Krukas v. Aarp

• Court: District Court, District of Columbia
• Decided: March 17, 2019
• Docket: Civil Action No. 2018-1124
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HELEN KRUKAS,

Plaintiff, Civil Action No. 18-1124 (BAH) v. Chief Judge Beryl A. Howell AARP, Inc., et al.,

Defendants.

MEMORANDUM OPINION

The plaintiff, Helen Krukas, individually, and on behalf of all others similarly situated

(except for individuals residing in California), as well as the general public, brings this putative

class action against the defendants, AARP Inc., (“AARP”), AARP Services Inc. (“ASI”), and

AARP Insurance Plan (“AARP Trust”) (collectively referred to as “AARP”), alleging a violation

of the Washington D.C. Consumer Protection Procedures Act (“CPPA”), D.C. CODE § 28-3901

et seq., as well as common law violations of conversion, unjust enrichment, and fraudulent

concealment, based on her purchase of a Medicare supplemental health insurance policy, also

known as a “Medigap” policy, administered by AARP. See Compl. ¶¶ 1, 16, 17, 88, ECF No. 1.

These statutory and common law claims are predicated on the plaintiff’s allegations that she was

“fooled into paying AARP an undisclosed 4.95% commission” when purchasing her Medigap

policy and, since “AARP is not licensed as an insurance broker or agent,” the defendants “may

not legally collect these commissions.” Id. ¶ 1. Pending before the Court is the defendants’

Motion to Dismiss for failure to state a claim upon which relief can be granted under Federal

1 Rule of Civil Procedure 12(b)(6). See Defs.’ Mot. to Dismiss & Mem. in Supp. (“Defs.’ Mem.”),

ECF No. 8.1 For the reasons set forth below, the defendants’ motion is denied.2

I. BACKGROUND

The plaintiff challenges AARP’s role in soliciting, marketing, and administering Medigap

policies, a state-regulated form of health insurance to supplement Medicare. Since at least 1997,

AARP has held, in its name, group Medigap policies underwritten by UnitedHealth Group and

UnitedHealthcare Insurance Company (collectively, “UnitedHealth”) and offered participation in

those group policies to individual AARP members and the general public. See Compl. ¶¶ 22, 37,

51. The plaintiff alleges that AARP’s administration and provision of other services in support

of these group Medigap policies amounted to acting as an unlicensed insurance agent, that the

“royalties” paid to AARP as a percentage of premiums constituted illegal commissions, and that

AARP materially misrepresented the nature and source of the “royalties,” causing consumers to

pay more for AARP Medigap policies than they otherwise would. See Compl. ¶¶ 4–15. The

following discussion provides a general overview of Medigap policies and summarizes the

plaintiff’s allegations, claims against AARP, and desired relief.

A. Medigap Policies Generally

A Medigap policy is insurance offered by a private insurer to help pay for certain “gaps”

in Medicare coverage. See United States v. Blue Cross & Blue Shield of Md., Inc., 989 F.2d 718,

721 (4th Cir. 1993) (citing Pub. L. No. 96-265, § 507, 94 Stat. 441, 476 (codified as amended at

1 At the parties’ request, the deadline to seek class certification has been tolled until resolution of the defendants’ pending Motion to Dismiss. See Min. Order (Aug. 9, 2018) (granting Joint Mot. to Extend (Aug. 9, 2018), ECF No. 12). Accordingly, whether a class should be certified or whether the plaintiff, by herself and absent class certification, would meet the amount-in-controversy requirement for diversity jurisdiction, are issues not addressed herein. 2 The defendants’ request for oral argument is denied because the ample briefing is sufficient to resolve the pending motion. See D.D.C. Local Civil Rule 7(f) (allowance of an oral hearing is “within the discretion of the Court”).

2 42 U.S.C. § 1395ss)). The Centers for Medicare and Medicaid Services has described a Medigap

policy as “health insurance [sold by private insurance companies that] can help pay some of the

health care costs that Original Medicare doesn’t cover, like coinsurance, copayments, or

deductibles.” CTRS. FOR MEDICARE & MEDICAID SERVS., CHOOSING A MEDIGAP POLICY: A

GUIDE TO HEALTH INSURANCE FOR PEOPLE WITH MEDICARE 5 (2019),

https://www.medicare.gov/Pubs/pdf/02110-Medicare-Medigap-guide.pdf [hereinafter “CMS

Medigap Guide]; see also Compl. ¶ 29 (“Medigap plans offer extra coverage to Medicare

beneficiaries . . . such as first-dollar coverage and reduced co-payment and deductibles.”).3

“Each standardized Medigap policy must offer the same basic benefits, no matter which

insurance company sells it. Cost is usually the only difference between [standardized] Medigap

policies . . . sold by different insurance companies,” CMS Medigap Guide at 9, because

“[d]ifferent insurance companies may charge different premiums for the same exact policy,” id.

at 13. Indeed, “big differences” may occur “in the premiums that different insurance companies

charge for exactly the same coverage.” Id. at 19. Age, where a person lives, medical

underwriting, and discounts may affect an insurance company’s choice of what premium to

charge. Id. at 17.

B. AARP’s Alleged Role in Administering UnitedHealth’s Medigap Policies

The plaintiff, currently a resident of Boca Raton, Florida, originally purchased a

UnitedHealth Medigap policy from AARP in Louisiana in 2012, and continuously maintained

3 While matters “outside the pleadings” generally may not be considered on a Rule 12(b)(6) motion without converting the motion to one for summary judgment, see FED. R. CIV. P. 12(d), this conversion rule is not triggered by consideration of “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Judicial notice is taken of the CMS Medigap Guide, which is issued by a component of a federal agency, the U.S. Department of Health and Human Services. See FED. R. EVID. 201(b); Cannon v. District of Columbia, 717 F.3d 200, 205 n.2 (D.C. Cir. 2013) (taking judicial notice of public records posted online); Johnson v. Comm’n on Presidential Debates, 202 F. Supp. 3d 159, 167 (D.D.C. 2016) (same).

3 this coverage by paying her monthly premium to AARP until November 2016. See Compl. ¶ 20;

Pl.’s Mem. in Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”) at 16, ECF No. 13. Her most recent

renewal of her AARP Medigap policy coverage occurred when she resided in Florida. See

Compl. ¶ 20; Pl.’s Opp’n at 16. She alleges that “[b]ut for Defendants’ deceptive and unlawful

acts . . . [she] would not have agreed to pay an additional 4.95% above the premium for an

AARP Medigap policy, and would have sought out other, cheaper and lawful Medigap

insurance.” Compl. ¶ 20.

Defendant AARP is a non-profit membership organization for seniors aged 50 years or

older, with reportedly over 40 million members, about half of whom are over the age of 65. See

id. ¶¶ 2, 21, 25. The organization is organized under the laws of the District of Columbia and

maintains its national headquarters and primary place of business in Washington, D.C., id. ¶ 21,

which is where AARP establishes its “corporate policies and practices, including those for

AARP Medigap policies,” id. Defendant ASI is a wholly owned subsidiary of AARP, organized

under the laws of Delaware, with its primary place of business in Washington, D.C. Id. ¶ 22. As

AARP’s taxable, “for-profit” division, ASI “negotiates, oversees, and manages lucrative

contracts with AARP’s insurance business partners.” Id. AARP created ASI in 1999 pursuant to

a settlement agreement with the U.S. Internal Revenue Service (IRS), following an IRS

investigation into the income that AARP earned through endorsement deals. See id. ¶¶ 22, 36.

Defendant AARP Trust is a grantor trust organized by AARP under the laws of Washington,

D.C., where the Trust maintains its primary place of business. Id. ¶ 22.

AARP is not a licensed insurance broker or agent. Id. ¶ 8. Rather, AARP, through

AARP Trust, serves as the group policy holder for Medigap coverage underwritten by

UnitedHealth. See id. ¶ 22. In this role, AARP Trust maintains depository accounts to collect

4 insurance premiums from individual purchasers of Medigap policies through AARP’s group plan

and, as part of that premium, AARP Trust also collects the challenged 4.95% “royalty” charge

assessed on every Medigap policy sold or renewed. See id. ¶¶ 22, 52, 54. AARP Trust remits

premiums to UnitedHealth, and transfers the money collected as a 4.95% “royalty” to AARP and

ASI. Id. ¶¶ 22, 56, 57; see also id. ¶ 52 (“In accordance with the agreement [with UnitedHealth]

. . . collections [of premiums] are remitted to third-party insurance carriers . . . , net of the

contractual royalty payments that are due to AARP, Inc., which are reported as royalties.”)

(quoting AARP’s 2016 Audited Financial Statement) (emphasis added).

A joint venture agreement (“Agreement”), first entered in 1997, governs AARP and

UnitedHealth’s relationship with respect to Medigap insurance. Id. ¶ 37; see also Defs.’ Mem.,

Ex. 1 (Agreement), ECF No. 8-1.4 The Complaint provides detail on the evolution of the

Agreement over time, most notably that AARP was initially entitled to an “allowance,” which

was renamed a “royalty” after AARP’s 1999 settlement with the IRS. Compl. ¶¶ 39, 40. Under

the Agreement, AARP agrees to: (1) market, solicit, sell and renew AARP Medigap policies with

UnitedHealth; (2) collect and remit premium payments on behalf of UnitedHealth; (3) generally

administer the AARP Medigap program; and (4) otherwise act as UnitedHealth’s agent. Id. ¶ 38.

The Agreement makes clear that AARP owns all solicitation materials related to the Medigap

program. Id. ¶ 47 (citing Agreement Subsection 7.2, “Member Communications”). “[I]n

exchange for AARP’s administering of the insurance program and its marketing, soliciting, and

selling or renewing of AARP Medigap policies on behalf of UnitedHealth, as well as its

4 As noted, supra n.3, judicial notice may be taken of documents referenced in the Complaint, such as the Agreement. See, e.g., Hurd v. D.C., Gov’t, 864 F.3d 671, 678 (D.C. Cir. 2017) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)); Eagle Tr. Fund v. U.S. Postal Serv., No. 17-cv-2450 (KBJ), 2019 WL 451350, at *5 (D.D.C. Feb. 4, 2019) (documents incorporated by reference in the complaint may be considered even when the document is attached as exhibit to defendant’s motion to dismiss); Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46–47 (D.D.C. 2009) (collecting cases).

5 collecting and remitting insurance premiums on behalf of UnitedHealth, AARP earns a 4.95%

commission—disguised as a ‘royalty’—on each policy sold or renewed.” Id. ¶ 45. In 2016,

AARP generated $880 million in revenues from “royalties,” of which 68% came from

UnitedHealth insurance products, including Medigap Policies and other insurance products. See

id. ¶¶ 28, 32, 33, 37. The $880 million in royalty revenue equated to over 54% of AARP’s 2016

total operating revenue. Id. ¶ 32.

The nature of the 4.95% charge, and AARP’s representations to consumers regarding this

charge, are the focus of the plaintiff’s claims. While the defendants describe the 4.95% charge

as a royalty compensating AARP for UnitedHealth’s use of its intellectual property, see id. ¶¶

40–45, the plaintiff alleges, relying on a Ninth Circuit case for support, that the 4.95% charge is

an illegal and not properly disclosed commission compensating AARP for agreeing to act as

UnitedHealth’s agent in connection with the marketing, solicitation, sale, and administration of

Medigap policies. See id. ¶¶ 49, 62–68; see also id. ¶ 6 (citing Friedman v. AARP, Inc., 855 F.3d

1047, 1052–53 (9th Cir. 2017) (finding that the plaintiff had sufficiently alleged that AARP’s

royalty fits California’s definition of “commission wages” as “compensation paid to any person

for services rendered in the sale of such employer’s property or services and based

proportionately upon the amount or value thereof” and holding that AARP’s retention of this

commission could plausibly violate California law). The plaintiff suggests that AARP

characterizes its “commission” as a “royalty” to avoid oversight by insurance regulators and to

avoid paying taxes on the income generated through insurance sales, whereas other associations

“do the right thing and acquire a license to act as an agent.” Compl. ¶ 8 & n.1 (citing example of

the automobile club AAA, which is licensed to sell insurance).

6 According to the plaintiff, “AARP and UnitedHealth, together and through their

respective subsidiaries, have orchestrated an elaborate scheme where AARP, as the de facto

agent of UnitedHealth, helps market, solicit, and sell or renew AARP Medigap policies and

generally administers the AARP Medigap program for UnitedHealth, in exchange for an

undisclosed and illegal 4.95% commission that AARP collects from” plaintiff and other

consumers when they pay AARP for their Medigap policies. Id. ¶ 4. The plaintiff further

complains that “[d]espite the fact that AARP is not licensed as an insurance agent,” id. ¶ 8,

AARP received “a 4.95% commission from every policy sold or renewed,” id., which

“constitutes an illegal kickback,” id. Set against the local statutory bar prohibiting unlicensed

entities from engaging in the solicitation of insurance or accepting a commission for the sale or

renewal of an insurance policy, id. ¶¶ 8, 74 (citing D.C. CODE §§ 31-1131.13(b); 31-2502.31; 31-

1131.03), the plaintiff bolsters her allegation that AARP has acted as an unlicensed insurance

agent or broker by pointing to AARP’s marketing materials, which are owned by AARP under

the Agreement, id. ¶¶ 47, 72, and explicitly state “[t]his is a solicitation of insurance,” id. ¶ 51

(citing AARP sponsored websites, www.aarphealthcare.com and www.aarpmedicareplans.com,

as well as AARP’s television, Internet, and print advertisements).

The plaintiff identifies certain harms resulting from AARP’s actions, alleging that “[h]ad

AARP disclosed the fact that the ‘member contribution amount’ that [she] paid monthly to

AARP included an embedded 4.95% commission payment to AARP, [she] would have sought

out another Medigap policy offering the same services for a lower rate. . . . [or] if Defendants

had acted within the bounds of the law, AARP would not have been able to collect” the 4.95%

charge.” Id. ¶ 11; see also id. ¶¶ 12, 77, 79, 81, 82. The plaintiff avers that “[b]ut for

Defendants’ deceptive and unlawful acts, [she] would not have agreed to pay the 4.95% illegal

7 insurance commission,” id. ¶ 14 and that she was injured both by paying this commission and by

being denied information that would have prompted her to seek out and purchase another

Medigap policy for a lower price, id. ¶ 15. The plaintiff notes that “[o]ther Medigap policies

offered without the highly regarded ‘AARP Brand’ provide identical benefits, often at a lower

cost in part because those insurers do not secretly charge consumers unlawful insurance-agent

commissions on top of the premiums assessed.” Id. ¶ 78.

Based on the foregoing, the plaintiff alleges that AARP collects an illegal commission,

acts as an unlicensed insurance agent, and materially misrepresents information about the 4.95%

charge, all of which constitute violations of the CPPA and common law.

C. Claims Against AARP

The plaintiff brings four claims, asserting, in Count One, that AARP violated the CPPA,

D.C. CODE § 28-3901 et seq., by engaging in an unlawful trade practice by misrepresenting

material facts concerning the 4.95% payment and the fact that AARP is not a licensed insurance

broker or agent in its solicitation materials, letters to prospective consumers, billing statements,

renewal letters, and website. Compl. ¶¶ 5, 92–103. The plaintiff alleges financial harm from

these unlawful trade practices and being “deprived of truthful information regarding [her]

choice” of Medigap policies, id. ¶ 100, because she would have sought a different Medigap

policy that did not incorporate a 4.95% “commission that AARP is not legally entitled to,” id. ¶

97. For these alleged violations of the CPPA, the plaintiff seeks damages and injunctive relief.

Id. ¶ 101.

In Count Two, the plaintiff claims the defendants’ conversion of her “ownership right to

the 4.95% of [her] payments that was wrongfully charged and illegally diverted to AARP as a

8 commission,” id. ¶¶ 104–06, resulted in damages in the amount of the premium for which she

was wrongfully charged, id. ¶ 107.

In Count Three, the plaintiff alleges unjust enrichment, based on her conferral of a benefit

to the defendants “in the form of the hidden 4.95% charge on top of [her] monthly premium

payments that [was] unlawfully and deceptively charged and illegally diverted to AARP as a

commission.” Id. ¶ 109. The defendants “voluntarily accepted and retained this benefit,” id. ¶

110, which was “collected without proper disclosure and amounted to a commission in violation

of” District of Columbia law, id. ¶ 111, such that the defendants’ retention of this benefit without

paying its value to the plaintiff would be “inequitable,” id.

Finally, in Count Four, the plaintiff alleges fraudulent concealment stemming from

AARP’s “conceal[ing] or fail[ing] to disclose [the] material fact” that AARP was collecting a

4.95% commission, id. ¶ 113, that AARP “knew or should have known that this material fact

should be disclosed or not concealed,” id. ¶ 114, that it concealed the fact “in bad faith,” id. ¶

115, in spite of its “duty to speak,” id. ¶ 118, and that it thereby “induced [the plaintiff] to act by

purchasing an AARP-endorsed Medigap plan,” id. ¶ 116. The plaintiff alleges that she suffered

damages as a result of this fraudulent concealment, id. ¶ 117.

As relief, the plaintiff seeks orders: (1) requiring AARP to restore all money or other

property taken by means of unlawful acts or practices, id. at 30; (2) requiring the disgorgement

of all sums taken from consumers by means of deceptive practices, together with all proceeds,

interest, income, and accessions, id.; (3) certifying a proposed class of “[a]ll persons in the

United States, excluding California, who purchased or renewed an AARP Medigap Policy,” id. ¶

84, with plaintiff as Class Representative and her counsel as Class Counsel, id. at 30; and (4)

9 awarding court costs and reasonable attorneys’ fees and any other relief the Court deems just and

proper, id.

II. LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the

“complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Wood v. Moss, 572 U.S. 744, 757–58 (2014) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). A claim is facially plausible when the plaintiff pleads factual content

that is more than “‘merely consistent with’ a defendant’s liability,” and “allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)); see also Rudder v.

Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not

required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and

conclusions[] and a formulaic recitation of the elements of a cause of action” to provide

“grounds” for “entitle[ment] to relief,” Twombly, 550 U.S. at 555 (internal quotation marks

omitted; alteration in original), and “nudge[] [the] claims across the line from conceivable to

plausible,” id. at 570; see Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir.

2015) (“Plausibility requires more than a sheer possibility that a defendant has acted

unlawfully.”) (internal quotation marks omitted). Thus, “a complaint [does not] suffice if it

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 557) (second alteration in original).

In considering a motion to dismiss for failure to plead a claim for which relief can be

granted, the court must consider the complaint in its entirety, accepting all factual allegations in

the complaint as true, “even if doubtful in fact,” and construe all reasonable inferences in favor

10 of the plaintiff. See Twombly, 550 U.S. at 555; Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C.

Cir. 2016) (per curiam) (“We assume the truth of all well-pleaded factual allegations and

construe reasonable inferences from those allegations in the plaintiff’s favor.”) (citing Sissel v.

U.S. Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014)). The court, however, “is

not required to accept the plaintiff’s legal conclusions as correct,” Sissel, 760 F.3d at 4, nor is it

required to “accept inferences drawn by [a] plaintiff[] if such inferences are unsupported by the

facts set out in the complaint.” Nurriddin, 818 F.3d at 756 (alterations in original) (quoting

Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

III. DISCUSSION

The defendants raise, under Federal Rule of Civil Procedure 12(b)(6), several threshold

issues challenging the justiciability of the plaintiff’s claims, as well as the sufficiency of the

plaintiff’s factual allegations to support the plausibility of her claims. Specifically, the

defendants argue that the Complaint must be dismissed due to: (1) the primary jurisdiction

doctrine; (2) the filed-rate doctrine; and (3) operation of the applicable statute of limitations.5 In

addition, the defendants raise choice-of-law issues as to whether Florida, Louisiana, or District of

Columbia law applies to this action.6 These threshold issues—none of which warrants

5 The defendants correctly frame these justiciability arguments as reasons to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), rather than as reasons to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1). See Sickle v. Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 345 & n.3 (D.C. Cir. 2018) (noting that “merits-based barrier” to claims posed by preemption challenge is subject to review under Rule 12(b)(6), by contrast to jurisdictional challenge implicating the power of the forum to adjudicate the dispute, which is resolved under Rule 12(b)(1)); Sierra Club v. Jackson, 648 F.3d 848, 853 (D.C. Cir. 2011) (noting that “distinction between a claim that is not justiciable because relief cannot be granted upon it and a claim over which the court lacks subject matter jurisdiction is important,” and finding justiciability challenge subject to review under Rule 12(b)(6)); see also Wilson v. EverBank, N.A., 77 F. Supp. 3d 1202, 1233 n.6 (S.D. Fla. 2015) (collecting cases holding that a motion to dismiss under the filed-rate doctrine is properly treated as part of a motion to dismiss under 12(b)(6)). 6 The defendants also initially argued that the first-to-file rule favored dismissal or a stay of this case because an earlier filed, pending case in Florida asserted similar claims. See Defs.’ Mem. at 28–37. That Florida case has since been voluntarily dismissed, which the defendants concede “disposes” of their first-to-file argument. See Defs.’ Notice of Supp. Auth. at 2, ECF No. 25.

11 dismissal—are addressed, before turning to consideration of whether the plaintiff has plausibly

stated a claim.

A. The Primary Jurisdiction Doctrine Does Not Bar The Instant Claims

The defendants seek a stay or dismissal of this action under the primary jurisdiction

doctrine. See Defs.’ Mem. at 50–51. The primary jurisdiction doctrine applies where a court has

jurisdiction over a claim or set of claims, but adjudication of those claims “requires the

resolution of issues which, under a regulatory scheme, have been placed within the special

competence of an administrative body; in such a case the judicial process is suspended pending

referral of such issues to the administrative body for its views.” United States v. W. Pac. R.R.

Co., 352 U.S. 59, 63–64 (1956); see also Reiter v. Cooper, 507 U.S. 258, 268 (1993) (describing

primary jurisdiction doctrine as “specifically applicable to claims properly cognizable in court

that contain some issue within the special competence of an administrative agency” to which

“referral” may be made, “staying further proceedings so as to give the parties reasonable

opportunity to seek an administrative ruling”); Am. Ass’n of Cruise Passengers v. Cunard Line,

Ltd., 31 F.3d 1184, 1186 (D.C. Cir. 1994) (explaining that the primary jurisdiction doctrine may

be invoked when the agency is “best suited to make the initial decision on the issues in dispute,

even though the district court has subject-matter jurisdiction”); Lawlor v. District of Columbia,

758 A.2d 964, 973 (D.C. 2000) (explaining that the primary jurisdiction doctrine “comes into

play whenever enforcement of the claim requires the resolution of issues which, under a

regulatory scheme, have been placed within the special competence of an administrative body”

(quoting Drayton v. Poretsky Mgmt., Inc., 462 A.2d 1115, 1118 (D.C. 1983))).

Noting that state regulatory agencies comprehensively regulate virtually all aspects of the

Medigap market, including approval for rates and advertising, and that the plaintiff already has

this mechanism for raising her concerns, the defendants urge that this case be stayed while the 12 plaintiff pursues relief before a state regulatory agency. See Defs.’ Mem. at 37. For example, in

the District of Columbia, AARP’s Medigap program is regulated by the District of Columbia

Department of Insurance, Securities and Banking (“DISB”), pursuant to D.C. CODE § 31-3701 et

seq. and D.C. MUN. REGS. tit. 26-A, § 2200 et seq. UnitedHealth must file proposed rates with

DISB, which reviews the rates to ensure that they are reasonable, see D.C. CODE § 31-3704, and

further requires at least 75% of aggregate group policy Medigap premiums to be paid toward

benefit claims, see D.C. MUN. REGS. tit. 26-A, § 2212.1(a). If a Medigap policy fails to meet this

loss ratio standard, insurers must rebate excess revenue. Id. §§ 2213.2, 2213.4. DISB also

enforces prohibitions against misleading advertising, see id. §§ 2224.1, 2224.2, and, to this end,

insurers are required to submit advertisements to DISB for review, see id., § 2223.1; D.C. CODE

§ 31-3708. DISB also limits compensation and commission arrangements. See D.C. MUN.

REGS. tit. 26-A, § 2217. The defendants suggest that due to this comprehensive regulation,

primary jurisdiction rests with DISB or insurance regulators in Florida or Louisiana, rather than

with this Court.

Four factors are relevant to determining whether to apply the primary jurisdiction

doctrine: “(1) whether the issue is within the conventional expertise of judges; (2) whether the

issue lies within the agency’s discretion or requires the exercise of agency expertise; (3) whether

there is a substantial danger of inconsistent rulings; and (4) whether a prior application to the

agency has been made.” APCC Servs., Inc. v. WorldCom, Inc., 305 F. Supp. 2d 1, 13 (D.D.C.

2001); see also United States v. Philip Morris USA Inc., 686 F.3d 832, 837 (D.C. Cir. 2012)

(noting that “no fixed formula exists” but that “some principles emerge from our precedents,”

including a “concern for uniform outcomes,” the “advantages of allowing an agency to apply its

expert judgment,” and whether the question is “within the particular competence of an agency”

13 (internal alterations and citations omitted)). Consideration of these factors demonstrates that no

stay is necessary to permit DISB or any other state insurance agency the first opportunity to

opine on the merits of the plaintiff’s instant claims.

The plaintiff has not made a prior application to DISB, or to any other state insurance

agency that regulates Medigap insurance, and thus no apparent danger of inconsistent rulings

between this Court and a state insurance agency is presented that, as a matter of comity, would

warrant this Court abstaining. While mindful that DISB has the authority to review rates and

even advertising related to Medigap insurance, and that nothing prevents a consumer troubled by

the 4.95% charge from alerting DISB to her concerns rather than pursuing a nationwide class

action, the mere availability of regulatory review is not sufficient reason to apply the primary

jurisdiction doctrine. Simply put, DISB has no exclusive jurisdiction over the claims at issue

here.

Moreover, rather than requiring agency expertise, the claims at issue here—whether

advertising is deceptive or misleading, and related common law claims of conversion, unjust

enrichment and fraudulent concealment—are regularly subject to judicial review and therefore

fall squarely within the conventional expertise of the courts. The Supreme Court’s decision in

Nader v. Allegheny Airlines, 426 U.S. 290, 292 (1976), well illustrates this point. There, the

Court declined the defendant’s request to stay the plaintiff’s common law tort suit for fraudulent

misrepresentation stemming from the airline’s overbooking policy and refer the claim to the

Civil Aeronautics Board. Noting that the plaintiff was not challenging the airline’s tariff and that

the Board’s authority to ban deceptive practices did not displace the tort suit, the Court held that

the tort suit was “within the conventional competence of the courts, . . . the judgment of a

technically expert body was not likely to be helpful in the application of the [tort] standards.” Id.

14 304–06. See also Philip Morris USA Inc., 686 F.3d at 838 (observing that “courts consistently

have refused to invoke the primary jurisdiction doctrine for ‘claims based upon fraud or

deceit’—claims that are “within the conventional competence of courts” (citing Dana Corp. v.

Blue Cross & Blue Shield Mut. of N. Ohio, 900 F.2d 882, 889 (6th Cir. 1990) and In re Long

Distance Telecomms. Litig., 831 F.2d 627, 633–34 (6th Cir. 1987))). Likewise, here, the plaintiff

does not directly challenge the reasonableness of the insurance rates charged and has chosen to

pursue in this Court her CPPA and common law claims. These statutory and tort claims may be

resolved without the need for “an informed evaluation of the economics or technology of the

regulated industry.” Nader, 426 U.S. at 305. Thus, the expertise vested in a specialized

regulatory agency, which expertise might make the agency the preferred forum in some

instances, is not necessary to resolve the claims at issue here. Accordingly, the primary

jurisdiction doctrine does not bar this suit.

B. The Filed-Rate Doctrine Does Not Bar The Instant Claims

Following a brief review of the purpose and scope of the filed-rate doctrine, the

defendants’ arguments urging application of this doctrine are considered. The Court concludes

the filed-rate doctrine does not apply here.

1. The Filed-Rate Doctrine Generally

The parties spill much ink disputing whether the judicially created filed-rate doctrine

(also known as the “filed-tariff” doctrine) requires dismissal of this case. The filed-rate doctrine

“forbids a regulated entity to charge rates for its services other than those properly filed with the

appropriate federal regulatory entity.” Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 (1981). The

filed[-]rate doctrine has its origins in [the Supreme] Court’s cases interpreting the Interstate

Commerce Act [“ICA”], . . . and has been extended across the spectrum of regulated utilities.”

15 Id. (internal citations omitted). One of those originating cases was Keogh v. Chicago &

Northwestern Railway Co., 260 U.S. 156 (1922), in which the Supreme Court rejected antitrust

challenges to rates that had been filed with and approved as reasonable by the Interstate

Commerce Commission. Regardless of the regulated industry involved, “[t]he considerations

underlying the doctrine are preservation of the agency’s primary jurisdiction over reasonableness

of rates and the need to [e]nsure that regulated companies charge only those rates of which the

agency has been made cognizant.” Ark. La. Gas Co., 453 U.S. at 577–78 (internal quotation

marks and alterations omitted). The Second Circuit has termed these interests as “two

‘companion principles’—(1) preventing carriers from engaging in price discrimination as

between ratepayers (the ‘nondiscrimination strand’) and (2) preserving the exclusive role of

federal agencies in approving rates . . . that are ‘reasonable’ by keeping courts out of the rate-

making process (the ‘nonjusticiability strand’).” Marcus v. AT&T Corp., 138 F.3d 46, 58 (2d

Cir. 1998).

A corollary of the filed-rate doctrine is that regulatory agencies have the sole authority to

decide whether rates are reasonable and “[n]o court may substitute its own judgment on

reasonableness for the judgment” of the regulatory agency. Ark. La. Gas Co., 453 U.S. at 577.

This principle typically has a statutory basis and has been expressed, for example, in Federal

Energy Regulatory Commission (FERC) cases, due to provisions in the Natural Gas Act, 15

U.S.C. § 717c et seq., that require regulated entities to file their rates and deem such rates are

lawful only if they are “just and reasonable” as determined by the Commission. See Ark. La. Gas

Co., 453 U.S. at 577 (“The authority to decide whether the rates are reasonable is vested by [15

U.S.C. § 717c(a)] of the [Natural Gas] Act solely in the Commission.”). In telecommunications

cases, the corollary is derived from the tariff-filing provisions of the Federal Communications

16 Act (“FCA”), 47 U.S.C. § 203(a). See Marcus, 138 F.3d at 58. In ICA cases, the corollary

reflects the Interstate Commerce Commission’s authority to determine that filed rates are

“reasonable and non-discriminatory.” See Square D Co. v. Niagara Frontier Tariff Bureau, Inc.,

476 U.S. 409, 411, 415 (1986) (citing Keogh, 260 U.S. at 161; 49 U.S.C. § 10101 et seq.).

In the FCA, FERC and ICA contexts, the filed-rate doctrine supports the supremacy of

federal regulation over certain federal as well as state and common law claims. Thus, when

plaintiffs attempt to evade the filed-rate doctrine by bringing claims seeking relief that would

affect the approved rates charged by the entities subject to the regulatory regimes of the ICA,

FERC or FCA, the claims have been dismissed. See, e.g., AT&T Co. v. Cent. Office Tel., Inc.,

524 U.S. 214, 222 (1998) (stating, in the context of a case seeking to apply state law claims to a

federally regulated telecommunications carrier, that “even if a carrier intentionally misrepresents

its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised

rate if it conflicts with the published tariff”); id. at 223–24 (refusing to hold the filed-rate

doctrine inapplicable to claims regarding the “provisioning of services and billing,” and noting

that “[a]ny claim for excessive rates can be couched as a claim for inadequate services and vice

versa” (internal quotation marks omitted)); Ark. La. Gas Co., 453 U.S. at 580 (“[W]hen

[C]ongress has established an exclusive form of regulation, ‘there can be no divided authority

over interstate commerce.’” (quoting Mo. Pac. R.R. Co. v. Stroud, 267 U.S. 404, 408 (1925))); S.

Union Co. v. FERC, 857 F.2d 812, 817 (D.C. Cir. 1988) (“[T]he preemptive effect of the

[Natural Gas Act] is not . . . limited to state actions that directly and expressly relate to the price

term of sale transactions. The test is instead whether state law conflicts or interferes with

attainment of federal law objectives.”); City of Moundridge v. Exxon Mobil Corp., 471 F. Supp.

2d 20, 45 (D.D.C. 2007) (“The filed[-]rate doctrine ‘provides that state law, and some federal

17 law (e.g. antitrust law), may not be used to invalidate a filed rate or to assume a rate would be

charged other than the rate adopted by the federal agency in question.’ . . . when ‘the relief

sought by plaintiff would require the court to set damages by assuming a hypothetical rate,’ it

violates the filed[-]rate doctrine.” (internal alterations, brackets, and citations omitted)).

Notwithstanding that the filed-rate doctrine preempts “those suits that seek to alter the

terms and conditions provided for in the tariff,” this doctrine “does not serve as a shield against

all actions based in state law.” Cent. Office Tel., 524 U.S. at 229–31 (Rehnquist, C.J.,

concurring) (“The tariff does not govern . . . the entirety of the relationship between the common

carrier and its customers.”). Where a claim does not seek to alter the terms and conditions of a

tariff, “[t]here is no direct relationship [to the filed-rate doctrine] at all and it is simply not the

case that any action which might arguably and coincidentally implicate rates, much less those

determined by a state, rather than a federal agency, is governed by the doctrine.” Arroyo-

Melecio v. Puerto Rican Am. Ins. Co., 398 F.3d 56, 73 (1st Cir. 2005). Similarly, in the

preemption context, courts have recognized that federal regulatory regimes do not necessarily

preempt state law actions prohibiting deceptive business practices, false advertisement, or

common law fraud. See Marcus, 138 F.3d at 54. Indeed, “states may have an equal or greater

interest in preventing [a carrier from misrepresenting the nature of its rates] as manifested by

state consumer protection laws.” Id.

Thus, the filed-rate doctrine operates to bar only claims, which, if successful, would

undermine the critical policies underlying the filed-rate doctrine in the first place:

nondiscrimination among customers and nonjusticiability as to the reasonableness of a rate. See

id. at 59 (“[T]he focus for determining whether the filed[-]rate doctrine applies is the impact the

court’s decision will have on agency procedures and rate determinations.” (internal quotation

18 marks omitted) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 489 (8th Cir. 1992)). In

other words, the filed-rate doctrine bars claims that would require a regulated entity to charge

more or less than the rate approved by the federal regulatory authority but does not reach those

claims for which the remedy would leave the regulated entity in compliance with the approved

rate.

Consequently, when a claim seeks to vindicate rights or tortious harms without disturbing

a properly filed rate—for example, by seeking prospective injunctive relief against the regulated

entity—the filed-rate doctrine poses no obstacle. See, e.g., Square D, 476 U.S. at 417, 422 &

n.28 (explaining that filed-rate doctrine barred antitrust price-fixing claims for treble damages

against regulated entities for their rates fixed by ICC since “rights as defined by the tariff cannot

be varied or enlarged by either contract or tort of the carrier,” but injunctive antitrust actions are

permitted); Marcus, 138 F.3d at 62–63 (affirming dismissal of common law fraud and negligent

misrepresentation claims and state false advertising claims for damages against

telecommunications company for its billing policies, because the regulated entity was required to

charge the rates on file, but explaining that “a suit for injunctive relief appears not to interfere

with the nondiscrimination policy underlying the filed rate doctrine”); cf. Alicke v. MCI

Commc’ns Corp., 111 F.3d 909, 913 (D.C. Cir. 1997) (affirming dismissal of fraud claims

against a telecommunications company on grounds other than filed-rate doctrine, without

addressing “whether the district court correctly held that the filed[-]tariff doctrine bars all the

claims made in the complaint. As such, we leave for another day the question whether there are

any circumstances in which injunctive relief may be based upon a billing practice disclosed in a

filed tariff”).

19 Contrary to the defendants’ contention, this case does not fall neatly into the body of

cases in which the filed-rate doctrine has been found to apply. The plaintiff raises no challenge

to the setting or reasonableness of the Medigap insurance rates, asserts no claims against the

regulated entity responsible for filing, and obtaining approval for, those rates, and thus seeks no

damages from a regulated entity or even a third-party that would vary or enlarge the approved

rate. Instead, the plaintiff challenges the conduct of a third-party doing business with the

regulated entity and seeks relief that may be awarded without any alteration in the approved

premiums collected by the regulated entity. As discussed further below, and as other courts have

found, this makes a difference. See, e.g., Williams v. Duke Energy Int’l, Inc., 681 F.3d 788, 796–

98 (6th Cir. 2012) (reversing district court’s holding on preclusive effect of filed-rate doctrine

and holding that the doctrine is inapplicable to claims challenging “side-agreements” made by

utility’s affiliate for rebates to favored customers allowing those customers to pay lower rates

than plaintiffs since a “ruling by this court will have no effect on the filed tariff or rate” (internal

quotation marks and citation omitted)); Alston v. Countrywide Fin. Corp., 585 F.3d 753, 764–65

(3d Cir. 2009) (finding that “[t]he filed-rate doctrine bars suit from” plaintiffs who “think that the

price they paid . . . was unfair,” but not claims “alleg[ing] a violation of fair business practices

through the use of illegal kickback payments” (internal citation omitted)); Alpert v. Nationstar

Mortg. LLC, 243 F. Supp. 3d 1176, 1182 (W.D. Wash. 2017) (collecting cases challenging

kickbacks and concluding that the filed-rate doctrine “will bar kickback claims as long as they

upset the principles set forth in Keogh,” but does not serve as a bar where the plaintiffs do not

challenge the filed rates); Jackson v. U.S. Bank, N.A., 44 F. Supp. 3d 1210, 1216–17 (S.D. Fla.

2014) (holding the filed-rate doctrine “unavailable as a defense” where defendants “are not

insurers subject to the relevant regulatory regime” (internal quotation marks and citation

20 omitted)); Maloney v. Indymac Mortg. Servs., No. CV 13-04781 DDP (AGRx), 2014 WL

6453777, at *4 (C.D. Cal. Nov. 17, 2014) (drawing a distinction between a challenge to the

defendants’ conduct in an alleged kickback scheme and a challenge to the rates themselves, and

noting that the regulated entity’s conduct with respect to third parties “is not dependent upon or

made pursuant to any ratemaking authority”); Valdez v. Saxon Mortg. Servs., Inc., No. 2:14-cv-

03595-CAS(MANx), 2014 WL 7968109, at *10–11 (C.D. Cal. Sept. 29, 2014) (same); Cannon

v. Wells Fargo Bank N.A., 917 F. Supp. 2d 1025, 1036–38 (N.D. Cal. 2013) (acknowledging

contrary authority but permitting plaintiffs to maintain a lawsuit challenging kickbacks rather

than the cost of insurance).

2. Assuming The Filed-Rate Doctrine Applies To State-Regulated Insurance Rates, Plaintiff’s Claims Are Not Barred

At the outset, the parties do not dispute but assume, without analysis, that the filed-rate

doctrine extends beyond comprehensive federal regulatory regimes, which have specific

statutory provisions granting a regulatory agency some exclusivity regarding the setting of

reasonable rates or tariffs as well as the constitutional underpinning of the Supremacy Clause.

The Court makes the same assumption that the filed-rate doctrine applies in a case raising state-

law claims implicating state-regulated insurance rates. See In re N.J. Title Ins. Litig., No. 08-

1425, 2009 WL 3233529, at *3 (D.N.J. Oct. 5, 2009) (noting that “a number of courts have

recognized that the filed[-]rate doctrine applies in the context of private suits challenging

insurance rates approved by state regulatory agencies”) (collecting cases).7 The parties disagree

whether the filed-rate doctrine bars the plaintiff’s claims.

7 The D.C. Circuit has not addressed whether the filed-rate doctrine applies to state-regulated insurance rates. Likewise, the D.C. Court of Appeals has not addressed this issue and only references the filed-rate doctrine in the context of public utilities. See, e.g., Office of People’s Counsel v. D.C. Pub. Serv. Comm’n, 989 A.2d 190, 193 (D.C. 2010); District of Columbia v. D.C. Pub. Serv. Comm’n, 905 A.2d 249, 256–57 (D.C. 2006); Watergate E., Inc. v. D.C. Pub. Serv. Comm’n, 662 A.2d 881, 888–89 (D.C. 1995). The defendants, for their part, point to no provision of District of Columbia law requiring the plaintiff to exhaust any remedies with a state insurance agency

21 The defendants argue that because Medigap policies are extensively regulated in each

state, and because the plaintiff was charged precisely the premium filed with, and approved by,

the state regulatory agencies in Florida and Louisiana, she is barred from challenging those rates

except by bringing appropriate action before those state regulatory agencies. See Defs.’ Mem. at

23–28. Otherwise, the defendants contend, the plaintiff would violate the nonjusticiability

principle of the filed-rate doctrine because her claim attacks the rate that insurance regulators

have already approved, and would violate the nondiscrimination principle because she seeks

damages that, if paid, would reduce the rate below the rate on file with state regulators. Id. at

26–27 (“[B]y seeking a refund of the portion of the rate she claims is improper (i.e., the royalty),

Plaintiff seeks to effectively pay a lower rate than the filed rate paid by other insureds under the

Policy. That claim is exactly the type of collateral attack barred by the filed rate doctrine.”).

The plaintiff counters that the filed-rate doctrine does not bar her suit because she

challenges neither the setting of the rates nor their reasonableness, or even the collection by the

regulated entity, UnitedHealth, of the Medigap insurance premiums. See Pl.’s Opp’n at 16–18,

(acknowledging that filed-rate doctrine “generally bars suits asserting that the filed rate was

unreasonable” but highlighting that “Plaintiff does not seek a refund for or challenge the

appropriateness, reasonableness, or legality of the premiums UnitedHealth received for AARP

Medigap coverage”). Instead, she claims damages only from the defendants’ misrepresentations

prior to filing suit. Indeed, as for the CPPA claim, the D.C. Court of Appeals has explained that the legislative history of the CPPA confirms that it “may be used even when other laws provide ‘different enforcement procedures and mechanisms.’” Atwater v. D.C. Dep’t of Consumer & Regulatory Affairs, 566 A.2d 462, 467 (D.C. 1989) (quoting Council of the District of Columbia, Comm. on Pub. Servs. & Consumer Affairs, Rep. on Bill No. 1-253, at 24 (Mar. 24, 1976)); see also Osbourne v. Capital City Mortg. Corp., 727 A.2d 322, 325 (D.C. 1999) (“[W]hile the CPPA is broad in the conduct it proscribes, even more important perhaps is the array of enforcement mechanisms it contains.”). Cf. Alpert, 243 F. Supp. 3d at 1182–83 (noting that even though Washington recognizes the filed-rate doctrine, courts will consider state consumer protection act claims unless they “run squarely against the filed[-]rate doctrine.” (internal citation and quotation marks omitted)).

22 and deceitful tactics that prevented consumers from making informed decisions about the

undisclosed and unlawful “commission” the defendants collected. Compl. ¶ 83; see also id. ¶¶

59, 60 (quoting AARP’s own executives’ statements before Congress in 2011 that the royalties—

what the plaintiff challenges—have “nothing to do” with premiums). In this way, the “Court is

being asked to rule on the misleading and deceitful nature of Defendants’ conduct when it

solicits its members to purchase AARP Medigap,” but is “not [being asked] to alter the rate or

make a determination of the rate’s reasonableness.” Pl.’s Opp’n at 18. As the plaintiff points

out, UnitedHealth is not a defendant in this action and would not be liable for any refund she

seeks. See id.

The defendants urge wholesale rejection of the plaintiff’s theory that the filed-rate

doctrine is inapplicable when the plaintiff challenges only the conduct by a third-party in

charging an allegedly illegal commission “to consumers on top of the premiums.” Compl. ¶ 58

(emphasis omitted). The defendants point to UnitedHealth and AARP’s Agreement, which

expressly states that the royalty is paid out of the premium rate approved by state regulators, and

to UnitedHealth’s public rate filings in Florida, which indicate the same. Defs.’ Mem. at 27–28.

The defendants also note that, as to the claim of allegedly misleading advertising, the Florida

Insurance Commissioner already has the authority to determine whether an insurance

advertisement has a capacity or tendency to mislead or deceive. Id. at 26. As noted above, DISB

has this authority as well. See supra Section III.A.

For the reasons that follow, this Court holds that the filed-rate doctrine cannot be used as

a shield to bar review of claims predicated on fraudulent misrepresentation against a third-party

doing business with a regulated entity just because those claims have some relation to filed rates

for state insurance coverage. First, at the motion-to-dismiss stage, without a full record

23 regarding the information UnitedHealth filed concerning its rates and the precise role of the

payments to AARP in each state in question, concluding that this suit “seek[s] to alter the terms

and conditions provided for in the tariff,” Central Office Telephone, 524 U.S. at 229 (Rehnquist,

C.J., concurring), would be premature. Although the defendants attached a number of exhibits to

their motion to dismiss, including copies of UnitedHealth’s rate filings in Louisiana and Florida

(but not the District of Columbia), the defendants did not seek to, and the Court declines to,

convert their dismissal motion to one for summary judgment. See FED. R. CIV. P. 12(d)

(requiring, “[i]f, on a motion under Rule 12(b), . . . matters outside the pleadings are presented to

and not excluded by the court,” that motion “be treated as one for summary judgment under Rule

56”). Thus, the Court looks only to the plaintiff’s Complaint, which alleges that consumers are

not informed that expenses charged to them as part of a premium include a 4.95% royalty

UnitedHealth is contractually obligated to pay AARP. Importantly, the plaintiff does not seek to

“enforce agreements to provide services on terms different from those listed in the tariff,” which

“is all that the tariff governs,” Central Office Telephone, 524 U.S. at 229, but rather to hold

AARP responsible for violating state laws banning unfair and deceptive trade practices and

related common law claims, see id. at 230 (the filed-rate doctrine “does not affect whatever

duties state law might impose” on the regulated entity).

Second, the plaintiff’s claims focus on her relationship with AARP and its affiliates, not

with UnitedHealth, the regulated entity responsible for filing rates. This fact underscores that the

plaintiff challenges behavior independent of the terms and conditions of the filed rate. The

plaintiff alleges that, through unfair and deceptive trade practices, the defendants collect and

retain a commission to which they are not legally entitled. Should the plaintiff prevail on these

claims to require AARP to stop collecting that “commission” on extant terms, no change to

24 UnitedHealth’s rates would necessarily follow. Indeed, nothing about the plaintiff’s claims

against AARP and its affiliates prevents UnitedHealth from continuing to collect precisely the

approved rates. Any follow-on disruption to UnitedHealth and AARP’s side agreement

regarding the “royalty” payment and whether, as a result of this disruption, UnitedHealth will

decide to change the rates filed going forward is irrelevant to an analysis of whether the filed-rate

doctrine bars plaintiff’s claims against AARP now. As the Second Circuit held, “the focus for

determining whether the filed[-]rate doctrine applies is the impact the court’s decision will have

on agency procedures and rate determinations.” Marcus, 138 F.3d at 59 (internal quotation

marks and citation omitted); see also Medco Energi US, L.L.C. v. Sea Robin Pipeline Co., L.L.C.,

729 F.3d 394, 399 (5th Cir. 2013) (per curiam) (explaining that filed-rate cases “ask this

question: when the plaintiff’s claims—at least on their face—do not attempt to challenge a filed

rate, do the claims implicate the parties’ rights and liabilities under that rate?”) (internal

quotation marks, alterations, and citation omitted). Any decision that AARP’s advertising

practices violate District of Columbia consumer protection laws or related common law claims

has no effect on agency procedures and rate determinations and does not affect plaintiff or

UnitedHealth’s rights and liabilities under that rate. Therefore, the filed-rate doctrine is not

implicated.

A recent case, challenging as unlawful the commissions paid by a telephone service

provider to a Sheriff’s Office for inmate telephone calls when state law allegedly did not

authorize such commission payments, illustrates why the plaintiff’s claims here are independent

of a challenge to the rates UnitedHealth files. In Pearson v. Hodgson, the Court held that the

filed-rate doctrine posed no bar to the plaintiffs’ claim that the telephone provider’s commission

payments violated state law and helped the Sherriff’s Office to “circumvent state law.” No. 18-

25 cv-11130-IT, 2018 WL 6697682, at *9 (D. Mass. Dec. 20, 2018). The court reasoned that the

claim “stands independent of any challenges to the specific rates charged,” id., and “is enough to

survive a motion to dismiss,” id. Acknowledging that parts of the complaint “may implicate the

cost of” the inmate call services, id., the Pearson Court nonetheless found that the plaintiffs were

not “alleging that a contractual rate . . . differed from the [filed] rates,” id., but only that “what

[the telephone provider] is doing with the revenue that it receives from the telephone calls” may

violate state law, “and the filed[-]rate doctrine does not shield [the telephone provider] from

claims of unfair or deceptive acts relating to their use of these funds,” id.

Just as the Pearson Court reasoned that challenging allegedly unfair and deceptive

practices in payments by the provider to the Sherriff’s Office of unlawful commissions was

“independent of any challenges to the specific rates charged,” id., so too here: so long as the

claims challenge the deceptive and misleading statements and acts concerning the collection of

allegedly unlawful payments, without seeking any change to the rate—and where the rate-filer is

not even a defendant—the filed-rate doctrine is no obstacle.8

Although the defendants rely on several decisions from the Second, Fifth and Eleventh

Circuits that have applied the filed-rate doctrine to bar actions for common law fraud or claims

seeking relief under state consumer protection statutes, those cases are distinguishable on their

facts. See Defs.’ Mem. at 23–28 (citing Medco Energi, 729 F.3d 394; Hill v. BellSouth

Telecomms., Inc., 364 F.3d 1308, 1315 (11th Cir. 2004); Marcus, 138 F.3d 46; Wegoland Ltd. v.

NYNEX Corp., 27 F.3d 17, 18 (2d Cir. 1994)); Defs.’ Reply Supp. of Mot. to Dismiss (“Defs.’

8 Indeed, on Pearson’s logic, which allowed a suit against the regulated entity, even a suit against UnitedHealth might withstand the filed-rate doctrine so long as the plaintiff challenged not the rates, but the unlawful allocation of funds. The Court need not decide this issue, however, as UnitedHealth is not a defendant in the instant action.

26 Reply”) at 10–14, ECF No. 15 (citing Patel v. Specialized Loan Servicing, LLC, 904 F.3d 1314

(11th Cir. 2018)).

The defendants rely in particular on Patel, where the Eleventh Circuit held that the filed-

rate doctrine barred the plaintiffs’ state and federal claims, including for breach of contract,

tortious interference, and unjust enrichment, against a regulated insurance company and

mortgage service providers, which had an exclusive arrangement to place the insurance

company’s hazard insurance. Patel, 904 F.3d at 1317. In that case, the plaintiffs expressly

challenged the premium insurance rates they were charged for hazard insurance required to be

maintained on real property securing the plaintiffs’ mortgage loans (“force-placed insurance”),

which premiums were allegedly “artificially inflated” to cover the cost of the insurance

company’s alleged “kickback” to mortgage loan servicers. Id. at 1317, 1326. In reaching this

conclusion, the Eleventh Circuit focused on “[t]he most obvious basis,” id. at 1325, namely, “the

fact that the plaintiffs repeatedly state that they are challenging [the insurance company’s]

premiums,” id. at 1325–26, using language targeting “artificially inflated premiums,”

“unreasonably high force-placed insurance premiums,” and “amounts charged for insurance

coverage,” id. at 1326, such that “[t]he plain language of the complaints therefore shows that the

plaintiffs are challenging the reasonableness of [the insurance company’s] premiums; and since

these premiums are based upon rates filed with state regulators, plaintiffs are directly attacking

those rates as being unreasonable as well,” id. The court described these claims “directly

challenging the rates … filed with state regulators” as “textbook examples of the sort of claims

that we have previously held are barred by the nonjusticiability principle.” Id.

The other circuit cases on which the defendants rely are distinguishable from the

plaintiff’s claims for precisely the reason Patel is: in each case, the plaintiffs directly challenged

27 the filed rate. See e.g., Medco, 729 F.3d at 399 (concluding that the plaintiff’s claim against

regulated entity for “misrepresentation about repair times, though ‘extra-contractual,’ involve the

specific subject matter of the tariff [concerning interruptible pipeline service]”); Hill, 364 F.3d at

1316–17 (holding that misrepresentation claims against a telecommunications provider for not

disclosing that it passed a federally required fee through to consumers as part of its filed rate “in

effect” challenged the rate because it “seeks recovery of [the] . . . undisclosed charges” and

damages would therefore reduce the filed rate (internal quotation marks and citation omitted));

Marcus, 138 F.3d at 59–62 (holding that the filed-rate doctrine prohibited false advertising

claims for damages against telecommunications provider for its practice of “rounding up” the

length of a long-distance call because any damages would have the effect of reducing the rate);

Wegoland, 27 F.3d at 20–21 (concluding that the filed-rate doctrine blocked common law fraud

claims against a telecommunications carrier that provided regulating agencies with misleading

information in seeking approval of its rate, because in calculating damages the court would have

to determine what the reasonable rate would have been absent the fraud).

By contrast to Patel and the other circuit cases on which the defendants rely, the

Complaint at issue does not challenge the amount of the Medigap insurance rate or the amount

collected by the insurance provider that has been approved by state insurance agencies. The

focus of the plaintiff’s claims is not the approved rate but AARP’s description and practices

related to the payments collected by AARP from each premium paid. The crafting of the claims

here carefully avoids any direct criticism of the approved Medigap rates, as well as skipping any

direct claims against the insurance provider. This makes a difference since, again, this suit

against AARP targets not the insurance premiums but the disclosures about the defendants’ side

28 agreement with a regulated entity and, if successful, does not alter the rate the regulated entity is

entitled to charge.

This is not the first case to raise the question whether the filed-rate doctrine bars state

consumer protection or common law fraud claims against AARP and/or UnitedHealth for the

same 4.95% “royalty” charge at issue here. Those courts to address this issue have reached

different outcomes, but closer scrutiny shows this is due to differences in the claims asserted.

The defendants highlight that district courts in Texas and New York have held that the filed-rate

doctrine barred state law claims regarding the 4.95% charge. Defs.’ Mem. at 19 (citing Peacock

v. AARP, Inc., 181 F. Supp. 3d 430, 441 (S.D. Tex. 2016); Roussin v. AARP, Inc., 664 F. Supp.

2d 412, 415–19 (S.D.N.Y. 2009), aff’d, 379 F. App’x 30 (2d Cir. 2010) (summary order)).

District courts in California and New Jersey have rejected this position. See Bloom v. AARP,

Inc., No. 18-cv-2788-MCA-MAH (D.N.J. Nov. 30, 2018), Order at 2–4, ECF No. 40; Levay v.

AARP, Inc., No. 17-09041 DDP (PLAx), 2018 WL 3425014, at *7 (C.D. Cal. July 12, 2018);

Friedman v. AARP, Inc., 283 F. Supp. 3d 873, 877–79 (C.D. Cal. 2018).9

The reasoning of the two courts that have applied the filed-rate doctrine to bar claims

regarding the 4.95% charge is neither binding nor persuasive given the differences in the claims

here. In Peacock, for example, the plaintiffs “flatly allege[d] that the rates are illegal,” 181 F.

Supp. 3d at 440, and asserted claims that “attack[ed] the legality vel non of the rates charged by

9 AARP and UnitedHealth have sought dismissal due, inter alia, to the filed-rate doctrine in other cases challenging the 4.95% charge, but those dismissal motions remain pending. See, e.g., Dane v. Unitedhealthcare Ins. Co., No. 18-cv-792-SRU (D. Conn.); Christoph v. AARP, Inc., No. 18-cv-3453-NIQA (E.D. Pa.). In addition, other similar cases have been dismissed voluntarily without a decision on the merits. See, e.g., Sacco v. AARP, Inc., No. 18-cv-14041-JEM (S.D. Fla. Jan. 23, 2019), Stipulation of Dismissal, ECF No. 89 (a putative class action filed on behalf of Florida residents against AARP and UnitedHealth and raising Florida law claims was stayed by the Southern District court of Florida and then voluntarily dismissed upon the Eleventh Circuit’s denial of a petition for rehearing in Patel); Baruch v. AARP, Inc., No. 18-cv-1563-AJN (S.D.N.Y. Mar. 26, 2018), Notice of Voluntary Dismissal, ECF No. 30 (a putative class action filed on behalf of New York residents raising New York state claims against AARP and UnitedHealth).

29 [AARP and UnitedHealth] for group insurance,” id. at 441. The Peacock Court therefore had no

trouble concluding that this direct attack on the filed rates was barred by the filed-rate doctrine.

Id. This reasoning is easily distinguishable since the instant suit is not filed against UnitedHealth

and does not challenge the legality of the approved rates charged by UnitedHealth. Rather, the

plaintiff’s claims challenge AARP’s practices and disclosures regarding the defendants’ retention

of a portion of the rates UnitedHealth filed.

Roussin similarly sheds little light on the filed-rate doctrine’s application to the instant

claims. Although the plaintiff in Roussin sued only AARP and its affiliates, and not

UnitedHealth, her suit directly attacked the reasonableness of the filed rates by arguing that the

defendants had “failed to fulfill their fiduciary duties to keep insurance premiums reasonable,”

664 F. Supp. 2d at 414 (internal quotation marks omitted), a claim the court concluded “at base,

challeng[ed] the reasonableness of the cost of her AARP-sponsored health insurance rates,” id. at

415, and would require the court to determine whether the rates were reasonable as a predicate to

assessing AARP’s breach of any duty to the plaintiff, see id. at 417, 419. No such determination

about the reasonableness of the Medigap insurance rate is necessary here. For these reasons,

Peacock and Roussin are inapposite.

By contrast, the district courts in New Jersey and California, which rejected application

of the filed-rate doctrine to bar claims challenging the 4.95% charge under state consumer

protection laws, are more closely analogous to the instant suit. In Bloom, the plaintiff sued both

AARP and UnitedHealth and their affiliates for failing to disclose, and for false and misleading

material statements about, UnitedHealth’s payment of the 4.95% commission to AARP. The

court found that “‘the filed[-]rate doctrine simply does not apply’ where a Plaintiff challenges

30 ‘allegedly wrongful conduct, not the reasonableness or propriety of the rate that triggered that

conduct.’” Bloom, No. 18-cv-2788, Order at 2 (quoting Alston, 585 F.3d at 765).

Similarly, the plaintiffs in Levay and Friedman were not barred from pursuing unfair

business practices and false advertising claims against both AARP and UnitedHealth because the

claims were “essentially about false or misleading advertising, and not challenges to the

reasonableness of the actual rates that were approved by the [state department of insurance],”

Levay, 2018 WL 3425014, at *7, and were “more akin to challenges to Defendants’ alleged

misrepresentations, rather than challenges to the approved rate, or challenges to whether the rate

is reasonable in light of the statutorily prescribed loss ratios for Medigap insurance,” Friedman,

283 F. Supp. 3d at 878 (footnote omitted).

The Levay Court further explained that the theory of injury did “not concern the price of

the insurance policy per se,” but was that “consumers were ‘duped’ into joining AARP and

paying membership fees in order to access the AARP-branded polices from UnitedHealth,”

without being told that AARP made “a commission on each sale” and had this ulterior motive to

recommend the policies. See Levay, 2018 WL 3425014, at *5. As such, the Levay Court

concluded that the state insurance agency’s “rate determination is different from what is at issue

here—whether the lender mischaracterized the nature of the charges. . . . [u]nder this theory of

recovery, the adjudication of Plaintiffs’ claims would not improperly encroach on . . . rate-

making authority.” Id. at *7 (internal quotation marks, alterations, and citation omitted). The

Friedman Court similarly reasoned that “the gravamen of the complaint is not the premium rate

per se, but the failure to disclose the allegedly fraudulent nature of the commission charged to

borrowers,” such that the challenged payments “appear to fall outside of the scope of the . . .

31 regulatory approval of rates,” and the filed-rate doctrine. 283 F. Supp. 3d at 878–79 (internal

quotation marks and citation omitted).

Just as in Bloom, Levay and Friedman, the plaintiff’s state law claims against AARP and

its affiliates regarding AARP’s allegedly deceptive conduct and unfair business practices are

independent of any approved rates UnitedHealth filed in the District of Columbia, or any other

state. Thus, resolution of these claims about whether the plaintiff was deceived by and injured by

the defendants’ false representations concerning the 4.95% charge, or its incorporation as part of

the premiums on file, does not necessitate any determination about the reasonableness of the rate.

Accordingly, the filed-rate doctrine does not bar the plaintiff’s claims.

C. Choice of Law

The defendants contend that because the plaintiff originally purchased a Medigap policy

in 2012 when she resided in Louisiana, and later renewed that coverage while residing in Florida,

either Louisiana or Florida law should apply. Defs.’ Mem. at 17 n.3, 28. The plaintiff seeks

application of District of Columbia law. Pl.’s Opp’n at 22–28. The Court agrees that District of

Columbia law applies, though without agreeing with all of the plaintiff’s reasoning.

The plaintiff first submits that her claims must be considered under District of Columbia

law due to a provision in the group policy indicating as much. See Compl. ¶ 22 (quoting the

Certificate of Insurance as stating that AARP “issued the Group Policy in the District of

Columbia. . . . [and] [i]t provides insurance for AARP members and is governed by the laws of

the District of Columbia”); Pl.’s Opp’n at 22–24. The defendants argue persuasively, however,

that this provision only governs contractual claims related to the insurance policy and does not

apply to the tort claims alleged here. See Defs.’ Mem. at 32 n.9; Defs.’ Reply at 23. The Court

agrees that the contractual choice-of-law provision does not necessarily bind parties with respect

to non-contractual causes of action, such as those asserted here. See Base One Techs., Inc. v. Ali, 32 78 F. Supp. 3d 186, 192 (D.D.C. 2015) (noting that contractual choice-of-law provisions do not

bind parties with respect to tort actions) (citing Minebea Co., Ltd. v. Papst, 377 F. Supp. 2d 34,

38–39 (D.D.C. 2005)). Nevertheless, under a choice-of-law analysis, the plaintiff prevails on the

issue of which state’s law governs this action.

When exercising diversity jurisdiction, the choice-of-law rules of the forum apply.

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941); Shaw v. Marriott Int’l, Inc., 605

F.3d 1039, 1045 (D.C. Cir. 2010). Under District of Columbia law, the first step in a choice-of-

law analysis is determining “whether a ‘true conflict’ exists between the laws of the [competing]

jurisdictions—‘that is, whether more than one jurisdiction has a potential interest in having its

law applied and, if so, whether the law of the competing jurisdictions is different.’” In re APA

Assessment Fee Litig., 766 F.3d 39, 51–52 (D.C. Cir. 2014) (citing GEICO v. Fetisoff, 958 F.2d

1137, 1141 (D.C. Cir. 1992); Fowler v. A & A Co., 262 A.2d 344, 348 (D.C. 1970)). If there is

no conflict, the law of the District of Columbia applies by default. See Estate of Doe v. Islamic

Republic of Iran, 808 F. Supp. 2d 1, 20–21 (D.D.C. 2011). If a conflict does exist, courts must

employ a “modified governmental interests analysis which seeks to identify the jurisdiction with

the most significant relationship to the dispute.” Washkoviak v. Student Loan Mktg. Ass’n, 900

A.2d 168, 180 (D.C. 2006) (internal quotation marks and citation omitted); see also Oveissi v.

Islamic Republic of Iran, 573 F.3d 835, 842 (D.C. Cir. 2009) (“District of Columbia courts blend

a ‘governmental interests analysis’ with a ‘most significant relationship’ test.” (internal quotation

marks and citation omitted)). The Court addresses each of these issues seriatim.

1. Florida and Louisiana Law Conflicts With District of Columbia Law

“A conflict of laws does not exist when the laws of the different jurisdictions are identical

or would produce the identical result on the facts presented.” USA Waste of Md., Inc. v. Love,

954 A.2d 1027, 1032 (D.C. 2008) (footnote omitted). On the other hand, a conflict may be 33 found when two jurisdictions have different applicable laws, which would result in different

outcomes. See id. In this case, the defendants argue vigorously that if the plaintiff were to

litigate her claims under Florida law or Louisiana law, the outcome of this case would be

different because her claims would be barred by the filed-rate doctrine. Defs.’ Reply at 10–11

(citing Patel, 904 F.3d at 1320, 1326 (Florida law)); Defs.’ Mem. at 27 n.8 (citing Medco Energi,

U.S., LLC v. Sea Robin Pipeline Co., 895 F. Supp. 2d 794, 816 (W.D. La. 2012), aff’d, 729 F.3d

394 ((Louisiana law)). The plaintiff appears to concede a conflict with Louisiana law, while

suggesting her claim is distinguishable from Florida-law claims barred by the filed-rate doctrine

because UnitedHealth is not a defendant in the action. See Pl.’s Opp’n at 18 & n.5.10 No matter.

Even assuming a demonstrated conflict among the laws of these three jurisdictions, consideration

of the “governmental interest” and “significant relationship” tests confirms that the plaintiff’s

claims are governed by District of Columbia law.

2. Governmental Interest Test Favors Application of District of Columbia Law

The governmental interest analysis requires a court to “evaluate the governmental

policies underlying the applicable laws and determine which jurisdiction’s policy would be most

advanced by having its law applied to the facts of the case under review.” Oveissi, 573 F.3d at

842 (internal quotation marks and citation omitted). The defendants point out that Florida and

Louisiana have comprehensive regulatory schemes for Medigap insurance and therefore have a

strong governmental interest in having their laws applied. See Defs.’ Mem. at 30–32. Moreover,

they contend that Florida and Louisiana’s interests outweigh the interests of the District of

Columbia because the defendants’ “place of business bears no meaningful connection to claims

10 Notably, the plaintiff made this argument before the Eleventh Circuit issued its opinion in Patel, holding that the filed-rate doctrine applies when an intermediary passes the cost of regulator-approved rates on to a third party. See 904 F.3d at 1322.

34 regarding a Louisiana and Florida resident who purchased Louisiana- and Florida-regulated

insurance.” Id. at 31–32.

The plaintiff counters that the most heavily weighted factor is the place of the conduct

causing injury, which “favors the District of Columbia because that is where AARP devised its

scheme, prepared and approved of the marketing materials, entered into the Agreement with

UnitedHealth, and where AARP Trust skimmed off 4.95% of Plaintiff’s Medigap payments and

forwarded it to AARP and ASI.” Pl.’s Opp’n at 25–26. The plaintiffs’ argument, based on the

nature of the claims here, is more persuasive.

The plaintiff is seeking to vindicate her own rights, and the rights of those similarly

situated under the District of Columbia’s CPPA. For CPPA claims, “[t]he District of Columbia

has an interest in protecting its own citizens from being victimized by unfair trade practices and

an interest in regulating the conduct of its business entities.” Shaw, 605 F.3d at 1045 (emphasis

added). Indeed, the CPPA is not limited in its application to consumers or companies who are

residents of the District, so the plaintiff’s residence in Florida or previous residence in Louisiana

does not prevent her from stating a claim under the CPPA. See D.C. CODE § 28-3904 (it is a

violation of the CPPA for any “person” to engage in deceptive trade practices); see also

Washkoviak, 900 A.2d at 180–83 (allowing non-residents to bring claims under the CPPA and

claims under District of Columbia common law). Even if Florida or Louisiana have an equal

interest as the District of Columbia in applying their own laws, in such a situation the law of the

forum state should apply. See Washkoviak, 900 A.2d at 182 (citing Logan v. Providence Hosp.

Inc., 778 A.2d 275, 278 (D.C. 2001)). Thus, the District of Columbia has a strong governmental

interest in the application of the CPPA in this case.

35 3. The Significant Relationship Test Favors Application of D.C. Law

When evaluating which jurisdiction has the “most significant relationship” to the case,

courts in the District of Columbia “must consider the factors enumerated in the RESTATEMENT

(SECOND) OF CONFLICT OF LAWS § 145, which are: (1) the place where the injury occurred; (2)

the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality,

place of incorporation, and place of business of the parties; and (4) the place where the

relationship, if any, between the parties is centered.” Oveissi, 573 F.3d at 842 (internal quotation

marks, alterations, and citations omitted); Washkoviak, 900 A.2d at 180.11 The weighing of these

four factors demonstrates that the District of Columbia has a more significant relationship to the

plaintiff’s misrepresentation and deceptive advertising claims, as well as the common law claims

based on the same set of facts.

11 In reply, the defendants suggest that Section 148 of the Second Restatement concerning “fraud and misrepresentation,” should be applied here rather than Section 145. See Defs.’ Reply at 21–22. While the D.C. Court of Appeals has previously looked to Section 148 as a “useful framework for selecting the law which applies to multi-state misrepresentation claims,” Hercules & Co., Ltd. v. Shama Restaurant Corp., 566 A.2d 31, 43 (D.C. 1989), more recent cases primarily look to Section 145, see Washkoviak, 900 A.2d at 182 n.18 (relying on Section 145 but noting the result would be no different under Section 148); Jones v. Clinch, 73 A.3d 80, 82 (D.C. 2013) (citing Hercules but nonetheless relying on Section 145 when analyzing a CPPA claim alleging misrepresentation); see also In re APA Assessment Fee Litig., 766 F.3d at 53–55 (following Washkoviak and conducting an analysis of choice of law for misrepresentation claims under Section 145, but concluding there would be no difference if the question were considered under Section 148); Margolis v. U-Haul Int’l, Inc., 818 F. Supp. 2d 91, 102 n.7 (D.D.C. 2011) (pointing to counsel’s concession that “there is no case under the CPPA in the Superior Courts or in federal court that has ever applied [Section] 148”) (internal alteration and quotation marks omitted); Mobile Satellite Commcn’s, Inc. v. Intelsat USA Sales Corp., 646 F. Supp. 2d 124, 130 (D.D.C. 2009) (noting that the D.C. Court of Appeals “has applied [Section] 145 even in cases of fraudulent misrepresentation,” and citing both Washkoviak and Hercules). Given this background, the Court concludes that Section 145 provides the appropriate framework. The plaintiff’s motion for leave to submit a surreply to address this argument (among others) is therefore unnecessary. See Pl.’s Mot. for Leave to File Surreply, ECF No. 17. Further, as the defendants note, see Defs.’ Opp’n to Pl.’s Mot. for Leave to File Surreply at 4, ECF No. 18, the plaintiff has failed to attach her proposed surreply for the Court’s consideration. See id. (citing Glass v. Lahood, 786 F. Supp. 2d 189, 231 (D.D.C. 2011) (in which the plaintiff submitted her proposed surreply so that the Court could evaluate whether it was warranted); Crummey v. Soc. Sec. Admin., 794 F. Supp. 2d 46, 54, 63–64 (D.D.C. 2011) (same)). Therefore, the plaintiff’s Motion for Leave to File a Surreply is denied as both defective and unnecessary, since the issues the plaintiff seeks to address would not aid in the Court’s resolution of the pending motion to dismiss.

36 a. The Place of Injury

The first factor requires the Court to consider the place where the injury to the plaintiff

occurred. In a typical misrepresentation case, the injury occurs where the plaintiff “received the

alleged misrepresentations and made their payments.” Washkoviak, 900 A.2d at 181. In this

case, the plaintiff alleges that the defendants violated the CPPA by falsely advertising and

misrepresenting the source and purpose of the 4.95% charge. The parties agree that the place of

the plaintiff’s injury for her misrepresentation claims are Florida or Louisiana, where she

“received the alleged misrepresentations,” Washkoviak, 900 A.2d at 181. See Pl.’s Opp’n at 25;

Defs.’ Mem. at 30–31.

Yet, according to the Restatement and the D.C. Court of Appeals, “the place of injury is

less significant in the case of fraudulent misrepresentations” than “in the case of personal injuries

and of injuries to tangible things.” Washkoviak, 900 A.2d at 181–82 (internal quotation marks

and citation omitted) (stating that there was a “discounted value of the place of injury in cases . .

. involving claims of misrepresentation”); see also RESTATEMENT (SECOND) OF CONFLICT OF

LAWS § 145 cmt. f (“[T]he place of injury is less significant in the case of fraudulent

misrepresentations and of such unfair competition as consists of false advertising and the

misappropriation of trade values.”) (internal citation omitted). Accordingly, although this factor

weighs in favor of applying Florida or Louisiana law, the significance of this result is diminished

because of the nature of the claims.

b. The Place Where the Conduct Causing the Injury Occurred

The second factor in the choice-of-law analysis requires assessment of where the conduct

causing the injury occurred. According to the Restatement, as previously discussed, “the place

of injury does not play so important a role for choice-of-law purposes in the case of false

advertising. . . . Instead, the principal location of the defendant’s conduct is the contact that will

37 usually be given the greatest weight.” RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145

cmt. f. See also Margolis, 818 F. Supp. 2d at 102–03 (quoting Washkoviak, 900 A.2d at 181–82

for the proposition that the place of injury has a “discounted value” in cases involving claims of

misrepresentation).

Likewise, in cases alleging a misrepresentation, the place where the conduct causing the

injury occurred is the place where the defendant has its principal place of business and sets its

policies and practices. See Wu v. Stomber, 750 F.3d 944, 949 (D.C. Cir. 2014) (Kavanaugh, J.)

(holding that the “conduct causing the injury” occurred in the location of the defendant’s

principal place of business); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 cmt. e

(where the conduct occurred will usually be given particular weight when the place of injury

“can be said to be fortuitous or when for other reasons it bears little relation to the occurrence

and the parties with respect to the particular issue. . . . such as in the case of fraud and

misrepresentation”). The defendants do not dispute that they set their practices and policies in

the District of Columbia, where AARP is headquartered and where each of the AARP affiliates

has its primary place of business. As a result, this second factor favors the application of District

of Columbia law.

c. The Residence, Place of Incorporation, and Place of Business of the Parties

The third factor of the choice-of-law analysis focuses on the residency of the parties in

the case. At the time she purchased AARP’s Medigap policies, the plaintiff was a resident either

of Louisiana or of Florida. See Pl.’s Opp’n at 25. The defendants AARP, AARP Trust, and ASI

are all incorporated, headquartered, and maintain their primary place of business in the District

of Columbia. Id. at 26 (citing Compl. ¶¶ 21–23). As already noted, the District of Columbia has

an interest in regulating the conduct of businesses incorporated there. See Shaw, 605 F.3d at

38 1045. Although the states of Florida and Louisiana may have an interest in regulating insurance

companies within their states, AARP is not such an insurance company. Moreover, to the extent

those other states have an interest in regulating third-parties involved in the sale of insurance

policies within their states, those interests are less than that third-party’s place of incorporation

and place of business. In any event, where interests may be equal, the forum state’s law applies.

See Washkoviak, 900 A.2d at 182. Consideration of this factor thus favors application of District

d. Where the Relationship Between the Parties is Centered

The fourth Restatement factor instructs the Court to determine where the relationship

between the parties is centered. The defendants suggest that because Medigap policies are

subject to state regulation, the plaintiff’s relationship to the defendants was centered in

Louisiana, where she originally purchased her Medigap policy, and Florida, where she renewed

it. See Defs.’ Mem. at 31. The plaintiff counters that the fourth factor “clearly favors the

District of Columbia above any other jurisdiction [because] (1) the AARP membership

organization is located in the District of Columbia and AARP membership is a requirement for

purchasing Medigap insurance policies; (2) AARP’s decision to market AARP Medigap Policies

to AARP members emanated from the District of Columbia; and (3) it is where AARP Trust

segregates Plaintiff’s money, forwarding her premiums to UnitedHealth and diverting 4.95% to

AARP and ASI.” Pl.’s Opp’n at 26 (citing Compl. ¶¶ 22, 23, 71).

In this action, where the gravamen of the plaintiff’s complaint is misrepresentation and

false advertising, the Court agrees that the plaintiff’s relationship with the defendants is centered

in the District of Columbia, where the defendants have their primary place of business and where

they make their policies and practices regarding advertising.

39 4. District of Columbia Law Is Applied

Having considered both the governmental interest analysis and the significant

relationship test, informed by the four factors outlined by Section 145 of the Second

Restatement, the Court concludes that District of Columbia law should govern this dispute. The

place of the plaintiff’s alleged injury due to the defendants’ alleged misrepresentations and

failure to disclose certain information occurred in Louisiana or Florida, but the alleged

misconduct emanated from District of Columbia, where the defendants are headquartered and

have their primary place of business. As the plaintiff alleges, “AARP formulated and conceived

its role in the scheme largely in the District of Columbia, directed the scheme complained of . . .

from the District of Columbia, and its communications and other efforts to execute the scheme

largely emanated from the District of Columbia. . . . [including] AARP’s decision to market

AARP Medigap policies to AARP members, its policies and practices relating to AARP

Medigap Policies, including the . . . decision to collect the 4.95% commission.” Compl. ¶¶ 70–

71. In light of the fact that this case involves allegations of misrepresentation, for which the

place of the alleged injury is less important than in other tort cases, see In re APA Assessment

Fee Litig., 766 F.3d at 54 (citing Washkoviak, 900 A.2d at 182), bolstered by the District of

Columbia’s interest in regulating companies incorporated under its laws, District of Columbia

law will be applied to the instant claims.

D. Statutes of Limitations

The defendants raise yet another threshold issue: namely, that the plaintiff filed the

instant Complaint outside of the statute of limitations under both Louisiana and District of

Columbia law, since she first purchased her Medigap policy in 2012. See Defs.’ Mem. at 37–38.

The plaintiff counters that she last renewed her policy in November 2016, within the District of

Columbia’s three-year statute of limitations for the filing of her Complaint in 2018, and in any

40 event her claim should be allowed under either a “continuing tort” or “fraudulent concealment”

theory. See Pl.’s Opp’n at 32–34 & n.17. For the following reasons, the Court declines, at this

stage, to dismiss the Complaint as untimely.

A defendant may raise a statute of limitations defense “in a pre-answer motion under . . .

Rule[] 12(b).” Smith-Haynie v. District of Columbia, 155 F.3d 575, 577 (D.C. Cir. 1998). The

D.C. Circuit has “repeatedly held,” however, that “courts should hesitate to dismiss a complaint

on statute of limitations grounds based solely on the fact of the complaint.” Firestone v.

Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (per curiam). “[S]tatute of limitations issues

often depend on contested questions of fact, [so] dismissal is appropriate only if the complaint on

its face is conclusively time-barred.” Bregman v. Perles, 747 F.3d 873, 875 (D.C. Cir. 2014)

(internal quotation marks omitted) (quoting de Csepel v. Republic of Hungary, 714 F.3d 591, 603

(D.C. Cir. 2013)).

Under District of Columbia law, the plaintiff must bring her CPPA and related common

law claims within three years from the time when her right to maintain the action accrued. See

D.C. CODE § 12-301(8); Comer v. Wells Fargo Bank, N.A., 108 A.3d 364, 369 n.7 (D.C. 2015).

A claim accrues when the plaintiff has “either ‘actual notice of her cause of action’ or is deemed

to be on ‘inquiry notice’ by failing to ‘act reasonably under the circumstances in investigating

matters affecting her affairs, where ‘such an investigation, if conducted, would have led to actual

notice.’” Medhin v. Hailu, 26 A.3d 307, 310 (D.C. 2011) (quoting Harris v. Ladner, 828 A.2d

203, 205–06 (D.C. 2003)). “[W]hat constitutes the accrual of a cause of action is a question of

law; the actual date of accrual, however, is a question of fact.” Medhin, 26 A.3d at 310 (internal

alteration, quotation marks, and citation omitted). Moreover “[w]hat is ‘reasonable under the

circumstances’ is a highly factual analysis. The relevant circumstances include, but are not

41 limited to, the conduct and misrepresentations of the defendant, and the reasonableness of the

plaintiff’s reliance on the defendant’s conduct and misrepresentations.” Diamond v. Davis, 680

A.2d 364, 372 (D.C. 1996).

Related to the assessment of the reasonableness of reliance, the District of Columbia

recognizes a “discovery rule” that operates to trigger the accrual date for the limitations period

upon discovery of the injury when the alleged tortious conduct obscures when the injury

occurred. See Hughes v. Abell, 794 F. Supp. 2d 1, 12 (D.D.C. 2010). Under this rule, a cause of

action accrues “when one knows or by the exercise of reasonable diligence should know (1) of

the injury, (2) its cause in fact, and (3) of some evidence of wrongdoing.” Id. (internal quotation

marks omitted) (quoting Morton v. Nat’l Med. Enters., Inc., 725 A.2d 462, 468 (D.C. 1999)).

“[W]hen one person defrauds another, there will be a delay between the time the fraud is

perpetrated and the time the victim awakens to that fact.” In re Estate of Delaney, 819 A.2d 968,

981 (D.C. 2003) (internal quotation marks and citation omitted).

Relatedly, the District of Columbia also recognizes a “continuing tort doctrine,” which

allows a plaintiff to recover for harms that would otherwise be time barred when she suffers “(1)

a continuous and repetitious wrong, (2) with damages flowing from the act as a whole rather than

from each individual act, and (3) at least one injurious act . . . within the limitation period.”

Beard v. Edmondson & Gallagher, 790 A.2d 541, 547–48 (D.C. 2002) (internal quotation marks

and citation omitted). This doctrine may apply when the claimed “injury might not have come

about but for the entire course of conduct.” Pleznac v. Equity Residential Mgmt., L.L.C., 320 F.

Supp. 3d 99, 104 (D.D.C. 2018) (internal quotation marks and emphasis omitted) (quoting John

McShain, Inc. v. L’Enfant Plaza Props., Inc., 402 A.2d 1222, 1231 n.20 (D.C. 1979)).

42 As to this latter theory, the defendants argue that the continuing tort doctrine is

inapplicable to a situation where the plaintiff makes a series of periodic payments, all stemming

from an initial wrong outside of the limitations period, relying heavily on Pleznac, a case that is

not binding on this Court. Defs.’ Reply at 15–16 (citing Pleznac). The plaintiff in Pleznac

alleged that she was fraudulently induced into signing a lease and that the renewal of that lease,

occurring within the statute of limitations period, allowed her to bring a claim for the initial

fraud. Pleznac, 320 F. Supp. 3d at 105–06. The Court rejected that argument, but held open the

possibility that a plaintiff in a similar situation could “seek[] relief based on . . . subsequent lease

renewals. . . . [because] [i]t could theoretically be the case that the renewals were independent

acts of deception rather than mere injuries flowing from the initial misrepresentations or

omissions.” Id. at 105. The possibility that the Court held open in Pleznac applies here where

the plaintiff alleges that AARP misrepresented the nature of the 4.95% charge both when she

originally bought her policy and when she renewed it, and that therefore each renewal was an

“independent act[] of deception” subject to the continuing tort doctrine. Id.

In any event, assuming that the plaintiff’s claim did not accrue until she learned the

specifics of the 4.95% charge constituting a “royalty” UnitedHealth owed AARP and that

consumers were charged the royalty in conjunction with their premium payments, she does not

specify in her Complaint when she learned those details. Nor does any party address whether the

plaintiff should be deemed to have been on inquiry notice of her claim as a result of the filing, as

early as 2009, of other lawsuits against AARP with similar allegations, as well as AARP’s

testimony in 2011 before the House Ways and Means Committee, which testimony and related

Congressional investigations are cited in the Complaint, see Compl. ¶¶ 48, 59–61. Moreover, the

Complaint does not specify when the plaintiff viewed the defendants’ advertisements or

43 statements regarding the 4.95% charge, or when the plaintiff learned facts leading her to believe

that such advertisements or statements were materially false. These dates may be relevant to an

analysis of whether the plaintiff’s claims are time barred or whether the discovery rule should

apply. Yet, given that these factual matters remain unknown, and since the Complaint is not “on

its face” conclusively time barred, Bregman, 747 F.3d at 875, dismissal for statute of limitations

reasons is not appropriate at this time.

E. The Plaintiff Plausibly States a Claim for Relief

The plaintiff asserts four claims against all three defendants: unfair trade practices under

the CPPA, conversion, unjust enrichment, and fraudulent concealment. Since the factual

allegations sufficiently state plausible claims, as explained further below, the defendants’ motion

to dismiss for failure to state a claim is denied.

1. Count One States a Violation of the CPPA

The CPPA is a “comprehensive statute designed to provide procedures and remedies for a

broad spectrum of practices which injure consumers.” Atwater, 566 A.2d at 465. This law is

expressly intended to “be construed and applied liberally to promote its purpose.” D.C. CODE §

28-3901(c). The plaintiff invokes the CPPA to challenge the defendants’ conduct in marketing,

soliciting members to enroll in, and administering Medigap policies. Specifically, the plaintiff

alleges that AARP committed an unlawful trade practice, in violation of the CPPA, by issuing

solicitation materials, letters to prospective consumers, billing statements, renewal letters, and

website statements containing misrepresentations of material facts concerning the 4.95%

payment and AARP’s collection and receipt, without being a licensed insurance broker or agent,

of a commission on each policy sale or renewal. Compl. ¶¶ 5, 92–96. The plaintiff claims

financial harm by these unlawful trade practices because she would have sought a different

Medigap policy that did not incorporate a 4.95% “commission that AARP is not legally entitled

44 to,” id. ¶ 97, and because the defendants’ actions “deprived [her] of truthful information

regarding [her] choice” of Medigap policies, id. ¶ 100.

The defendants challenge the validity of this CPPA claim on four grounds: (1) the CPPA

does not apply to transactions conducted outside the District of Columbia, Defs.’ Mem. at 38–39;

(2) the plaintiff lacks standing because she does not allege an injury in fact, id. at 39–41; (3) the

defendants do not qualify as a “merchant” under the CPPA, id. at 41; and (4) unfair trade

practices through material misrepresentations have not been sufficiently pled, id. at 42–44 Each

of these arguments falls short.

a. The CPPA Applies to the Alleged Transactions

The CPPA applies to the transactions alleged in this case. The defendants argue that the

CPPA only “establishes an enforceable right to truthful information from merchants about

consumer goods and services that are or would be purchased, leased, or received in the District

of Columbia,” and, since the plaintiff never alleges that she purchased, leased, or even saw any

advertisements in the District of Columbia, the CPPA claim should be dismissed. Defs.’ Mem.

at 39 (emphasis omitted) (citing D.C. CODE § 28-3901(c)). Noting that the CPPA must “be

construed and applied liberally to promote its purpose,” Pl.’s Opp’n at 35 (internal quotation

marks omitted) (quoting D.C. CODE § 28-3901(c)), the plaintiff contends that, regardless of her

connections to other states, the CPPA applies when “the plaintiff . . . avers that the defendant[s’]

actions in the District of Columbia gave rise to the plaintiff’s claims under the CPPA,” which the

plaintiff has done here, Pl.’s Opp’n at 35 (emphasis omitted) (quoting Renchard v. Prince

William Marine Sales, Inc., 87 F. Supp. 3d 271, 283 (D.D.C. 2015)). The Complaint expressly

alleges that “AARP formulated and conceived its role in the scheme largely in the District of

Columbia, directed the scheme . . . from the District of Columbia, and its communications and

other efforts to execute the scheme largely emanated from the District of Columbia. . . . 45 [including] the oversight of the marketing . . . and decision to collect the 4.95% commission”

Compl. ¶¶ 70, 71. These allegations sufficiently “aver[] that the defendants’ actions in the

District of Columbia gave rise to [her] claims under the CPPA.” Renchard, 87 F. Supp. 3d at

283 (emphasis omitted).

The defendants question the plaintiff’s reliance on Renchard, see Defs.’ Reply at 17, a

case in which a yacht owner asserted a CPPA claim against the Virginia company that financed

his yacht purchase and subsequently seized the yacht in the District of Columbia for failure to

make payment for improvements made to the yacht in the District of Columbia. See Renchard,

87 F. Supp. 3d at 274–76. The Court found no merit to defendants’ claims that the CPPA would

involve extraterritorial conduct because in Renchard, the District of Columbia was “where the

injury occurred and the place where the conduct causing the injury occurred.” Id. at 283. The

defendants attempt to distinguish Renchard by pointing out that the Court also noted that the

yacht was received in the District of Columbia, whereas in this suit the plaintiff purchased and

received insurance in Florida and Louisiana. Defs.’ Reply at 17. Yet this overlooks the Court’s

strong reliance on the plaintiff’s allegations that “the defendants’ actions in the District of

Columbia gave rise to the plaintiff’s claims under the CPPA,” Renchard, 87 F. Supp. 3d at 283

(emphasis in original), and that even if other states may have interests in the matter, “the injury

complained of, and direct conduct contributing to that injury, occurred in Washington D.C.,” id.

The same is true here: the plaintiff alleges that the defendants’ false advertising and unfair

business practices emanated from the District of Columbia, where they are based, and, as noted

supra in Section III.C.3, the place of the plaintiff’s injury is less important in false representation

cases than where the conduct causing the injury occurred.

46 Furthermore, this Court has previously held that the CPPA had “extraterritorial”

application and could govern disputes between out-of-state plaintiffs and a defendant

headquartered in the District of Columbia. See Shaw v. Marriott Int’l, Inc., 474 F. Supp. 2d 141,

147 & n.4, 149 (D.D.C. 2007). Indeed, Shaw noted that “courts in the District of Columbia have

already concluded that its policies are advanced by application of the CPPA to cases involving

non-District of Columbia consumers, merchants, and transactions.” Id. at 149–50 (citing

Williams v. First Gov’t Mortg. & Inv’rs Corp., 176 F.3d 497, 499 (D.C. Cir. 1999); Washkoviak,

900 A.2d at 177, 180–81)); see also In re APA Assessment Fee Litig., 766 F.3d at 53–55

(upholding the District Court’s choice-of-law analysis applying District of Columbia law when

out-of-state plaintiffs sued a defendant headquartered in the District of Columbia for

misrepresentations regarding membership fees).

In light of this precedent, the Court concludes that the CPPA applies to the conduct

alleged in this case.

b. The Plaintiff Has Standing to Bring a CPPA Claim

Contrary to the defendants’ contentions, the plaintiff has standing to pursue this CPPA

claim. The “irreducible constitutional minimum” of standing consists of three elements. Lujan

v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992). The plaintiff must have suffered (1) an injury in

fact (2) that is fairly traceable to the challenged conduct of the defendant and (3) that is likely to

be redressed by a favorable judicial decision. City of Boston Delegation v. FERC, 897 F.3d 241,

248 (D.C. Cir. 2018). The injury in fact must be both “concrete and particularized” and “actual

or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks

and citations omitted).

The defendants contend that the plaintiff suffered no injury in fact because she paid

precisely the premium that was approved by state regulatory agencies, Defs.’ Mem. at 40, and 47 even if she believes she should have received more information about the royalties deducted

from that premium, she “has not alleged, and cannot plausibly allege, any loss caused by

United[Health]’s allocation of premium revenue to program expenses, including the AARP

royalty,” id. According to the defendants, the plaintiff cannot avoid this flaw in her alleged

injury in fact by positing that had she known about the defendants’ alleged misconduct, she

would have purchased Medigap insurance from another company. See id. (citing Compl. ¶ 79).

The defendants further contend that the plaintiff “alleges no facts making this bald assertion

plausible,” including, for example, “what alternative carrier Plaintiff would have considered, the

rates offered by that hypothetical alternative provider, or whether those rates were lower.”

Defs.’ Mem. at 40. Consequently, this “conclusory statement that she would have purchased

different coverage does not,” in the defendants’ view, “permit an inference that she suffered any

loss.” Id. at 40–41.

Drawing all inferences in the plaintiff’s favor, as is required at this procedural stage, she

has sufficiently alleged financial harm. See Attias v. CareFirst, Inc., 865 F.3d 620, 622, 627–28

(D.C. Cir. 2017) (recognizing that allegations, rather than evidence of injury, may support

standing at the motion-to-dismiss stage). This is especially true in the context of Medigap

policies, which are often identical in every respect except for price. See CMS Medigap Guide at

9, 13, 19 (“Different insurance companies may charge different premiums for the same exact

policy.”). The plaintiff asserts that she has sufficiently alleged an injury in fact based on: (1) the

financial harm she suffered when AARP misled her into paying an illegal 4.95% commission;

and (2) the violation of her statutory right to truthful information. Pl.’s Opp’n at 37. The

plaintiff has sufficiently alleged that, had she understood what was presented to her as a

“premium” to “pay expenses incurred by the [AARP] Trust in connection with the insurance

48 programs and to pay the insurance company for . . . insurance coverage,” Compl. ¶ 64, also

included a 4.95% charge intended to meet UnitedHealth’s royalty obligations, she would have

sought out a different, lower-priced policy, and therefore she was financially harmed by the

allegedly misleading advertisements. These allegations suffice to establish an injury in fact at

this stage.

In making this determination, resolving whether the 4.95% charge is properly

characterized as a “commission” or a “royalty” or an unlawful “kickback” is unnecessary.

Regardless of labels, all the plaintiff is required to do is sufficiently to allege economic harm, “a

classic form of injury-in-fact.” Osborn v. Visa Inc., 797 F.3d 1057, 1064 (D.C. Cir. 2015)

(internal quotation marks and citation omitted); see also Carpenters Indus. Council v. Zinke, 854

F.3d 1, 5 (D.C. Cir. 2017) (Kavanaugh, J.) (“A dollar of economic harm is still an injury-in-fact

for standing purposes.”). She has sufficiently stated an injury in fact, as other courts have found

with respect to virtually identical allegations regarding the same 4.95% charge. See Levay, 2018

WL 3425014, at *4–5; Friedman, 283 F. Supp. 3d at 879–80 (holding that the plaintiff had

established an injury, but dismissing the claim because the plaintiff no longer held a Medigap

policy and therefore had no standing to pursue injunctive relief).12

12 As for the plaintiff’s argument that she has alleged standing by virtue of asserting a violation of her statutory right to truthful information, the Court agrees with the defendants that this alleged violation, without more, is insufficient to establish standing. See Defs.’ Mem. at 39–40; Pl.’s Opp’n at 37–38. “Although it might violate the CPPA to present misleading information even if no one was misled, a private plaintiff cannot bring a suit in federal court to enforce that claim unless he or she has suffered an injury in fact.” Mann v. Bahi, 251 F. Supp. 3d 112, 119 (D.D.C. 2017) (citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)). The plaintiff does not have standing unless she can allege that the defendants violated the CPPA and that she suffered an injury in fact as a result. See Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 514 (D.C. Cir. 2016); Silvious v. Snapple Beverage Co., 793 F. Supp. 2d 414, 417 (D.D.C. 2011) (collecting cases for the proposition that “a lawsuit under the CPPA does not relieve a plaintiff of the requirement to show a concrete injury-in-fact to himself”).

49 The plaintiff has sufficiently alleged financial harm as a result of the defendants’ actions,

and thus has met the injury in fact requirement to seek damages in Count One alleging a

violation of the CPPA.13

c. The Defendants Qualify as Merchants Under the CPPA

The defendants argue that the CPPA only applies to “merchants” who supply “goods and

services,” whereas none of the defendants sold, supplied, or transferred insurance policies to the

plaintiff in a consumer-merchant relationship. Defs.’ Mem. at 41–42. “[T]he CPPA does not

cover all consumer transactions, and instead only covers ‘trade practices arising out of consumer-

merchant relationships.’” Sundberg v. TTR Realty, LLC, 109 A.3d 1123, 1129 (D.C. 2015)

(quoting Snowder v. District of Columbia, 949 A.2d 590, 599 (D.C. 2008)). The CPPA defines

“merchant” as one “who in the ordinary course of business does or would sell, lease (to), or

transfer, either directly or indirectly, consumer goods or services . . . or would supply the goods

or services which are or would be the subject matter of a trade practice.” D.C. CODE § 28-

3901(a)(3). Persons or entities sufficiently “connected with the supply side of the consumer

transaction” meet the CPPA’s definition of a merchant. Adler v. Vision Lab Telecomms., Inc.,

393 F. Supp. 2d 35, 39 (D.D.C. 2005) (internal quotation marks omitted) (quoting Save

Immaculata/Dunblane, Inc. v. Immaculata Preparatory Sch., 514 A.2d 1152, 1159 (D.C. 1986)).

The plaintiff alleges that “AARP’s solicitation, marketing, and sale of AARP Medigap

Policies constitutes the sale of consumer goods or services in the ordinary course of business.”

Compl. ¶ 53. In support, the plaintiff points out that, under the Agreement with UnitedHealth,

13 The plaintiff lacks standing, however, to pursue injunctive relief under the CPPA, see Compl. ¶ 103, because she does not allege that she is currently enrolled in an AARP Medigap policy. See Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 879 F.3d 339, 346 (D.C. Cir. 2018) (plaintiffs must demonstrate standing separately for each form of relief sought, and standing for prospective relief requires showing continuing or imminent harm); Levay, 2018 WL 3425014, at *3 (holding that plaintiffs lacked standing to pursue injunctive relief when they had not alleged how they would continue to be harmed by AARP’s misrepresentations concerning the Medigap policies).

50 AARP: (1) markets, solicits, sells, and renews AARP Medigap policies, id. ¶ 38; (2) collects and

remits premium payments on behalf of UnitedHealth, id.; (3) owns all solicitation materials

related to the AARP Medigap program, id. ¶ 47; (4) performs quality control and generally

oversees UnitedHealth operations relating to the Medigap program, id. ¶ 48; (5) has authority

over UnitedHealth’s operations regarding the Medigap program, id.; (6) gives prior review and

approval over all communication regarding the Medigap program, id.; (7) has the authority to

consult, review, and consent to premium levels and rates and sales and distribution plans, id.; and

(8) has review and modification authority over UnitedHealth’s Medigap-related contracts with

certain third-party vendors, id. The plaintiff posits that the 4.95% royalty charge is how

UnitedHealth “compensates AARP to act as its agent in connection with the marketing,

solicitation, sale, and administration of AARP Medigap policies.” Id. ¶ 49; see also id. ¶¶ 50–52

(describing this “agency” relationship); id. ¶ 73 (suggesting that these activities render AARP an

unlicensed insurance agent or broker). In other words, according to the plaintiff, “the

[defendants’] involvement in the allegedly fraudulent [scheme] in this case is . . . far greater than

a mere recommendation for services.” McMullen v. Synchrony Bank, 164 F. Supp. 3d 77, 92

(D.D.C. 2016).

Notwithstanding all of the defendants’ alleged activities to connect consumers to

Medigap policies, the defendants argue that they are not “merchants” within the meaning of the

CPPA because the plaintiff has not alleged that they “sold, supplied, or transferred insurance

policies” in a manner creating a consumer-merchant relationship. Defs.’ Mem. at 41. To the

extent the plaintiff does allege such activities, see, e.g., Compl. ¶¶ 38–52, the defendants dismiss

these allegations as “bare legal conclusions regarding AARP’s actions” under its Agreement for

licensing intellectual property. Defs.’ Mem. at 42. To the contrary, the plaintiff has alleged far

51 more than “bare legal conclusions” and has, in fact, provided ample detail concerning AARP’s

extensive responsibilities with respect to marketing, advertising, soliciting, and administering

Medigap policies to allow the reasonable inference that the defendants are so “connected with

the supply side of the consumer transaction” so as to constitute merchants under the CPPA. See

Adler, 393 F. Supp. 2d at 39 (internal quotation marks omitted).

Moreover, the defendants’ reliance on Adler to distinguish their activities is based on an

apparent misinterpretation of its holding. The defendants cite Adler for the proposition that a

“defendant that sent unsolicited advertisements on behalf of third party was not a ‘merchant’

within the meaning of the CPPA because the plaintiffs did not purchase or receive services from

defendant.” Defs.’ Mem. at 42. The defendants’ case summary ignores Adler’s holding that the

defendants were merchants, but no consumer-merchant relationship existed because the plaintiffs

never bought anything, and thus were not consumers. 393 F. Supp. 2d at 40. Adler explicitly

held that parties who do more than merely recommend goods and services may qualify as

merchants under the CPPA, id. at 39–40, consistent with the holdings in other cases from this

Court addressing this issue. See, e.g., Hall v. S. River Restoration, Inc., 270 F. Supp. 3d 117,

123 (D.D.C. 2017) (CKK); McMullen, 164 F. Supp. 3d at 91–92 (JEB); Ihebereme v. Capital

One, N.A., 730 F. Supp. 2d 40, 52 (D.D.C. 2010) (ESH). Based on the plaintiff’s allegations of

the defendants’ extensive involvement in marketing, selling, and administering Medigap policies

to consumers, the defendants do far more than endorse UnitedHealth’s Medigap policies.

For the foregoing reasons, the plaintiff has sufficiently alleged facts plausibly showing

that the defendants meet the CPPA’s definition of “merchant.”

52 d. The Plaintiff Sufficiently Alleged Material Misrepresentations

Finally, the plaintiff has sufficiently and plausibly alleged that the defendants engaged in

unfair trade practices under the CPPA by materially misrepresenting information about the

4.95% charge.

The CPPA forbids a variety of “unfair or deceptive trade practice[s], whether or not any

consumer is in fact misled, deceived, or damaged thereby,” D.C. CODE § 28-3904, and

“establishes an enforceable right to truthful information from merchants about consumer goods

and services that are or would be purchased, leased, or received in the District of Columbia.”

Mann, 251 F. Supp. 3d at 116–17 (citing D.C. CODE §§ 28-3901 to 28-3903; id. § 28-3901(c))

(establishing enforceable right to truthful information). A “trade practice” is “any act which

does or would create, alter, repair, furnish, make available, provide information about, or,

directly or indirectly, solicit or offer for or effectuate, a sale, lease or transfer, of consumer goods

and services.” D.C. CODE § 28-3901(a)(6).

The plaintiff asserts violations of three CPPA “unfair or deceptive trade practice”

provisions, claiming the defendants (1) misrepresented a material fact which has a tendency to

mislead, in violation of id. § 28-3904(e); (2) failed to state a material fact if such failure tends to

mislead, in violation of id. § 28-3904(f); and (3) used innuendo or ambiguity as to a material

fact, which has a tendency to mislead, in violation of id. § 28-3904(f-1). Compl. ¶ 93. As to

each CPPA provision, the plaintiff points to three basic categories of misrepresentations: (1) the

defendants’ statements or omissions regarding the 4.95% charge, including its amount, what it is

used for, and who pays it, see Compl. ¶ 96; (2) the defendants’ activities as a de facto or

unlicensed insurance agent of UnitedHealth, rendering their activities on behalf of UnitedHealth

to be unfair trade practices, id.; and (3) the defendants’ misrepresentation of the 4.95% charge a

53 “royalty” when it qualifies as a commission and may not lawfully be collected by AARP under

District of Columbia law, id.

In assessing whether the plaintiff’s allegations plausibly plead an unfair or deceptive

trade practice through use of material misrepresentations, a court must “consider an alleged

unfair trade practice ‘in terms of how the practice would be viewed and understood by a

reasonable consumer.’” Saucier v. Countrywide Home Loans, 64 A.3d 428, 442 (D.C. 2013)

(quoting Pearson v. Chung, 961 A.2d 1067, 1075 (D.C. 2008)). The same “reasonable

consumer” standard applies to the question of whether information has a tendency to mislead.

See Saucier, 64 A.3d at 442. “How the practice would be viewed by a reasonable consumer is

generally a question for the jury,” Mann, 251 F. Supp. 3d at 126, although “there are times when

it is sufficiently clear to be determined as a matter of law,” id. (citing Alicke, 111 F.3d at 912

(determining that no reasonable person could interpret the consumer phone contract at hand in

the manner the plaintiff had asserted)). For claims under D.C. CODE § 28-3904 (e), (f), and (f-1),

“a statement or ‘omission is material if a significant number of unsophisticated consumers would

find that information important in determining a course of action.’” Mann, 251 F. Supp. 3d at

126 (internal quotation marks omitted) (quoting Saucier, 64 A.3d at 442). “Ordinarily the

question of materiality should not be treated as a matter of law.” Saucier, 64 A.3d at 442

(internal quotation marks and citation omitted).

With respect to the first category of alleged misrepresentations, concerning the

defendants’ statements or omissions regarding the nature and purpose of the 4.95% charge, the

plaintiff identifies two specific material misrepresentations: (1) AARP’s disclaimer indicating

that premiums are used to pay expenses incurred by AARP Trust and to pay UnitedHealth for

insurance coverage; and (2) AARP’s disclosure that UnitedHealth pays royalty fees to AARP for

54 use of its intellectual property. See Compl. ¶ 96. The statements are made on AARP’s websites,

see Compl. ¶ 51, and “through television commercials . . . mailings, and [print] advertisements,”

id. ¶ 50. Although the plaintiff does not specify when she saw these statements or came to

believe they were misleading, the defendants concede that the identified statements appear on

AARP products or sponsored advertising, and have even attached exhibits of the advertising

materials. See Defs.’ Mem. at 17–18 (referring to Ex. 2 and Ex. 3 and quoting language

disclosing the existence of the “royalty”). The only question, then, is whether the plaintiff has

sufficiently alleged that the statements are materially misleading under the CPPA.

The plaintiff alleges that AARP’s Medigap disclaimer misleads consumers by stating that

“premiums [collected from consumers] are used to pay expenses incurred by [AARP] Trust in

connection with the insurance programs and to pay the insurance company for [consumer’s]

insurance coverage,” Compl. ¶ 64, which, the plaintiff alleges, is “highly misleading and

deceptive in that Defendants do not disclose that the amounts members are paying are not just

‘premiums’ to pay for the actual insurance coverage, and the administrative expenses incurred by

the AARP Trust, but a 4.95% commission on top of the premiums that AARP remits to

UnitedHealth,” that AARP is in any event not entitled to collect because it is not an insurance

agent or broker, id. ¶¶ 65, 75; see also Pl.’s Opp’n at 43.

Even if the 4.95% charge is not a commission, however, the plaintiff alleges that the

disclaimer nevertheless misrepresents what the amounts collected from consumers are used for,

“obfuscat[ing] the cost of the Medigap premiums [and] leading reasonable consumers to pay

more than what they otherwise would.” Pl.’s Opp’n at 43 (citing Compl. ¶ 99). That is, the

plaintiff alleges that if the defendants disclosed that consumers were being charged “premiums . .

. to pay expenses incurred by [AARP] Trust in connection with the insurance programs and to

55 pay the insurance company for [consumer’s] insurance coverage,” Compl. ¶ 64, and a 4.95%

charge (on the amount of the premium) to satisfy UnitedHealth’s obligation to “pay[] royalty

fees to AARP for the use of its intellectual property. . . . [which] fees are used for the general

purposes of AARP,” Compl. ¶¶ 5, 67, they would not be misled because they would reasonably

understand that their “premiums” included a specific charge—calculated as a percentage of those

premiums—paid solely to AARP and unconnected to their insurance coverage. See Pl.’s Opp’n

at 43.

The defendants’ disclosure regarding that charge, “included on correspondence to” the

plaintiff and other consumers, Compl. ¶ 67, according to the plaintiff, is misleading on its own.

See Pl.’s Opp’n at 45 n.19; Compl. ¶¶ 62–65. The disclosure indicates that “UnitedHealthcare

Insurance Company pays royalty fees to AARP for the use of its intellectual property. These

fees are used for the general purposes of AARP.” Compl. ¶¶ 5, 67. This disclosure is allegedly

“false and misleading” by failing to inform consumers that they, and not UnitedHealth, will be

required to pay this “royalty.” Id. ¶ 5. Nor does the disclosure inform consumers that the

“royalty” is equivalent to 4.95% of their premiums. Id. ¶¶ 5, 67. Again, nowhere does AARP

disclose that any portion of the “premiums” is in fact used to pay the “royalties” UnitedHealth is

obligated to pay AARP. See id. ¶¶ 65, 62 (“[W]hile AARP and UnitedHealth disclose the

existence of a payment in general to AARP—which they term a ‘royalty’ paid for the use of

AARP’s intellectual property—they hide the fact that the cost of AARP Medigap insurance

includes a percentage-based commission to AARP, funded by consumers (and not

UnitedHealth), in addition to the insurance premium paid to UnitedHealth for coverage.”)

(emphasis in original).

56 Based on these allegations, the plaintiff has sufficiently alleged that both

misrepresentations, independently but even more so when considered together, would be

misleading to the reasonable consumer. Contrary to the statement made in the AARP Medigap

disclaimer, royalties owed by UnitedHealth are neither “expenses incurred by [AARP] Trust”

nor payment to UnitedHealth for “insurance coverage.” Compl. ¶ 64. Especially in combination

with the defendants’ representations elsewhere that UnitedHealth pays “royalty fees” to AARP

for “use of its intellectual property” and that such fees are “used for the general purposes of

AARP,” id. ¶ 5, the plaintiff has sufficiently alleged that a consumer may lack information to

understand that UnitedHealth satisfied its contractual obligations to AARP by including an

additional, percentage-based charge as part of the premium. See Pl.’s Opp’n at 45–46; Compl.

¶¶ 64–67.

Having concluded that the plaintiff sufficiently alleged that the two statements were

misleading, the Court also concludes that she has sufficiently alleged that they were material. A

matter is material if: “a reasonable [person] would attach importance to its existence or

nonexistence in determining his or her choice of action in the transaction in question; or 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 his or her choice of action, although a reasonable [person]

would not so regard it.” Saucier, 64 A.3d at 442 (internal alterations omitted) (quoting

RESTATEMENT OF THE LAW (SECOND) TORTS § 538(2)).

Based on the disclosures the plaintiff quotes in her Complaint, a reasonable consumer

could lack information to understand that: (1) a portion of her premiums satisfied UnitedHealth’s

obligation to pay royalties to AARP; (2) such royalties were calculated as a percentage of what

she paid for Medigap coverage; and (3) the operable percentage was 4.95%. This additional

57 charge was billed to the plaintiff as part of her premium, the price of which, as already noted, is

generally the sole differentiating factor among Medigap policies. This price, and its components,

are factors that a reasonable person would likely attach importance to in determining whether to

buy a Medigap policy and whether to buy an AARP-sponsored one. Therefore, these factors

may likely be material to a reasonable consumer.

At this stage, regardless of whether the 4.95% charge is properly deemed a “royalty”

rather than a “commission,” the plaintiff has stated a claim under the CPPA based on the

defendants’ allegedly materially misleading representations concerning the 4.95% charge.

With respect to the second and third categories of alleged misrepresentations and unfair

or deceptive practices, concerning whether the defendants are de facto or unlicensed insurance

agents of UnitedHealth and whether the 4.95% royalty, paid as a percentage of premiums,

qualifies as a commission that may not lawfully be collected by AARP under District of

Columbia law, see Compl. ¶ 96, the plaintiff notes that “it is well-established under the CPPA

that ‘a merchant that presents misleading information about its services in violation of another

statute commits an unlawful trade practice, even if that statute is not specifically enumerated

elsewhere in the CPPA,” Pl.’s Mem. at 43–44 (citing Mann, 251 F. Supp. 3d at 121; Osbourne,

727 A.2d at 325–26). The plaintiff argues that if the defendants solicit insurance without being

licensed to do so, they are misleading consumers about the services they are authorized by law to

perform in violation of the CPPA. Compl. ¶ 96 Further, because AARP is not licensed as an

insurer, it is not legally allowed to collect a commission. Id. The plaintiff alleges that AARP’s

disclosures regarding the 4.95% charge misled consumers by leading them to believe that the

charge is part of the premiums paid to UnitedHealth rather than a commission AARP would not

otherwise be authorized to collect. See id. ¶¶ 6, 62–65, 96–97.

58 District of Columbia law bars the payment or receipt of commissions in consideration for

the sale, solicitation, or negotiation of insurance if the person paid was required to be licensed

and was not. D.C. CODE § 31-1131.13. Persons who sell, solicit, or negotiate insurance must be

licensed to do so. Id. § 31-1131.03. Key terms in this statutory provision are further defined,

with “Sell” defined to mean “to sell or exchange a contract of insurance by any means, for

money or its equivalent, on behalf of an insurance company,” id. § 31-1131.02(16), and

“Solicit” defined to mean “attempting to sell insurance or asking or urging a person to apply for

a particular kind of insurance from a particular company,” id. § 31-1131.02(17). “Commission”

is not defined. See id. § 31-1131.02 (the definitions section for insurance regulations).

The defendants are not licensed insurance agents. Despite this, the plaintiffs allege that

the defendants have agreed to: (1) market, solicit, sell and renew AARP Medigap policies with

UnitedHealth; (2) collect and remit premium payments on behalf of UnitedHealth; (3) generally

administer the AARP Medigap program; and (4) otherwise act as UnitedHealth’s agent. Id. ¶ 38.

In addition, AARP owns all solicitation materials related to the Medigap program. Id. ¶ 47, and

its advertisements plainly state “This is a solicitation of insurance,” id. ¶ 51. Further, in

exchange for AARP’s services on behalf of UnitedHealth, it “earns a 4.95% commission—

disguised as a ‘royalty’—on each policy sold or renewed.” Id. ¶ 45.

Although District of Columbia law does not define “commission,” the plaintiff has

adequately alleged that the defendants solicit insurance without being licensed to do so and that

the 4.95% charge, calculated as a percentage of premiums, represents the payment or receipt of

“a commission, service fee, brokerage fee, or other valuable consideration” for the sale,

solicitation, or negotiation of insurance, which is prohibited if the person paid was required to be

licensed and was not. D.C. CODE § 31-1131.13. The plaintiff has also sufficiently alleged that

59 the defendants’ advertisements and disclaimers concerning that charge and their role in soliciting

insurance misled consumers about the services they are legally authorized to perform and their

right to receive payment in consideration for the sale of insurance. See Mann, 251 F. Supp. 3d at

126 (holding that whether a business’s “statements implied that it was licensed in D.C. is a

question of fact for the jury”).

Finally, the plaintiff has adequately alleged that the defendants’ statements obscuring

AARP’s status as an unlicensed insurance agent that was not entitled to receive a commission

were material, because had she understood that AARP received an unlawful commission for each

sale, she would have sought a lower-priced Medigap insurance policy or one sold by a company

that complied with District of Columbia laws. See Compl. ¶¶ 81–83 . Therefore, as to the

second and third categories of misstatements, the plaintiff has sufficiently alleged that the

defendants have committed an unfair trade practice in violation of the CPPA.

Accordingly, the defendants’ motion to dismiss Count I is denied.

2. Count Two States a Claim of Conversion

In Count Two, the plaintiff alleges conversion of her ownership right to the 4.95% of her

payments that was wrongfully charged and illegally diverted to AARP as a commission. Id. ¶¶

104–07. She contends that the defendants “wrongly asserted dominion” over 4.95% of her

payments, id. ¶ 106, and that she is entitled to damages in the amount for which she was

wrongfully charged, id. ¶ 107.

As a general principle, conversion is defined as “any unlawful exercise of ownership,

dominion or control over the personal property of another in denial or repudiation of [her] rights

thereto.” Hall v. District of Columbia, 867 F.3d 138, 151 (D.C. Cir. 2017) (internal quotation

marks omitted) (quoting Chase Manhattan Bank v. Burden, 489 A.2d 494, 495 (D.C. 1985)).

“[M]oney can . . . be the subject of a conversion claim ‘if the plaintiff has the right to a specific 60 identifiable fund of money.’” Papageorge v. Zucker, 169 A.3d 861, 864 (D.C. 2017) (quoting

McNamara v. Picken, 950 F. Supp. 2d 193, 194 (D.D.C. 2013)).

The defendants contend that the plaintiff’s conversion claim fails because she has not

identified the right to any specific identifiable source of money. See Defs.’ Mem. at 45 & n.11

(citing McNamara, 950 F. Supp. 2d at 194). This is incorrect. The plaintiff’s Complaint alleges

that for every AARP Medigap policy sold or renewed, AARP Trust collects premium payments

that include the 4.95% charge, Compl. ¶ 54, that AARP Trust then deducts funds equivalent to

the 4.95% charge and remits that amount to AARP, Inc. and ASI, with 8% going to ASI and 92%

going to AARP, Inc, id. ¶¶ 55, 57, and that the Agreement AARP has with UnitedHealth clearly

delineates between the amount billed and paid by consumers, referred to as “Member

Contributions,” and the premiums remitted to UnitedHealth, referred to as “SHIP Gross

Premiums,” id. ¶ 58. The plaintiff alleges that she has a right to the money accumulated as a

result of the 4.95% charge—namely: Member Contributions minus SHIP Gross Premiums. The

Court is persuaded that this rationale sufficiently alleges a right to a specific, identifiable source

of money.

The plaintiff also sufficiently alleges that the defendants’ assertion of dominion over this

source of funds was wrongful. As noted elsewhere, the plaintiff has adequately alleged that she

was misled into paying the 4.95% charge because she did not understand that 4.95% of her

premiums were being used to make allegedly unlawful commission payments, and, had she

understood the nature of the arrangement, she would have sought other coverage. The

defendants’ motion to dismiss this claim is therefore denied.

3. Count Three States a Claim of Unjust Enrichment

In Count Three, the plaintiff alleges unjust enrichment based on allegations that she

conferred a benefit on defendants “in the form of the hidden 4.95% charge on top of [her] 61 monthly premium payments that [was] unlawfully and deceptively charged and illegally diverted

to AARP as a commission,” id. ¶ 109, that the defendants “voluntarily accepted and retained this

benefit,” id. ¶ 110, which was “collected without proper disclosure and amounted to a

commission in violation of” District of Columbia law, id. ¶ 111, and that it would be

“inequitable” for the defendants to retain the benefit without paying its value to the plaintiff, id.

An unjust enrichment claim under District of Columbia law requires the plaintiff to allege

that she (1) conferred a benefit on the defendants; (2) the defendants retained the benefit that was

conferred; and (3) it would be unjust for the defendant to retain the benefit under the

circumstances. See Euclid St., LLC v. D.C. Water & Sewer Auth., 41 A.3d 453, 463 n.10 (D.C.

2012). The doctrine applies “when a person retains a benefit (usually money) which in justice

and equity belongs to another.” Falconi-Sachs v. LPF Senate Square, LLC, 142 A.3d 550, 556

(D.C. 2016) (internal quotation marks omitted) (quoting Jordan Keys & Jessamy, LLP v. St. Paul

Fire & Marine Ins. Co., 870 A.2d 58, 63 (D.C. 2005)).

The plaintiff undisputedly conferred on the defendants a benefit they retained. See Defs.’

Mem. at 46 (conceding that the defendants retained a benefit). The defendants argue, however,

that the plaintiff cannot show that any benefits were retained unjustly because the “premium paid

by Plaintiff afforded her the exact coverage she elected when she purchased the policy, and the

royalty paid by United[Health] to AARP was simply a[] [fully disclosed] expense incurred by

United[Health] in licensing intellectual property from AARP for its operation of the program.”

Id. Further, the defendants note that the plaintiff “received precisely the Medigap coverage she

purchased at the rate mandated.” Id.

The plaintiff does not contest the coverage she received, but insists that, under the

circumstances, the defendants retained 4.95% of her premiums unjustly. Specifically, she argues

62 the defendants are not insurance agents and cannot retain a commission, yet nevertheless

collected 4.95% of her premium without proper disclosures or licensing. Pl.’s Opp’n at 48–50.

Regardless of whether the charge is a “commission” or not, the plaintiff alleges that she was

deceived regarding the cost and purposes of her premiums. She understood these premiums to

amount to a sum certain, which sum would be used to pay expenses incurred by AARP Trust in

connection with her Medigap program and to pay UnitedHealth for the coverage itself. Compl. ¶

64. Yet a portion of those premiums in fact satisfied UnitedHealth’s obligations to pay

“royalties” to AARP—a fact that she alleges was never fully disclosed and that would have

affected how she compared Medigap policy rates. See id. ¶ 11.

Given these allegations of misrepresentation, the defendants’ argument that no unjust

enrichment claim exists when the plaintiff received her coverage as expected and was told that

UnitedHealth paid royalties to AARP erroneously assumes the plaintiff understood (or did not

care) that such royalties were paid as a percentage of the plaintiff’s premiums. The plaintiff

plainly alleges she did not understand this fact and that it was material to her.

The D.C. Circuit, in an analogous context, held that plaintiffs had properly stated an

unjust enrichment claim when they alleged that they were misled into paying a special

assessment fee because they believed payment of such fee was necessary to retain membership in

an organization. See In re APA Assessment Fee Litig., 766 F.3d at 48. In fact, the fee was used

to pay for lobbying services. Id. at 47. The defendants’ argument that such lobbying services

were performed adequately was accordingly no barrier to the plaintiffs’ claims, which rested, as

do the plaintiff’s claims here, on an allegation that the purpose of the payment was

misrepresented to them. Id. at 48; see also id. at 47 (holding that a theory of “mistaken payment

63 of money not due” is “one of the core cases of restitution”) (internal quotation marks, alterations,

and citation omitted).

Under the circumstances, the plaintiff has sufficiently alleged that the defendants unjustly

retained money accrued as a result of the 4.95% charge. The defendants’ motion to dismiss this

claim is thereby denied.

4. Count Four States a Claim of Fraudulent Misrepresentations or Omissions

The plaintiff titles her claim in Count IV “Fraudulent Concealment” and alleges that the

defendants “concealed or failed to disclose [the] material fact . . . that AARP was collecting a

4.95% commission,” Compl. ¶ 113, that AARP “knew or should have known that this material

fact should be disclosed or not concealed,” id. ¶ 114, that the defendants concealed the fact “in

bad faith,” id. ¶ 115, and in spite of their “duty to speak,” id. ¶ 118, and that the defendants

thereby “induced [the plaintiff] to act by purchasing an AARP-endorsed Medigap plan,” id. ¶

116. The plaintiff alleges that she suffered damages as a result of this fraudulent concealment,

id. ¶ 117.

At the outset, the defendants rebut the plaintiff’s fraudulent concealment claim relying

solely on cases addressing the claim in the context of whether the statute of limitations should be

tolled. See Defs.’ Mem. at 48 n.13 (citing Larson v. Northrop Corp., 21 F.3d 1164, 1172 (D.C.

Cir. 1994); Quick v. EduCap, Inc., 318 F. Supp. 3d 121, 143 (D.D.C. 2018); Woodruff v.

McConkey, 524 A.2d 722, 728 (D.C. 1987)). Indeed, generally, a plaintiff need not assert a

fraudulent concealment claim in the Complaint until after the defendant has answered asserting a

statute of limitations affirmative defense. See Firestone, 76 F.3d at 1210. The source of the

confusion may be the plaintiff’s reliance on Howard University v. Watkins, 857 F. Supp. 2d 67

(D.D.C. 2012) for the elements of a fraudulent concealment claim under District of Columbia

law, see Pl.’s Opp’n at 50 (citing Howard Univ., 857 F. Supp. 2d at 75). Howard University, in 64 turn, cites for the elements of this claim another case, Alexander v. Washington Gas Light Co.,

481 F. Supp. 2d 16, 36–37 (D.D.C. 2006), which outlined the elements of a fraudulent

concealment claim under Maryland law. The plaintiff’s fourth claim is assumed to be pleading a

related claim for fraudulent misrepresentations or omissions under District of Columbia law,

which requires showing that the defendant: “(1) made a false representation of or willfully

omitted a material fact; (2) had knowledge of the misrepresentation or willful omission; (3)

intended to induce another to rely on the misrepresentation or willful omission; (4) the other

person acted in reliance on that misrepresentation or willful omission; and (5) [the other person]

suffered damages as a result of that reliance.” Sundberg, 109 A.3d at 1130–31 (internal

alterations quotation marks, alterations, and citations omitted). A false representation may be

either an affirmative misrepresentation or a failure to disclose a material fact when a duty to

disclose that fact has arisen. Id. at 1131.

Fraudulent misrepresentation claims are subject to the heightened pleading standard

under Federal Rule of Civil Procedure 9(b), requiring a plaintiff to plead “with particularity the

circumstances constituting fraud or mistake,” FED. R. CIV. P. 9(b).14 Intent, however, may be

pleaded generally. Id. The information necessary to establish a fraud claim often includes

“specific fraudulent statements, who made the statements, what was said, when or where these

statements were made, and how or why the alleged statements were fraudulent.” Brink v. Cont’l

Ins. Co., 787 F.3d 1120, 1127 (D.C. Cir. 2015) (internal quotation marks and citation omitted).

“[T]he point of Rule 9(b) is to ensure that there is sufficient substance to the allegations to both

14 By contrast, claims alleging violations of the CPPA are not subject to this heightened pleading standard. See, e.g., Frese v. City Segway Tours of Wash., D.C., 249 F. Supp. 3d 230, 235 (D.D.C. 2017); McMullen, 164 F. Supp. 3d at 90–91; Campbell v. Nat’l Union Fire Ins. Co. of Pittsburgh, 130 F. Supp. 3d 236, 267 (D.D.C. 2015) (collecting cases).

65 afford the defendant the opportunity to prepare a response and to warrant further judicial

process.” United States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 125 (D.C. Cir. 2015).

The plaintiff has adequately pled the “who, what, where, when, and how” of her

fraudulent misrepresentation claim. See Pl.’s Opp’n at 50 & nn.24–28. She has alleged that

AARP, Inc., ASI, and AARP Trust, Compl. ¶¶ 2, 21, 22, concealed that 4.95% of plaintiff’s

premiums paid UnitedHealth’s “royalties” to AARP, id. ¶¶ 5, 6, 62, 64, 67, that such

misrepresentations and omissions were printed in documents sent to the plaintiff and published

online, id. ¶¶ 5, 51, 67, that these misrepresentations have existed in some form since 1999,

including when the plaintiff bought or renewed her policy, id. ¶¶ 40–45, 20, and that the plaintiff

reasonably relied on the misrepresentations to her detriment because she would not have

purchased a Medigap policy whose premiums included a “royalty” charge, but instead would

have purchased a lower-priced policy offering identical benefits, id. ¶¶ 20, 79, 81. Those

allegations are sufficient, at this stage of the proceedings, to state a claim for fraudulent

misrepresentation or omission.

The plaintiff also adequately alleges that the defendants failed to disclose a material

fact—the nature and purpose of the 4.95% charge, which they had knowledge of—when a duty

to disclose that fact had arisen. Under District of Columbia law, a party to a transaction has no

duty of disclosure unless the party is a fiduciary to the other or the party knows that the other is

acting unaware of a material fact that is unobservable or undiscoverable by an ordinarily prudent

person upon reasonable inspection. Sandza v. Barclays Bank PLC, 151 F. Supp. 3d 94, 107

(D.D.C. 2015). One party’s “superior knowledge can give rise to a duty to disclose,” id., or

such duty may arise “as a result of a partial disclosure,” Intelect Corp. v. Cellco P’ship GP, 160

F. Supp. 3d 157, 187 (D.D.C. 2016) (internal quotation marks and citation omitted). The

66 plaintiff alleges that defendants had a “duty to speak given that they were parties to transactions

with [plaintiff] . . . [and] had a duty to say enough to prevent their words from misleading

[plaintiff] . . . and they had special knowledge about the material[] facts that [plaintiff] . . . did

not possess.” Compl. ¶ 118.

The defendants suggest that their public rate filings and disclosure that AARP received a

4.95% royalty from UnitedHealth were observable or discoverable by an ordinarily prudent

person upon reasonable inspection, and therefore the plaintiff has failed to establish fraudulent

misrepresentation. Defs.’ Mem. at 48–49. In general, “examining readily available public

records [is] part of the responsibility of an ‘ordinarily prudent person’ conducting a ‘reasonable

inspection,’ and . . . failure to perform this basic due diligence preclude[s] a fraud claim.”

Sununu v. Philippine Airlines, Inc., 792 F. Supp. 2d 39, 52 (D.D.C. 2011). Here, however, the

plaintiff has adequately alleged that the defendants’ disclaimer that UnitedHealth paid AARP a

“royalty” was only a partial disclosure, as it did not sufficiently alert consumers to the

undiscoverable or unobservable fact that they were being charged 4.95% of their premiums in

order to satisfy that obligation. See Compl. ¶ 67. Moreover, the plaintiff further alleges that the

defendants are so entwined in the solicitation of and administration of UnitedHealth’s insurance

policies that the defendants should be considered unlicensed insurance agents or brokers. See,

e.g., id. ¶¶ 8, 47, 51, 73. While the Court declines to resolve that issue at this stage of the

proceedings, allowing the plaintiff’s claims to go forward will supplement the record as to

whether this alleged role creates a fiduciary duty or any other duty to disclose. But see Attias v.

CareFirst, Inc., No. 15 cv-00882 (CRC), 2019 WL 367984, at *16 (D.D.C. Jan. 30, 2019)

(noting that District of Columbia generally considers the relationship between the insurer and the

insured to be a contractual, rather than fiduciary relationship) (citing cases).

67 For the reasons already discussed, see supra Section III.E.1.d, the plaintiff has adequately

alleged that the defendants’ misrepresentations or omissions regarding the nature, cost, and

purpose of the 4.95% charge may be material because they affected her understanding of the cost

of her Medigap insurance. She has further sufficiently alleged that this misrepresentation was

intended to induce consumers to purchase AARP-sponsored Medigap insurance over other

policies that offered identical benefits, believing that their premiums paid only for “expenses

incurred by [AARP] Trust in connection with the insurance programs and to pay the insurance

company for [consumer’s] insurance coverage,” Compl. ¶ 64, obscuring the fact that consumers

were also being charged a 4.95% “royalty” fee, and that she relied on AARP’s partial disclosures

in making her purchasing decisions, foregoing the chance to purchase insurance that did not

include such charge.

The plaintiff’s allegations sufficiently state a fraudulent misrepresentation or omission

claim, and the defendants’ motion to dismiss is therefore denied.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motion to dismiss, ECF No. 8, is denied as to

all counts in the plaintiff’s Complaint.

An Order consistent with this Memorandum Opinion will be entered contemporaneously.

Date: March 17, 2019

________________________ BERYL A. HOWELL Chief Judge