17.  As introduced above, “beacons” are new technologies that seek to track and  monitor consumers and how they interact with advertisements and marketing.2 Fundamental to  2   Beacon Technology: The Where, What, Who, How and Why,  http://www.forbes.com/sites/homaycotte/2015/09/01/beacon-technology-the-what-who-how- why-and-where/#668c740b4fc1 (last visited Nov. 15, 2016).  5  beacon technology is the smartphone, which consumers carry on their person everywhere they  go. Built into smartphones are a plethora of radio transmitting and receiving devices, including a  “Bluetooth” radio.       18.  Bluetooth is a wireless personal area network technology used for transmitting  data over short distances. A smartphone with Bluetooth will invariably attempt to communicate  with other Bluetooth devices in its vicinity. While those other Bluetooth devices take the form of  hands-free car radios, headphones, or stereos, marketers found a new use—canvasing Bluetooth  devices in specific locations (e.g., retail stores) that exist only to capture an attempted Bluetooth  connection. By monitoring which Bluetooth radio (and the corresponding smartphone and  owner) attempts to connect to the placed-Bluetooth devices, marketers can track the physical  path a smartphone takes through that location.   19.  For instance, suppose a department store placed a Bluetooth beacon in the men’s  shoes, accessories, and children’s departments. While the consumer navigates from the men’s  shoes department to the children’s department, his or her smartphone would attempt to connect  to the beacons in the men’s shoes and then the children’s departments. The retailer now would  have a record of that path, which may inform the retailer on certain consumer behavior.   20.  The next logical step for marketers was to create beacons that interact more fully  with consumer’s smartphone. In that same example described above, the retailer might want to  cause the consumer’s smartphone to “pop up” an alert whenever he or she enters the kids  department. The pop up could be simple text advertising a sale or even a coupon. For this to  work, however, the retailer would need access to the consumer’s smartphone through an  application or a system-wide protocol.   21.  Because beacon tracking is inherently invasive (consumers are continuously  6  tracked), industry standards dictate that consumers opt-in to beacon tracking.3 Often, the form of  the opt-in is through the Apple iBeacon protocol in Apple iPhones, or through an application  developer’s mobile application. If the retailer, in the example above, operates their own mobile  application, they might seek consent through an explicit disclosure or, at least, a privacy policy.    22.  Defendant Lisnr utilizes a novel beacon technology called audio beacons.  Defendant Lisnr’s audio-based beacon technology, in contrast to Bluetooth beacon technology,  requires Defendant Lisnr to ascertain a consumer’s physical location through sounds rather than  through radio signals. Instead of canvasing a location with only Bluetooth devices, Lisnr partners  with entities like the Colts to place speakers throughout locations. Each speaker is mapped to a  location and emits a unique audio signal. A device that can “hear” a Lisnr audio beacon must be  near that speaker. As such, Lisnr is able to quickly ascertain the location of that device and its  approximate distance from the speaker.    23.  Lisnr describes its beacon technology in the following way:   LISNR is the creator of SmartTones, a new technology that sends data over audio.  LISNR uses an inaudible digital sound file to turn any device into a beacon.  LISNR gives brands and content creators a platform that delivers second-screen  experiences and proximity-based messaging.4   24.  But for the technology to work, Lisnr requires a microphone to continuously  listen for its audio signals. For that, Lisnr involuntarily enlists thousands of sports fans that have  downloaded and installed the app from their favorite team.     34.  Plaintiff Alan Rackemann downloaded the App sometime in 2012 from the  Google Play store. As soon as the App downloaded, Plaintiff opened the App. Over the years,  Plaintiff regularly used the App to follow the progress of the Indianapolis Colts. Over that time  period, the App was also regularly updated. Plaintiff stopped using the App on or about mid- September 2016 when he became aware that it was listening in.    35.  From 2012 until mid-September 2016, Plaintiff carried his smartphone on his  person. He would take his smartphone to places where he would not invite other people, and to  places where he would have private conversations. That is, his phone was present in locations  and personal and private situations not generally accessible to the public where the expectation  was that his conversations were to remain private.    36.  Unbeknownst to Plaintiff and without his consent, Defendants programmed the  App to turn on his smartphone’s Microphone and listen-in. Specifically, because Plaintiff carried  his smartphone to locations where he would have private conversations and the App was  continuously running on his phone, Defendants App listened-in to private oral communications.    37.  At no time did Plaintiff consent to the App using his Microphone to listen-in to  his oral conversations.  38.  Class Definition: Plaintiff brings this action pursuant to Fed. R. Civ. P. 23(b)(2)  and (3) on behalf of himself and a Class of similarly situated individuals, defined as follows:  11  Lisnr Class: All individuals in the United States who downloaded and opened  any mobile application from the Google Play store that included but did not  disclose the presence of Lisnr audio beacon code.  Colts Class: All individuals in the United States who downloaded and opened the  Indianapolis Colts mobile application from the Google Play store.   Excluded from the Classes (the “Class,” unless otherwise specified) are: (1) any Judge or  Magistrate presiding over this action and members of their families; (2) Defendants, Defendants’  subsidiaries, parents, successors, predecessors, and any entity in which the Defendants or their  parents have a controlling interest and their current, former, purported, and alleged employees,  officers, and directors; (3) counsel for Plaintiff and Defendants; (4) persons who properly  execute and file a timely request for exclusion from the Class; (5) the legal representatives,  successors, or assigns of any such excluded persons; and (6) all persons who have previously had  claims similar to those alleged herein finally adjudicated or who have released their claims  against Defendants.   39.  Numerosity: The exact number of Class members is unknown to Plaintiff at this  time, but it is clear that individual joinder is impracticable. Defendants have listened in on  thousands of consumers who fall into the Class definition. Ultimately, the Class members will be  easily identified through Defendants’ records.   40.  Commonality and Predominance: There are many questions of law and fact  common to the claims of Plaintiff and the Class, and those questions predominate over any  questions that may affect individual Class members. Common questions for the Class include,  but are not necessarily limited to the following:  a)  whether Defendants listened to and/or recorded the Class members’ oral  communications;   b)  whether Defendants obtained consent to listen to and/or record the Class  members’ oral communications;  12  c)  whether Defendants used the contents of Class members’ oral  communications for Defendants’ benefit;  d)  whether Defendants’ conduct violates the Electronic  Communications Privacy Act, 18 U.S.C. §§ 2510, et seq.; and  e)  whether Plaintiff and the Class members are entitled to equitable relief as  well as actual and/or statutory damages resulting from Defendants’  conduct.   41.  Typicality: Plaintiff’s claims are typical of the claims of all the other Class  members. Plaintiff and the Class members sustained substantially similar damages as a result of  Defendants’ uniform wrongful conduct, based upon the same interactions that were made  uniformly with Plaintiff and the public.   42.  Adequate Representation: Plaintiff will fairly and adequately represent and  protect the interests of the other Class members. Plaintiff has retained counsel with substantial  experience in prosecuting complex litigation and class actions. Plaintiff and his counsel are  committed to vigorously prosecuting this action on behalf of the Class members and have the  financial resources to do so. Neither Plaintiff nor his counsel has any interest adverse to those of  the other Class members.   43.  Policies Generally Applicable to the Classes: Defendants have acted and failed  to act on grounds generally applicable to Plaintiff and the other Class members, requiring the  Court’s imposition of uniform relief to ensure compatible standards of conduct toward the  Classes.   44.  Superiority: This case is also appropriate for class certification because class  proceedings are superior to all other available methods for the fair and efficient adjudication of  this controversy as joinder of all parties is impracticable. The damages suffered by individual  Class members will likely be relatively small, especially given the burden and expense of  13  individual prosecution of the complex litigation necessitated by Defendants’ actions. Thus, it  would be virtually impossible for individual Class members to obtain effective relief from  Defendants’ misconduct. Even if Class members could sustain such individual litigation, it  would still not be preferable to a class action, because individual litigation would increase the  delay and expense to all parties due to the complex legal and factual controversies presented in  this Complaint. By contrast, a class action presents far fewer management difficulties and  provides the benefits of single adjudication, economies of scale, and comprehensive supervision  by a single Court. Economies of time, effort, and expense will be fostered and uniformity of  decisions ensured.   45.  Plaintiff reserves the right to revise the Class Definitions and Class Allegations  based on further investigation, including facts learned in discovery.  46.  Plaintiff incorporates by reference the foregoing allegations.   47.  The Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. prohibits  any person from intentionally intercepting any oral communication or from intentionally using,  or endeavoring to use, the contents of any oral communication while knowing or having reason  to know that the information was obtained through the interception of an oral communication. 18  U.S.C. §§ 2511(1)(a), (d).   48.  Plaintiff and each member of the Lisnr Class downloaded and installed an  application with Defendant Lisnr’s audio beacon technology built in.   49.  During the time Plaintiff and the members of the Lisnr Class had (or still have)  14  the applications with Defendant Lisnr’s audio beacon technology built in, Defendant Lisnr  intercepted (by listening in and recording) Plaintiff’s and the Lisnr Class’s private conversations,  including oral communications, where Plaintiff and the Lisnr Class exhibited expectations that  such communications were to remain private and would not otherwise be subject to interception  under circumstances justifying such expectation. 18 U.S.C. § 2510(2).   50.  Defendant Lisnr did not inform nor obtain consent from Plaintiff and the Lisnr  Class to listen in and/or record their private conversations. Plaintiff and the Lisnr Class had no  reason to know or suspect that Defendant Lisnr would constantly and continuously record and  analyze their conversations.   51.  As detailed herein, Defendant Lisnr programmed applications with its audio  beacon technology to listen to and record oral communications belonging to Plaintiff and  members of the Class as soon as technically feasible and used the contents of those  communications to its economic benefit, including for marketing purposes.   52.  At all times, Defendant Lisnr acted intentionally by programming the audio  beacon technology and partnering with app developers to include in their applications and to turn  on consumers’ Microphones without consent.   53.  As a proximate cause of Defendant Lisnr’s violation of the ECPA, Plaintiff and  members of the Class have been injured by and through the wear and tear on their smartphones,  consuming the battery life of their smartphones, and diminishing their use, enjoyment, and utility  of their devices.   54.  Plaintiff and the members of the Lisnr Class suffered harm as a result of  Defendant Lisnr’s violations of the ECPA, and therefore seek (a) preliminary, equitable and  declaratory relief as may be appropriate, (b) the sum of the actual damages suffered and the  15  profits obtained by Defendant Lisnr as a result of its unlawful conduct, or statutory damages as  authorized by 18 U.S.C. § 2520(2)(B), whichever is greater, (c) punitive damages, and (d)  reasonable costs and attorneys’ fees.  55.  Plaintiff incorporates by reference the foregoing allegations.   56.  The Electronic Communications Privacy Act, 18 U.S.C. §§ 2510, et seq. prohibits  any person from intentionally intercepting any oral communication or from intentionally using,  or endeavoring to use, the contents of any oral communication while knowing or having reason  to know that the information was obtained through the interception of an oral communication. 18  U.S.C. §§ 2511(1)(a), (d).   57.  Plaintiff and each member of the Colts Class downloaded and installed the Colts  App with Defendant Lisnr’s audio beacon technology built in.   58.  During the time Plaintiff and the members of the Colts Class had (or still have)  Defendants’ App on their smartphones, Defendants intercepted (by listening in and recording)  Plaintiff’s and the Colts Class’s private conversations, including oral communications, where  Plaintiff and the Colts Class exhibited expectations that such communications were to remain  private and would not otherwise be subject to interception under circumstances justifying such  expectation. 18 U.S.C. § 2510(2).   59.  Defendants did not inform nor obtain consent from Plaintiff or the Colts Class to  listen to and record their private conversations. Plaintiff and the Colts Class had no reason to  know or suspect that the App would constantly and continuously record and analyze their  16  conversations.   60.  As detailed herein, once the App is downloaded and opened on their smartphones,  Defendants listen to and record oral communications belonging to Plaintiff and members of the  Class and use the contents of those communications to their economic benefit, including for  marketing purposes.   61.  At all times, Defendants acted intentionally by programming the App to  specifically turn on consumers’ Microphones without consent. And, each defendant is integrally  involved with the inclusion of the Lisnr audio beacon code and with the operation of the  offending software.   62.  The Colts leveraged its mobile application with a large number of consumers who  downloaded and installed the App (likely greater than 50,000) to serve as the host of the Lisnr  audio beacon technology. Reasonable consumers that downloaded the Colts App did not have the  understanding that the requested “microphone” permission would result in the surreptitious  monitoring of their oral communications. Instead, consumers trusted the Colts when they  downloaded the application. And when the Colts requested the microphone permission,  consumers trusted that it was for some disclosed purpose (e.g., media). Without the Colts’  trusting fans, Defendants could not have obtained access to enough microphones for their  scheme to be viable.   63.  Defendant Lisnr, for its part, not only provided the specific technology at issue  here, but was and is integral to the continued operation of the listening device. Specifically, Lisnr  owns and controls the rule issuing server that causes consumers’ microphones to activate.  Without Lisnr’s server, consumers’ microphones would not be activated. As a result, Lisnr’s  actions are an integral link in the development and operation of the listening device (i.e., the  17  App) that performs the unlawful interceptions at issue.   64.  Defendant Adept Mobile develops and maintains the codebase of the App and  ensures the deliverability of the App to the Google Play Store and, ultimately, consumers. Adept  Mobile integrated the Lisnr audio beacon technology into the Colts App, conducted testing and  analysis, and then issued the App for distribution through the Google Play Store and to  consumers. Adept Mobile’s actions are an integral link in the development and distribution of the  listening device (i.e., the App) that performs the unlawful interceptions at issue.   65.  As a proximate cause of Defendants’ violation of the ECPA, Plaintiff and  members of the Colts Class have been injured by and through the wear and tear on their  smartphones, consuming the battery life of their smartphones, and diminishing their use,  enjoyment, and utility of their devices.   66.  Plaintiff and the Colts Class members suffered harm as a result of Defendants’  violations of the ECPA, and therefore seek (a) preliminary, equitable and declaratory relief as  may be appropriate, (b) the sum of the actual damages suffered and the profits obtained by  Defendants as a result of its unlawful conduct, or statutory damages as authorized by 18 U.S.C. §  2520(2)(B), whichever is greater, (c) punitive damages, and (d) reasonable costs and attorneys’  fees.  I.  An Introduction to Beacon Surveillance Technology.   Violation of the Electronic Communications Privacy Act  Against Defendant Lisnr  18 U.S.C. §§ 2510, et seq.  (On Behalf of Plaintiff and the Lisnr Class)   Violation of the Electronic Communications Privacy Act  Against All Defendants  18 U.S.C. §§ 2510, et seq.  (On Behalf of Plaintiff and the Colts Class)  