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Wearable Fitness Tracking Devices
Just 18 months ago, PricewaterhouseCoopers reported that over one out of every five United States consumers currently owns some form of wearable technology. See PwC Health Research Institute, Health Wearables: Early Days, at 2. The hopes and expectations for such devices in connection with health and wellness are very high ' for example, almost half of all consumers surveyed on the issue believed that wearable technology will decrease obesity. See id. at 1. Given such high expectations, as the use of fitness trackers and other personal monitoring devices becomes more prevalent, an increase in consumer litigation over them is inevitable. Because such devices are still cutting-edge in many respects, the opportunities for unexpected manufacturing and design problems is also high. And because some of the data involved may be highly personal, the risk of privacy breach claims is certainly not zero.
Given the relatively small amount of damage that any one individual would likely suffer from these issues with respect to even the most costly of wearable devices, much of this litigation may end up in class actions. Indeed, this pattern is already emerging, as several significant class actions involving wearables have already been attempted. To date, such lawsuits have generally asserted claims for breach of warranty or for unfair and deceptive practices when the devices at issue failed to meet consumer technology expectations. As was true in what may be a parallel example of rapid consumer adoption of technology ' cellphones ' the early wearables cases already demonstrate how attention to issues such as terms and conditions of use, choice of law, and careful advertising and collateral wording will matter a great deal in the resolution of litigation.
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