. Sleep, 32 (Abstract Supplement): A122. 157.Grandner, M. A., Gehrman, P. R., Weaver, T. E., and Pack, A. I. (2008). Relationships between demographic variables and sleep complaints from the Behavioral Risk Factor Surveillance System (BRFSS). CSRN Research Retreat Program and Abstracts, 5: 22. 158.Grandner, M. A., Gehrman, P. R., Weaver, T. E., and Pack, A. I. (2008). Predictors of general sleep complaints from the Behavioral Risk Factor Surveillance System (BRFSS). CSRN Research Retreat Program and Abstracts, 5: 23. 159.Grandner, M. A., Kripke, D. F., Elliott, J.A., and Cole, R. (2007). Effects of a nocturnally administered green light on lutienizing hormone and follicle stimulating hormone in young men. Sleep, 30 (Abstract Supplement): A62. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 58 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 27) 160.Grandner, M. A., Kripke, D. F., and Rex, K. (2006). Effects of a green light mask worn at night. Sleep, 29 (Abstract Supplement): A63. 161.Grandner, M. A., Kripke, D. F., and Langer, R. D. (2005). Correlations among dietary nutrient variables and subjective and objective sleep. Sleep, 28 (Abstract Supplement): A148 A149. 162.Loving, R. T., Kripke, D. F., Elliott, J. A., Knickerbocker, N. C., and Grandner, M.A. (2005). Bright light treatment of depression for older adults. Society for Light Treatment and Biological Rhythms Program and Abstracts, 17:35. 163.Loving, R. T., Kripke, D. F., Elliott, J. A., Knickerbocker, N. C., and Grandner, M.A. (2005). Bright green light treatment of depression for older adults. Society for Light Treatment and Biological Rhythms Program and Abstracts, 17:35. 164.Grandner, M., Kripke, D., Youngstedt, S., and Langer, R. (2004). Light exposure, social and emotional functioning, and quality of life in postmenopausal women. Society for Light Treatment and Biological Rhythms Program and Abstracts, 16. 165.Grandner, M. A., and Kripke, D.F. (2003). Validity of the Pittsburgh Sleep Quality Index: Subjective sleep, objective sleep and depression. Sleep, 26, (Abstract Supplement). 166.Grandner, M. A., and Kripke, D.F. (2002). Self reported sleep problems in short and long sleepers. Sleep, 25, (Abstract Supplement). 167.Pandey, J., Ilniczky, N., Grandner, M. A., Lowell, A., Smith, M. T., Giles, D. E., and Perlis, M. L. (2001). Meteorological factors and subjective sleep continuity: a replication and extension. Sleep,24, (Abstract Supplement). 168.Grandner, M. A., Pandey, J., Smith, M.T., Giles, D.E., & Perlis, M.L. (2000). Evoked EEG activity in patients with insomnia and good sleeper controls. Sleep,23, (Abstract Supplement), 318 319. 169.Pandey, J., Grandner, M. A., Crittenden, C.N., Smith, M.T., Giles, D.E., & Perlis, ML. (2000). Meteorological factors and subjective sleep continuity. Sleep,23, (Abstract Supplement), 225. Conference Presentations Meetings Chaired 1. Grandner, M. A. (2015, June). Joint Research Retreat of the Center for Sleep and Circadian Neurobiology and the Penn Program in Chronobiology, Philadelphia, PA. 2. Grandner, M. A. (2014, June). Joint Research Retreat of the Center for Sleep and Circadian Neurobiology and the Penn Program in Chronobiology, Philadelphia, PA. 3. Grandner, M. A. (2013, May). Pennsylvania Sleep Society Annual Meeting, Grantville, PA. 4. Grandner, M. A. (2011, June). Center for Sleep and Circadian Neurobiology Research Retreat, Philadelphia, PA. Sessions Led/Chaired 1. Grandner, M. A. and Shah, N. (2016, November). Sleep and Cardiometabolic Disease: A Joint Session of the American Heart Association and the Sleep Research Society. Symposium at the annual meeting of the American Heart Association. 2. Grandner, M. A., Thornton, L., Athey, A., Stephenson, M., and Mohler, J. (2016, October). Sleep, Health, and Performance: Lessons Learned from Consultations with Olympic, Professional, and Collegiate Athletes and Elite Military Teams. Symposium at the annual meeting of the Association of Applied Sports Psychology, Phoenix, AZ. 3. Grandner, M. A. (2016, June). Actigraphy and Fitness/Sleep Trackers in Adults and Children: Fundamentals and Applications. Postgraduate Course at the annual meeting of the Associated Professional Sleep Societies, Denver CO. 4. Grandner, M. A. (2016, May). Sleep, Sleep Disorders, and Performance in Athletes. Scientific Symposium at Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 59 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 28) the annual meeting of the American Thoracic Society, San Francisco, CA. 5. Grandner, M. A. (2016, May). Sleep Loss. Moderated session at the Penn Center for Sleep and Circadian Neurobiology 25th Anniversary Research Retreat, Philadelphia, PA. 6. Grandner, M. A. (2016, March). Sleep. Moderated poster session chaired for the Joint Scientific Sessions of the American Heart Association 7. Grandner, M. A. and Chakravorty, S. (2015, May). Cognitive Behavioral Therapy for Insomnia and Beyond. Session chaired for the Annual Meeting of the Pennsylvania Sleep Society, Harrisburg, PA. 8. Grandner, M. A. (2014, June). Sleep, Health, and Environmental Influences. Session chaired at the Center for Sleep and Circadian Neurobiology Research Retreat, Philadelphia, PA. 9. Grandner, M. A. (2014, June). Sleep Timing, Duration, and Napping: New Insights. Session chaired at the annual meeting of the Associated Professional Sleep Societies, Minneapolis, MN. 10. Grandner, M. A. (2014, June). Sleep and Behavior. Section meeting session chaired at the annual meeting of the Associated Professional Sleep Societies, Minneapolis, MN. 11. Grandner, M. A. (2013, May). The future of sleep medicine. Session chaired at the annual meeting of the Pennsylvania Sleep Society, Grantville, PA. 12. Grandner, M. A. (2013, May). Sleep issues across the lifespan. Session chaired at the annual meeting of the Pennsylvania Sleep Society, Grantville, PA. 13. Grandner, M. A., Knutson, K. L., and Laposky. A. (2012, June). Sleep and Health Disparities: Follow Up from the 2011 NHLBI Workshop. Discussion group chaired at the annual meting of the Associated Professional Sleep Socities, Boston, MA. 14. Grandner, M. A. (2011, May). Neural Mechanisms of Sleep and Wake. Session chaired at the Center for Sleep and Circadian Neurobiology Research Retreat, Philadelphia, PA. 15. Grandner, M. A. (2010, May). Update on Sleep Disordered Breathing. Session chaired at the Center for Sleep and Respiratory Neurobiology Research Retreat, Philadelphia, PA. Oral Presentations 1. Grandner, M. A. (2016, June). Using Big Data to Determine the Social, Behavioral, and Environmental Determinants of Sleep Durationin the US Population: Application of a Machine Learning Approach to Data from Approximately 700,000 Americans. Oral presentation at the annual meeting of the Associated Professional Sleep Societies, Denver CO. 2. Grandner, M. A. (2016, June). Movement Based Sleep Measurement: Fundamental Concepts and Underlying Technology. Postgraduate Course lecture at the annual meeting of the Associated Professional Sleep Societies, Denver, CO. 3. Grandner, M. A. (2016, May). Sleep, Health, and Performance in Student Athletes. Symposium presentation at the annual meeting of the American Thoracic Society, San Francisco, CA. 4. Grandner, M. A. (2016, March). Should habitual sleep duration be added to “Life’s Simple 7?” Moderated poster presentation at the Joint Scientific Sessions of the American Heart Association Councils on Cardiovescular Epidemiology and Prevention and Lifestyle and Cardiometabolic Health, Phoenix, AZ. 5. Grandner, M. A. (2015, June). Use of mobile electronic devices in bed associated with sleep duration, insomnia, and daytime sleepiness. Oral presentation at the meeting of the Associated Professional Sleep Societies, Seattle, WA. 6. Grandner, M. A. (2014, June). Sleep Duration is Associated with Access to Healthcare but Relationships Depend on Race/Ethnicity. Oral presentation at the meeting of the Associated Professional Sleep Societies, Minneapolis, MN. 7. Grandner, M. A. (2014, June). The Relationship Between Race/Ethnicity and Sleep Duration Depends on Geographic Location. Oral presentation at the meeting of the Associated Professional Sleep Societies, Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 60 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 29) Minneapolis, MN. 8. Grandner, M. A. (2014, June). Predictors of Perceived Insufficient Sleep among Habitual Short Sleepers. Oral presentation at the meeting of the Associated Professional Sleep Societies, Minneapolis, MN. 9. Grandner, M. A. (2014, June). The Relationship between Sleep Duration and Cardiometabolic Risk Factors Depends on Race/Ethnicity and Whether Risk Factors Were Self Reported or Objectively Determined. Oral presentation at the meeting of the Associated Professional Sleep Societies, Minneapolis, MN. 10. Grandner, M. A. (2014, June). The Relationship between Sleep Duration and Cardiometabolic Risk Factors Depends on Race/Ethnicity and Whether Risk Factors Were Self Reported or Objectively Determined. Oral presentation at the AASM Sleep Deprivation Section meeting at the Annual Meeting of the Associated Professional Sleep Societies, Minneapolis, MN. 11. Grandner, M. A. (2013, June). Cardiovascular Sleep duration items from nationally representative surveys: Validation relative to established measures. Oral presentation at the meeting of the Associated Professional Sleep Societies, Baltimore, MD. 12. Grandner, M. A. (2013, June). Cardiovascular and metabolic consequences of habitual short sleep duration. Oral presentation at the meeting of the Associated Professional Sleep Societies, Baltimore, MD. 13. Grandner, M. A. (2012, June). Development and initial validation of a questionnaire to assess sleep related practices, attitudes, and beliefs. Oral presentation at the meeting of the Associated Professional Sleep Societies, Boston, MA. 14. Grandner, M. A. (2012, June). C reactive protein (CRP) and habitual sleep duration: A complex, non linear relationship dependent on sex, race/ethnicity, and presence of sleep disorder and/or medical comorbidity. Oral presentation at the meeting of the Associated Professional Sleep Societies, Boston, MA. 15. Grandner, M. A. (2011, June). Prevalence rates for subjective sleep disturbance and daytime fatigue across the USA. Oral presentation at the meeting of the Associated Professional Sleep Societies, Minneapolis, MN. 16. Grandner, M. A. (2010, June). Sleep Complaints and Fatigue Decline Across the Lifespan: Getting Older Does Not Necessarily Mean Poor Subjective Sleep and Daytime Fatigue. Oral presentation at the meeting of the Associated Professional Sleep Societies, San Antonio, TX. 17. Grandner, M. A. (2010, June). Effects of Sociodemographic and Socioeconomic Factors on Sleep Complaints Depend on an Individual’s Race/Ethnicity. Oral presentation at the meeting of the Associated Professional Sleep Societies, San Antonio, TX. 18. Grandner, M. A. (2010, May). Sleep Complaints and Fatigue Decline Across the Lifespan: Getting Older Does Not Necessarily Mean Poor Subjective Sleep and Daytime Fatigue. Oral presentation at the Center for Sleep and Respiratory Neurobiology Research Retreat, Philadelphia, PA. 19. Grandner, M. A. (2010, April). Is aging a risk factor for sleep initiation and maintenance problems or daytime fatigue? Oral presentation at the American Acedemy of Sleep Medicine Young Investigator Research Forum, Bethesda, MD. 20. Grandner, M. A. (2008, May). Who Sleeps Well: Sociodemographic and Health related Variables Related to General Sleep Complaints from the BRFSS . Oral Presentation at the Center for Sleep and Respiratory Neurobiology Research Retreat, Philadelphia, PA. Invited Lectures: Intramural (University of Arizona) 1/31/2017 Insufficient Sleep and Risk for Cardiometabolic Disease and Neurocognitive Deficits. Department of Neuroscience, University of Arizona, Tucson, AZ. 1/27/2017 Neurocognitive and Cardiometabolic Risk Factors Associated with Insufficient Sleep. Cognitive Sciences, University of Arizona, Tucson, AZ. 1/17/2017 Sleep and Cardiometabolic Disease Risk in Women. Sarver Heart Center, Tucson, AZ. 9/17/2016 Sleep, Health, and Nutrition. Nutritional Sciences, University of Arizona, Tucson, AZ. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 61 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 30) 9/16/2016 Sleep, Cardiometabolic Disease Risk, and the Social Environmental Context. Sarver Heart Center, Department of Medicine, University of Arizona College of Medicine, Tucson, AZ. 8/16/2016 Sleep and Health Research: Implications for Primary Care. Department of Family and Community Medicine, University of Arizona College of Medicine, Tucson, AZ. 2/8/2016 Sleep and Performance. Athletics Department, University of Arizona, Tucson, AZ. 10/14/2015 The Cost of Sleep Lost: Implications for health, performance, and the bottom line. Department of management and Organizations, Eller College of Management, University of Arizona, Tucson, AZ. 10/13/2015 Objective Estimation of Sleep with Actigraphy: History, Basic Principles, and Application to Sleep Disorders. Department of Medicine, University of Arizona College of Medicine, Tucson, AZ. 9/30/2015 Sleep Duration and Health: Downstream Cardiometabolic and Neurocognitive Consequences and Upstream Social, Behavioral , and Environmental Determinants. Department of Psychiatry, University of Arizona College of Medicine, Tucson, AZ. Invited Lectures: Extramural 2/6/2017 Sleep and Health in Athletes. Big Sky Sport Psychology Conference, Big Sky, MT. 1/20/2017 Project REST: Recovery Enhancement and Sleep Training. National Collegiate Athletics Association, Nashville, TN. 11/3/2016 Healthy Sleep in Athletes: Basic Principles and Best Practices. Faculty Athletic Representatives Association, Indiannapolis, IN. 10/21/2016 Sleep, Health, and Human Performance.Main Line Health, Bryn Mawr, PA. 10/1/2016 Sleep, Health, and Performance in Student Athletes. Association of Applied Sport Psychology, Phoenix, AX. 9/13/2016 Sleep, Health, and Nutrition: Implications for Public Health and Public Policy. US Congress, Washington, DC. 8/2/2016 Biobehavioral Sleep and Cardiovascular/Metabolic Disease Risk. National Heart, Lung, and Blood Institute, Bethesda, MD. 7/28/2016 Disparities in Sleep Health. Department of Population Health, New York University, New York, NY. 6/12/2016 Writing Scientific Manuscripts: A Guide for Efficient Productivity. Trainee symposia series of the Sleep Research Society, Denver, CO. 6/8/2016 Sleep, Health and Performance in Student Athletes. Big Sky Athletic Conference scientific symposium, Orem, UT. 6/2/2016 Sleep, Health and Performance in Student Athletes. HORIZON Athletic conference scientific sumposium, Indiannapolis, IN. 5/25/2016 Sleep, Cardiometabolic Disease Risk, and the Social Environmental Context. Columbia University, New York, NY. 4/30/2016 The Future of Sleep Medicine. Nirav P. Patel Keynote Address to the Pennsylvania Sleep Society, Harrisburg, PA. 4/19/2016 Recognizing and Addressing Sleep Problems: Potential for Improving Mental Health, Healthy Behavior, Neurocognitive Function, and Cardiometabolic Health. Southern Arizona Psychological Association, Tucson, AZ. 7/29/2015 Racial/Ethnic Disparities in Sleep Health. Department of Population Health, New York University, New York, NY. 6/7/2015 Sleep and Performance in Student Athletes: Implications for Olympic Sports. Athletics Department, University of Washington. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 62 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 31) 6/7/2015 Sleep and Performance in Student Athletes: Implications for Football Players. Athletics Department, University of Washington. 4/8/2015 Sleep and Health Disparities. Congressional Briefing: Medical Research to Achieve Health Equity, US Congress, Washington, DC. 3/19/2015 Sleep, Food Intake, and Obesity: Epidemiologic and Physiologic Insights. Division of Nutritional Sciences, University of Illinois, Urbana Champaign, Urbana, IL. 2/7/2015 Habitual Sleep Duration and Longevity. Sleep Duration Consensus Conference, American Academy of Sleep Medicine and Sleep Research Society, Chicago, IL. 2/3/2015 Sleep and Health. School of Medicine, University of the West Indies, Mona, Jamaica. 2/2/2015 Overview of Polysomnography, Actigraphy, and Other Sleep Assessment Technologies. School of Medicine, University of the West Indies, Mona, Jamaica. 1/6/2015 Insufficient Sleep: A Novel Risk Factor for Obesity and Cardiometabolic Disease. Department of Population Health, New York University, New York, NY. 11/17/2014 Applying Behavioral and Psychological Principles to Enhance CPAP Adherence. American Sleep and Breathing Academy, Lindon, UT. 10/6/2014 Sleep and Obesity: Population Trends and Possible Mechanisms. Department of Medicine, University of California, San Diego, La Jolla, CA. 9/15/2014 Sleep, Health, and Performance. Athletics Department, Purdue University, West Lafayette, IN. 5/27/2014 Sleep as a Health Behavior: Downstream Health Outcomes and Upstream Social/Behavioral Determinants. School of Medicine, University of Arizona, Tucson, AZ. 5/15/2014 Sleep and Health in the Social Environment. Sleep, Stress and Health Meeting. National Institutes of Health, Rockville, MD. 5/3/2014 *Occupational Sleep Medicine. Pennsylvania Sleep Society, Harrisburg, PA. 5/2/2014 *Sleep as a Health Behavior: Downstream Health Outcomes and Upstream Social/Behavioral Determinants. Sleep and Wellness 2014, American Sleep and Breathing Academy, Scottsdale, AZ. 4/29/2014 Sleep as a Health Behavior: Downstream Health Outcomes and Upstream Social/Behavioral Determinants. School of Medicine, University of California, San Diego. 4/26/2014 *Disparities in Prevalence of Use of Energy Drinks, and Relationships to Disparities in Sleep Duration/Quality and Health Outcomes. American Society for Nutrition Symposium, San Diego, CA. 4/17/2014 *Objective Estimation of Sleep with Actigraphy: History, Basic Principles, and Application to Sleep Disorders. Advanced Course in Cognitive Behavioral Therapy for Insomnia, Philadelphia, PA. 11/18/2013 Sleep and Mental Health: Implications for Student Athletes. National Collegiate Athletics Association, Indianapolis, IN. 10/15/2013 Sleep as a Domain of Health Behavior: Cardiometabolic/Behavioral Consequences and Social/Behavioral Determinants. University of Notre Dame, South Bend, IN. 10/11/2013 *Miles To Go Before We Sleep: Using Behavioral Sleep Medicine for PAP Adherence in the Lab. Main Line Health, Paoli, PA 9/4/2013 What Do We Know About the Relationship Between Diet and Sleep? Children’s Hospital of Philadelphia, Philadelphia, PA. 8/15/2013 Disparities in Prevalence of Use of Energy Drinks, and Relationships to Disparities in Sleep Duration/Quality and Health Outcomes. The Use and Biology of Energy Drinks, National Institutes of Health, Bethesda, MD. 8/8/2013 Contextual Determinants of Sleep. Program to Increase Diversity in Behavioral Medicine and Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 63 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 32) Sleep Disorders Research (PRIDE), NYU Langone Medical Center and New York University, New York, NY. 6/2/2013 *Epidemiologic data analysis and data mining. Trainee symposia series, Sleep Research Society, Baltimore, MD. 9/20/2012 *Racial/Ethnic and Socioeconomic Sleep Disparities: A Key Factor in Health Disparities? University of California, Berkeley, Berkeley, CA. 8/21/2012 Sleep as a Health Behavior: Contextual Determinants and Cardiometabolic Outcomes. Brown University, Providence, RI. 8/9/2012 Contextual Determinants of Sleep Disparities. NYU / SUNY Sleep Health Disparities Summit. New York University, Langone Medical Center, New York, NY. 8/6/2012 Contextual Determinants of Sleep. Program to Increase Diversity in Behavioral Medicine and Sleep Disorders Research (PRIDE), SUNY Downstate Medical Center and New York University, Brooklyn, NY. 10/29/2011 *Behavioral Sleep Medicine Approaches to Increasing CPAP Adherence and Working with Sleep Disorders Patients.Main Line Health, Bryn Mawr, PA. 9/20/2011 Cultural Differences in Knowledge and Attitudes About Sleep Health. Reducing Health Disparities: The Role of Sleep Deficiency and Sleep Disorders, National Heart, Lung, and Blood Institute, Bethesda, MD. 9/19/2011 Socioeconomic Position and Sleep Health. Reducing Health Disparities: The Role of Sleep Deficiency and Sleep Disorders, National Heart, Lung, and Blood Institute, Bethesda, MD. 8/8/2011 Contextual Determinants of Sleep. Program to Increase Diversity in Behavioral Medicine and Sleep Disorders Research (PRIDE), SUNY Downstate Medical Center and New York University, Brooklyn, NY. 6/9/2011 Sleep and Health: Physiologic, Behavioral and Social Factors. Northumbria University, Northumbria, England. 2/25/2011 Neuropsychological Consequences of Sleep Disorders. Semel Institute for Neuroscience and Human Behavior, University of California, Los Angeles, Los Angeles, CA. 9/15/2010 *Sleep, Health and Disease. Grand Rounds, Reading Hospital and Medical Center, Reading, PA. 5/1/2010 *Behavioral Sleep Medicine: Cognitive Behavioral therapy for Insomnia and Beyond. Pennsylvania Sleep Society, Hershey, PA. 10/6/2009 Problems of Short Sleep: Bridging the Gap Between Laboratory and Epidemiological Studies. Department of Psychology, University of Arizona, Tucson, AZ. 5/2/2009 *Who Sleeps Better? Patterns of Sleep Disturbance in the American Population. Inaugural Meeting of the Pennsylvania Sleep Society, Penn State Hershey Medical Center, Hershey, PA. 10/16/2006 Biological Rhythms, Sleep Duration, and Health. Division of Sleep and Chronobiology, Department of Psychiatry, University of Pennsylvania, Philadelphia, PA. (*=CME credits awarded to participants) Invited Lectures: Intramural (Previous Institutions) 3/30/2015 Movement Based Approaches for Estimating Sleep: Actigraphy and Beyond, Part 1: Background and Technology. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 3/30/2015 Movement Based Approaches for Estimating Sleep: Actigraphy and Beyond, Part 2: Devices, Scoring Algorithms and Validation. Division of Sleep Medicine, University of Pennsylvania, Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 64 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 33) Philadelphia, PA. 3/30/2015 Movement Based Approaches for Estimating Sleep: Actigraphy and Beyond, Part 3: Scoring and Working with Data. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 3/30/2015 Movement Based Approaches for Estimating Sleep: Actigraphy and Beyond, Part 4: Special Considerations. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 9/26/2014 Sleep, Food Intake, and Obesity: Epidemiologic and Physiologic Insights. Center for Weight and Eating Disorders, University of Pennsylvania, Philadelphia, PA. 8/14/2014 Cardiometabolic and Neurobehavioral Impairments Associated with Insufficient Sleep Duration and Inadequate Sleep Quality. Grand Rounds, Department of Neurosurgery, Perelman School of Medicine, University of Pennsylvania, Philadelphia, PA. 7/10/2014 *Contextual Factors Associated with Sleep. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 6/27/2014 *Objective Estimation of Sleep with Wrist Actigraphy: History, Technology, and Applications. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 2/14/2014 *Cardiometabolic and Neurobehavioral Impairments Associated with Short Sleep: Bridging Epidemiologic and Laboratory Studies. Division of Sleep Medicine Grand Rounds, University of Pennsylvania, Philadelphia, PA 11/6/2013 Movement Based Approaches for Estimating Sleep: Actigraphy and Beyond, Part 1: Background and Technology. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 11/6/2013 Movement Based Approaches for Estimating Sleep: Actigraphy and Beyond, Part 2: Devices, Scoring Algorithms and Validation. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 11/6/2013 Movement Based Approaches for Estimating Sleep: Actigraphy and Beyond, Part 3: Scoring and Working with Data. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 11/6/2013 Movement Based Approaches for Estimating Sleep: Actigraphy and Beyond, Part 4: Special Considerations. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 10/18/2013 *Contextual Determinants of Sleep Duration: A Potential Pathway to Cardiometabolic Disease Risk? Division of Sleep Medicine Grand Rounds, University of Pennsylvania, Philadelphia, PA 3/10/2013 *Objective Estimation of Sleep with Actigraphy: History, Basic Principles, and Application to Sleep Disorders. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA 11/30/2012 *Cardiometabolic and Behavioral Impairments Associated with Short Sleep Duration. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA 11/29/2012 Objective Measurement of Sleep. School of Nursing, University of Pennsylvania, Philadelphia, PA. 9/10/2012 *Contextual Determinants of Sleep Duration: A Potential Pathway to Cardiometabolic Disease Risk? Division of Sleep Medicine Grand Rounds, University of Pennsylvania, Philadelphia, PA 4/26/2012 *Actigraphic Assessment of Sleep and Sleep Disorders. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 12/8/2011 Sleep Disturbance and Sleep Deprivation. School of Nursing, University of Pennsylvania, Philadelphia, PA. 3/10/2011 *Actigraphic Assessment of Sleep and Sleep Disorders. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 12/20/2010 The Future of the Academic Sleep Center. Division of Sleep Medicine, University of Pennsylvania, Philadelphia, PA. 5/3/2010 *Problems Associated with Short Sleep Duration: Bridging Laboratory and Self Report Studies. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 65 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 34) Department of Medicine, University of Pennsylvania, Philadelphia, PA. 5/7/2009 *Who Sleeps Better? Patterns of Sleep Disturbance in the American Population. Department of Medicine, University of Pennsylvania, Philadelphia, PA. 1/5/2009 *Neuropsychological Functioning and Sleep: Memory and Its Assessment. Department of Medicine, University of Pennsylvania, Philadelphia, PA. 6/23/2008 *Sleep Disturbances in Post Traumatic Stress Disorder, Part II. Department of Medicine, University of Pennsylvania, Philadelphia, PA. 6/2/2008 *Sleep Disturbances in Post Traumatic Stress Disorder. Department of Medicine, University of Pennsylvania, Philadelphia, PA. 4/25/2008 *Habitual Short Sleepers: Sleep, Behavior, Neuropsychological Functioning, Metabolism and Mental Health. Department of Medicine, University of Pennsylvania, Philadelphia, PA. 4/7/2008 *Discrepancy Between Subjective Complaints and Objective Neuropsychological Functioning in Insomnia. Department of Medicine, University of Pennsylvania, Philadelphia, PA. 3/3/2008 *Bright Light and Modafinil as Adjunct Treatments for Depression. Department of Medicine, University of Pennsylvania, Philadelphia, PA. 2/11/2008 *Who Are the Short Sleepers? Bridging Laboratory and Epidemiological Studies. Department of Medicine, University of Pennsylvania, Philadelphia, PA. 3/22/2007 Multimodal Treatment of Treatment Resistant Depression. Psychology Service, San Diego VA Healthcare System, La Jolla, CA. 2/22/2007 Sleep, Mood and Circadian Responses to Bright Green Light During Sleep. Psychology Service, San Diego VA Healthcare System, La Jolla, CA. 5/30/2006 Sleep, Mood and Circadian Responses to Bright Green Light During Sleep. Department of Psychiatry, University of California, San Diego, La Jolla, CA. (*=Continuing Education credits awarded to participants) Invited Lectures: Students and Patients 9/9/2016 Introduction to Statistics for Medical Residents Part 3: Linear and Logistic Regression. Department of Psychiatry, Universty of Arizona College of Medicine, Tucson, AZ. 9/8/2016 Behaioral Sleep Health. Department of Psychology, University of Arizona College of Science. 9/2/2016 Introduction to Statistics for Medical Residents Part 2: Hypothesis Testing and Group Differences. Department of Psychiatry, Universty of Arizona College of Medicine, Tucson, AZ. 8/26/2016 Introduction to Statistics for Medical Residents Part 1: Descriptive Statistics and Correlation. Department of Psychiatry, Universty of Arizona College of Medicine, Tucson, AZ. 3/31/2016 Sleep, Obesity, and Society. NURS513 (Obesity and Society). University of Pennsylvania School of Nursing, Philadelphia, PA. 4/16/2015 Sleep, Diet, and Obesity. NURS513 (Obesity and Society). University of Pennsylvania School of Nursing, Philadelphia, PA. 2/25/2015 Diagnosis and Treatment of Insomnia: Overview and Emerging Issues. University of Pennsylvania School of Medicine, Philadelphia, PA. 11/13/2014 Sleep and Public Health. Department of Public Health, Arcadia University, Glenside, PA. 9/17/2014 Neuroscience and Behavior, Part 1: Introduction to Neurobiology. PSYC 001 (Introduction to Experimental Psychology). University of Pennsylvania College of Arts and Sciences, Philadelphia, PA. 9/17/2014 Neuroscience and Behavior, Part 2: Introduction to Neurophysiology. PSYC 001 (Introduction to Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 66 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 35) Experimental Psychology). University of Pennsylvania College of Arts and Sciences, Philadelphia, PA. 2/19/2014 Overview of Insomnia. University of Pennsylvania School of Medicine, Philadelphia, PA. 10/15/2013 Sleep, Health, and Functioning in the Population. PSY 34360 (Health Psychology). University of Notre Dame, South Bend, IN. 7/12/2013 Psychopathology: Causal Factors and Viewpoints. PSYC 001 (Introduction to Experimental Psychology). University of Pennsylvania College of Arts and Sciences, Philadelphia, PA. 2/6/2013 Overview of Insomnia. University of Pennsylvania School of Medicine, Philadelphia, PA. 2/1/2012 Overview of Insomnia. University of Pennsylvania School of Medicine, Philadelphia, PA. 1/25/2012 Neuroscience and Behavior, Part 1: Introduction to Neurobiology. PSYC 001 (Introduction to Experimental Psychology). University of Pennsylvania College of Arts and Sciences, Philadelphia, PA. 1/25/2012 Neuroscience and Behavior, Part 2: Introduction to Neurophysiology. PSYC 001 (Introduction to Experimental Psychology). University of Pennsylvania College of Arts and Sciences, Philadelphia, PA. 3/2/2011 Overview of Insomnia. University of Pennsylvania School of Medicine, Philadelphia, PA. (Student Evaluation Rating 4.6/5.0) 10/4/2010 Sleep and Sleep Disorders as a Model for Ubiquitous Computing for Healthcare. Graduate School of Engineering, Widener University, Chester, PA. 3/18/2010 Sleep and Chronic Pain. Philadelphia Veterans Affairs Medical Center, Philadelphia, PA. 1/21/2010 Sleep and Chronic Pain. Philadelphia Veterans Affairs Medical Center, Philadelphia, PA. 9/17/2009 Sleep and Chronic Pain. Philadelphia Veterans Affairs Medical Center, Philadelphia, PA. 8/20/2009 Sleep and Chronic Pain. Philadelphia Veterans Affairs Medical Center, Philadelphia, PA. 3/5/2008 Careers in the Social Sciences: Clinical Psychology. Penn Graduate/Undergraduate Mentoring Program, Philadelphia, PA. 2/21/2007 Sleep Disorders and Sleep Medicine. PSY30 (Abnormal Psychology). Department of Psychology, San Diego State University, San Diego, CA. Invited Lectures: Community and Corporate 12/16/2016 Sleep and Health Risks in the Community.Mariposa Health Clinic, Nogales, AZ. 10/20/2015 The Truth about Sleep. Online Personal Health Summit, Ultimate Human Foundation. 9/14/2015 The Science of Sleep: Basics of Sleep Physiology, Consequences of Poor Sleep, and Common Sleep Problems. Church & Dwight, Princeton, NJ. 9/14/2015 Looking Ahead: Opportunities to Suppport Sleep with Dietary Supplements. Church & Dwight, Princeton, NJ. 11/5/2014 Sleep and Nutrition. Day of Science, Council for Responsible Nutrition, Laguna Niguel, CA. 10/30/2014 Sleep and Healthy Lifestyle. Friends Life Care VigR Enrichment Workshop, Plymouth Meeting, PA. 10/23/2014 Solving Sleep Problems. Friends Life Care VigR Enrichment Workshop, Plymouth Meeting, PA. 10/17/2014 Maximizing Sleep for Optimal Health and Performance. Lincoln Investments, Philadelphia, PA. 10/16/2014 Sleep and Healthy Aging. Friends Life Care VigR Enrichment Workshop, Plymouth Meeting, PA. 6/17/2014 Sleep, Health and Performance: Information for Players. Philadelphia Eagles, Philadelphia, PA. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 67 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 36) 6/11/2014 Sleep, Health and Performance. Philadelphia Eagles, Philadelphia, PA. 5/8/2014 Healthy Sleep: How to Get it and Why You Need It. Etsy, Brooklyn, NY. 12/9/2013 Sleep, Health and Performance. Philadelphia 76ers, Philadelphia, PA. 11/21/2013 Sleep and Healthy Lifestyle. Friends Life Care VigR Enrichment Workshop, Wilmington, DE. 11/15/2013 Sleep Deficiency in the Workplace. Greater Philadelphia Business Coalition on Health, Philadlephia, PA. 11/14/2013 Solving Sleep Problems. Friends Life Care VigR Enrichment Workshop, Wilmington, DE. 10/31/2013 Sleep and Healthy Aging. Friends Life Care VigR Enrichment Workshop, Wilmington, DE. 7/26/2013 Maximizing Sleep for Health and Performance.Major League Baseball, New York, NY. 6/20/2013 Healthy Sleep: Why It’s Important and How To Get It. Lincoln Investments, Lafayette Hill, PA. 4/30/2013 Sleep and Healthy Lifestyle. Friends Life Care VigR Enrichment Workshop, Plymouth Meeting, PA. 4/23/2013 Solving Sleep Problems. Friends Life Care VigR Enrichment Workshop, Plymouth Meeting, PA. 4/16/2013 Sleep and Healthy Aging. Friends Life Care VigR Enrichment Workshop, Plymouth Meeting, PA. 10/24/2012 Sleep and Healthy Lifestyle. Friends Life Care VigR Enrichment Workshop, West Chester, PA. 10/17/2012 Solving Sleep Problems. Friends Life Care VigR Enrichment Workshop, West Chester, PA. 10/10/2012 Sleep and Healthy Aging. Friends Life Care VigR Enrichment Workshop, West Chester, PA. 6/21/2012 Sleep and Healthy Lifestyle. Friends Life Care VigR Enrichment Workshop, West Chester, PA. 6/5/2012 Solving Sleep Problems. Friends Life Care VigR Enrichment Workshop, West Chester, PA. 5/29/2012 Sleep and Healthy Aging. Friends Life Care VigR Enrichment Workshop, West Chester, PA. 5/10/2012 Getting Sleep: Understanding the Basics of Sleep and Its Relationship to Health and Functioning. MeadWestVaco Corporation (Specialty Chemicals), North Charleston, SC. 1/31/2012 Sleep Disorders and Sleep Deprivation in Philadelphia Police Officers. Philadelphia Police Department, Philadelphia, PA. 11/16/2011 Sleep and Healthy Lifestyle. Friends Life Care VigR Enrichment Workshop, Bryn Mawr, PA. 11/9/2011 Solving Sleep Problems. Friends Life Care VigR Enrichment Workshop, Bryn Mawr, PA. 11/2/2011 Sleep and Healthy Aging. Friends Life Care VigR Enrichment Workshop, Bryn Mawr, PA. 5/26/2011 Sleep and Successful Aging. Friends Life Care VigR Enrichment Workshop, Philadelphia, PA. 5/19/2011 Thinking About Sleep as Part of a Healthy Lifestyle. Friends Life Care VigR Enrichment Workshop, Philadelphia, PA. 5/12/2011 Ways to Improve Your Sleep. Friends Life Care VigR Enrichment Workshop, Philadelphia, PA. 5/5/2011 Basics of Sleep and Sleep Medicine. Friends Life Care VigR Enrichment Workshop, Philadelphia, PA. 4/7/2011 Improving Sleep for Better Health (1). Friends Center, Philadelphia, PA. 4/7/2011 Improving Sleep for Better Health (2). Friends Center, Philadelphia, PA. 3/21/2011 Insomnia: Why Can't I Sleep? Reading Hospital and Medical Center, Reading, PA. 12/14/2010 Developing Healthy Sleep Habits. Riddle Hospital, Media, PA. 11/16/2010 Healthy Sleep and Successful Aging. Friends Life Care, Bryn Mawr, PA. 9/29/2010 The Importance of Healthy Sleep for New Parents. Family Birthmark, Media PA. 9/22/2010 Introduction to Pediatric Sleep Disorders. Family Birthmark, Media PA. Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 68 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 37) 9/15/2010 Sleep Training Basics. Family Birthmark, Media PA. 9/8/2010 Solving Common Infant and Toddler Sleep Problems. Family Birthmark, Media PA. 9/1/2010 Normal Sleep in Infants and Toddlers. Family Birthmark, Media PA. 11/17/2009 Healthy Sleep in Parents. Family Birthmark, Media PA. 11/10/2009 Pediatric Sleep Disorders. Family Birthmark, Media PA. 11/3/2009 Teaching Sleep. Family Birthmark, Media PA. 10/27/2009 Solving Sleep Problems. Family Birthmark, Media PA. 10/20/2009 Normal Sleep in Infants and Toddlers. Family Birthmark, Media PA. 2/18/2009 Sleep, Health and Longevity. CentraState Hospital, Freehold, NJ. 11/6/2008 Getting Sleep: Why It’s Important and How to Make the Most of It. Friends Life Care, Blue Bell, PA. 11/5/2008 Getting Sleep: Why It’s Important and How to Make the Most of It. Friends Life Car, Blue Bell, PA. 10/30/2008 Getting Sleep: Why It’s Important and How to Make the Most of It. Riddle Hospital Group, Plymouth Meeting, PA. 5/28/2008 Getting Sleep: Why It’s Important and How to Make the Most of It.Wawa Inc., Media, PA. Students Supervised Doctoral Dissertation Committee Member Lit Soo Ng 2012 2014 University of Pennsylvania, School of Nursing Masters Thesis Committee Member Culnan, Elizabeth 2012 2013 Drexel University, Department of Psychology Undergraduate Honors Thesis Supervised Paer, Alexandra 2010 2011 University of Pennsylvania, Department of Biology Current Undergraduate Students Fisseha, Ephrat 2015 present Forbush, Sierra 2015 present Granados, Karla 2015 present Hall, Christine 2015 present Jaszewski, Angelica 2015 present Meridew, Christina 2015 present Ocaño, Demi 2015 present Okuagu, Ashley Chisom 2015 present Olivier, Kayla 2015 present Saccone, Jeffrey 2015 present Warlick, Chloe 2015 present Yang, Robert 2015 present Previous Undergraduate Research Assistants: Abastillas, Aldrin 2011 2012 1 abstract , 1 paper (submitted) Davis, Benjamin 2015 2016 1 abstract Graham, Patrick Michael 2015 1 abstract Juarascio, Adrienne 2009 1 abstract Elizabeth Culnan 2011 2013 3 abstracts, 1 paper Kingsbury, Fadwa 2010 2011 Kozak, Philip 2010 2011 3 abstracts, 2 papers Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 69 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 38) Lam, Brian 2012 2013 2 abstracts Maia, Querino 2012 2015 2 abstracts, 1 paper Paer, Alexandra 2010 2011 3 abstracts, Honors Thesis Paine, Kristen 2015 2016 1 abstract Rhee, Joshua Unbin 2015 2016 1 abstract Schopfer, Elizabeth 2009 2013 4 abstracts, 1 paper Sobowale, Akin 2011 2012 1 abstract Tabit, Lindsay 2015 Vergara, Antonio 2011 2012 1 abstract Witter, Virginia 2010 Wong, Jacqueline 2009 2010 Zhiyuan, Zhao 2010 1 abstract Previous Graduate Student and Post Baccalaureate Research Assistants: Altman, Nicole 2010 2011 2 abstracts, 1 paper Barilla, Holly 2011 2012 3 abstracts Bremer, Erin 2011 2012 2 abstracts, 1 paper Corbitt, Charles 2012 2015 2 abstracts deVries, Sarah 2008 2009 Lang, Rebecca 2009 2015 4 abstracts , 2 papers Nesom, Genevieve 2013 2015 1 paper (submitted) Oliver, Linden 2012 2013 2 abstracts, 2 papers Ricaurte, Melanie 2009 Siu, Katy 2012 2015 2 abstracts, 1 award, 1 paper Waldron, Elizabeth 2011 2012 2 abstracts Whinnery, Julia 2012 2013 1 abstract, 1 paper Zheng, Michael 2012 Previous Postdoctoral Fellows: Pinyo Rattanaumpawan 2010 2012 4 abstracts, 3 papers Websites Developed and Maintained Active: 2015 Sleep and Health Research Program (http://www.sleephealthresearch.com) 2015 Official SHRP website (UA Psychiatry) (http://psychiatry.arizona.edu/sleephealth) 1995 MichaelGrandner.com (http://www.michaelgrandner.com) Past: 2013 SHADES Research Study at Penn 2012 CHARTS Research Study at Penn 2010 Penn Behavioral Sleep Medicine Program 2010 Cognitive Behavioral Therapy for Insomnia 2009 Behavioral Sleep Medicine Group 2009 Sleep Trainees Network 2009 Pennsylvania Sleep Society 2005 Night Owl Research Study, UCSD 2004 Holistic and Integrative Medicine Group, UCSD 2003 Rudd Institute, Yale University 2003 Pain Management and TMJ, Johns Hopkins 2002 Sleepless in Niagara, Brock University 2002 Yale NYU Intervention Network 2002 Arkansas 21c Network, Yale University Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 70 of 71 Michael A. Grandner, PhD, MTR, CBSM, FAASM (page 39) 2002 School of the 21st Century, Yale University 2001 Sleepless in Rochester, University of Rochester 2000 Sleep Research Laboratory, University of Rochester Media Coverage of Scientific Research Over 10 million print impressions since 2012. Over 1 billion unique internet impressions since 2012. Over 170 million unique impressions in top tier outlets since 2012. Major News Outlets: ABC, BBC, Bloomberg, CBS, CNN, Forbes, Fox, Huffington Post, LA Times, MSNBC, NBC, New York Times, The Onion, Reuters, TIME, UPI, US News, USA Today, WebMD Television: ABC Good Morning America, ABC World News Tonight, Al Jazeera America, BBC World News, CBS Philly, Dr. Oz Show, NBC Philadelphia, TODAY Show Radio: Canadian Broadcasting, CBS Radio News, WHYY Public Radio, KPCC Public Radio, Sirius/XM Radio Newspapers: USA Today, New York Times, Los Angeles Times, Wall Street Journal, Chicago Tribune, Boston Globe, Atlanta Journal Constitution, Arizona Daily Star, Austin American Statesman, Baltimore Sun, Connecticut Post, Daily Mail, Dallas Daily Sentinel, Dayton Daily News, Detroit News, Daily Pensylvanian, Eugene Register Guard, The Guardian, Hamilton Spectator, Hartford Courant, Kitchener Ontario Record, Le Figaro, Milwaukee Courier, Minneapolis Star Tribune, Nacodoches Daily Sentinel, Newsday, Palm Beach Daily News, Palm Beach Post, Philadelphia Inquirer, Rocky Mountain Telegram, San Jose Mercury News, Suncoast News, Toledo Blade, Tulsa World, Twin Falls Times News, Waco Tribune Herald. 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Science News, EurekAlert, Health 24, HealthCentral, HealthDay, Huffington Post, Inquisitr, Jezebel, Lifehacker, MedicalXpress, MedPage Today, Mother Nature Network, NewsMax, NewsRx, Newsworks, Ozy, Pain.com, Patch.com, PennLive, PhysOrg, Science Daily, Sleep Review, UPN News, Vitals on MSNBC, WebMD, Van Winkles, and Yahoo!News Case 3:15-cv-02077-JD Document 153-9 Filed 04/20/17 Page 71 of 71 EXHIBIT B Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 1 of 15 TSG Reporting - Worldwide 877-702-9580 Page 1 1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 2 3 - - - - - - - - - - - - - -+ | 4 JAMES BRICKMAN, et al., | | 5 Plaintiffs, | Civil Action No. | 6 vs. | 3:15-CV-02077-JD. | 7 FITBIT, INC., et al., | | 8 Defendants. | | 9 - - - - - - - - - - - - - -+ 10 11 Videotaped Deposition of 12 Naresh M. Punjabi, Ph.D., M.D. 13 Baltimore, Maryland 14 Friday, March 24, 2017 15 10:10 a.m. 16 17 18 19 20 21 22 23 Job No. 120063 24 Reported by: Laurie Donovan, RPR, CRR 25 Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 2 of 15 TSG Reporting - Worldwide 877-702-9580 Page 3 1 A P P E A R A N C E S 2 3 ON BEHALF OF THE PLAINTIFFS: 4 Bonezzi Switzer Polito & Hupp 5 1300 East 9th Street 6 Cleveland, Ohio 44114 7 By: Ronald Margolis, Esq. 8 9 10 ON BEHALF OF THE DEFENDANTS: 11 Morrison & Foerster 12 12531 High Bluff Drive 13 San Diego, California 92130 14 By: Julie Park, Esq. (by phone) 15 Erin Bosman, Esq. 16 17 18 19 20 ALSO PRESENT: 21 Victoria Ferrandino, Videographer 22 23 24 25 Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 3 of 15 TSG Reporting - Worldwide 877-702-9580 Page 10 1 reviewed prior to my report; and then subsequently 2 there was a deposition by Mr. Yuen. 3 Q Have you reviewed any other deposition 4 transcripts in this case? 5 A No. 6 Q Doctor, do you agree that actigraphy can 7 be a suitable surrogate to measuring sleep if 8 polysomnography is unavailable or too expensive? 9 A Yes, it is a crude surrogate for 10 assessing sleep and in particular sleep duration. 11 Q And Doctor -- so, Doctor, you agree that 12 actigraphy could be a suitable surrogate for 13 measuring sleep if polysomnography is unavailable 14 or too expensive? 15 MR. MARGOLIS: Objection. Asked 16 and answered. 17 BY MS. PARK: 18 Q You can answer, Doctor. 19 A Yes. 20 Q Doctor, isn't actigraphy better than 21 polysomnography for answering certain questions 22 about sleep? 23 A No. 24 The other thing I want to mention is 25 there's a knocking sound going on in the back Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 4 of 15 TSG Reporting - Worldwide 877-702-9580 Page 13 1 "sleep." Sleep has duration which is equal to 2 quantity, but it also has quality. So generically 3 I think it's important to segregate those and say, 4 well, actigraphy can be used to track, in a very 5 crude fashion, what someone's habitual sleep 6 patterns are, but as far as quality, it's very 7 difficult to utilize any tool, you know, to assess 8 sleep quality objectively. 9 Q So in assessing somebody's sleep 10 duration over a long-term period, would you agree 11 that actigraphy is a better tool than 12 polysomnography? 13 MR. MARGOLIS: Objection. 14 THE WITNESS: "Better tool" needs 15 to be defined, period. I interpret that as 16 saying that it gives a better measure than 17 polysomnography, but it doesn't. 18 Polysomnography tells us exactly what sleep 19 duration is on a night-to-night basis. 20 The challenge with polysomnography 21 is that we can't deploy that on multiple 22 nights, over weeks, over months to really 23 track sleep duration. So what we do is we 24 use the surrogate of sleep, which is 25 activity, and track that, and therefore we Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 5 of 15 TSG Reporting - Worldwide 877-702-9580 Page 14 1 approximate sleep duration with actigraphs. 2 BY MS. PARK: 3 Q So in the course of a month-long study 4 for somebody's sleep duration, you're saying that 5 polysomnography cannot be used? 6 A It can be used, but it's conventionally 7 not used because of the complexity and the cost. 8 Q Doctor, what about an individual with 9 circadian rhythm delay; how would you assess that? 10 A Two approaches can be used. As with 11 sleep duration, we can use actigraphy and also 12 sleep diaries. 13 Q And would you use polysomnography to 14 measure circadian rhythm delay? 15 A We can use polysomnography to 16 characterize individuals with circadian phase 17 delay, period. These guys will -- these folks 18 will manifest delayed REM cycles, for example, so 19 there are traits in the polysomnogram that we can 20 use to identify individuals that will have 21 circadian phase delay. 22 Q But you agree that studying circadian 23 rhythm delay is better done with actigraphy than 24 polysomnography? 25 MR. MARGOLIS: Objection. Form. Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 6 of 15 TSG Reporting - Worldwide 877-702-9580 Page 15 1 THE WITNESS: It provides a more 2 long-term characteristic of what's going on 3 with circadian delay than polysomnography 4 would, but polysomnography still remains a 5 very useful approach to look at how the sleep 6 cycles, the ultradian sleep cycles are 7 structured within the night. 8 BY MS. PARK: 9 Q Do you agree that actigraphy is better 10 than polysomnography for assessing circadian 11 rhythm delay? 12 MR. MARGOLIS: Objection. 13 THE WITNESS: Again, my concern 14 here is the word "better." The actigraph can 15 characterize what an individual does over 16 weeks to months. Polysomnography gives us 17 much better insight into actually what's 18 happening with the ultradian cycle on any 19 particular might. 20 BY MS. PARK: 21 Q Okay, but over the course of weeks or 22 months, actigraphy gives better insight? 23 A It gives us a crude insight of what the 24 patterns are. 25 Q But actigraphy allows us to get that Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 7 of 15 TSG Reporting - Worldwide 877-702-9580 Page 16 1 insight over the course of weeks or months; isn't 2 that correct? 3 A Actigraphy allows to get some insight on 4 patterns of sleep and wake. 5 Q Over a long-term period that 6 polysomnography is unable to assess, correct? 7 A You can use polysomnography, but we just 8 don't have the ability to do multiple nights, but 9 if there was the ability to do multiple nights, we 10 can do it, but conventionally and clinically we 11 tend to use the actigraph to really track 12 individual sleep/wake patterns and use the 13 activity as, as a marker of what's actually 14 happening with their sleep schedule. 15 Q Because, as you said, polysomnography is 16 unable to be used for multiple nights? 17 A Well, we can use it, but we tend not to 18 because of the costs associated with using 19 polysomnography. We can use abbreviated montage 20 of sleep studies to examine people's sleep, but 21 again it's not conventionally or clinically done. 22 Q Because it's impractical to use 23 polysomnography over the course of weeks or 24 months? 25 A Yes. Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 8 of 15 TSG Reporting - Worldwide 877-702-9580 Page 58 1 it originates in the brain? 2 A Yes, because it's telling us electrical 3 activity has slowed, and we define sleep based on 4 how electric, electrical activity evolves. 5 Q Does it measure the source of sleep/wake 6 activity in the brain? 7 A It does not measure where the regulatory 8 centers are directly, but it's measuring the organ 9 and its behavior that is responsible for sleep. 10 Q Is it directly measuring the source of 11 sleep/wake regulation in the brain? 12 MR. MARGOLIS: Objection. Asked 13 and answered. We're not answering it again. 14 BY MS. PARK: 15 Q Please answer, Doctor. 16 A As I mentioned before, it does not 17 measure the regulatory centers, but there are 18 fingerprints, so, for example, we can see spindles 19 in the EEG, we can see K complexes, we can see 20 slow waves. These represent different areas of 21 the regulatory centers, but we are not, at least 22 in humans, using deep needle electrodes in humans 23 to measure sleep, because that would be unethical. 24 Q So, Doctor, yes or no; does PSG directly 25 measure the source of sleep/wake regulation in the Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 9 of 15 TSG Reporting - Worldwide 877-702-9580 Page 59 1 brain? 2 A Yes, because the brain is responsible 3 for regulating sleep, and we put electrodes on the 4 brain, and therefore we're measuring what it's 5 doing. Does it actually measure the exact area 6 down in the brain stem which is the origins of the 7 non-REM and REM cycles? No. 8 MS. PARK: Let's take a five-minute 9 break. 10 MR. MARGOLIS: You know what? Why 11 don't we turn it into lunch? Does that work 12 for you? 13 MS. PARK: That's fine. How long 14 do you need? 15 MR. MARGOLIS: You know what? I 16 have just about five minutes after 12:00. 17 You want to say we start up at 12:35, give us 18 a half hour? 19 MS. PARK: Okay. 20 MR. MARGOLIS: Thank you. 21 MS. PARK: Let's go off the record. 22 Thank you. 23 THE VIDEOGRAPHER: The time is 24 12:03. We are off the record. 25 Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 10 of 15 TSG Reporting - Worldwide 877-702-9580 Page 60 1 (Whereupon, the lunch recess was 2 taken.) 3 THE VIDEOGRAPHER: The time is now 4 12:40, and we are back on record. 5 BY MS. PARK: 6 Q Doctor, isn't it true that your opinion 7 about the Fitbit trackers at issue here is not 8 based on your personal evaluation of the devices 9 at issue but on your review of the scientific 10 literature? 11 A I have not used a Fitbit device 12 personally. It's based on my knowledge of the 13 scientific literature. 14 Q Doctor, do you understand that the 15 Fitbit devices at issue are not medical devices? 16 A Yes. 17 Q Do you understand that the Fitbit 18 devices at issue are not sold to consumers as 19 medical or scientific devices? 20 A Yes. 21 Q Doctor, isn't it true that information 22 about sleep quality can be evaluated by number of 23 awakenings, wake after sleep onset, and sleep 24 efficiency? 25 A Depending on how those are measured, Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 11 of 15 TSG Reporting - Worldwide 877-702-9580 Page 61 1 yes. 2 Q And doesn't actigraphy measure those 3 things? 4 A As I previously mentioned, actigraphy 5 does not measure those things, but polysomnography 6 does. Actigraphy, again to reiterate, measures 7 movement from which we can infer or approximate 8 those other measures, like duration. 9 Q Do you agree that actigraphy can 10 approximate or infer number of awakenings? 11 A It can't, because it doesn't have the 12 EEG. To define awakenings, we need to show EEG 13 changes. Actigraphy shows movement, and therefore 14 there is an assumption that movement equals 15 awakening. 16 Q And so your testimony is that actigraphy 17 cannot infer or estimate number of awakenings? 18 A It can estimate, infer, but there's an 19 assumption here that it's movement, it's assessing 20 movement. It's not assessing what we need to 21 define an awakening or an arousal. 22 Q So do you agree or disagree that 23 actigraphy can used to infer number of awakenings? 24 A I think it can be used to infer 25 disruptions in sleep and awakenings. Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 12 of 15 TSG Reporting - Worldwide 877-702-9580 Page 62 1 Q Do you agree that actigraphy can be used 2 to infer wake after sleep onset? 3 A Yes, with the same logic that we went 4 through for the previous statement. 5 Q And do you agree that actigraphy can be 6 used to infer sleep efficiency? 7 A Yes, again based on the prior caveats 8 mentioned about actigraphy monitoring/measuring 9 movement and not actual EEG data. 10 Q And you have used -- in papers, you have 11 used actigraphy to infer these metrics, haven't 12 you? 13 A Yes. 14 Q Doctor, isn't it true that your opinion 15 about Fitbit's sleep tracker is based on the fact 16 that Fitbit uses actigraphy to track sleep? 17 A Yes. 18 Q Doctor, isn't it true that the sleep 19 community accepts actigraphy as an indirect 20 measurement of sleep? 21 A It's an indirect assessment and 22 approximator of sleep. It does not indirectly 23 measure sleep. 24 Q Doctor, yet in your paper in Exhibit 3, 25 you do say that actigraphy measures sleep. Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 13 of 15 TSG Reporting - Worldwide 877-702-9580 Page 63 1 A As I mentioned previously, just the word 2 "actigraph" has a prefix to it, says acti, 3 A-C-T-I, where it says we're measuring activity. 4 The inference of all the parameters of sleep 5 quality are based on approximations of that 6 activity. 7 Q Doctor, isn't it true that actigraphy is 8 generally accepted in the sleep community? 9 A Yes. 10 MS. PARK: I have no further 11 questions. 12 MR. MARGOLIS: I have some 13 questions. 14 EXAMINATION BY COUNSEL FOR PLAINTIFFS 15 BY MR. MARGOLIS: 16 Q Dr. Punjabi, I would like to discuss 17 with you a little bit about your, your background. 18 Where did you go to medical school? 19 A University of Chicago Prince George 20 School of Medicine. 21 Q And when you completed medical school, 22 what did you next do professionally? 23 A I completed my residency at Johns 24 Hopkins in internal medicine. 25 Q And what did you next do? Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 14 of 15 Case 3:15-cv-02077-JD Document 153-10 Filed 04/20/17 Page 15 of 15 EXHIBIT C Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 1 of 27 Pages 1 - 25 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Before The Honorable James Donato, Judge JAMES P. BRICKMAN, ET AL., ) ) Plaintiffs, ) ) VS. ) NO. CV 15-02077-JD ) FITBIT, INC., ) ) Defendant. ) ) San Francisco, California Thursday, March 30, 2017 TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiffs: DWORKEN & BERNSTEIN 1468 W. 9th Street Cleveland, OH 44113 BY: PATRICK J. PEROTTI, ESQUIRE FRANK BARTELA, ESQUIRE BONEZZI, SWITZER, POLITO & HUPP 1300 East Ninth Street - Suite 1950 Cleveland, OH 44114 BY: RONALD MARGOLIS, ESQUIRE LAW OFFICES OF JOHN A. KITHAS One Embarcadero Center - Suite 1020 San Francisco, CA 94111 BY: CHRISTOPHER LAND, ESQUIRE Reported By: Pamela A. Batalo, CSR No. 3593, RMR, FCRR Official Reporter Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 2 of 27 APPEARANCES CONTINUED: For Defendant: MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 BY: WILLIAM L. STERN, ESQUIRE ALEXANDRA E. LAKS, ESQUIRE MORRISON & FOERSTER LLP 707 Wilshire Boulevard Los Angeles, CA 90017 BY: KAI S. BARTOOMEO, ESQUIRE MORRISON & FOERSTER LLP 12531 High Bluff Drive - Suite 100 San Diego, CA 92130 BY: ERIN M. BOSMAN, ESQUIRE Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 3 of 27 3 Thursday - March 30, 2017 10:37a.m. P R O C E E D I N G S ---000--- THE CLERK: Calling CV 15-2077, Brickman vs. Fitbit, Inc. Counsel, please state your appearances for the record. MR. PEROTTI: Patrick J. Perotti -- THE COURT: Come up so I can hear you. MR. PEROTTI: Patrick J. Perotti, P-E-R-O-T-T-I, with Dworken & Bernstein, and Frank Bartela, also of the same firm, as one of the counsel for the plaintiffs. MR. MARGOLIS: Good morning, Your Honor. My name is Ronald Margolis. I'm with the firm of Bonezzi, Switzer, Polito & Hupp, co-counsel. MR. LAND: And Christopher Land with the Law Offices of John Kithas for the plaintiffs. THE COURT: Anybody else? Okay. MR. STERN: Good morning, Your Honor. William Stern for the defendant. MR. BARTOLOMEO: Good morning, Your Honor. Kai Bartolomeo, also on behalf of the defendant. MS. BOSMAN: Good morning, Your Honor. Erin Bosman for Fitbit. MS. LAKS: Good morning, Your Honor. Alexandra Laks for Fitbit as well. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 4 of 27 4 THE COURT: Let's start with class certification. Who is going to take the lead on the defense side and on the plaintiffs' side? Come on up. All right. So, plaintiffs, you are going to withdraw breach of implied warranty, Magnuson-Moss, and California false advertising; is that right? MR. PEROTTI: Yes, Your Honor, we are. THE COURT: Okay. We will deem those claims dismissed. That leaves UCL, CLRA, Florida accepted practices, common law fraud, misrep, and unjust enrichment, which is not a claim, so -- in California it's not a claim. It's a remedy. Okay? We don't need to get hung up on that. So I'm having trouble, Mr. Stern, seeing why class cert is not a sensible thing to do. It is a single device, an easily-identifiable device. Purchase records or the ownership records are going to be readily ascertainable, certainly under the Ninth Circuit's most recent articulation of ascertainability. It is all based on a common objective plan of advertising and representation by Fitbit. The damages -- you know, restitution is a perfectly traditional and reasonable remedy in a situation like this. It's two state classes, California and Florida; is that right? MR. PEROTTI: Yes, Your Honor. THE COURT: Okay. Whether they win or lose, different issue of course, but it looks to me like Rule 23 is imminently 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 5 of 27 5 suited, and I just did not see anything that persuaded me to the contrary. So give me your top two reasons. I think I know what they are, but I want to hear them again. MR. STERN: I have four reasons, but I can still do them in about five minutes, if it's anything close to what my practice -- THE COURT: I will double the reasons to four. MR. STERN: Let's see how far we get. There are four reasons why the Court should deny class certification. The first reason -- and, by the way, none of these are merits issues. I'm going to focus on class certification, Rule 23 issues. The first reason is what does "tracks sleep" mean. So the background I think the Court knows. This case is a false advertising case. It stems from the package phrase -- and I brought a demonstrative with me. If you'd like, I can hand it up. THE COURT: They're the same ones in the Complaint, aren't they? MR. STERN: It's the same one in the Complaint. This happens to be a three-dimensional one. The package statement has four phrases on it that are allegedly actionable: "Tracks sleep," "hours slept," "times woken up," and "sleep quality." So my first ground, what does "tracks sleep" mean -- and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 6 of 27 6 I'm going to use that as shorthand for all four of these phrases -- has three problems. The first problem is that plaintiffs have offered two different meanings and that matters because, Your Honor, if plaintiffs themselves can't agree on what the term "tracks sleep" means, how do they expect to show, through common evidence, that a majority of class members, first of all, adopted that meaning, and, second, bought in reliance or thought that meaning was the first meaning and not the second meaning or whether that was material to their purchase. This matters because it has direct consequences to the overbreadth of the class and it also affects the damages theory, but I'm getting ahead of myself -- THE COURT: Let me just jump in. I know -- this is all in your briefs, presented there. So what I'm asking you really to do now is just talk to me in a plain and simple practical manner. I've told you where my inclination is, so you need to say, "Judge, here are the two reasons why you ought to flip that inclination." None of those reasons have persuaded me. The case law is very clear that the things that you're looking at are not going to be an impediment to certification. So the bottom line here is they held them in order to -- the motion to dismiss order is -- it's very straightforward. People bought the device because it was represented that, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 7 of 27 7 rightly or wrongly -- that's for another day. Okay? This is just the Complaint. I'm not endorsing anything. But rightly or wrongly, "this is going to help you track your sleep." That is not -- that's a term folks understand without a lot of song and dance. Okay? My parents would get it. The people I know in the world understand what the representation is. So I don't think there is a fatal ambiguity or uncertainty in the meaning. It's like "a hundred percent" or "no artificial ingredients." People understand those things. So that's not a problem for me. Numerosity is clearly not a problem. Commonality is amply satisfied. The named plaintiffs seem to be exactly where they need to be in terms of saying "this is why I did it, this is what I expected, here is what didn't work." So I'm not seeing anything that is an impediment to certification. Now, what happens at trial, who knows? Summary judgment, that's for another day. But whether this is reasonable or not to go forward on a class basis and whether it makes sense, it seems to me the plaintiffs have the better argument. MR. STERN: Let me go through my other reasons. THE COURT: Okay. MR. STERN: Still I'm not persuading you, but very quickly on the "what does tracks sleep" mean, we know the plaintiffs didn't adopt that meaning because they are not part 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 8 of 27 8 of the class the Fourth Amended Complaint alleges. They didn't care that it tracks movement, not sleep. They didn't know that in advance. And so I would beg to differ with the Court's analogy to what "natural" means because here they didn't agree to what the meaning is that's alleged in the Fourth Amended Complaint. And finally, we don't have to guess what it means because we've done a consumer survey, and a consumer survey -- and they haven't got one. If we were at trial, the merits issue, they would be non-suited. THE COURT: I don't think that's right. You do not need a consumer survey. These are statements on a box. This is not something -- this is an issue for another day. I just want to push back on the idea that there's an inevitable hard stop for the plaintiffs just because they don't have a -- I would not assume that. No. MR. STERN: Second reason -- let me move on. I'm not persuading you on what does "track sleep" mean. Second reason, there is a manageability problem, but it's a different problem than the plaintiffs have addressed in their reply brief. The manageability problem stems from the problem of user error and that stems from the fact that sleep mode is manual and not automatic. So in the briefing, the parties talked about the alarm clock hypothetical, and I wanted to come back to that because 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 9 of 27 9 it goes right to the heart of the problem here. And if the Court will recall, in our opposition brief, we introduced the alarm clock metaphor and suggested that it shows in microcosm what's wrong with this picture. So if the Court will recall, we had said imagine if this class action were a lawsuit against the manufacturer of an alarm clock claiming the alarm clock doesn't work, everybody who bought should get his or her money back because it will wake you up in the morning. How would you separate those people who are unhappy who think it doesn't work for functional reasons -- I'm going to come back to functional in a moment, by the way -- versus those who simply forgot to set the alarm at night. On this theory, everybody gets their money back, on plaintiffs' theory here. Plaintiffs come back in their reply brief and they say, "No, this is as if the alarm clock manufacturer had left out a gear and it doesn't work for anybody." And now we've come to the heart of the problem. I didn't get a chance to address that because I didn't get the reply, but I'd like to address that hypothetical now and I think it will illustrate the problem. That's not the case they filed. The case they filed, Your Honor, is a word crime. THE COURT: A what? MR. STERN: A word crime. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 10 of 27 10 THE COURT: Word crime. MR. STERN: "Crime." I'm using that as a metaphor. Give me a little license here. It's a word crime. THE COURT: Yes. I just wanted to make sure I heard it. I'm not pushing back on the analogy. Go ahead. MR. STERN: Okay. The package -- THE COURT: A crime against language? MR. STERN: Pardon me? THE COURT: What is a "word crime"? They have misused language in a criminal way? MR. STERN: Yes. It's purely a word crime. The package says "tracks sleep" -- THE COURT: Oh, that's different. MR. STERN: -- when Fitbit should have said "tracks movement." It's a wrongful-noun case. It also misses the point. They are not suing because there is a gear missing. They are suing because they claim it's not accurate, which is curious because three times in their reply brief, they say this is not about accuracy. They have said three times in their reply brief this is purely a wrongful-noun case and yet accuracy comes back into the case, and they have Dr. Montgomery-Downs who says, you know, this is just like flipping a coin. It's no better than chance, but I tell you what -- THE COURT: I just have to say -- let me jump in. I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 11 of 27 11 don't think that's a fair reading of the case. Okay? I mean, the Fourth Amended Complaint has the words "cannot track sleep" and "cannot track sleep accurately" throughout it. Accuracy has been front and center from the Fourth Amended Complaint going on, a Complaint that I said was sufficient for 12(b)(6) and Rule 8 purposes. So I think -- MR. STERN: It's not true. THE COURT: I think you are setting up a theory that the plaintiffs are not actually liable for. But let me just pause for a moment because you have had some airtime and let me hear from Mr. Perotti. Anything you want to add? MR. PEROTTI: The order of the day is to make your life simple, and I don't have anything to add. THE COURT: Okay. All right. I'm really not -- Mr. Stern, I'm not just -- I think for Rule 23 purposes, they have crossed the bar. Now, I need to get an order out on that, but that is my inclination. Now, I do want to talk about the expert reports. Are you going to handle that as well? MR. STERN: Mr. Bartolomeo will do that. Your Honor had asked me to give my two or three reasons. I haven't finished. But it -- THE COURT: Well, they are all in the brief. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 12 of 27 12 MR. STERN: They're not in the brief. THE COURT: Give me the two -- you have two left. MR. STERN: Yes. THE COURT: You said four. We've had two. What are the two not -- that I have actually not seen. That would be a good way of approaching it. MR. STERN: Before I do that, Your Honor said I have mischaracterized the Complaint, and the Complaint is about accuracy. Three times in the reply brief, they deny it's about accuracy. I urge you to look at page 1, line 6, quote, "It is not a question of accuracy but of core functionality." That's at page 2. Page 13, "It is not a question of accuracy. It is a question of functionality." Page 13. THE COURT: My point, though, Mr. Stern, is that both theories are front and center in the Complaint. Okay? So they're not forced to say something that -- they're not in a position of saying something in class cert that was not said in the Complaint. There is no inconsistency. MR. STERN: Which brings me to my third point, and I only have two more. If accuracy figures into this, then the question is, is it core functionality? Does it work? We know it works. We know it works because we have the sleep data from Mr. Brickman and Ms. Clingman. I can't refer to them because it's filed under 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 13 of 27 13 seal, but it's at page 6 to 8 of our opposition brief. For a high percentage of their own readings, it worked consistent -- it tracked sleep consistent with what they self-reported in their depositions. THE COURT: That is perhaps a fine argument for summary judgment, and if you have a certified class, then if you prevail, everybody in that class will be foreclosed. MR. STERN: It affects typicality. THE COURT: All we're talking about now is -- MR. STERN: But they're not part of the class because they didn't suffer the functionality breakdown -- THE COURT: That's not an issue I can resolve on Rule 23, Mr. Stern. MR. STERN: And the last argument is a simple one. It's pure legal. And that is the damages calculation. The law is absolutely clear they must use price premium. Their expert has identified price premium and rejected that. They want to do a disgorgement theory. Flat out not permitted. That's a hard stop. They can't get past that. THE COURT: They want to do restitution. MR. STERN: Yes. But think -- that's just a word. What are they trying to do? THE COURT: They're trying to get the money back that they paid for sleep function. MR. STERN: That's not what they're doing. That's 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 14 of 27 14 exactly what they're not doing. THE COURT: In my view it is. Mr. Perotti, tell me what your view of the restitution theory is. MR. PEROTTI: As you indicated, we are making a claim for restitution which under Astiana and a number of other cases available in California. MR. STERN: No. Can I explain? Restitution is just a term. There are two ways you can measure damages -- THE COURT: It's more than just a term. It's the measure -- MR. STERN: It's not. THE COURT: It's the measure of damages in this case. MR. STERN: It's not. THE COURT: It's not just a term. It's what the plaintiffs will get should they prevail. Restitution. MR. STERN: If I may explain. It won't take me long, but I can explain the distinction. THE COURT: You can argue it. Go ahead. MR. STERN: Their expert said, correctly, there are two appropriate measures of compensation here. I'm not going to call it restitution. Two measures. One is you look at it from the consumers' perspective, how much extra did they give up because of a feature that didn't work. Okay? That's price premium. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 15 of 27 15 The other way to look at it is how much did defendant gain in illegal profits because of selling a feature that didn't work. The law -- this isn't a close question. The law is absolutely clear, including Ninth Circuit law, that in a case like this, it has to be price premium and not disgorgement. THE COURT: That's fine. I don't think they're fighting with you about that. MR. STERN: But then they have a -- THE COURT: Mr. Stern, let me finish. You keep setting up these shibboleths as if they're actually the plaintiffs' positions, and they're not. They're not saying that. They're saying the watch was, on average, $40 more if it had the sleep functionality than the ones that didn't. There is a little bit of extra material cost involved that Fitbit incurred to make that, so they're not going to recover that. So they're looking at the delta between what was paid for a device with sleep tracking or sleep functionality and one that wasn't, and it's about 30 bucks per device. Is that right? MR. PEROTTI: Yes, sir. THE COURT: I just -- it is utterly non-mysterious to me that that is a reasonable position. And restitution and disgorgement, they're remedies. They're reasonable 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 16 of 27 16 approximations of damages. They're not finely-parsed neurosurgical tools that we have to employ. That's the rule of the Ninth Circuit. The Ninth Circuit just came out late last year saying quite cogently in most cases, defendants' benefit is equal to the plaintiffs' loss, so restitution and disgorgement are functionally the same remedy. I mean, that is -- that's just a common-sense approach to damages, and I think that's appropriate in this case. Now, whether they get it or not, who knows? But there's nothing inherently defective about their damages theory. MR. STERN: There absolutely is. It's because Comcast says, Your Honor, that at class certification, the Court must rigorously scrutinize the damages model and make sure it fits with the theory of liability. The law in this circuit is absolutely clear. Every single court, including the Astiana decision that my friends on the other side just quoted, you must use price premium. That is the only proper measure of restitution. It would be error, Your Honor, to certify this class based on a disgorgement -- THE COURT: Okay. I disagree with that. Let's talk about the experts. MR. PEROTTI: If we may, Mr. Margolis will deal with that. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 17 of 27 17 THE COURT: All right. I am having a problem, plaintiffs, with Burke Rosen. I'm holding in my hand the Burke Rosen report. You will notice it consists of one front and back page. How is this an admissible expert opinion? MR. MARGOLIS: Your Honor, in addition to the report -- THE COURT: By the way, let me be clear, just to jump in. Bulk for bulk sake is not the test for admissibility. The test is it has to be -- first, the expert has to be illuminating the jury on an issue that the jury on its own cannot understand without expert assistance. That's the first and foremost task of the expert, is they need to help the jury, the trier of fact, understand the issue. All this says is well, we think a reasonable measure of damages is the difference between what you paid for a Fitbit device with sleep functionality and what you didn't. My problem is that's not beyond the understanding of any damages argument that's typically pitched to a jury, so I'm not sure it requires any expert testimony. There's certainly no method or anything in there that -- in the one-and-a-half pages, literally one-and-a-half pages of the report -- that shows that there was any thinking behind that, which I think illustrates it's a relatively straightforward concept. And the third thing is restitution, at the end of the day, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 18 of 27 18 is going to be a legal issue that I will decide as to whether it's an appropriate measure of damages or not. So to the extent that they're saying yes, the legal rule should be restitution, that's just not admissible. So I will add on top of that, if this is of any interest to you, I don't -- you're perfectly free to argue for a restitution remedy based on Fitbit's own documents and the facts of the purchase price and, you know, whatever it is they had to pay to put in the sleep functionality and the delta between that. You don't need an expert. So what do you want to do with Mr. Burke? MR. MARGOLIS: May I have five -- THE COURT: Burke Rosen? MR. MARGOLIS: Yes, sir. May I have five seconds to confer with counsel? THE COURT: Ten. Take as much as you want. But I'm not seeing it. (Counsel confer off the record.) MR. PEROTTI: Your Honor, I would defer to Ron on the specifics of the expert, but what we would indicate is we agree with Your Honor that we do not need an expert and that type of an approach for damages. So that we don't fall prey to an argument on appeal later on by the defense that we should have had an expert, we would simply direct your attention to the supplemental 26(e) filing 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 19 of 27 19 which we made of Dr. Rosen's deposition. And in that filing, Dr. Rosen was then specifically asked the various questions that you raised, "what methodology do you use, what numbers did you subtract, how did you do it, what approach did you use," and he then went through, in painful detail, exactly what he put in and what he didn't put in in order to reach an actual number of a specific dollar for each Fitbit tracker. And so -- THE COURT: I haven't seen that. I think you just filed that. Let me ask you a question. Was he just relying on Fitbit documents? MR. PEROTTI: He is analyzing Fitbit documents, yes, sir. THE COURT: I mean -- MR. PEROTTI: And Melanie Chase's deposition testimony, yes. THE COURT: You can do that with Fitbit witnesses. MR. PEROTTI: I believe we can. THE COURT: Don't you think? MR. PEROTTI: I think we can. THE COURT: Do you want to withdraw Mr.-- is it two people? MR. PEROTTI: No. Burke Rosen is a firm. THE COURT: Okay. I think two people signed the report. Anyway, do you want to withdraw that report? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 20 of 27 20 MR. PEROTTI: Yes, Your Honor. We will do that. THE COURT: Okay. It should not injure your ability to seek damages. MR. PEROTTI: All right. Thank you, sir. THE COURT: All right. Granted. MR. BARTOLOMEO: Thank you, Your Honor. THE COURT: Now, on the issue of -- everybody has got two names in this case. Montgomery-Downs. I'm having trouble understanding what the problem is. Now, you did have the report. The plaintiffs did provide the report to the defendants in January of 2017; right? MR. BARTOLOMEO: That's correct, Your Honor. THE COURT: So you have had it. They didn't feature it in their opening brief, but you deposed -- is it one person? MR. MARGOLIS: It's one person, Dr. Montgomery-Downs, yes, sir. THE COURT: Did you depose Dr. Montgomery-Downs? MR. BARTOLOMEO: We did, Your Honor. THE COURT: And you asked him about -- male? MR. MARGOLIS: "Her." THE COURT: You asked her about the report? MR. BARTOLOMEO: We did, Your Honor. THE COURT: So you haven't suffered any discovery deficiencies with respect to Dr. Montgomery-Downs? MR. BARTOLOMEO: We certainly don't dispute that the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 21 of 27 21 report was submitted on time by the plaintiffs on the 31st, but our objection relates to its introduction for the first time in class certification on reply which deprived Fitbit of the opportunity to respond to it without a supplemental filing, which isn't permitted under the rules. THE COURT: Well, I think I have an answer for that, but -- Mr. Laks? No, no. Who -- MR. PEROTTI: Mr. Margolis and Mr. Perotti. THE COURT: Mr. Margolis? You're not on my list. Okay. So, Mr. Margolis, is it your view that the Montgomery -- do I need to even look at that report to decide class certification? MR. MARGOLIS: No, sir. THE COURT: That was my sense as well. So I'm going to do a little bit more reflection, but my inclination is I think that the short answer is I don't need to look at that or rely on it. So I don't think it's going to be a big issue. Okay. I'm not going to strike it, but I'm almost certainly not going to rely on it. I don't think it's necessary for class cert. If I change my mind and it turns out that I think it's now a critical issue, I will extend Fitbit an opportunity to do a surreply. Okay? So you will have a chance to say something, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 22 of 27 22 but my strong sense right now is I don't need to open the cover of it to decide class cert. Okay? All right. Now, anything else I can help you with today? MR. PEROTTI: No, Your Honor. THE COURT: What's going on next? Where are you all now? Trial is in July; right? MR. PEROTTI: The next step would be -- well let me -- (Counsel confer off the record.) MR. STERN: The next step scheduled is dispositive motions, April 21, and we intend to file dispositive motions. THE COURT: Okay. Now, where are you all in maybe discussing an informal resolution? MR. PEROTTI: We have proposed it to Fitbit, and we have received a response of zero. MR. STERN: They've proposed nothing. They proposed to us, "Do you want to talk about settlement?" That's as far as it got. But there was no demand, and we asked them, "If you have a demand, make us a demand." THE COURT: You would like to see someone to help you start the discussion? MR. STERN: Yes. THE COURT: Who are you looking at? MR. PEROTTI: We're operating as teams. THE COURT: Everybody was looking at the same, including the plaintiff. Who is the actual person making the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 23 of 27 23 decision back there? Is that Ms. Bartolomeo? MR. STERN: Ms. Bosman. THE COURT: Are you with Fitbit? MS. BOSMAN: No, Your Honor. THE COURT: Why don't you come on up. Maybe it will be easier if we can just talk. Would you like to go to someone, a magistrate judge? MS. BOSMAN: We are willing to sit down with a magistrate judge. MR. PEROTTI: Yes, sir. THE COURT: Do you have any preferences? You're from out of the district. Do you have any preferences? MS. BOSMAN: We can provide several names to plaintiffs and see if they are agreeable. MR. PEROTTI: Is it Judge Ryu? THE COURT: Judge Ryu. That's an excellent choice. She is in Oakland. MR. STERN: There are several magistrate judges that I have used in mediations. THE COURT: Is there one you favor? MR. STERN: We -- well, Magistrate Judge Beeler was very hard-working and helped settle a case. THE COURT: Okay. All right. Well, I will see -- I'll choose one of those two, and then we'll make a reference. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 24 of 27 24 It's not going to derail anything. You're going to keep case management going forward, but this is, I think, a good time to start, if you haven't -- and it sounds like you haven't -- it's a good time to start talking. MR. PEROTTI: Yes, sir. THE COURT: Do you have a demand in mind? Are you thinking about what you might propose? MR. PEROTTI: Yes, sir. We do. THE COURT: Okay. Do you want to share that now or do you want to wait -- MR. PEROTTI: I'd rather wait until we get to the -- THE COURT: All right. How is everything else going? Discovery is done or close to being done? MR. PEROTTI: Everything else is going fine. THE COURT: Trial is set for July, I believe. MR. PEROTTI: Yes, sir. THE COURT: Is that right? Okay. Anything else? MR. PEROTTI: No, sir. Thank you. THE COURT: You look suspicious. There must be something else. There's got to be something else. No? Okay. All right. Thank you. Oh, sorry. There is one other thing. I forgot about -- the sealing motions are starting to become a small Mount Everest. What I need you to do -- it has now tripped my Plan B for sealing motions, and that is now that there is so 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 25 of 27 25 many, you need to go back -- it's in my standing order for civil cases so take a look at it. You need to go back and file a consolidated sealing motion where you all -- now that you know who wants to seal what and who doesn't want to seal things, you get together, talk about it, and then send me a new set of the things you actually want to seal. I'm assuming it's mostly Fitbit. Okay? So do that. So I'm going to terminate all the current ones and just wait for you to send me a new one and then one consolidated one, and it will be a lot more effective for me to deal with. Okay. Good. Thank you. (Proceedings adjourned at 11:05 a.m.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 26 of 27 CERTIFICATE OF REPORTER I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. DATE: Tuesday, April 11, 2017 _________________________________________ Pamela A. Batalo, CSR No. 3593, RMR, FCRR U.S. Court Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:15-cv-02077-JD Document 153-11 Filed 04/20/17 Page 27 of 27 EXHIBIT D (Filed Under Seal) Case 3:15-cv-02077-JD Document 153-12 Filed 04/20/17 Page 1 of 1 EXHIBIT E Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 1 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077-JD HIGHLY CONFIDENTIAL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JAMES P. BRICKMAN, individually and as a representative of all others similarly situated, Plaintiff, v. FITBIT, INC., Defendant. Case No. 3:15-cv-2077-JD EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. HIGHLY CONFIDENTIAL Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 2 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 1 HIGHLY CONFIDENTIAL EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER I. BACKGROUND I am currently the President and Owner of Charlottesville Neurology and Sleep Medicine, where I have been since July 2004. I am also the President of CNSM Consulting, LLC, a position I have held since July 2011, and have served as the Sleep Medicine Expert for the MH Advisory Board at Men’s Health Magazine since 2008. I am double board certified in sleep medicine (American Board of Sleep Medicine and American Board of Psychiatry and Neurology-Sleep) as well as board certified in neurology (American Board of Psychiatry and Neurology-Neurology). I originally became involved with sleep medicine and sleep research in 1993 when I served as a Research Assistant in the Sleep Disorders Laboratory at the University of Virginia Health Sciences Center, under Dr. Paul M. Suratt M.D. After receiving my M.D. from Emory University, I returned to the University of Virginia in 2003 to complete my neurology residency and fellowship at the University of North Carolina School of Medicine as a Sleep Disorders Fellow. Much of my work at Charlottesville Neurology and Sleep Medicine and CNSM Consulting, LLC is associated with providing in depth sleep consultation services. I have authored numerous scientific papers and abstracts dealing with sleep and have presented at numerous international sleep meetings, as further detailed on my CV attached as Exhibit 1. Much of my work in sleep medicine and neurology deals with sleep and its effect on athletic performance. In 2006, I was awarded a grant by Major League Baseball to study the effect of scheduling and time zone travel on team performance. Since then, I have also served as a sleep consultant for the San Francisco Giants, Los Angeles Dodgers, Tampa Bay Rays, and the Pittsburgh Pirates, among other teams. In the National Basketball Association, I have worked with the Chicago Bulls and am currently a sleep medicine specialist for the Oklahoma City Thunder and the Washington Wizards. In the National Football League, I have worked with the Chicago Bears and am currently a sleep medicine specialist for the Baltimore Ravens. In the National Hockey League, I have worked with the Washington Capitals and am currently a sleep medicine specialist for the New York Rangers. I also led a study evaluating the sleeping Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 3 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 2 HIGHLY CONFIDENTIAL characteristics of 560 Division I-A college football players. I take an active role in the public discussion of sleep related issues, and regularly answer readers’ questions about sleep and contribute to articles in Men’s Health Magazine, as well as Women’s Health, Runner’s World, and Details. A. Compensation I am being compensated at $400/hour for my work on this case. My compensation will not be affected by the outcome of this case. B. Prior Publications A list of papers I have coauthored in the past ten years is set forth on my CV attached as Exhibit 1. C. Previous Testimony I have testified in the following cases during the previous 4 years:  Mann v. MeadWestvaco (2013) (mediation);  Heard v. Perkins (2013, Wake County, North Carolina) D. Information Considered A list of information I considered is attached as Exhibit 2. II. MY EXPERT OPINION I have been asked to give opinions as to the tracking of sleep, specifically as to whether the activity and sleep tracking devices (the “Devices”) sold and marketed by Defendant Fitbit, Inc. (“Fitbit”) are able to track sleep. I understand that the Devices track several personal metrics, including steps, distance, calories burned, floors climbed, and active minutes. I also understand that the devices include a 3-axis accelerometer that tracks movement, and that the packaging of the Devices states the product tracks “hours slept,” “times woken up,” and “sleep quality.” My opinions contained herein are subject to change as I receive more information. In addition, I may offer additional opinions in response to opinions of Plaintiffs’ experts or when newly discovered information becomes available. In addition to the opinions set forth below, I may provide a general background about how sleep tracking works which would include an overview of different sleep tracking methods. For Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 4 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 3 HIGHLY CONFIDENTIAL example, I may explain various methods in addition to those described in this report for tracking sleep and their respective advantages and disadvantages. I would also expect to explain how the reliability of sleep tracking methods can be limited or interfered with by the subject’s actions. I may also discuss prior attempts to address sleep tracking and a general history of the development of sleep tracking, as well as additional discussion of my own experience with Fitbit Devices in my sleep medicine practice. A. Methods of Sleep Tracking To best understand this issue, it is essential to start with a definition of “sleep.” As defined by the Oxford Dictionary, “sleep” is “[a] condition of body and mind such as that which typically recurs for several hours every night, in which the nervous system is relatively inactive, the eyes closed, the postural muscles relaxed, and consciousness practically suspended.”1 While this definition is more than adequate, it only scratches the surface of what sleep entails. Sleep involves digestive changes, hormone changes, body temperature changes, cardiac changes, and so many other biological changes, they are too numerous to count. In other words, sleep is a collection of biological state changes. This underscores the probable function of sleep: a resetting of an organism. At the same time, the sheer number of biological changes means that how one “measures sleep” is difficult to define. All instruments that purport to measure sleep do not directly measure sleep-not even the most sophisticated laboratory instruments-precisely because the thing being “measured” (sleep) is not objective and it is not subject to a simple yes or no answer. Rather, sleep is a state exhibiting the relative presence or absence of various conditions. Thus, scientists have developed several different proxies for sleep, which measure one or more of the biological changes that occur during sleep. Each of these methods will measure sleep in different ways and, as discussed below, each has advantages and disadvantages. A method that measures more biological metrics may be more precise but will usually be more invasive and expensive. Further, 1 Sleep, OXFORD ENGLISH DICTIONARY (2nd ed. 1989). Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 5 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 4 HIGHLY CONFIDENTIAL a more invasive method will itself affect accuracy,2 as additional testing instruments (many of which must be attached to the subject) may inhibit sleep. One method of sleep tracking is actigraphy. Actigraphy is a non-invasive method for monitoring human rest and activity cycles. Actigraphy measures gross motor activity through a small actigraph unit, also called an actimetry sensor, which usually takes the form of a small wrist-watch-like package worn on the wrist. Since 1990, this method has been well-accepted as a reliable means of monitoring sleep in ambulatory persons adhering to usual life habits and pursuits.3 From the early 1990s until today, there have been approximately 2,423 research studies featuring actigraphy and sleep.4 Actigraphy is a scientifically validated tool for measuring sleep and is considered the gold standard for measuring sleep in circadian rhythm disorders. It is also an essential tool for researching and treating paradoxical insomnia. The advantage of actigraphy is that it is a relatively non-invasive and inexpensive, yet reliable, method of tracking sleep. The small, wearable actigraph unit generally allows the subject to wear the actigraph unit for extended periods of time at home without interfering with daily life. Actigraphy, depending on the recording device, can conveniently record continuously for 24 hours a day for days, weeks, or even longer.5 Actigraphy is well-accepted as a reliable method of sleep tracking. According to practice parameters published by the American Academy of Sleep Medicine in 2007, actigraphy provides an acceptable accurate estimate of sleep 2 It is important to note that precision and accuracy are not one in the same. Precision indicates closeness of the measured values to each other (as there are more being measured) and accuracy indicates how close the measured value is to the actual (true) levels of sleep (which would be affected by being unable to sleep). 3 Arthur C. Brown, et al., Actigraphy: A Means of Assessing Circadian Patterns in Human Activity, 7 CHRONOBIOLOGY INTERNATIONAL 2, 125 (1990) (stating that “[d]uring the past two decades, actigraphy has been used both in field research and clinical settings” and that “continuous wrist activity recordings provide simple and inexpensive, but rather accurate estimates of sleep duration” (emphasis added)). 4 I derived this number by searching PubMed (https://www.ncbi.nlm.nih.gov/pubmed) for the keyword “actigraphy sleep.” 5 Ancoli-Israel, S, et al., The role of actigraphy in the study of sleep and circadian rhythms. American Academy of Sleep Medicine, 26 SLEEP 3, 342 (2003). Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 6 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 5 HIGHLY CONFIDENTIAL measurements in normal healthy adults.6 Moreover, actigraphy allows for tracking of long term patterns or development, and is one of the best tools for calculating average sleep per week or month in a non-invasive manner. Another method of sleep-tracking is polysomnography. The meaning of polysomnography is revealed by its etymology: “poly” meaning many, “somno” meaning sleep, and “graph” meaning measure; polysomnography is essentially “many sleep measurements.” Polysomnography is a method for tracking sleep by measuring many biological phenomena together for an understanding of sleep. These measurements are: (1) eye movements; (2) brain activity; (3) muscle activity/leg movement; (4) air flow from breathing; (5) breathing effort; (6) heart rate or EKG; (7) snoring; (8) blood oxygen saturation; and (9) end tidal CO2. Each of these measurements can be examined individually to characterize a subject’s sleep. For example, a sleep study measuring eye movements would look for slower blinking and slower or rolling eye movements as drowsiness sets in, then little to no eye movement during deep sleep, followed by rapid eye movements (REM) during dreaming. A device measuring such eye activity would thus be able to track sleep quite accurately. Of note, “muscle activity/leg movement,” the measurement used in actigraphy, is included as one of the measurements used in polysomnography. One type of polysomnography is overnight PSG, which is considered one of the more reliable objective tools for studying sleep. Overnight PSG is a multi-parametric test that requires collection of data from several physiologic monitors including electroencephalography (EEG), electromyography (EMG), electro-oculography (EOG), and cardiorespiratory channels, which are then analyzed visually to define wake epochs and causes of sleep disruption. However, this method, as with other polysomnography methods, is very labor intensive and expensive due to the specialized equipment that is necessary. This method also is not portable, as it requires several 6 Yair Sadaka, et al., Validation of actigraphy with continuous video- electroencephalography in children with epilepsy, 15 Sleep Medicine 9, 1075, 1076, n. 20 (2014); Morgenthaler T, Alessi C, Friedman L, Owens J, Kapur V, Boehlecke B, et al., Practice parameters for the use of actigraphy in the assessment of sleep and sleep disorders: an update for 2007, 30 SLEEP 11, 519-527 (2007). Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 7 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 6 HIGHLY CONFIDENTIAL large pieces of medical equipment, and can generally only be performed in a specialized laboratory or hospital. Even though overnight polysomnography is considered to be one of the most reliable methods for tracking sleep, it also has its flaws, including disruption of the subject’s sleep due to the intrusive nature of the measurement devices. And, like any method for measuring sleep, polysomnography depends on measuring physiological states that serve as proxies for sleep due to the subjective nature of what sleep actually is. Other examples of measurements that a sleep scientist or doctor might use to track sleep include: (1) oxygen levels through pulse oximetery; (2) airflow through nostrils and/or mouth; (3) audible snoring using a microphone; or (4) sleep environment such as light, motion, humidity, sound, or air quality. Sleep could also be tracked by measuring physiological changes that (1) disturb sleep, such as changes in esophageal lining reflective of gastroesophageal reflux disease (which is a frequent cause of sleeplessness), or (2) are related to sleep, such as nocturnal penile tumescence (which occurs in all men without physiological erectile dysfunction). B. The Fitbit Devices Track Sleep Through Actigraphy, a Well-Accepted and Reliable Means of Tracking Sleep It is my opinion that the Fitbit Devices are able to reliably track sleep through actigraphy. Actigraphy is a means of tracking sleep by measuring gross motor activity. In other words, actigraphy involves the use of a portable watch-like device worn on the wrist that records movement over extended periods of times. This data is then used to infer time spent asleep and awake. The benefits of actigraphy are that it is relatively easy to use, is low-cost, and can be used by subjects at home for extended periods of time. As noted above, actigraphy is approved under the practice parameters of the American Academy of Sleep Medicine as an acceptable method of measuring sleep in normal healthy adults. Although polysomnography may capture additional biological phenomena related to sleep compared to actigraphy, studies have demonstrated that actigraphy is just as reliable in identifying the states of sleep and wakefulness. Several studies have been performed comparing actigraphy and polysomnographic techniques to determine the relative accuracy of actigraphy. In one such study, thirty-six patients with insomnia slept for three nights each in a Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 8 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 7 HIGHLY CONFIDENTIAL laboratory where both polysomnograms and actigraphic assessments of their sleep were obtained.7 Averaged over the three nights for each insomniac, the mean discrepancy between actigram and polysomnogram measurements was 49 minutes per night.8 In the majority of cases, the measurements were within 1 hour on the total amount of sleep per night. Overall, the study concluded that actigraphy could be used to quickly and inexpensively scan many nights of sleep for clinical insight concerning the pattern of sleeping and waking at home, which would not be available from laboratory polysomnography. More recent studies have tested actigraphs that had accelerometers and sufficient memory to record for up to several weeks. In comparison to first generation actigraphs, which were nonlinear and not sensitive enough to detect small movements, these later generations were more sensitive, allowed detection of motion in multiple axes, and could be filtered digitally to eliminate very slow and very fast movements.9 Comparisons to polysomnograph measurements determined that actigraphy was highly correlated with polysomnographs for differentiating sleep from wake, with reported correlations for total sleep time being 0.97.10 To summarize, when compared to polysomnographs, actigraphy was found to be valid and reliable for detecting sleep in normal, healthy adult populations.11 Actigraphy has also been validated as an objective measurement of sleep-wake patterns in populations where such measurements may be less reliable due to involuntary motor activity. For example, studies have been conducted measuring sleep in children with medically refractory epilepsy with frequent seizures comparing actigraphy measurements to continuous video EEG (cVEEG) monitoring. A comparison of the sleep and daytime activity actigraphy and VEEG parameters revealed very strong correlations for night sleep period, night sleep time, duration of 7 Peter J. Hauri, et al., Wrist actigraphy in insomnia, 15 SLEEP 4, 293-301 (1992). 8 Id. at 296. 9 Ancoli-Israel, supra at 343. 10 Id. at 344. 11 Id. at 345. Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 9 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 8 HIGHLY CONFIDENTIAL night wake time, and percent time of sleep during the day.12 There were no significant differences between actigraphy and VEEG measurements of night sleep period, night sleep time, duration of night wake time, and percent time of sleep during the day.13 Although moderate correlation was found for number of wakings after sleep onset, the correlation became much higher when only more significant wakings were counted.14 The results demonstrated that actigraphy is a valid and reliable method of evaluation for studying sleep-wake cycles even in populations where such gross-movement measurements may be made unreliable by subjects’ involuntary motions, particularly for measuring the period, duration, or length of sleep compared to wake time. As a board-certified sleep medicine practitioner, I have used Fitbit Devices to track sleep in my own patients even before I was aware of this lawsuit. I use the Fitbit Devices because they provide an inexpensive and reliable means of tracking my patients’ sleep activity. Because patients can wear the Fitbit Devices at home, they are more likely to be compliant in wearing them and more likely to get a typical night’s sleep than they would if they were in a sleep lab attached to invasive monitoring equipment. I regularly use Fitbit Devices in advising individual patients regarding sleep-related issues. For example, I routinely use a patient’s Fitbit sleep data to gain an understanding regarding the patient’s sleep patterns over different intervals (nightly and weekly). Because Fitbit Devices are readily available on the market, many patients already have sleep data at their first visit. Without the Fitbit Devices, I would have to rely on patient description (which is often inaccurate due to misperceptions about sleep, see Section II.D., below) or weeks of sleep logging to gather this sleep data. Using this data, I can ascertain the patient’s baseline sleep schedule, which is the starting point for many patient analyses, and compare the patient’s perception regarding his or sleep to the data he or she is generating using the Device. I have also used Fitbit Devices to help determine whether a patient’s sleep quality issues 12 Sadaka, supra at 1075. 13 Id. at 1078. 14 Id. at 1079. Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 10 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 9 HIGHLY CONFIDENTIAL are due to their environment or to a medical problem. For instance, I have asked a patient’s spouse or bed partner to wear a Device in order to determine whether the patient’s sleep issues are unique to the patient or due to where and how the patient sleeps. Additionally, I have used sleep data from the Fitbit Devices to view periods of restlessness, which can be a sign of sleep apnea. The Fitbit Devices are a mainstay of my work with professional athletes because they provide meaningful, reliable sleep data outside of the laboratory/sleep study setting. I have used data gathered from the Fitbit Devices to craft sleep plans and recommendations for professional sports teams and individual athletes to help optimize their performance on the field or court. C. The Statements on the Packaging of the Fitbit Devices Are True I understand that Plaintiffs have made several claims relating to specific advertisement statements on the packing of the Fitbit Devices. The packaging states that the 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.’”15 The packaging also includes pictures and examples of the “dashboard” showing that the Fitbit Devices are able to track length of sleep and number of times sleep was interrupted.16 In my opinion as a sleep specialist, all of these statements are true. As discussed above, it is difficult to define “sleep” because it is not objective but consists of a wide collection of biological state changes, each of which can be measured as an indicator of “sleep.” To the extent that the Fitbit Devices are small, wearable actigraph units that can be worn for extended periods of time and track movement, it is absolutely correct that the Fitbit Devices are able to measure length of sleep as well as interruptions in sleep. This is especially true when taken in context of the purpose of the Fitbit Devices and their intended audience: a non-invasive and inexpensive device that an average consumer can use to get a relative sense of how much sleep he or she is getting. As a scientist in this field, my opinion is that the Fitbit Devices perform as expected given the advertising statements on their packaging. 15 Fourth Am. Compl. (“4AC”), ¶ 29. 16 4AC, ¶ 30. Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 11 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 10 HIGHLY CONFIDENTIAL D. People Often Misperceive How Well or How Long They Slept In my experience, people often misperceive sleep by underestimating how well or how long they sleep. This phenomena occurs often enough that it has been identified as a specific type of sleep condition: sleep state misperception (also known as paradoxical insomnia, pseudo- insomnia, subjective insomnia, subjective sleepiness, and sleep hypochondriasis). Generally, sleepers with this condition will report little to no sleep even when clinical recordings show normal sleep patterns. At the same time, people with sleep disorders may exhibit unusual sleep patterns that they are not aware of. For example, I understand that Ms. Clingman testified that she believed her Fitbit Device was inaccurate because it showed that she awoke 50 times during the night. In my experience, this type of sleep/wake pattern is not abnormal in individuals who have sleep apnea, which Ms. Clingman also testified she suffers from. E. Users Can Intentionally Defeat Any Sleep-Tracking Method As with any test measuring a physiological factor, actigraphy as a sleep-tracking method can be defeated by a subject’s intentional actions. With respect to actigraphy, as well as the Fitbit Devices, the muscle activity measurements to determine sleep would be inaccurate if an individual conceivably stayed awake all night and consciously did not move his arm. However, such inaccuracies would apply to any such sleep-tracking method, including polysomnography. For example, assuming that sleep was tracked using a device that measured not only muscle activity but additional parameters such as heart rate and snoring, the accuracy of the device would still be defeated if the wearer lay motionless at night, breathing quietly while taking medications to control his or her heart rate. In such a scenario, adding additional measurements would not increase the reliability of the device when dealing with subjects intentionally acting to fool the device or render it inaccurate. I understand that Plaintiffs claim that the Fitbit Devices are inaccurate because the devices purportedly classify subjects who are awake, but lie motionless, as asleep. Plaintiffs’ argument conflates subjective accuracy with overall reliability. In my opinion, the Fitbit Devices track sleep through actigraphy, which is a well-received and reliable method of tracking sleep that has Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 12 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXPERT REPORT OF WILLIAM CHRISTOPHER WINTER, M.D. Case No. 3:15-cv-2077 11 HIGHLY CONFIDENTIAL been used for over thirty years in various sleep-based scientific studies. The fact that actigraphy, as with any method of physiological measurement, can be intentionally rendered less accurate by the user or subject is not relevant to the fact that it is a reliable method of measuring sleep. Dated: January 31, 2017 By: William Christopher Winter, M.D. Case 3:15-cv-02077-JD Document 153-13 Filed 04/20/17 Page 13 of 13 EXHIBIT F Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 1 of 16 HIGHLY CONFIDENTIAL Brickman v. Fitbit, Inc. (N.D. Cal. Case No. 3:15-cv-02077-JD) REBUTTAL EXPERT REPORT OF MICHAEL A. GRANDNER, PH.D. February 28, 2017 Michael A. Grandner, Ph.D. 1501 N. Campbell Avenue, AHSC Room 7326A PO Box 245002 Tucson, AZ 85724-5002 Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 2 of 16 1 HIGHLY CONFIDENTIAL I. INTRODUCTION 1. My name is Michael A. Grandner. I am a research director, assistant professor, and independent consultant specializing in sleep, sleep-related behavioral issues, and sleep tracking technology. 2. I have previously submitted the Expert Report of Michael A. Grandner, Ph.D., dated January 31, 2017 (“Opening Report”). The Opening Report, which I incorporate herein by reference, includes a description of my background and experience, my curriculum vitae, the materials I have considered and relied upon,1 a listing of my prior testimony, and my compensation. As stated previously, my compensation in this matter is not contingent on the outcome of this case. 3. I have been retained by Fitbit, Inc. (“Fitbit”) in this action. I have been asked to opine as to whether the method Fitbit uses to track sleep in its devices is reasonable and valid. I have also been asked to opine regarding the errors that Plaintiffs claim to have experienced and whether those errors are attributable to a fundamental problem with the method by which the devices at issue track sleep. I have also been asked to review and respond to the Expert Medical Review Report of Naresh M. Punjabi, M.D., dated January 12, 2017 (“Punjabi Report”). Finally, I have been asked to review and respond to the Expert Report of Hawley Montgomery-Downs, Ph.D., dated November 29, 2016 (“Montgomery-Downs Report”). 4. Because the Opening Report addresses certain of the issues that Dr. Punjabi and Dr. Montgomery-Downs discuss in their respective reports, I will not repeat the opinions and information contained in my report here. Instead, I incorporate the Opening Report herein by reference. 1 Additional materials I considered and relied upon in preparing this rebuttal report are listed in Exhibit A hereto. Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 3 of 16 2 HIGHLY CONFIDENTIAL II. OPINION ON REBUTTAL A. Punjabi Report 5. Dr. Punjabi opines that Fitbit’s sleep tracking devices are not valid instruments for measuring sleep or sleep quality.2 His opinion is based not on an examination of Fitbit’s devices themselves, but rather on an analysis of some of the different approaches for tracking sleep in general. In essence, the Punjabi Report claims that movement-based sleep tracking methodology, or actigraphy, is not able to measure sleep. Dr. Punjabi’s conclusions relating to Fitbit are a byproduct of that claim. 6. There are several problems with Dr. Punjabi’s analysis that render his conclusions inaccurate and incomplete. I address each in turn. 7. First and foremost, Dr. Punjabi is simply wrong that actigraphy cannot measure sleep. As I discussed in the Opening Report, actigraphy is one of several scientifically accepted methods of sleep measurement and is well-established in the scientific community. As evidence of this, see position statements by the American Academy of Sleep Medicine, Society of Behavioral Sleep Medicine, and other organizations that attest to the fact that actigraphy is scientifically accepted as a method to measure sleep. Dr. Punjabi himself mentions the “general acceptance of actigraphy in the field of Sleep Medicine.”3 To be sure, actigraphy differs from other sleep-tracking methods, such as polysomnography (“PSG”) and electroencephalography (“EEG”). PSG, for instance, measures multiple biological signals during sleep and displays those signals graphically. However, these differences in methodology do not mean that one approach is measuring sleep, while another is not. As discussed in the Opening Report, all 2 Punjabi Report at 3, 5. The Punjabi Report does not contain page numbers. Therefore, the page references in this rebuttal report count from the first page containing the substance of Dr. Punjabi’s opinion (starting with “General Summary”). 3 Punjabi Report at 4. Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 4 of 16 3 HIGHLY CONFIDENTIAL known sleep-tracking methodologies, whether it be PSG, EEG, or actigraphy, use various inputs as a proxy for sleep and ascertaining sleep quality. And, because the neurological control of sleep and wakefulness is quite deep in the brain, all of these methods are using inputs that are “downstream” from “sleep” itself (e.g., brain waves are not “sleep,” just like eye movements and other biological signals are not “sleep”). If actigraphy is “invalid” because it does not “measure sleep” itself, then every single known method of sleep tracking and sleep measurement is likewise invalid. Of note, Dr. Punjabi correctly asserts that sleep stages are defined based on brain wave activity and remain the identified “gold standard” for objective sleep. However, some circular reasoning is applied here and should be pointed out. Sleep stages (one aspect of physiologic sleep) are derived from brain waves. If you then use sleep stages as your only definition of physiologic sleep, you can only use brain waves as a measure of sleep. But this conclusion is based on a flawed premise - brain waves are not synonymous with physiologic sleep. They are just a marker, as are other physiologic measures. In addition, Dr. Punjabi neglects to point out that PSG (and EEG brain waves) are not known to reflect sleep as it exists outside of a laboratory, recorded over many days at a time. No previous studies have evaluated brain wave activity out of the home for weeks at a time. In fact, it is well known that sleep in the laboratory is quite different from sleep at home, and that PSG is not an accepted measurement of real-world sleep. This is in contrast to actigraphy, which is often used for days or weeks at a time and is an accepted measure of habitual sleep. 8. Second, the Punjabi Report contradicts Dr. Punjabi’s own conclusions about the ability of actigraphy to measure sleep. For instance, Dr. Punjabi suggests that actigraphy has been shown to be inaccurate when compared to PSG because he opines that “it is important to measure several concurrent physiological channels such as electrical activity of the brain, eye Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 5 of 16 4 HIGHLY CONFIDENTIAL movements, and muscle activity.”4 However, in the very next paragraph, Dr. Punjabi acknowledges that “[a]ctigraphy can provide a proxy or a surrogate assessment of total sleep time which has been in numerous studies correlated with polysomnography measures of total sleep time in healthy populations.”5 In discussing actigraphy, Dr. Punjabi criticizes it for underestimating or overestimating total sleep time when compared to other methods (e.g., EEG). But the examples he cites relate to people with medical disorders relating to sleep, including sleep apnea and insomnia; in these populations, movement-based sleep tracking methods can be less accurate. Fitbit’s devices, however, do not purport to be medical devices or diagnostic tools. Despite the fact that Fitbit’s devices are clearly intended for general consumer use, Dr. Punjabi concludes that more research is needed comparing actigraphy, and Fitbit’s devices in particular, to other sleep-tracking methods in connection with populations with specific medical conditions. But that misses the point. Dr. Punjabi’s critique does not invalidate actigraphy as a methodology in general. Nor does it invalidate actigraphy as a methodology for the purposes for which Fitbit markets its products: general consumer use. Fitbit does not market its products as medical devices designed to diagnose sleep disorders. 9. Third, I disagree with Dr. Punjabi’s suggestion that, as a matter of principle, actigraphy is incapable of ascertaining sleep quality. As his report makes clear, there is no single sleep quality index - some researchers use subjective methods, while others use objective methods or a combination of the two. Those objective measures themselves may differ. It simply is not the case that determining sleep quality “requires” collection of “physiologic data . . . during a polysomnogram.” Indeed, Dr. Punjabi cites to no standard, guideline, or other requirement that establishes the acceptable objective measure of sleep quality. As I discussed in 4 Id. 5 Id. Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 6 of 16 5 HIGHLY CONFIDENTIAL the Opening Report, sleep quality can be measured as a function of awakenings, duration of awakenings, and sleep efficiency, all of which can be obtained through an actigraphy-based device, like a Fitbit. Of note, the National Sleep Foundation released a consensus report on sleep quality, which noted that a number of scientific studies used actigraphy as a method for determining sleep quality. In addition, a recent paper by Dr. Daniel Buysse (a well-established expert in sleep quality) aimed to summarize the state of quantifying sleep health.6 This paper specifically notes that sleep quality can be obtained using retrospective questionnaires, sleep diaries, actigraphy, or PSG.7 10. Fourth, it is important to note that the Punjabi Report repeatedly uses the term “measure” as a backstop for his opinions. However, he does not define the term and, crucially, Fitbit does not represent in its advertising statements or marketing materials that its devices “measure” sleep. Rather, Fitbit states that its devices “track” sleep. Dr. Punjabi does not discuss this term, and it is unclear how the difference in terminology would impact his opinions. Of note, it seems that the term “measure” is referred to as a direct measure. The argument seems to be that sleep originates in the brain, and any measurement that does not take place in the brain does not “measure” sleep. This seems to be a semantic issue. There is such a thing as a direct measure of sleep, but this would require electrodes placed deep in the brain (not at the scalp). Therefore all “measures” of sleep are technically just “estimates” of sleep. The question, therefore, is whether the provided “estimate” provides sufficient information about whether or not someone is asleep in order to be useful. With this in mind, PSG is an estimate that is assumed to be highly accurate. The fact that actigraphy systematically agrees with PSG to a large extent is evidence that, as an estimate of sleep, actigraphy is quite useful. This is further 6 See Buysse, Sleep Health: Can We Define It? Does It Matter?, SLEEP (Jan 2014), 9-17, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3902880/. 7 See id. Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 7 of 16 6 HIGHLY CONFIDENTIAL borne out by the fact that most major scientific organizations and many thousands of scientific publications have endorsed actigraphy as an acceptable method to determine whether a person is awake or asleep. 11. Finally, with this in mind, it is important to note that Dr. Punjabi himself has used actigraphy in prior studies to measure sleep and compared the results favorably to “gold standard” PSG. For example, in a paper co-authored by Dr. Punjabi, entitled “Poor Sleep Quality and Functional Decline in Older Women,”8 in the section “Assessment of Sleep Quality,” the paper notes that, “Participants completed wrist actigraphy, a method of quantifying sleep by recording movement with an actigraph.”9 The section then went on to describe specifics regarding which actigraphic variables were used to quantify sleep quality.10 This seems to be in direct opposition to Dr. Punjabi’s statement, in that (1) it uses “quantifying” as the term linking actigraphy and sleep, (2) it defends actigraphy as an accepted measure, (3) it defends movement- based sleep measurement as scientifically accepted, and (4) it justifies actigraphy as a measure of sleep quality specifically. 12. In another study co-authored by Dr. Punjabi, entitled, “Effect of the 2011 vs 2003 Duty Hour Regulation-Compliant Models on Sleep Duration, Trainee Education, and Continuity of Patient Care Among Internal Medicine House Staff,”11 the paper states that, “Sleep duration was measured using wristwatch actigraphy, a valid and convenient alternative to 8 Spira, et al., Poor Sleep Quality and Functional Decline in Older Women, J. Am. Geriatr. Soc. (Jun. 2012), 1092- 1098, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3375617/. 9 Id. 10 See id. 11 Desai, et al., Effect of the 2011 vs 2003 Duty Hour Regulation-Compliant Models on Sleep Duration, Trainee Education, and Continuity of Patient Care Among Internal Medicine House Staff: A Randomized Trial, JAMA INTERN. MED. (Apr. 2013), 649-55, available at http://jamanetwork.com/journals/jamainternalmedicine/fullarticle/1672279. Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 8 of 16 7 HIGHLY CONFIDENTIAL polysomnography.”12 This statement is an even stronger endorsement of actigraphy (and uses the word “measure.” 13. Another paper co-authored by Dr. Punjabi, entitled, “Association between Sleep Duration and 24-Hour Urine Free Cortisol in the MrOS Sleep Study”13 notes that “Actigraphy has been shown to provide a reliable estimate of sleep-wake patterns.” Other studies co-authored by Dr. Punjabi make similar statements: (1) actigraphy is scientifically accepted, (2) actigraphy approximates sleep, and (3) actigraphy is used to estimate sleep duration and quality.14 B. Montgomery-Downs Report 14. Dr. Montgomery-Downs opines that Fitbit’s sleep tracking devices are not valid instruments for measuring sleep or sleep quality. Her opinion is based on examination of peer- reviewed studies that examined the performance of the Fitbit monitor to PSG, which is the “gold standard” for objective sleep measurement in the laboratory setting. In essence, the Montgomery-Downs Report claims that although movement-based approaches such as actigraphy are scientifically accepted for the measurement of sleep, the Fitbit device does not meet the standard necessary to be able to make the claim that it tracks sleep. 15. There are several problems with Dr. Montgomery-Downs’ analysis that render her conclusions inaccurate and incomplete. I address each in turn. 16. First, the basis on which Dr. Montgomery-Downs made her determination is rooted in her reading of the available peer-reviewed literature. Although relying on peer- reviewed studies ensures some degree of quality control (and, presumably, reliability), and 12 Id. 13 Rao, et al., Association between Sleep Duration and 24-Hour Urine Free Cortisol in the MrOS Sleep Study, PLOS ONE (2013), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3815404/. 14 See, e.g., Lane, et al., Impact of Common Diabetes Risk Variant in MTNR1B on Sleep, Circadian, and Melatonin Physiology, 65 DIABETES 1741-1751 (2016), available at http://diabetes.diabetesjournals.org/content/65/6/1741; Bakker, et al., Sleep and Glycemia: The Role of Ethnicity, 192 AM. J. OF RESPIRATORY & CRITICAL CARE MED. 745- 53 (Sept. 2015) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4595677/. Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 9 of 16 8 HIGHLY CONFIDENTIAL although comparing Fitbit to a “gold standard” PSG and other widely-accepted devices used to measure sleep allows specific metrics such as rate of agreement, sensitivity, and specificity to be generated, this approach also has a number of key limitations that are not addressed in the. Montgomery-Downs Report. Among these limitations are: (1) There are very few independent, peer-reviewed validation studies. Any conclusion based on these studies is highly limited because of the small number of studies, and the differences between the study populations and those relevant to Fitbit’s advertised audience. In this case, there is a very small number of studies and they tended to include individuals that are not relevant to the current discussion (e.g., children). (2) Comparison against PSG is ideal and would be valuable if Fitbit was being sold and marketed as a scientific or medical device, but it is not. Validation against PSG is unnecessary for a consumer device. (3) Although the Montgomery-Downs Report makes mention of studies that examined statistics such as rate of agreement, sensitivity, and specificity, the Report does not place these values in context. For example, it is not clear from the Montgomery-Downs Report whether the numbers are consistent with scientifically-accepted devices. (Again, such consistency may not even be needed.) 17. Rate of agreement, in this context, refers to the percent of the time that both measures agreed on the outcome. Specifically, in this case, actigraphy is measured in minutes. Let’s say someone spent 8 hours in bed (480 minutes). In this example, 33 of the minutes that Device 1 said was sleep, Device 2 says was wake. And 15 minutes that Device 1 said was sleep, Device 2 said was wake. So there was a total of 48 minutes where the 2 devices disagreed (33 minutes + 15 minutes). Out of the entire night (480 minutes), there were 48 minutes of disagreement, resulting in a “rate of agreement” of 90% (48/480). Sometimes “rate of agreement” is also called “accuracy.” Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 10 of 16 9 HIGHLY CONFIDENTIAL 18. Other metrics used are sensitivity and specificity. Sensitivity refers to whether a test can detect whether something is there and specificity refers to whether a test can detect whether something is absent. In this example, we are looking for sleep. If we assume that PSG is the absolute truth (which is a flawed assumption, but one that is accepted), a sensitive device will be able to tell if the PSG identifies a minute as sleep and a specific test will be able to tell if the PSG identified the minute as wake. For example, a highly sensitive device will be successful at not missing any sleep periods, but there may be false positives (where it guessed sleep but was wrong). A highly specific test will be very good at finding the wake episodes (but it may score too many wake episodes). There is always a balance between sensitivity and specificity. If sensitivity is too high, the result is a significant number of false positives, and if specificity is too high, the device will “miss” much of what it intends to detect. It is always a difficult balance between the two. Usually for sleep, devices tend to have high sensitivity (very good at detecting sleep) but relatively low specificity (they think some awakenings are still sleep). This leads to a systematic over-estimation of sleep. This is acceptable within reasonable limits. 19. Of note, the largest and most recent validation study of the most widely used scientific-grade actigraph (the Philips Respironics Actiwatch) was recently conducted. In a study that included 77 adults, the authors found that the Actiwatch - an accepted scientific/medical-grade device - demonstrated a rate of agreement of 86.3%, sensitivity of 96.5%, and specificity of 32.9%. These values are similar to other reports of the Actiwatch, which report values similar to this range. In general, a rate of agreement of about 84-86%, a sensitivity of 96-98%, and a specificity of 28-35% is not unusual. (Note that Fitbit is not claiming that its devices are scientific/medical grade.) Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 11 of 16 10 HIGHLY CONFIDENTIAL 20. Dr. Montgomery-Downs identified oufr peer-reviewed studies that were deemed appropriate for examination. Each of these studies had important limitations that undermine Dr. Montgomery-Downs’ criticism. 21. The study by Rosenberger and colleagues15 did not compare Fitbit to PSG. Rather, it was compared to a device called the Z-machine - itself an experimental device that records brain activity in a non-standard way to approximate PSG sleep. Therefore, this study should have been excluded since it did not meet the criteria of evaluating relative to PSG. Still, in this study, the Bland-Altman plots showed that there was no systematic worsening of estimation as sleep time changed, relative to the Z machine output. Although there was a general over-estimation of sleep, this is a common theme for actigraph devices, which have better sensitivity than specificity - that is, they will tend to be biased to see more sleep than the PSG. This, however, is an accepted limitation of the device. Also of note, the Fitbit device evaluated in this study was not even worn on the wrist. 22. The study by Meltzer16 and colleagues should have been excluded as well because it studied children and Fitbit does not advertise, market, or make any claims about the effectiveness of their product in children. Still, the performance of the Fitbit was quite good. The device tended to miss about 30 minutes of sleep during the night and about 5 minutes at the start of the night. The overall accuracy was 84%, sensitivity was 87%, and specificity was 52%. A direct comparison to established devices is possible since this study also used the Actiwatch, as well as the Motionlogger (from Ambulatory Monitoring, Inc.). When compared with Motionlogger, Fitbit devices overestimated sleep by about 30 minutes on average, though only 15 Rosenberger, et al., Twenty-four Hours of Sleep, Sedentary Behavior, and Physical Activity with Nine Wearable Devices, MED SCI SPORTS EXERC. (2016), 457-65. 16 Meltzer, et al., Comparison of a Commercial Accelerometer with Polysomnography and Actigraphy in Children and Adolescents, 38 SLEEP 1323 (2015). Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 12 of 16 11 HIGHLY CONFIDENTIAL 8% showed differences over 30 minutes. There was no significant difference with the other gold-standard device, Actiwatch. So even in this population for which the device was not intended, it performed no worse than one of the gold-standard devices and performed comparably, to the other gold-standard device. Note that a 30-minute discrepancy is generally considered clinically acceptable. (Remember that in an 8-hour night, a 30-minute discrepancy still results in an 84% accuracy.) 23. The third study, by de Zambotti17 and colleagues does not support Dr. Montgomery-Downs’ conclusions. Compared to PSG, the Fitbit device was within the clinical satisfactory range for 87% of subjects. On average, the Charge HR did overestimate sleep, but only by about 8 minutes. Accuracy was 91%, sensitivity 97% and specificity 42%. These values are equal to or better than even the gold standard devices. 24. The fourth study was Dr. Montgomery-Downs’ own study.18 In this study, a Fitbit device was compared to Actiwatch and PSG. Both Actiwatch and Fitbit overestimated sleep efficiency (by 14.5% Fitbit and 9.3% Actiwatch). Fitbit overestimated sleep time by 67 minutes on average, compared to 43 minutes with Actiwatch. In this study, sensitivity was reported to be 97.8% and specificity 19.8%, compared to Actiwatch values of 95.7% and 38.9%, respectively. 25. Taken together, these studies show that the Fitbit device does track sleep, and does so quite reliably. Depending on the study, the Fitbit device performed as well as or better than the gold standard scientific devices that have also been examined. Even in the most conservative case (Dr. Montgomery-Downs’ own 2012 study), the performance of the Fitbit was 17 De Zambotti, et al., Measures of sleep and cardiac functioning during sleep using a multi-sensory commercially- available wristband in adolescents, 158 PHYSIOLOGY & BEHAVIOR (2016), 143-49 18 Montgomery-Downs, et al., Movement Toward a Novel Activity Monitoring Device, 16 SLEEP BREATH 913 (2012). Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 13 of 16 12 HIGHLY CONFIDENTIAL slightly better in terms of sensitivity and slightly worse in terms of specificity. Even if the Fitbit device is not quite as accurate as the standard scientific/medical device (which Fitbit does not purport to be), the values are quite close and it cannot be said that the devices are not tracking sleep. 26. Further, the studies that Dr. Montgomery-Downs cites do not support her claim that “Fitbit consumer wearable trackers are not currently able to accurately track hours slept, times awakened, or sleep quality.” Most of the studies were not relevant to the sort of validation questions that would pertain to a consumer wearable, which is not marketed as a scientific/medical device. The only criticism that Dr. Montgomery-Downs can reasonably make based on these data is that the Fitbit device may not track sleep quite as well as the gold standard device, which is used in a laboratory and is not a standard it ever claims to meet. 27. An additional limitation to all of these studies, which is not addressed in the Montgomery-Downs Report, is the interpretation of “restless” epochs. The Fitbit device scores each epoch as “wake” or “sleep” or “restless.” In all of these studies, the researchers chose to interpret “restless” epochs as “sleep” even though it is likely that they should have been considered as “wake.” It is highly likely that if these studies considered “restless” as “wake” and not “sleep” then the agreement would have been much higher. 28. Finally, the Montgomery-Downs Report specifically invalidates the claim that movement-based approaches cannot adequately reflect sleep (a claim made by Dr. Punjabi). The Montgomery-Downs Report specifically notes that actigraphy is a valid and acceptable way to assess sleep. III. CONCLUSIONS 29. It is my opinion that the Punjabi Report’s conclusions regarding the Fitbit devices’ ability to track sleep and sleep quality are incorrect and incomplete. Fitbit’s devices use Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 14 of 16 13 HIGHLY CONFIDENTIAL a scientifically accepted methodology for tracking sleep and are capable of doing so even with any inherent limitations of actigraphy. Every sleep tracking method known today has inherent limitations, including PSG; these do not invalidate the method as Dr. Punjabi would conclude. Further, Dr. Punjabi’s opinions and conclusions do not change my opinion that Fitbit’s representations about its devices’ ability to track sleep, hours slept, sleep quality, and times woken up are truthful and not misleading. 30. It is also my opinion that the Montgomery-Downs Report’s conclusions regarding the Fitbit devices’ ability to track sleep and sleep quality are not only incorrect, but that they are not supported by the evidence that she herself provides to support the claim. Rather than demonstrate that the Fitbit cannot assess sleep duration or quality, the evidence she provides clearly shows that the Fitbit device does measure sleep duration and quality (depending on the study cited). Further, the devices work as well as, better than, or only slightly “worse” than the gold standard scientific/medical devices (which, again, Fitbit does not purport to be). Further, Dr. Montgomery-Downs’ opinions and conclusions do not change my opinion that Fitbit’s representations about its devices’ ability to track sleep, hours slept, sleep quality, and times woken up are truthful and not misleading. 31. The opinions stated herein are based on my own analyses and conclusions. If I become aware of facts, evidence and/or other information not available to me for the preparation of this report, I reserve the right to supplement and/or revise my report and to revise my conclusions if necessary. I also reserve the right to correct typographical errors in this report. Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 15 of 16 14 HIGHLY CONFIDENTIAL I declare under penalty of perjury of the laws of the United States of America that the foregoing is true and correct. DATED: February 28, 2017 _____________________________ Michael A. Grandner Case 3:15-cv-02077-JD Document 153-14 Filed 04/20/17 Page 16 of 16 Case 3:15-cv-02077-JD Document 153-15 Filed 04/20/17 Page 1 of 5 Case 3:15-cv-02077-JD Document 153-15 Filed 04/20/17 Page 2 of 5 Case 3:15-cv-02077-JD Document 153-15 Filed 04/20/17 Page 3 of 5 Case 3:15-cv-02077-JD Document 153-15 Filed 04/20/17 Page 4 of 5 Case 3:15-cv-02077-JD Document 153-15 Filed 04/20/17 Page 5 of 5 Case 3:15-cv-02077-JD Document 153-16 Filed 04/20/17 Page 1 of 7 Case 3:15-cv-02077-JD Document 153-16 Filed 04/20/17 Page 2 of 7 Case 3:15-cv-02077-JD Document 153-16 Filed 04/20/17 Page 3 of 7 Case 3:15-cv-02077-JD Document 153-16 Filed 04/20/17 Page 4 of 7 Case 3:15-cv-02077-JD Document 153-16 Filed 04/20/17 Page 5 of 7 Case 3:15-cv-02077-JD Document 153-16 Filed 04/20/17 Page 6 of 7 Case 3:15-cv-02077-JD Document 153-16 Filed 04/20/17 Page 7 of 7 EXHIBIT I (Filed Under Seal) Case 3:15-cv-02077-JD Document 153-17 Filed 04/20/17 Page 1 of 1 Case 3:15-cv-02077-JD Document 153-18 Filed 04/20/17 Page 1 of 6 Case 3:15-cv-02077-JD Document 153-18 Filed 04/20/17 Page 2 of 6 Case 3:15-cv-02077-JD Document 153-18 Filed 04/20/17 Page 3 of 6 Case 3:15-cv-02077-JD Document 153-18 Filed 04/20/17 Page 4 of 6 Case 3:15-cv-02077-JD Document 153-18 Filed 04/20/17 Page 5 of 6 Case 3:15-cv-02077-JD Document 153-18 Filed 04/20/17 Page 6 of 6 Case 3:15-cv-02077-JD Document 153-19 Filed 04/20/17 Page 1 of 7 Case 3:15-cv-02077-JD Document 153-19 Filed 04/20/17 Page 2 of 7 Case 3:15-cv-02077-JD Document 153-19 Filed 04/20/17 Page 3 of 7 Case 3:15-cv-02077-JD Document 153-19 Filed 04/20/17 Page 4 of 7 Case 3:15-cv-02077-JD Document 153-19 Filed 04/20/17 Page 5 of 7 Case 3:15-cv-02077-JD Document 153-19 Filed 04/20/17 Page 6 of 7 Case 3:15-cv-02077-JD Document 153-19 Filed 04/20/17 Page 7 of 7