(Common Law Fraud)  134.  Plaintiffs incorporate by reference each preceding and succeeding  paragraph as though fully set forth at length herein.  135. Plaintiffs bring this cause of action on behalf of themselves and on  behalf of all other members of the Class.  136.  Defendants made material misstatements and omissions concerning  the Smart TV s that they sold to Plaintiffs and the Class members.  13 7. As a result, Plaintiffs and Class members were fraudulently induced to  purchase Smart TV s.  138. These misstatements and omissions were made by Defendants with  knowledge of their falsity, and with the intent that Plaintiffs and Class members  rely upon them.  139. Plaintiffs and Class members reasonably relied on these misstatements  and omissions, and suffered damages as a result.  (Deceptive Omissions - Violations of the CFA)   (Unfair and Deceptive Tracking and Transmission- Violations of the CFA)   28.  Defendants bill themselves as leading high definition television  producers in the United States. In addition to Smart Televisions ("Smart TVs"),  Defendants manufacture and sell various audio and entertainment products.  Defendants generated billions in revenue in 2016.   29.  In or around January 2012, Defendants' began selling Smart TVs.  Defendants' Smart TV s provide consumers with multiple access points to visual,  audio, and other video content. Defendants' Smart TV s are equipped with HDMI  connections, coaxial connectors, analog audio outputs and inputs, and various  video input connectors.   30.  Defendants' Smart TVs are also equipped with the ability to connect  to the internet via wireless internet networking (hereinafter "WiFi"). Specifically,  Defendants' Smart TV s allow consumers to access the WiFi networks to allow  consumers to access and watch various forms of audio and visual entertainment  online, as well as to find access to online news, weather, and entertainment  sources.   31.  Defendants' Smart TV s are delivered to consumers with many pre- installed applications. These include such popular internet applications as Netflix,  Y ouTube, Amazon, Pandora, HuluPlus, Twitter, and more. Many of these  applications stream video to consumers via Defendants' Smart TV s.   33.  Upon information and belief, smce 2012, Defendants have  manufactured Smart TV s that continuously monitor and track, in real time, what  consumers are watching and the viewing habits of those consumers, and then  transmit that private, confidential information to Defendants' own servers by  means of proprietary, automatic tracking software (hereinafter "ATS"). 9   34.  Defendants' ATS software enables Defendants to monitor and identify  Plaintiffs' and the Class Members' video viewing habits. Defendants' then secretly  provide this private, sensitive information of consumers to third-party advertisers  and content providers who, in turn, display targeted advertisements to consumers,  based on this secretly-collected personal information. In addition, upon  information and belief, Defendants even place advertisements, based on  consumers' data and information they have secretly acquired from their ATS,  within some Smart TV apps in the Smart TVs themselves.  3 5.  For instance, Defendant Samsung has identified a company called  "Nuance" as third party it transmits consumers' information to and also has  identified a company called "Enswers" as a third party it transmit consumers'  information to; and Defendant LG has identified Cognitive Networks as a third  party it transmit consumers' information to. 10   38.  Enswers has admitted that, in 2012, its tracking software has been  embedded at the hardware level into Samsung smart TV s. Enswers has already  used the technology to push interactive advertisements for retirement-planning  financial products in Spain, and also has prompted Samsung smart TV owners to  purchase David Beckham underwear during the Super Bowl XL VIII using their  remote controls. 13   39.  Through Defendants' tracking software, their Smart TVs transmit  information about what a consumer is watching on a second-by-second basis.  11 See Consumer Reports, Samsung, LG, and Vizio smart TVs are recording-and sharing data about-everything  you watch, Consumer Reports investigates the information brokers who want to turn your viewing habits into cash,  February 27, 2015, http://www.consumerreports.org/cro/news/2015/02/samsung-lg-vizio-smart-tvs-watch- everything-you-watch/index.htm (emphasis added).  12 & at 1. See also (Cognitive Network's Tracking System Platform Diagram) (attached hereto as Exhibit 1).  70.  The Class satisfies the numerosity, commonality, typicality, adequacy,  predominance and superiority requirements of Federal Rule of Civil Procedure  23(a).   71.  Plaintiffs reserve the right to amend or modify the Class definitions  with greater specificity or further division into subclasses or limitation to particular  issues after discovery.   72.  The members of the Class are so numerous that joinder of all  members is impracticable. Although the precise number of Class members is  unknown to Plaintiffs at this time and can be determined only by appropriate  discovery, it is reasonably estimated that the Class consists of at least tens of  thousands, or hundreds of thousands, or millions of members who are  geographically dispersed throughout the country.   73.  Because Plaintiffs are purchasers of Defendants products and have  been subject to Defendants' systematic, deceptive and misleading course of  conduct, policies, and advertising intended to trick, mislead and significantly  confuse consumers, Plaintiffs are members of the Class and their claims are typical  of the claims of the other members of the Class. The harm suffered by Plaintiffs  and all other Class members was and is caused by the same misconduct by  Defendants.   76.  Common questions of law and fact exist as to all members of the  Class which predominate over any questions that may affect individual Class  members. Among the questions of law and fact common to the Class include the  following:  a.  whether Defendants' deceptive tracking and monitoring using  automatic tracking software, and misleading statements and  omissions, caused consumers to purchase Defendants' products;  b.  whether Defendants violated the New Jersey Consumer Fraud  Act, N.J. Stat. Ann. § 56:8-1 et seq.;  c.  whether Defendants violated the Electronic Communications  Privacy Act, 18 U.S.C. § 2511;  d.  whether Defendants violated the Video Privacy Protection Act,  81.  Plaintiff incorporates by reference each preceding and succeeding  paragraph as though fully set forth at length herein.   82.  Plaintiff brings this cause of action on behalf of himself and on behalf  of all other members of the Class.   84.  The CF A defines "merchandise" as "any objects, wares, goods  commodities, services or anything offered, directly or indirectly to the public for  sale." N.J. Stat. Ann.§ 56:8-l(c).   85.  At all relevant times, Defendants have engaged in the advertisement,  offering for sale and sale of merchandise within the meaning of N.J. Stat. Ann. §  56:8-l(c), specifically Defendants' Smart TVs and related services.   86.  Defendants use ATS technology to comprehensively collect the  sensitive television viewing activity of consumers or households across cable or  broadband services, set-top boxes, external streaming devices, DVD players, and  over-the-air broadcasts, on a second-by-second basis and store this viewing data  indefinitely.   87.  Defendants provided this viewing data to third parties, which used it  to track and target advertising to individual consumers across devices. Defendants  engaged in these practices through a medium that consumers would not expect to  be used for tracking, without consumers' consent; namely, consumers' own Smart  TVs.   88.  As described herein, Defendants' continued utilization of unlawful  and unconscionable marketing practices, and their continuing practice of  monitoring, tracking, and reporting viewing habits and personally identifiable  information to unauthorized third parties, without consent, constitutes a deceptive  act or practice in violation of the CFA.   89.  Further, such is also an unconscionable commercial practice m  violation of the CF A. Each instance of Defendants' unfair tracking constitutes a  separate violation under the CFA, N.J. Stat. Ann. § 56:8-2.   91.  Defendants' omission of this information was an act likely to mislead  Plaintiff and the Class acting reasonably under the circumstances and constitutes a  deceptive trade practice in violation of the CF A.   92.  Defendants conduct was deceptive and unconscionable because,  among other misconduct described in this Complaint, Defendants monitored,  tracked, and transmitted to third parties Plaintiffs' and Class members' personal  viewing habits and personally identifiable information without providing clear and  conspicuous notice and without consent.   93.  Defendants' collection and sharing of sensitive data without  consumers' consent has caused or is likely to cause substantial injury to consumers  that is not outweighed by countervailing benefits to consumers or competition and  is not reasonably avoidable by consumers themselves.   94.  This is an unfair act or practice, in violation of Section 5(a) of the  FTC Act, 15 U.S.C. § 45(a).   95.  Defendants' practice of monitoring, tracking, and transmitting to third  parties Plaintiffs' and Class members' personal viewing habits and personally  identifiable information without providing clear and conspicuous notice and  without consent is also unlawful, deceptive and misleading, and violates the  Subscriber Privacy Provision in the Cable Communications Policy Act, the  Electronic Communications Privacy Act, the FTC Act, and Video Privacy  Protection Act, 18 U.S.C. §§ 2710.22   97.  Plaintiffs incorporate by reference all the foregoing paragraphs.   98.  Defendants engaged in deceptive practices as defined under the CFA.  Defendants' actions were part of a scheme intended to actively mislead Plaintiffs  and the Class into believing that the Smart TVs were of a specific quality, namely  that the Smart TV s would not violate their privacy and were not designed to violate  consumer's privacy by secretly monitoring and recording consumers' viewing  habits, while Defendants did in fact know that their Smart TV s were designed to  accomplish precisely this objective.  