10.  Millions of consumers purchase cardio equipment to exercise from the  convenience of home. Precor, generally considered a premium brand, caters directly to this  market, declaring that it “designs and builds premium fitness equipment for effective workouts  that feel smooth and natural . . . for nearly three decades, we've driven fitness forward with a  passionate focus on ergonomic motion, proven science, and superior engineering. We constantly  study and anticipate the needs of the people and organizations we serve, and continually redefine  4  409061.1  the levels of innovation, quality, and service necessary to deliver the very best fitness  experiences.”1     11.  For many consumers, achieving an optimal heart rate throughout their workout  session is a paramount concern.  As one prominent fitness website explains: “[w]hen losing  weight and improving your cardiovascular health, it all comes down to your heart rate.  Monitoring your heart and working out within zones will enhance your overall health and  physical performance.”  The Mayo Clinic advises that “[i]f you like technology and care about  the numbers, a heart rate monitor might be a useful device for you.”  FitDay says that heart rate  monitoring is “an essential part of any workout.”     12.  An article on Precor’s own website even describes the critical significance of  staying within specific target zones while exercising:  Heart rate training zones help reach fitness and athletic goals more  efficiently.  The heart responds to exercise by altering the  frequency of beats per minute according to the training intensity.   An easy way to gain full benefit from an exercise program is to  establish heart rate training zones that cover the full range of heart  rate responses to exercise.  Heart rate training zones bring  specificity to training, whether to target improvements in general  fitness or weight loss or to develop endurance, speed or power.   13.  Heart rate monitoring tools come in all shapes and sizes, from watches to chest  straps to handheld grips.  Many of these devices can cost several hundred dollars.  But Precor  allows the consumer the chance to avoid this separate purchase by charging a premium price for  treadmills, ellipticals, bicycles, and AMTs equipped with Precor’s “touch sensor heart rate”  monitors, already pre-installed and incorporated in its machines.     14.  On its website, Precor advertises five treadmill models (the 9.23, 9.27, 9.31, 9.33,  and 9.35), eight elliptical models (the 5.21, 5.23, 5.25, 5.31, 5.33, 5.37, 833, and 835), six  1 http://www.precor.com/en-us/about-precor (last visited May 15, 2014).  5  409061.1  stationary bicycles (the 615, 815, and 835, each coming in both upright and recumbent models),  and an “Adaptive Motion Trainer” (the AMT 835), all of which incorporate touch sensor heart  rate monitoring.     15.  For example, the product brochure for the 9.23 Treadmill invites the consumer to  “[m]aximize your workout results with touch sensor heart rate monitoring.”  The owner’s manual  for the 9.23 model advises the consumer to “[k]now your heart rate and your physician  recommended heart rate target zone,” cautioning not to use the heart rate programs “until  authorized by your physician.”  Precor makes the same statements for the 5.21 elliptical,  representing that the heart rate monitoring feature can safely be used and relied upon in  accordance with a physician’s advised activity level and approved heart rate target range.   Similarly, the specifications for the AMT 835 tout its “[h]andheld heart rate sensors located on  fixed handlebars for increased accuracy and ease of use by exercisers of all sizes,” and the  owner’s manual for the 815 upright bicycle provides the user instructions “to ensure an accurate  heart rate readout.”   16.  This feature is designed to permit users to maintain a heart rate within their  “target zone,” maximizing results and ensuring safe use.  For this reason, Precor advises that  users keep their “physician-recommended target heart rate zone” in mind when utilizing the heart  rate monitoring features.  Precor represents that the “[t]ouch rate heart sensors” offer “increased  accuracy and ease-of-use by users of all sizes.”   17.  Precor consistently touts its products’ touch sensor heart rate monitoring  technology in advertisements, product brochures, and on its website and the websites of  authorized dealers (including Chicago Home Fitness):  6  409061.1  7  409061.1  8  409061.1   18.  Precor’s touch sensor technology, if functioning correctly and as represented,  should “measure[] a person’s heart rate by registering the small electrical signals carried across  the surface of a person’s skin each time his or her heart contracts,” measuring the signal “at the  surface of the skin by electrodes embedded in the hand grips.”    19.  In reality, however, Precor’s heart rate technology is plagued with design flaws  that prevent the technology from providing accurate heart rate measures, and consumers’  experiences have been contrary to Precor’s explicit representations.  The heart rate monitoring  systems either do not always work at all or, when they do, provide consistently unreliable and  erroneous readings, making Precor’s representations false and misleading.   20.  Treadmills, ellipticals, and other cardio equipment incorporate heart rate  monitoring systems to provide consumers with a reliable measure of their activity level and to  ensure that consumers are able to maintain a level within their necessary or desired target range.  As such, the manufacturer/seller’s assertions as to the equipment’s heart rate monitoring  capability weighs heavily on the consumer’s decision to make the purchase, and influences the  price consumers pay for such fitness equipment.    21.  Precor knows or has reason to know that the heart rate monitoring systems  incorporated in its fitness machines fail to achieve the results warranted.  To represent that these  systems will allow the consumer to “[e]xercise to your target heart rate” is deceptive, misleading,  and fraudulent.   22.  Precor misrepresented its heart rate monitoring technology with the intent and  purpose of inducing consumers to purchase its fitness equipment, made numerous material  omissions in its literature, and uniformly withheld important information relating to the design,  reliability, and performance of its heart rate monitoring technology.  9  409061.1   23.  Despite the fact that Precor knew its heart rate technology was defective and  would not perform as advertised, warranted, or otherwise expressly represented, Defendant  continued to sell the product to the public without correction.   24.  Defendant continues to conceal from the public the fact that its heart rate  monitoring technology is defective and does not work, despite having received a number of  consumer complaints related to that technology.  For example, one consumer, writing on  Precor’s own website, complains that he is “unable to get a heart rate reading that is anywhere  near accurate; I’ve given up on this feature entirely.”  Another consumer writes:  The heart rate monitor feature does not work . . . [f]or example, I  wear a heart rate monitor and the treadmill reads 93 after running  for 20 minutes while my heart rate monitor is reading 171! I have  tried the heart rate feature multiple times with no success.  Yet another writes:  I can't seem to get the Heart Rate to measure correctly (I've only  managed to have it hit 135 despite running for 12 minutes). I know  this is too low because we used to have a professional treadmill at  my old apartment building (we just moved out) and I used to hit  155-160.   25.  Consumer complaints also indicate that these problems are not generic to all touch  sensor monitoring technology across various brands, but rather are specific to Precor’s own  technology:  The heart rate monitor was another complaint that I had with the  Precor. Like many cardio machines, this elliptical has  s[il]ver/metal looking sensors on the railing handles. But most of  the time, the sensors would not pick up my heart rate at all. The  Lifefitness treadmill has the same HR monitors on the movable  arms/handles, and while sometimes spotty, I've used them dozens  of times and they worked GREAT in comparison to the Precor  sensors.  10  409061.1   26.  Despite its knowledge of the problem, Precor has continued to misrepresent to  consumers that its heart rate monitoring systems will provide reliable results. Consumers would  not have purchased Precor’s fitness equipment (or paid the inflated prices charged) had they  known that this was not true.   27.  Plaintiff is such a consumer.  After suffering a heart attack in 2013, Plaintiff had  been advised by his physician to purchase a home exercise machine capable of monitoring his  heart rate while exercising.  Plaintiff was specifically instructed by his physician that he needed  to maintain his heart rate within certain parameters while exercising or risk danger to his heath.   Upon receiving this advice, Plaintiff went to the marketplace to purchase exercise equipment that  provided heart rate monitoring capabilities.  Prior to purchasing a Precor treadmill, Plaintiff  viewed and relied on Precor’s product specifications – including the specifications regarding  heart rate monitoring – which played an integral part in Plaintiff’s decision to purchase Precor’s  product over other, similar treadmills on the market.     28.  After Plaintiff purchased the Precor treadmill, Plaintiff soon learned that its heart  rate monitoring feature did not work.  Plaintiff proved unable to obtain an accurate heart rate  reading even after multiple attempts.     29.  On or about January 8, 2014, Plaintiff called Precor’s customer helpline to  complain about the issue.  Plaintiff spoke to “Rachel,” who assigned him case number 58675 and  transferred him to another representative, “Raymond.”   30.  Raymond initially informed Plaintiff that the 9.23 treadmill could be modified for  use with a chest strap, which would provide a more accurate heart rate reading.  However, in a  subsequent telephone conversation shortly thereafter, Raymond informed Plaintiff that Precor  was aware of problems with the heart rate monitors in the 9.23 and 9.27 treadmill models and  11  409061.1  was working to improve those models in the future, but a chest strap would neither solve his  problem nor provide a more accurate reading.  Raymond advised Plaintiff to purchase a “Polar”  heart rate monitor, a product costing up to $160, out of his own pocket.   31.  After Plaintiff asked to speak with a Precor manager, “Steve” informed him that  he should have tested the handgrip monitor prior to making his purchase.     32.  In or about January 2014, Plaintiff received a call from Nancy Reamy, Precor’s  Head of Customer Relations.  Ms. Reamy again told Plaintiff that the defective heart rate  monitor was Plaintiff’s own fault because he did not adequately test the handgrips.  Ms. Reamy  further instructed Plaintiff to purchase a separate heart rate monitor at his own expense.     33.  Based on Plaintiff’s experience, Plaintiff is informed and believes that Precor  systematically rejects repeated complaints from its customers to provide a solution to the known  defects in its heart rate monitoring technology.   34.    Precor has full knowledge of the deceptive and misleading nature of its product  specifications and advertising materials, but has yet done nothing to compensate its customers  for financial losses related to these misrepresentations, or discontinue the use of these deceptive  and misleading misrepresentations in its dealings with customers or through third-party retailers.     35.  As a direct result of Precor’s actions set forth herein, Plaintiff and the consumers  who comprise the Classes who have purchased Precor equipment with heart rate monitoring  systems have suffered injuries in fact, have been damaged and have suffered a loss of money or  property for having paid thousands of dollars for a product that does not, cannot, and will not  work as expected and that is worth less than what the consumer paid.   36.  Precor’s misrepresentations and/or material omissions are deceptive, misleading  and fraudulent, have caused consumers to purchase Precor equipment with heart rate monitoring  12  409061.1  systems over other models and have caused consumers to pay more for this Precor equipment  than they would have but for Precor’s misrepresentations and material omissions.   37.  Plaintiff brings this action on behalf of himself and those similarly situated and  seeks certification of the following Class against Precor for violations of Illinois state laws and  laws of other states that are materially similar to the laws of Illinois (the “Multi-State Class”):  Multi-State Class  All persons who purchased a Precor fitness machine equipped with  a touch sensor heart rate monitor from either Precor or a third- party retailer who are residents of Illinois, Arkansas, California,  Colorado, Connecticut, Delaware, the District of Columbia,  Florida,  Hawaii,  Idaho,  Maine,  Massachusetts,  Michigan,  Minnesota,  Missouri,  Montana,  Nebraska,  Nevada,  New  Hampshire, New Jersey, New Mexico, New York; North Dakota,  Oklahoma, Oregon, Rhode Island, South Dakota, Virginia,  Vermont, Washington, West Virginia, and Wisconsin.  Excluded  from the Class are defendant herein, and any person, firm, trust,  corporation, or other entity related to or affiliated with defendants,  including, without limitation, persons who are directors of Precor.  Also excluded is any judicial officer presiding over this matter and  the members of their immediate families and judicial staff.   38.  In the alternative, Plaintiff brings this action on behalf of himself and all other  similarly situated Illinois-resident purchasers of Precor products with heart rate monitoring  systems and seeks certification of the following Class (the “Illinois Resident Class”):  Illinois Resident Class  All Illinois residents who purchased a Precor fitness machine  equipped with a touch sensor heart rate monitor from either Precor  or a third-party retailer. Excluded from the Class are defendant  herein, and any person, firm, trust, corporation, or other entity  related to or affiliated with defendants, including, without  limitation, persons who are directors of Precor. Also excluded is  any judicial officer presiding over this matter and the members of  their immediate families and judicial staff.  13  409061.1   39.  Each Class is composed of no fewer than thousands of persons nationwide and is  sufficiently numerous for class treatment.  The joinder of all Class members individually in one  action would be impracticable, and the disposition of their claims in a class action will provide  substantial benefits to the parties and the Court.   40.  Plaintiff’s claims are typical of the claims of each Class, and Plaintiff has no  interests adverse to the interests of other members of the Classes.   41.  This dispute raises questions of law and fact that are common to all Class  members.  Those common questions predominate over questions that arise on an individual basis  for Class members.  The common questions of law and fact include, without limitation:  (a)  Whether Precor’s representations, omissions and conduct regarding the  marketing and sale of its products with heart rate monitoring systems were  misleading or false;  (b)  Whether Precor engaged in deception in its marketing and sale of products  with heart rate monitoring systems;  (c)  Whether Precor’s representations, omissions and conduct regarding  products with heart rate monitoring systems were likely to deceive  consumers;  (d)  Whether Plaintiff and the Class members were deceived by Defendants’  representations, omissions and conduct regarding the Precor products with  heart rate monitoring systems;  (e)  Whether Precor violated the laws alleged herein;  (f)  Whether the members of the Class have been injured by Precor’s conduct;  (g)  Whether the members of the Class have sustained damages and are  14  409061.1  entitled to restitution as a result of Precor’s wrongdoing and, if so, what is  the proper measure and appropriate formula to be applied in determining  such damages and restitution, and;  (h)  Whether the members of the Class are entitled to injunctive relief.   42.  Plaintiff will fairly and adequately represent the Classes and has retained counsel  experienced and competent in the prosecution of consumer and class action litigation.  Plaintiff  anticipates no difficulty in the management of this litigation as a class action.    43.  A class action is superior to other available methods for the fair and efficient  adjudication of the controversy.  A class action will permit a large number of similarly situated  persons to prosecute their common claims in a single forum simultaneously, efficiently and  without the duplication of effort and expense that numerous individual actions would engender.   Class treatment also will permit the adjudication of relatively small claims by many Class  members who could not otherwise afford to seek legal redress for the wrongs complained of  herein.  If a Class action is not permitted, Class members will continue to suffer losses and  Precor’s misconduct will continue without proper remedy.   44.  Precor has acted and refused to act on grounds generally applicable to each Class,  thereby making appropriate final injunctive relief or corresponding declaratory relief with  respect to the Classes as a whole.    45.  Plaintiff adopts and incorporates by reference paragraphs 1 through 36 as if fully  set forth herein.  15  409061.1   46.  Plaintiff brings this Count individually and on behalf of the other members of the  Multi-State and Illinois Resident Classes defined above.     47.  The Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS  505/2) prohibits unfair or deceptive acts or practices in connection with any trade or commerce,  including, among other things, “the use or employment of any deception, fraud, false pretense,  false promise, misrepresentation or the concealment, suppression or omission of any material  fact,…whether any person has in fact been misled, deceived, or damaged thereby.” The Act also  prohibits suppliers from representing that their goods are of a particular quality or grade that they  are not.    48.  Defendant’s misrepresentations and material omissions constitute unfair  competition or unfair, unconscionable, deceptive, fraudulent or unlawful acts or business  practices in violation of the Act and the following State consumer protection statutes, which are  materially similar to the Act: Arkansas (Ark. Code § 4-88-101, et seq.); California (Cal. Bus. &  Prof. Code § 17200, et seq. and Cal. Civil Code § 1750, et seq.); Colorado (Colo. Rev. Stat. § 6- 1-101, et seq.); Connecticut (Conn. Gen. Stat. § 42-110, et seq.); Delaware (Del. Code tit. 6, §  2511, et seq.); District of Columbia (D.C. Code § 28-3901, et seq.); Florida (Fla. Stat. § 501.201,  et seq.); Hawaii (Haw. Rev. Stat. § 480-1, et seq.); Idaho (Idaho Code § 48-601, et seq.); Maine  (Me. Rev. Stat. tit. 5 § 205-A, et seq.); Massachusetts (Mass. Gen. Laws Ch. 93A, et seq.);  Michigan (Mich. Comp. Laws § 445.901, et seq.); Minnesota (Minn. Stat. § 325F.67, et seq.);  Missouri (Mo. Rev. Stat. § 407.010, et seq.); Montana (Mo. Code. § 30-14-101, et seq.);  Nebraska (Neb. Rev. Stat. § 59-1601, et seq.); Nevada (Nev. Rev. Stat. § 598.0915, et seq.); New  Hampshire (N.H. Rev. Stat. § 358-A:1, et seq.); New Jersey (N.J. Stat. § 56:8-1, et seq.); New  Mexico (N.M. Stat. § 57-12-1, et seq.); New York (N.Y. Gen. Bus. Law § 349, et seq.); North  16  409061.1  Dakota (N.D. Cent. Code § 51-15-01, et seq.); Oklahoma (Okla. Stat. tit. 15 § 751, et seq.);  Oregon (Or. Rev. Stat. § 646.605, et seq.); Rhode Island (R.I. Gen. Laws § 6-13.1-1, et seq.);  South Dakota (S.D. Code Laws § 37-24-1, et seq.); Virginia (VA Code § 59.1-196, et seq.);  Vermont (Vt. Stat. tit. 9, § 2451, et seq.); Washington (Wash. Rev. Code § 19.86.010, et seq.);  West Virginia (W. Va. Code § 46A-6-101, et seq.); and Wisconsin (Wis. Stat. § 100.18, et seq.).   49.  Defendant’s deceptive or unfair practices took place in the course of trade and  commerce.    50.  Defendant intended for Plaintiff and the Classes to rely on these deceptive and  unfair practices when Plaintiff and the Classes purchased a Precor product with a heart rate  monitoring system.    51.  Plaintiff and the Class have suffered injuries in fact and actual damages, including  financial losses resulting from overpayment for Precor products with heart rate monitoring  systems due to Defendant’s violations of the Act and the materially similar consumer fraud laws  of other states, as alleged herein. These injuries are of the type that the above State consumer  protection statutes were designed to prevent and are the direct and proximate result of  Defendant’s unlawful conduct.  52.  Plaintiff adopts and incorporates by reference paragraphs 1 through 36 as if fully  set forth herein.   53.  Plaintiff brings this Count individually and on behalf of the members of the  Multi-State and Illinois Resident Classes defined above.  17  409061.1   54.  As alleged herein, Defendant expressly warranted through advertisements, online  marketing and product packaging and labeling that the heart rate monitoring systems on its  products would provide an accurate reading of the user’s heart rate.   55.  Defendant’s warranties were expressly disclosed to Plaintiff and members of the  Classes in advertisements, promotional materials, product packaging and owner’s manuals.   Plaintiff and members of the Classes purchased Precor products with heart rate monitoring  systems based upon the above-said express warranties, relying on the truthfulness of the express  warranties asserted by Defendant in deciding to purchase these products.   56.  Defendant expressly warranted its goods to the ultimate consumers and the  express warranties were the basis of the bargain.   57.  Defendant breached its express warranties by selling a product that either does not  work or does not provide an accurate reading of the user’s heart rate.   58.  As a direct and proximate result of Defendant’s breach of its express warranties,  Plaintiff and the members of the Classes have been injured because: (a) they would not have  purchased Precor products with heart rate monitoring systems on the same terms if the true facts  concerning those systems’ actual abilities to accurately monitor a user’s heart rate had been  known; (b) they paid a price premium due to Precor’s misrepresentation of the products’ abilities  to accurately monitor a user’s heart rate; and (c) the Precor products do not accurately monitor a  user’s heart rate as promised.  59.  Plaintiff adopts and incorporates by reference paragraphs 1 through 36 as if fully  set forth herein.  18  409061.1   60.  Plaintiff brings this Count individually and on behalf of the members of the  Multi-State and Illinois Resident Classes defined above.   61.  Defendant, as the designer, manufacturer, marketer, distributor and/or seller,  impliedly warranted through advertisements and online marketing that Precor products with  heart rate monitoring systems were fit for their intended purpose in that those products would  provide an accurate reading of a user’s heart rate.  Defendant did so with the intent to induce  Plaintiff and members of the Classes to purchase these products.   62.  Defendant breached its implied warranties in the contract for the sale of Precor  products with heart rate monitoring systems in that the products could not pass without objection  in the trade under the contract description, the goods were not of fair average quality within the  description and the goods were unfit for their intended and ordinary purpose.  As a result,  Plaintiff and the members of the Classes did not receive the goods as impliedly warranted by  Defendant to be merchantable.   63.  In reliance upon Defendant’s skill and judgment and the implied warranties  discussed above, Plaintiff and the members of the Classes purchased Precor products with heart  rate monitoring systems in order to accurately monitor their heart rates while exercising.   64.  The Precor products were not altered by Plaintiff or members of the Classes.   65.  The Precor products were defective when they left Defendant’s exclusive control.   66.  Defendant knew that its products would be purchased and used without additional  testing for efficacy by Plaintiff and the members of the Classes.   67.  The Precor products were defectively designed and unfit for their intended  purpose.  Plaintiff and members of the Classes did not receive the goods as warranted.  19  409061.1   68.  Plaintiff and the members of the Classes were injured as a direct and proximate  result of Defendant’s breach because: (a) they would not have purchased Precor products with  heart rate monitoring systems on the same terms if the true facts concerning those systems’  actual abilities to accurately monitor a user’s heart rate had been known; (b) they paid a price  premium due to the misrepresentation of the Precor products’ abilities to accurately monitor a  user’s heart rate; and (c) the Precor products do not accurately monitor a user’s heart rate as  promised.  69.  Plaintiff adopts and incorporates by reference paragraphs 1 through 36 above as if  fully set forth herein.   70.  Plaintiff brings this cause of action individually and on behalf of the members of  the Class against Precor.   71.  Precor fitness machines equipped with touch sensor heart rate monitors are  consumer products as defined in 15 U.S.C. § 2301(1).   72.  Plaintiff and the Class members are consumers as defined in 15 U.S.C.                   § 2301(3).   73.  Precor is a supplier and warrantor as defined in 15 U.S.C. § 2301(4) and (5).   74.  In connection with the sale of its fitness machines with touch sensor heart rate  monitors, Precor issued written warranties as defined in 15 U.S.C. § 2301(6) by making the  express representations and warranties described herein.    75.  These Precor fitness machines with touch sensor heart rate monitors do not  conform to the express warranties regarding the monitors’ accuracy because each of the express  20  409061.1  warranties is false, misleading, and unsubstantiated, and there is no competent reliable evidence  supporting any of those statements.    76.  By reason of Precor’s breach of warranties, Precor violated the statutory rights  due to Plaintiff and the Class members pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C.  § 2301 et seq., thereby damaging Plaintiff and the Class members.    77.  Affording Precor a reasonable opportunity to cure its breach of written warranties  would be unnecessary and futile here. At the time Precor sold these fitness machines with touch  sensor heart rate monitors, Precor should have known, or was reckless in not knowing, of its  misrepresentations concerning the monitors accuracy and reliability, but nonetheless failed to  rectify the situation and/or disclose these defects.  Under these circumstances, the remedies  available under any informal settlement procedure would be inadequate and any requirements  that Plaintiff resort to an informal dispute resolution procedure and/or afford Precor a reasonable  opportunity to cure its breach of warranties are excused and thereby deemed satisfied.   78.  Plaintiff and the Class members were injured as a direct and proximate result of  Precor’s breach because they would not have purchased these fitness machines with touch sensor  heart rate monitors if the true facts had been known.   Breach of Implied Warranty of Merchantability   Breach of Express Warranty   Violation of the Illinois Consumer Fraud and   Deceptive Business Practices Act and Materially Similar State Laws   Violation of the Magnuson-Moss Warranty Act  (On Behalf of the Class)  