Krukas v. Aarp ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HELEN KRUKAS, et al.,
Plaintiffs,
Civil Action No. 18-1124 (BAH)
v.
Chief Judge Beryl A. Howell
AARP, INC., et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs Helen Krukas and Andrea Kushim have brought this putative class action
against defendants AARP Inc., 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 claims of conversion, unjust enrichment, and fraudulent concealment, based on
their purchase of a Medicare supplemental health insurance policy, also known as a “Medigap”
policy, offered by UnitedHealthcare Insurance Company (“United”) and administered by AARP.
See First Am. Class Compl. (“FAC”) ¶¶ 1–5, 120, 124, 128, 135, ECF No. 40. These claims are
predicated on plaintiffs’ allegation that AARP wrongly retained a 4.95% “commission” on the
sale of the insurance that AARP was not entitled to receive, id. ¶ 1, and that AARP misled
plaintiffs into buying their insurance policies by failing to disclose the nature and extent of its
financial interest in the sale of AARP Medigap policies, id. ¶ 5.
Following more than a year of discovery, defendants have now moved for summary
judgment. See Defs.’ Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 95; Defs.’ Mem. Supp. Mot.
1
Summ. J. (“Defs.’ Mem.”), ECF No. 96. Defendants’ first Motion to Dismiss (“Defs.’ First
MTD”), ECF No. 8, was denied because plaintiff Krukas adequately alleged financial harm
constituting injury in fact and alleged facts sufficient to plead each count. Krukas v. AARP, Inc.
(“Krukas I”), 376 F. Supp. 3d 1, 34, 36–37 (D.D.C. 2019). 1 Now, with a more fully developed
record and the heightened burden at summary judgment, plaintiffs have failed to establish any
concrete injury stemming from defendants’ conduct. They do not argue that their AARP
Medigap insurance would have been less expensive were AARP to retain a lower payment or
adopt a more limited role in the sale of AARP Medigap insurance, nor do they present any
evidence of a lower-priced comparable Medigap insurance policy that they could have purchased
had the payment been disclosed and prompted them to look elsewhere for comparable coverage.
Accordingly, this Court now joins numerous others that have rejected similar claims
brought by AARP Medigap policyholders against AARP. See Dane v. UnitedHealthcare Ins.
Co., 974 F.3d 183, 192 (2d Cir. 2020), aff’g, 401 F. Supp. 3d 231 (D. Conn. 2019); Friedman v.
AARP, Inc., No. 14-34-DDP, 2019 WL 5683465, at *6 (C.D. Cal. Nov. 1, 2019), appeal
dismissed, No. 19-56386, 2020 WL 2732230 (9th Cir. Mar. 26, 2020); Nichols v. AARP, Inc.,
No. 20-cv-6616-JSC (N.D. Cal Feb. 19, 2021), appeal dismissed, No. 21-15364 (9th Cir. Aug.
23, 2021). Defendants’ motion is granted, and the case is dismissed for lack of standing. 2
I. BACKGROUND
The factual allegations underlying plaintiffs’ claims are described in detail in two prior
decisions, see generally Krukas I, 376 F. Supp. 3d 1; Krukas v. AARP, Inc. (“Krukas II”), 458 F.
1Plaintiff Krukas was the only named plaintiff in the original complaint, see Class Compl. (“Compl.”) ¶ 20,
ECF No. 1, with plaintiff Kushim added as an additional named plaintiff in the first amended complaint, see FAC
¶ 23.
2
Also pending is plaintiffs’ Motion for Class Certification (“Pls.’ Mot.”), ECF No. 56, which was stayed
pending resolution of defendants’ motion for summary judgment, Min. Order (July 23, 2021). This motion will be
denied as moot upon dismissal of the case.
2
Supp. 3d 1 (D.D.C. 2020), and thus are reviewed below only as relevant to resolution of the
pending motion, followed by this case’s procedural history.
A. Factual Background
Despite vigorous disagreements between the parties about how to characterize certain
facts, the details of the AARP Medigap program and key features of its administration, as well as
plaintiffs’ experience with the program, are not materially disputed by the parties, as explained
next.
The AARP Medigap Program
Defendant AARP, Inc. is a nonprofit membership organization for Americans over the
age of 50. See Defs.’ Statement of Undisputed Material Facts Supp. Mot. Summ. J. (“Defs.’
SMF”) ¶ 1, ECF No. 97 (public); Pls.’ Corrected Statement of Add. Material Facts (“Pls.’
SAMF”) and Pls.’ Counter-Statement of Genuine Issues (“Pls.’ SMF”) ¶ 1, ECF No. 113-1
(public). 3 Medigap insurance is a form of supplemental coverage for healthcare costs not
covered by Medicare. Defs.’ SMF ¶ 4 (citing 42 U.S.C. § 1395ss(g)(1)). Since 1998, United has
“offered Medigap coverage to AARP members under a group policy issued to [defendant AARP
Trust], a grantor trust that serves as the group policyholder.” Defs.’ SMF ¶ 5; see also Pls.’ SMF
¶ 5. In collaboration with AARP, United “offers Medigap coverage to AARP members across
the nation in all 50 states, four territories, and the District of Columbia.” Defs.’ SMF ¶ 7; Pls.’
SMF ¶ 7.
3
Both parties have filed sealed versions of their statements of material facts, docketed at ECF No. 100-1
(Defs.’ SMF) and ECF No. 114-2 (Pls.’ SMF) respectively. Insofar as sealed content is referenced in this
Memorandum Opinion, it is unsealed to the limited extent necessary to explain the Court’s reasoning, see United
States v. Reeves, 586 F.3d 20, 22 n.1 (D.C. Cir. 2009), or has already been disclosed in connection with this and
other litigation, see generally Krukas I, 376 F. Supp. 3d 1; Krukas II, 458 F. Supp. 3d 1. Plaintiffs’ statement of
material facts contains two documents with repeating paragraph designations in the same ECF filing. The two
documents are cited separately.
3
AARP is not a licensed insurance broker or agent, but instead helps administer and
promote the AARP-branded Medigap program through its subsidiary ASI and serves as the
group policyholder through AARP Trust. See Defs.’ Sealed SMF ¶¶ 14, 18; Pls.’ Sealed SMF
¶ 14. An agreement between AARP and United governs the administration of their Medigap
program. Pls.’ SAMF ¶ 4. Under the agreement, AARP grants United a license to use its
intellectual property in connection with the program, and in exchange AARP receives 4.95% of
the total premium revenues, which AARP characterizes as a royalty for use of its intellectual
property. Defs.’ Sealed SMF ¶¶ 8, 26; Pls.’ SMF ¶ 8. 4 AARP, through ASI, also plays a role in
reviewing and approving marketing materials and plays a role in developing brand strategy, Pls.’
Sealed SMF ¶ 14, and owns all Medigap marketing materials. Pls.’ Sealed SAMF ¶ 42.
Additionally, the agreement requires that the “AARP marks” be “dominant.” Id.; see also Pls.’
Sealed SMF ¶ 16. AARP member data is used to “identify AARP members for direct mail and
other advertising efforts,” Defs.’ SMF ¶ 17, and ASI informs AARP of the existence of the
AARP Medigap program, Defs.’ Sealed SMF ¶ 24. AARP uses its position as a trusted advocate
for its members to distinguish the AARP Medigap policy from other Medigap programs. Pls.’
SAMF ¶¶ 37–38. 5
AARP Trust serves as the group policyholder, collects premiums from policyholders, and
distributes the premiums between AARP and United. Defs.’ Sealed SMF ¶ 18; Pls.’ Sealed SMF
4
Plaintiffs dispute characterizing the payment retained by AARP as a “royalty,” contending that this
payment is better characterized as a “commission” because, plaintiffs allege, AARP solicits insurance and engages
in other activities beyond the mere licensing of its intellectual property. See Pls.’ SMF ¶¶ 8–9, 35. Regardless of
how the payment retained by AARP is characterized, however, plaintiffs have not established that they suffered an
injury as a result of defendants’ conduct. In other words, this dispute is not material, and the payment is described
as a “royalty” in this opinion.
The royalty rate was previously 4.9% rather than 4.95%, see Pls.’ Sealed SMF ¶ 26; Defs.’ Sealed SMF
¶ 26, but this fact is not material.
5
Plaintiffs dispute whether defendants’ involvement in the marketing and sale of AARP Medigap insurance
amounts to “soliciting insurance,” compare, e.g., Defs.’ Sealed SMF ¶ 14, with Pls.’ Sealed SMF ¶ 14, but, again,
this dispute is not material to resolve the pending motion for summary judgment.
4
¶ 18. The Trust transfers the 4.95% royalty to AARP, Inc. pursuant to the terms of the
agreement before transferring the remainder to United. Defs.’ Sealed SMF ¶ 18; Pls.’ Sealed
SMF ¶ 18; Pls.’ Sealed SAMF ¶¶ 8–9. 6 The portion transmitted to United is used to cover
claims and expenses and pays United’s “risk and profit” charge, which is United’s profit on the
premiums. Defs.’ Sealed SMF ¶ 11; Pls.’ Sealed SAMF ¶¶ 8–9. Any remaining funds go into a
Rate Stabilization Fund (“RSF”), which is used at least in part to stabilize rates. Defs.’ Sealed
SMF ¶ 11; Pls.’ Sealed SMF ¶ 11.
The rates for the AARP Medigap program are ultimately determined by state regulators,
Defs.’ SMF ¶ 39, which annually evaluate and approve the rates proposed by United in
consultation with AARP, Defs.’ Sealed SMF ¶ 41; Pls.’ Sealed SMF ¶ 41. State regulators,
including those in the states where plaintiffs purchased their insurance, review each rate to
ensure it is reasonable and meets applicable loss-ratio standards, Defs.’ SMF ¶ 44, which
generally require insurers to spend at least 75% of premium revenue on benefits, id. ¶ 45.
Medigap plans may charge only the approved rate. Id. ¶ 46.
Medigap plans traditionally compete on price, Pls.’ Sealed SAMF ¶ 38, because federal
law specifies the benefits that insurers must offer in their Medigap plans, Defs.’ SMF ¶ 36 (citing
42 U.S.C. § 1395ss(p)). Defendants contend that AARP Medigap insurance is frequently among
the lowest in plaintiffs’ home states. Defs.’ SMF ¶ 106. Plaintiffs counter that a majority of
AARP members over the age of 65 would find lower rates from other Medigap insurers, but do
6
Plaintiffs dispute whether the fee is properly characterized as being paid by United or by the policyholders
themselves, compare Defs.’ Sealed SMF ¶¶ 18, 26, 34 with Pls.’ Sealed SMF ¶¶ 18, 26, 34; Pls.’ Sealed SAMF ¶ 33,
but, again, this dispute is immaterial because regardless of how the funds move between policyholders, defendants,
and United, plaintiffs concede that (1) the AARP royalty is simply a portion of policyholders’ regulator-set and
agreed-upon premiums rather than an additional fee, see Pls.’ Opp’n Defs.’ Mot. Summ. J. (“Pls.’ Opp’n”) at 2-3,
ECF No. 113; Pls.’ Sealed SMF ¶¶ 18, 36, and (2) AARP’s retention of the royalty is purely a consequence of its
agreement with United that governs the administration of the Medigap program, see Pls.’ SMF ¶ 22, 34. See also
infra Part III.B.1. Put simply, while these facts about the royalty payment are material, the precise sequence of
events by which ownership over the funds is transferred is not.
5
not indicate how the premiums would have compared in plaintiffs’ home states during the
relevant time period. Pls.’ Sealed SMF ¶ 10.
AARP’s marketing materials disclose the royalty to prospective insureds, stating 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. AARP and its affiliates are not
insurers.” Defs.’ SMF ¶ 66; Pls.’ SAMF ¶ 67. The marketing materials do not indicate the
royalty rate. Defs.’ Sealed SMF at ¶ 67. 7 Plaintiffs assert that this disclosure (1)
mischaracterizes what is effectively a commission as a royalty, Pls.’ SMF ¶ 35; (2) misstates the
purpose of the royalty, which they allege is to compensate AARP for soliciting its members, id. ¶
66; and (3) misstates AARP’s role in the program, id. See also Pls.’ SAMF ¶¶ 69–70.
Plaintiffs’ Experience with AARP Medigap
The two named plaintiffs used AARP Medigap policies for over four years, with one
plaintiff still enrolled in this program. Plaintiff Helen Krukas enrolled in a Louisiana AARP
Medigap Policy in 2011, Defs.’ SMF ¶ 82, and remained enrolled in this plan through March
2016, id. ¶ 87. She then enrolled in a Florida AARP Medigap plan when she moved to Florida,
id. ¶ 89, and kept that plan until she switched to a different high-deductible Medigap plan offered
by another insurer, id. ¶ 90. Plaintiff Krukas did not compare Medigap premium rates or
comparison shop until she switched providers in 2016. Id. ¶ 91. She explains that she “always
thought of AARP as a club that negotiates on the behalf of […] retired people, of its members”
and “it didn’t even occur to [her] to look anyplace else. And had [she] known that they were
receiving money for it, [she] would have gone and shopped around with other brokers.” Pls.’
SMF ¶¶ 91, 94.
7
Defendants assert that the royalty rate is proprietary, Defs.’ Sealed SMF at ¶ 67, but it has been disclosed in
connection with this and other litigation, see generally Krukas I, 376 F. Supp. 3d 1.
6
Plaintiff Andrea Kushim enrolled in a Michigan AARP Medigap plan in 2017 and is still
enrolled in AARP Medigap today. Defs.’ SMF ¶¶ 92, 94; Pls.’ SMF ¶ 94. She concedes that she
did not comparison shop when purchasing the insurance and has not done so in the intervening
years. Defs.’ SMF ¶ 94; Pls.’ SMF ¶ 94. Plaintiff Kushim nevertheless asserts that if she had
known about the magnitude of the royalty, she might have compared the policy to that of another
insurer. Pls.’ SMF ¶ 97.
The plaintiffs concede that they received the exact insurance that they bargained for at the
exact price they agreed to pay. Defs.’ SMF ¶ 99. In other words, plaintiffs knew what they were
paying for and how much they were paying, and received a disclosure indicating that AARP
would receive a payment, but neither plaintiff knew the magnitude of the royalty payment made
to AARP at the time they purchased the AARP Medigap policies. Pls.’ SMF ¶ 99; Pls.’ SAMF
72.
B. Procedural Background
On May 10, 2018, plaintiff Krukas filed the original complaint, “individually, and on
behalf of all others similarly situated,” challenging the role of defendants AARP in soliciting,
marketing, and administering a supplemental Medicare health insurance program, known as a
“Medigap” program. See Compl. at 1. That original complaint raised four claims: Count One
alleged that AARP violated the CPPA by misrepresenting material facts about the 4.95%
payment and about AARP’s lack of license as an insurance broker or agent. Id. ¶¶ 92–103.
Count Two alleged that defendants’ conversion of her ownership right to the 4.95% payment
entitled her to damages in the amount she was wrongfully charged. Id. ¶¶ 104–07. Count Three
alleged unjust enrichment based on defendants’ retention of the 4.95% payment from plaintiff.
Id. ¶¶ 109–11. Finally, Count Four alleged fraudulent concealment because defendants
7
concealed or failed to disclose the 4.95% payment, a material fact that defendants should have
known should be disclosed or not concealed and that defendants concealed despite defendants’
“duty to speak.” Id. ¶¶ 112–18.
Defendants moved to dismiss this original complaint under Federal Rule of Civil
Procedure 12(b)(6), arguing that the complaint’s factual allegations were insufficient to support
any of plaintiff’s claims. See generally Defs.’ First MTD. Additionally, defendants challenged
the justiciability of plaintiff’s claims under: (1) the primary jurisdiction doctrine; (2) the filed-
rate doctrine; and (3) operation of the applicable statute of limitations. See id. at 1. Finally,
defendants raised choice-of-law issues as to whether Florida, Louisiana, or District of Columbia
law applied to the suit. See id.Defendants’ motion to dismiss was denied in Krukas I. As to defendants’ first proposed
ground for dismissal, the Court concluded that the primary jurisdiction doctrine did not require
staying or dismissing the CPPA and common law claims because those issues—whether the
advertising was deceptive or misleading, and the related common law claims of conversion,
unjust enrichment, and fraudulent concealment—did not require agency expertise, but rather
were regularly the subject of judicial review. Krukas I, 376 F. Supp. 3d at 15–17. Next, the
Court held that the filed-rate doctrine, which bars certain suits challenging the reasonableness of
regulatory rates approved by administrative bodies, see id. at 17–20, did not bar plaintiff’s
claims, id. at 20–26. Assuming without deciding that the filed-rate doctrine “extend[ed] beyond
comprehensive federal regulatory schemes” to “a case raising state-law claims implicating state-
regulated insurance rates,” id. at 20, the Court concluded that even though the suit “ha[s] some
relation to filed rates for state insurance coverage,” the complaint attacks not the reasonableness
of rates filed by United and approved by the applicable state insurance regulator but instead the
8
“fraudulent misrepresentation” of “a third-party doing business with” the entity whose rates are
regulated. Id. at 22 (emphasis in original). Moreover, plaintiff’s claims did not implicate the
filed-rate doctrine because should plaintiff prevail on her claims, “no change to UnitedHealth’s
rates would necessarily follow.” Id.
After determining that District of Columbia law governed the dispute, see id. at 27–32,
the Court further deemed “dismissal for statute of limitations reasons . . . not appropriate at this
time” since key facts remained “unknown.” Id. at 32–34. 8 Then, drawing all inferences in
plaintiff’s favor, plaintiff Krukas was found to have sufficiently alleged an injury in fact to
support standing because she alleged that she had been “misled . . . into paying an illegal 4.95%
commission.” Id. at 36. As such, the Court held that the original complaint plausibly stated a
claim for relief on each of the four counts. Id. at 34–47.
After the denial of defendants’ first motion to dismiss, plaintiffs filed, with defendants’
consent, their First Amended Complaint, which added a breach of fiduciary duty claim to the
four claims in the initial complaint. See FAC ¶¶ 117–20. Defendants subsequently filed a
second motion to dismiss, challenging Count II of the FAC, alleging fraudulent concealment.
See Defendants’ second Motion to Dismiss (“Defs.’ Second MTD”), ECF No. 42. This motion
was granted because the FAC did not plausibly allege the necessary fiduciary relationship
between the plaintiffs and any defendant. See Krukas II, 458 F. Supp. 3d at 7–12.
A scheduling order was entered with the parties’ proposed schedule, originally
culminating with the filing of any motions for summary judgment on July 10, 2020. See Min.
Order (Apr. 3, 2019). The discovery schedule was extended five times on the joint request of the
8
Under the choice-of-law analysis, the Court found that even assuming a conflict existed among the laws of
Florida, Louisiana, and the District of Columbia, “consideration of the ‘governmental interest’ and ‘significant
relationship’ tests confirms that the plaintiff’s claims are governed by District of Columbia law.” See id. at 28.
9
parties, see Min. Order (Aug. 23, 2019); Min. Order (Feb. 7, 2020); Min. Order (May 1, 2020);
Min. Order (Aug. 18, 2020); Min. Order (Apr. 14, 2021), so discovery has now been ongoing for
well over a year.
C. Pending Claims
Plaintiffs have four live claims remaining in their amended complaint. In Count I,
plaintiffs claim that AARP violated the CPPA, D.C. Code § 28-3901 et seq., by (1)
misrepresenting material facts concerning the 4.95% royalty and AARP’s stake in the sale of
AARP Medigap insurance, and (2) engaging in an unlawful trade practice by collecting a
“commission” when it was not a licensed insurance broker or agent in any of the relevant
jurisdictions. FAC ¶ 109. Plaintiffs allege financial harm from these unlawful trade practices
and being “deprived of truthful information regarding their choice” of Medigap policies, id.
¶ 113, because (1) they “would have sought out and paid less for their Medigap coverage” and
(2) they “paid AARP a 4.95% commission that AARP is not legally entitled to as it is not a
licensed insurance agent or broker,” id. ¶ 110.
In Count Three, plaintiffs claim defendants’ conversion of their “ownership right to the
4.95% of their payments that was wrongfully charged and illegally diverted to AARP as a
commission,” id. ¶ 122, resulted in damages in the amount of the premium for which they were
wrongfully charged, id. ¶ 124.
In Count Four, plaintiffs allege unjust enrichment, based on their conferral of a benefit to
the defendants “in the form of the hidden 4.95% charge on top of their monthly premium
payments that were unlawfully and deceptively charged and illegally diverted to AARP as a
commission.” Id. ¶ 126. Defendants allegedly “voluntarily accepted and retained this benefit,”
id. ¶ 127, which was collected “without proper disclosure” and “amounted to a commission in
10
violation of” District of Columbia law, id. ¶ 128, such that defendants’ retention of this benefit
without paying its value to plaintiffs would be “inequitable,” id.Finally, in Count Five, plaintiffs allege 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. ¶ 130, that AARP “knew or should have known that this material fact should be
disclosed or not concealed,” id. ¶ 131, that it concealed the fact “in bad faith,” id. ¶ 132, in spite
of its “duty to speak,” id. ¶ 135, and that it thereby “induced [plaintiffs] to act by purchasing an
AARP-endorsed Medigap plan,” id. ¶ 133. Plaintiffs claim to have suffered damages as a result
of this fraudulent concealment, id. ¶ 134.
As relief, plaintiffs’ amended complaint seeks an order: (1) “requiring AARP to restore
all money or other property” taken by means of unlawful acts or practices, id. at 35; (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 who purchased or renewed an AARP Medigap Policy”
between 2011 and the present, id. ¶ 97, with plaintiffs as Class Representatives and their counsel
as Class Counsel, id. at 35; and (4) awarding court costs and reasonable attorneys’ fees and any
other relief the Court deems just and proper, id. Plaintiffs also seek injunctive relief barring
defendants from engaging in the “wrongful acts and practices” alleged. Id. ¶ 116.
D. Pending Motions
On January 8, 2021, plaintiffs filed a motion to certify a class consisting of “[a]ll persons
in the United States who purchased or renewed an AARP Medigap Policy between January 1,
2011, and the present,” with limited exceptions. Pls.’ Mot. ¶ 1. With that motion pending,
defendants filed the pending motion for summary judgment on July 22, 2021. See Defs.’ Mot.
11
Consideration of plaintiffs’ motion for class certification was stayed pending resolution of
defendants’ motion for summary judgment, see Min. Order (July 23, 2021), which motion is now
ripe for resolution. 9
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “A genuine issue of material fact
exists ‘if the evidence, viewed in a light most favorable to the nonmoving party, could support a
reasonable jury’s verdict for the nonmoving party.’” Figueroa v. Pompeo, 923 F.3d 1078, 1085
(D.C. Cir. 2019) (internal quotation marks omitted) (quoting Hairston v. Vance-Cooks, 773 F.3d
266, 271 (D.C. Cir. 2014)). The moving party bears the burden to demonstrate the “absence of a
genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986),
while the nonmoving party must present specific facts, supported by materials in the record, that
would be admissible at trial and that could enable a reasonable jury to find in its favor, see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38
(D.C. Cir. 2015) (noting that, on summary judgment, the appropriate inquiry is “whether, on the
evidence so viewed, ‘a reasonable jury could return a verdict for the nonmoving party’” (quoting
Liberty Lobby, 477 U.S. at 248)); see also Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir.
2007) (“[S]heer hearsay . . . counts for nothing on summary judgment.” (internal quotation marks
and citation omitted)); FED. R. CIV. P. 56(c), (e)(2)–(3).
9
Defendants’ request for oral argument is denied because the 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”).
12
“Evaluating whether evidence offered at summary judgment is sufficient to send a case to
the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123
(D.C. Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve
genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 572
U.S. 650, 656 (2014) (per curiam), and “[t]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his favor,” id. at 651 (internal quotation marks
omitted) (alteration in original) (quoting Liberty Lobby, 477 U.S. at 255). Courts “may not make
credibility determinations or weigh the evidence,” Iyoha v. Architect of the Capitol, 927 F.3d
561, 565 (D.C. Cir. 2019) (internal quotation marks and citations omitted), since “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge,” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150–51 (2000) (internal quotation marks and citation omitted); see also Burley v. Nat’l
Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015).
The fact that a plaintiff’s testimony is uncorroborated is immaterial for purposes of
summary judgment, since “[c]orroboration goes to credibility, a question for the jury, not the
district court.” Robinson v. Pezzat, 818 F.3d 1, 9 (D.C. Cir. 2016). Nonetheless, for a factual
dispute to be “genuine,” the nonmoving party must establish more than “[t]he mere existence of
a scintilla of evidence in support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot
rely on “mere allegations” or conclusory statements, see Equal Rights Ctr. v. Post Props., Inc.,
633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011) (internal quotation marks omitted); accord FED. R.
CIV. P. 56(e). If “opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for summary judgment.” Lash v.
13
Lemke, 786 F.3d 1, 6 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007)). The Court is only required to consider the materials
explicitly cited by the parties, but may on its own accord consider “other materials in the record.”
FED. R. CIV. P. 56(c)(3).
III. DISCUSSION
Defendants move for summary judgment on three grounds, arguing that (1) plaintiffs lack
standing to pursue any of their claims, Defs.’ Mem. at 16; (2) the filed-rate doctrine bars
plaintiffs’ claims, id. at 24, and (3) they are entitled to judgment as a matter of law on each of
plaintiffs’ claims, id. at 28. Only the first ground need be addressed. Plaintiffs have failed to
establish the threshold requirement of Article III standing to invoke the jurisdiction of the Court,
and thus defendants’ motion for summary judgment must be granted.
A. Article III Standing
“[F]ederal courts are courts of limited subject-matter jurisdiction’ and ‘ha[ve] the power
to decide only those cases over which Congress grants jurisdiction.’” Bronner ex rel. Am. Stud.
Ass’n v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020) (alterations in original) (quoting Al-
Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012)); see also Gunn v. Minton, 568 U.S.
251, 256 (2013) (“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’” (quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994))).
Article III requires a plaintiff to establish “the irreducible constitutional minimum of
standing,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992), by showing “(i) that he suffered
an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was
likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial
14
relief,” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing Lujan, 504 U.S. at560–61); see also Louie v. Dickson, 964 F.3d 50, 54 (D.C. Cir. 2020). “The absence of any one
of these three elements defeats standing.” Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir.
2010). The “plaintiff must maintain a personal interest in the dispute at every stage of litigation
. . . and must do so ‘separately for each form of relief sought,’” Uzuegbunam v. Preczewski, 141
S. Ct. 792, 801 (2021) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 185 (2000), and citing Lujan, 504 U.S. at 561). This requirement
reflects the requirement under Article III that a federal court may only resolve “a real
controversy with real impact on real persons.” TransUnion, 141 S. Ct. at 2203 (quoting Am.
Legion v. Am. Humanist Assn., 139 S. Ct. 2067, 2103 (2019)). When “[w]inning or losing [the]
suit would not change” the benefits to which plaintiffs are entitled, they “have no concrete stake
in [the] dispute and therefore lack Article III standing.” See Thole v U.S. Bank, N.A., 140 S. Ct.
1615, 1622 (2020).
B. Plaintiffs Have Not Suffered a Concrete Injury to Pursue Damages or Other
Monetary Relief
Defendants argue that plaintiffs have failed to meet the first two requirements for Article
III standing by failing to establish any concrete injury and, even if they had, by failing to show
any such injury would have been caused by defendants’ conduct. Defs.’ Mem. at 17. In
defendants’ view, plaintiffs “received the benefit of their bargain”—the insurance product they
were happy with at the agreed-upon, regulator-approved rate—and therefore have no “cognizable
injury.” Id.Plaintiffs respond that they have experienced three distinct kinds of injury. As one type
of injury, they posit that they have suffered monetary damages because defendants
“misrepresented and concealed their financial interest in their transaction with [p]laintiffs which
15
allowed them to collect money from [p]laintiffs that they never bargained to pay,” and that the
amount defendants collected was “inflated.” Pls.’ Opp’n at 18. 10 Relatedly, they also argue that
defendants have “wrongfully retained [their] money,” id. at 14, “through deceptive practices
and/or without the required insurance licensing,” id. at 15. Even if they have not suffered
monetary damages, plaintiffs contend that they have standing to pursue their common-law and
CPPA claims insofar as they seek as relief the return of converted money and restitution. Third,
plaintiffs argue that defendants’ alleged misrepresentations deprived plaintiffs of information in
a way that “distort[ed] the competitive landscape for making purchasing decisions,” such that
they lost the opportunity to consider comparable but cheaper insurance policies. Id. at 23. Each
proposed theory of injury falls short of establishing standing.
Plaintiffs Have Not Experienced A Monetary Harm
Plaintiffs contend that they have suffered a monetary harm stemming from defendants’
conduct because defendants “misrepresented and concealed their financial interest in their
transactions with [p]laintiffs which allowed them to collect money from [p]laintiffs that they
never bargained to pay.” Id. at 17 (citing Pls.’ SMF ¶¶ 22, 23, 28, 29, 66–70).
As support for this injury theory, plaintiffs characterize the money received by
defendants as a “pay[ment] for a charge that [plaintiffs] did not owe.” Id. at 18. Plaintiffs have
conceded, however, that the money received by defendants—regardless of whether it is properly
conceived of as a royalty or a commission—is not a surcharge or an additional fee, see Defs.’
SMF ¶¶ 104–05; Pls.’ SMF ¶¶ 104–05, but rather a part of the regulator-approved insurance
premiums that plaintiffs and all purchasers of the AARP Medigap plan agree to pay, see Pls.’
SMF ¶ 36, and that the royalty reflects a rate negotiated between AARP and United, see id. ¶ 18.
10
Importantly, plaintiffs challenge only the amount defendants collected, not the premiums they paid. See,
e.g., Pls.’ SMF ¶ 36.
16
See also Pls.’ Opp’n at 44 n.39 (“Plaintiffs have always maintained that they send one payment
for the insurance premium.”); FAC ¶ 10 (asserting that “‘the member contribution amount’
[p]laintiffs and Class Members paid monthly to AARP included an embedded 4.95%
commission payment to AARP” (emphasis added)). Plaintiffs have abandoned their initial
allegation—wholly unsupported by the record and contradicted by other allegations in their
pleading—that the royalty was “secretly charged on top of their insurance premiums.” FAC ¶ 12
(emphasis added).
Plaintiffs argue that they “did not bargain to pay AARP’s commission” and that “AARP
extracted it anyway (at an inflated rate).” Pls.’ Opp’n at 19. Yet, the amount paid to AARP is
simply a part of the total cost of the insurance that plaintiffs happily purchased. Plaintiffs do not
pay a commission separate from the cost of the product any more than a purchaser of any
product pays for the individual goods and services that go into making that product—the royalty
is part of the cost. Having chosen to pay a certain amount for their Medigap insurance, the exact
percentage of that amount defendants retained is immaterial to plaintiffs’ choice. To the extent
plaintiffs believe that the amount defendants retain pursuant to their agreement with United is
“inflated,” see id. at 18, United—not plaintiffs—is the contractual party with an interest in
lowering the fee, see Defs.’ Reply Supp. Mot. Summ. J. (“Defs.’ Reply”) at 8, ECF No. 109. For
example, a consumer has no cognizable interest in what a general contractor pays a
subcontractor, or what the manufacturer of a product pays an outside marketing firm. Similarly,
plaintiffs here have no interest in the payment United makes to defendants. Regardless of the
precise flow of money, plaintiffs knowingly paid a certain amount for insurance, and a portion of
that amount went to defendants pursuant to the agreement between defendants and United.
17
Plaintiffs’ assertions that they have “pa[id] for a charge that they did not owe,” Pls.’ Opp’n at 18,
or have been “fraudentl[ly] overbill[ed],” id. at 18 n.12, are simply unsupportable on this record.
Plaintiffs’ assertion that they are directly paying defendants the royalty or commission,
see Pls.’ Opp’n at 18 (citing Pls.’ SAMF ¶¶ 8–9), is immaterial. As defendants correctly
contend, “the mechanics of how United makes the royalty payment to AARP are irrelevant to the
question of [p]laintiffs’ standing.” Defs.’ Reply at 9. The fact that, pursuant to the agreement
between defendants and United, the insurance premiums are collected by AARP Trust and then
paid to AARP, Inc., rather than collected by United and then directly paid to AARP, Inc., is
inconsequential. Regardless of which entity collects the funds, plaintiffs have (1) agreed to pay
certain insurance premiums and (2) a portion of those premiums are going to defendants pursuant
to the terms of AARP’s agreement with United. Plaintiffs are incorrect, given the undisputed
facts, that defendants are “extract[ing] money from [p]laintiffs,” Pls.’ Opp’n at 19, given that
plaintiffs are merely paying the premium they agreed to pay.
For this reason, plaintiffs’ reliance on In re APA Assessment Fee Litig., 766 F.3d 39(D.C. Cir. 2014), is misplaced. In that case, the defendant organization—the American
Psychological Association—allegedly misled its members into believing that they had to pay an
additional “special assessment” fee that was expressly described as “MUST PAY” on the billing
statement, but was not in fact a requirement for membership. Id. at 43. Plaintiffs alleged that
defendants deceived them “into overpaying for APA membership.” Id. at 47. The D.C. Circuit,
in reversing dismissal of plaintiffs’ unjust enrichment claim, concluded that this theory of harm
was cognizable, determined that plaintiffs had plausibly alleged that they were misled into
making an additional, unnecessary payment, and analogized this to mistaken overpayment of
rent. Id. (citing Restatement (Third) of Restitution & Unjust Enrichment § 6 cmt. c, illus. 9
18
(2011)). By contrast here, there is no such overpayment. Plaintiffs do not allege, let alone
present evidence, that they were charged extra because of defendants’ arrangement with United
and the royalty. Instead, as described above, plaintiffs challenge the allocation of the agreed-
upon payment for insurance, not the amount they paid.
Plaintiffs also cite E.M. v. Shady Grove Reprod. Sci. Ctr. P.C., 496 F. Supp. 3d 338(D.D.C. 2020), for the proposition that a plaintiff has standing to bring a misrepresentation claim
regardless of whether she is satisfied with the product or service she receives. See Pls.’ Opp’n at
20. In that case, the district court rejected the argument that the plaintiff—who had undergone
fertility treatment at defendant’s facility and thereafter been terminated discriminatorily as a
patient—lacked standing because she was satisfied with the way the previous treatments turned
out. Shady Grove Reprod. Sci. Ctr., 495 F. Supp. 3d at 411. There, however, the plaintiff
alleged that if not for the defendant’s misrepresentations, she would not have agreed to undergo
the procedure at the defendant’s facility in the first place. Id. She was plainly unsatisfied with
the health provider’s services. Here, by contrast, plaintiffs concede that they are fully satisfied
with their health insurance. See Pls.’ Opp’n at 19 (“this case is not, and has never been, about
the insurance coverage [p]laintiffs received from UnitedHealth”).
Second, plaintiffs make the conclusory assertion that “a lower royalty rate directly
benefits the insured class members.” Id. at 22 (citing Pls.’ SAMF ¶ 33 (citing, in turn, Pls.’
Opp’n, Ex. R, Aug. 16, 2013 AARP Memorandum, ECF No. 114-14 (Sealed) and Pl.’s Opp’n,
Ex. B, Expert Report of Gregory Pinsonneault ¶ 130, ECF No. 114–5 (Sealed)). This assertion
has no support in the record and has been repeatedly rejected by federal courts in similar cases.
See Dane, 974 F.3d at 192 (holding in affirming dismissal of CPPA claim against United and
AARP that the plaintiff “failed to show any concrete and particularized injury because he paid
19
only the regulator-approved rate and received the Medigap insurance he contracted for”);
Friedman, 2019 WL 5683465, at *5 (“Plaintiffs’ allegations of injury are based on the premise
that AARP was not entitled to receive a commission, however, absent allegations by plaintiffs
that they could have bought the same policy elsewhere for a lower price, they suffered no actual
injury.” (internal quotation marks and citation omitted)). Plaintiffs reason that if defendants
were paid a true “royalty” rather than a “commission,” the payment would only be 0.5 percent,
Pls.’ Sealed Opp’n at 22, 11 by assuming, without any apparent basis, that consumers would
experience lower prices, even in the face of their own concession that “none of [their recovery
theories] turn on the existence of any hypothetical lower rates charged by UnitedHealth,” id. at
30; see also Pls.’ SMF ¶ 36 (“This case does not challenge the setting or reasonableness of the
Medigap insurance rates.”). The flaw in the logic underlying this injury theory is obvious. The
magnitude of the royalty is immaterial if it does not affect plaintiffs’ premiums, and plaintiffs
have not only failed to present evidence on this front but have expressly disavowed this theory. 12
Third, plaintiffs propose that they have an experienced an “economic harm” from the
unlicensed selling of insurance, Pls.’ Opp’n at 17, but calling a perceived wrong an “economic
11
Plaintiffs filed a sealed version of Pls.’ Opp’n, docketed at ECF No. 114. Insofar as sealed content is
referenced in this Memorandum Opinion, it is unsealed to the limited extent necessary to explain the Court’s
reasoning.
12
Plaintiffs make the blanket assertion that “[t]ruthful disclosure would restore integrity to the market and, on
standard principles of economics, drive prices down,” Pls.’ Opp’n at 27, but this assertion is unsupported by record
evidence, is conclusory, and relies only on authorities describing the benefits of price transparency, see id. at 27
n.18, and defendants obviously disclose the relevant premium prices.
Even if plaintiffs’ assertion were understood to suggest that the AARP Medigap premiums would decrease,
this argument is not compelling. As defendants persuasively argue, “United would have been entitled to propose the
same premium rates and retain the revenue not spent on the royalty as profit or spend it on alternative marketing
programs or other expenses.” Defs.’ Mem. at 21; see also id. at 22 (arguing that “[w]ithout the benefit of AARP’s
branding and member data, United would have had to account for additional marketing and consumer-acquisition
costs). Other courts have rightly rejected conjecture about passed-on savings, noting that such an expectation “lacks
real world credibility.” Friedman, 2019 WL 5683465, at *6 (“In lieu of passing on all or some portion of such
savings, businesses may, for example, reduce debt, increase employee compensation, increase advertising
expenditures, invest in new products or business opportunities—all the while being mindful of what competitors are
doing in the marketplace.”).
20
harm” does not make it so. This is insufficient to establish injury in fact because it is not a
“concrete, direct, real, and palpable” injury. Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety
Admin., 489 F.3d 1279, 1297 (D.C. Cir. 2007). The District of Columbia has an interest in
adherence to its licensing provisions. See D.C. Code § 31-2502.42 (setting out penalties for
violations of, inter alia, D.C. Code § 31-2502.31, prohibiting insurance commissions paid to
unlicensed persons). Absent any complaint about the services rendered or allegation that
plaintiffs would have sought insurance elsewhere because of defendants’ unlicensed status, the
fact that defendants were unlicensed is insufficient to establish injury in fact. Compare Tolson v.
The Hartford Fin. Servs. Grp., Inc., 278 F. Supp. 3d 27, 38 & n.10 (D.D.C. 2017) (holding that
the plaintiff had no concrete interest in her massage therapist being licensed), with Mann v. Bahi,
251 F. Supp. 3d 112, 119 (D.D.C. 2017) (holding that the plaintiff had standing where he
alleged, in an sworn affidavit, that he would not have hired a nursing service if he had known
that it was “required to be, but was not, licensed by the D.C. Department of Health” and where
nurses referred by the service were alleged to provide subpar care); see also TransUnion, 141
S. Ct. at 2206 (“An uninjured plaintiff who sues [without having suffered any physical,
monetary, or cognizable intangible harm] is, by definition, not seeking to remedy any harm to
herself but instead is merely seeking to ensure a defendant’s ‘compliance with regulatory law’
(and, of course, to obtain some money via [] statutory damages).).” Plaintiffs concede that
economic harm is necessary for a claim based on unlicensed sale to be cognizable, see Pls.’
Opp’n at 17 (distinguishing Tolson only on the ground that plaintiffs have suffered an economic
harm), but have demonstrated no economic harm. 13
13
Plaintiffs cite Djourabchi v. Self, 571 F. Supp. 2d 41, 52 (D.D.C. 2008), for the proposition that a person or
entity may be liable for conversion or any other common-law tort simply by providing services without complying
with the law governing the provision of those services. This case not only predates Spokeo v. Robins, 578 U.S. 330(2016), and TransUnion, but does not address standing at all. Furthermore, it is easily distinguishable because in that
21
This theory also fails as to causation because even if plaintiffs have suffered an injury in
fact, there is no reason that any injury they experienced would have been a result of defendants’
alleged solicitation of insurance without a license. Plaintiffs have not alleged in their amended
complaint—nor is there any evidence in the record—that they would have declined to purchase
the AARP Medigap policy had they known that AARP was not a licensed insurance agent, nor
do they allege any harm plausibly connected to the fact that defendants were allegedly engaging
in the unlicensed solicitation of insurance. 14 When a consumer obtains the benefit of her
bargain, the purchase of an unlicensed good or service is not itself an injury in fact.
Plaintiffs’ Common-Law Causes of Action and the Requested
Remedy of Restitution Provide No Independent Basis for
Standing
Plaintiffs assert another, more attenuated theory of standing predicated on their claims for
conversion, unjust enrichment, and for restitution under the CPPA, arguing that they are entitled
to relief because defendants “took or received money that did not belong to them.” Id. at 15; see
also id. at 15 n.6 (quoting D.C. Code § 28-3905(k)(2)(E) (authorizing “relief as may be
necessary to restore to the consumer money . . . which may have been acquired by means of the
unlawful trade practice”)). This injury theory does not withstand analysis to confer standing.
Plaintiffs’ conversion claim seeks damages in the “amount of the premium for which
[plaintiffs] were unlawfully and additionally charged,” FAC ¶ 124, even though plaintiffs have
case, the defendant contractor expressly held himself out as licensed in D.C. in a signed contract, and plaintiffs
relied on that misrepresentation. Id. at 49. Here, there is no dispute that Medigap materials clearly disclosed that
United, not AARP, was the insurer. See Defs.’ SMF ¶ 66; Pls.’ SMF ¶ 66.
14
Plaintiffs also cite Williams v. First Gov’t Mortg. & Inv’rs Corp., 225 F.3d 738, 745 (D.C. Cir. 2000)
(holding that the amount of damages under the CPPA need not turn on whether the plaintiff “had better options”
than defendant agency’s loan offerings, but could be measured by the amount of fees and expenses which the
defendant agency—which the court found had acted predatorily—had charged plaintiff). See Pls.’ Opp’n at 22.
Williams, however, did not address the issue of standing, and as defendants rightly note, “[t]he case hardly stands for
the proposition that [p]laintiffs need not show an injury in fact before being awarded the amount of fees they claim
to be illegal.” Defs.’ Reply at 8 n.6.
22
failed to show that the amount paid to defendants was an “additional” charge or in any way
increased their premiums. See supra Part III.B.1. Nonetheless, plaintiffs contend that
defendants wrongfully exercised control over their money by (1) charging an additional
commission and (2) misleading them into paying the commission, Pls.’ Opp’n at 15, 43, and that
defendants ought to return that amount, id. at 15 n.7. Plaintiffs suffer no harm, however, simply
because they object to the ultimate recipient of a portion of their premium, see supra Part III.B.1,
or because of the conclusory assertion that they might have sought insurance elsewhere and
might have found a better price had they been presented with a more comprehensive disclosure,
see infra Part III.B.3.
This leaves plaintiffs’ unjust enrichment claim. Unjust enrichment is different from other
claims because it does not require any harm to befall the plaintiff. Restatement (Third) of
Restitution & Unjust Enrichment (“Restatement”) § 1. An unjust enrichment claim under
District of Columbia law requires plaintiffs to allege that they (1) conferred a benefit on
defendants; (2) defendants retained the benefit that was conferred; and (3) it would be unjust for
defendants to retain the benefit under the circumstances. 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
enrichment of defendants must, however, come at the expense of plaintiffs. Peart v. D.C. Hous.
Auth., 972 A.2d 810, 815 (D.C. 2009) (framing the question of unjust enrichment as “whether
refusing to permit [plaintiff] to recover the value of the benefit she conferred on [defendant]
enriches it at her expense”); Restatement § 1 (“A person who is unjustly enriched at the expense
23
of another is subject to liability in restitution.”). In this context, “expense” does not necessarily
refer to a loss experienced by plaintiffs, but also encompasses violations of their rights that do
not result in any financial loss. Id. § 1 cmt. a (“While the paradigm case of unjust enrichment is
one in which the benefit on one side of the transaction corresponds to an observable loss on the
other, the consecrated formula ‘at the expense of another’ can also mean ‘in violation of the
other’s legally protected rights,’ without the need to show that the claimant has suffered a loss.”).
Even if plaintiffs need not establish a monetary loss to have standing, they still must
allege that defendants’ gains were predicated on a violation of plaintiffs’ individual rights, that
is, that the violation is “particularized” to plaintiffs and that defendants’ unjust gains were caused
by the violation of plaintiffs’ rights. Lujan, 504 U.S. at 560. Even if defendants were soliciting
insurance without a license, this would not be a violation of plaintiffs’ individual rights, absent
some independent allegation of harm. See FAC ¶ 128 (alleging that defendants’ retention of the
4.95% fee was “unjust” because the fee was obtained in violation of the D.C. Code provisions
prohibiting payment of commissions to unlicensed entities).
The Restatement provides an on-point illustration indicating that no unjust enrichment
results from a completed exchange where the plaintiff’s argument for injustice rests solely on
defendant’s lack of compliance with a licensing regime:
Tenant sues former Landlord seeking restitution of rent paid for the occupancy of
Blackacre under an expired lease, on the ground that Landlord failed to register Blackacre
as rental property as required by ordinance. There is no claim that Landlord failed to
perform his obligations under the lease. The regulatory illegality might or might not have
afforded Tenant a defense to Tenant’s obligation to pay rent, but these facts present a
different question. Tenant has no claim to restitution of rent previously paid because
Landlord has not been unjustly enriched.
Restatement § 32, cmt. f, illustration 22; see also Remsen Partners, Ltd. v. Stephen A. Goldberg
Co., 755 A.2d 412, 416 (D.C. 2000) (denying recovery of payments made to unlicensed real
24
estate broker, and noting that “[t]here is no equitable reason for ordering disgorgement where
plaintiffs have received the benefits they expected”); William J. Davis, Inc. v. Slade, 271 A.2d
412 (D.C. 1970) (providing restitution of payments made less the reasonable value of the
premises in their condition when occupied where claimant sought to recover rent paid under a
lease that was illegal by reason of substantial housing code violations).
As applied here, plaintiffs do not argue that the cost of their insurance policies were any
higher than they would have been absent defendants’ allegedly unlawful conduct, and their
damage theories do not rely at all on the availability of less expensive insurance. Cf. Edmonson
v. Lincoln Nat. Life Ins. Co., 725 F.3d 406, 417 (3d Cir. 2013) (holding that plaintiff had
standing to bring ERISA disgorgement claim and “incurred an injury-in-fact because she
suffered an individual loss, measured as the spread or difference between the profit [defendant]
earned by investing the retained assets and the interest it paid to her” (internal quotations marks
and citation omitted). Instead, they argue that defendants acted wrongfully and that plaintiffs
should recover as a result, regardless of whether defendants’ conduct made them any better or
worse off. This is not sufficient for standing.
The unfairness—and risk for abuse—in plaintiffs’ understanding of unjust enrichment is
obvious and illustrated by the Restatement. If the purchaser of the good or service is completely
happy with the terms of the transaction and the good or service they receive, they cannot both
receive the benefit of their bargain and collect a windfall from their counterparty. 15
15
Beyond the landlord/tenant context, plaintiffs’ theory might allow future plaintiffs to take advantage of
unlicensed businesses or workers, contracting with them on mutually agreeable terms and then demanding return of
any payments regardless of whether they were happy with what they received. The government can obviously
enforce its licensing requirements in the absence of any harm to consumers, but consumers may not use claims of
unjust enrichment to extract a windfall from those with whom they have willingly dealt on mutually acceptable
terms.
25
Plaintiffs might have a concrete injury if the value of the rendered services were less
because of defendants’ allegedly wrongful unlicensed status, but they cannot recover here. No
harm or injustice—and therefore no injury—results simply by virtue of buying a product or
serviced from an unlicensed entity. See supra Part III.B.1. This applies with full force to
plaintiffs’ CPPA claim as well, regardless of the availability of the remedy of restitution. A
plaintiff pursuing a claim under the CPPA may not proceed based solely on the fact of a
violation of the statute and must establish injury-in-fact. See Hancock v. Urban Outfitters, Inc.,
830 F.3d 511, 514 (D.C. Cir. 2016) (holding that CPPA plaintiffs lacked standing where they
failed to allege “any cognizable injury” resulting from an alleged CPPA violation); Silvious v.
Snapple Beverage Corp., 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”).
Plaintiffs may not rely on the remedies for their common-law and CPPA claims as
grounds for standing because those claims require some harm to plaintiffs or retention of money
that rightfully belongs to plaintiffs. Since plaintiffs received the benefit of their bargain,
receiving the insurance they purchased at the agreed-upon price, and have no complaints about
the insurance, plaintiff have not established an injury for purposes of their common-law or CPPA
claims.
Comparison Shopping
Finally, plaintiffs contend that defendants’ “misstatements and omissions deprived [them]
of truthful information, which had a material impact on reasonable consumers’ purchasing
decisions.” Pls.’ Opp’n at 23. According to plaintiffs, defendants’ insufficient disclosures—
referring to the payment they received as a “royalty” and not disclosing the magnitude of the
26
payment—were material because they “deprived [plaintiffs] of the ability . . . to accurately weigh
the pros and cons of competing health-insurance policies.” Id. at 25. If the fee and the nature of
AARP’s role had been fully disclosed, plaintiffs suggest, they “would have sought out and paid
less for their Medigap coverage.” FAC ¶ 110; see also id. ¶ 112 (alleging that plaintiffs and
putative class members were “deceived . . . into paying more for their Medicare supplemental
health insurance policies than they otherwise would have” without defendants’ allegedly
misleading advertisements); Pls.’ SAMF ¶ 72. Of course, plaintiffs could have sought other
insurance or comparison shopped regardless of what information about the defendants’
arrangement with United was disclosed in the materials they received, and plaintiffs concede that
AARP disclosed some financial stake in the sales. See Pls.’ SMF ¶ 66. Plaintiffs insist that had
the requested disclosures been made regarding the nature of AARP’s agreement with United and
the scope of the compensation to be paid to AARP, they would have been more skeptical about
the price-competitiveness of the offering, and potentially sought out cheaper insurance. See Pls.’
Opp’n at 37–38; Pls.’ SAMF ¶ 72.
This alleged harm is too attenuated to constitute a concrete injury in fact. Plaintiffs must
establish that a concrete harm resulted from the presentation of misleading information in order
to establish standing. See Clean Label Prod. Found. v. Garden of Life, LLC, Case No. 20-cv-
3229 (RC), 2021 WL 4318099, at *6 (D.D.C. Sept. 23, 2021) (holding that to establish standing
under the CPPA, plaintiff must do more than allege that defendant “has generally violated the
CPPA by presenting misleading information,” and “must [also] identify a concrete harm that
accrued as a result”); see also Krukas I, 376 F. Supp. 3d at 37 n.12 (holding that “a violation of
[plaintiffs’] statutory right to truthful information, . . . without more, is insufficient to establish
standing”). In denying defendants’ first motion to dismiss, the Court accepted—as was
27
appropriate at that stage of the litigation—plaintiff Krukas’s allegations that “she would have
sought out a different, lower-priced policy, and therefore she was financially harmed by the
allegedly misleading advertisements,” and determined that this was sufficient to establish an
injury in fact at that stage of the litigation. Krukas I, 376 F. Supp. 3d at 36. At this stage,
however, with the burden on plaintiffs to present evidence establishing injury in fact, plaintiffs’
allegations and conclusory assertions are simply not enough.
Plaintiffs’ “comparison shopping” theory of harm is entirely predicated on the
availability of cheaper comparable insurance. Given that they received the agreed-upon
insurance at the agreed-upon rate—and apparently have no complaints about the product—they
would only have been harmed by defendants’ alleged lack of disclosure if some superior (i.e.,
cheaper) policy were available that they would have been able to identify and purchase if
defendants had indicated the extent of their financial stake in the transaction. Defendants point
out that plaintiffs have not asserted—let alone presented evidence of the fact—that they could
have bought less expensive insurance if they were aware of the extent of the AARP payment,
Defs.’ Mem. at 24, and defendants have presented expert testimony that “United’s rates were
among the lowest (if not the lowest) available in the relevant markets.” Id. (citing Defs.’ SMF
¶ 106). If plaintiffs could not have purchased less expensive or otherwise more desirable
insurance instead of AARP Medigap insurance, and received precisely the insurance they
bargained for at the agreed-upon rate, they have suffered no injury, regardless of whether
defendants’ statements or omissions were somehow “misleading” within the meaning of the
CPPA. See Dane, 974 F.3d at 192 n.7 (holding that allegation that plaintiff would have sought
insurance elsewhere had he known the details of AARP’s royalty fee arrangement under the
AARP Medigap policy was “conclusory and insufficient, on its own and without further detail, to
28
show a concrete and particularized injury”); Friedman, 2019 WL 5683465, *5 (holding, in a case
challenging AARP’s collection of the 4.95% fee, that “[p]laintiffs’ allegations of injury are based
on the premise that AARP was not entitled to receive a commission, however, ‘absent allegations
by plaintiffs that they could have bought the same policy elsewhere for a lower price, they
suffered no actual injury’” (quoting Peterson v. Cellco Partnership, 164 Cal. App. 4th 1583,
1591 (2008)).
Plaintiffs do not even try to meet their burden of showing that any such a preferable
policy was available, instead merely asserting that “whether [d]efendants’ omissions would have
affected [p]laintiffs’ purchasing decisions is irrelevant under the CPPA.” Pls.’ Opp’n at 38.
Plaintiffs dispute that “[t]hroughout the relevant time period, United’s rates for its AARP-
branded Medigap coverage were among the lowest—and often the lowest—in plaintiffs’ home
states,” Pls.’ SMF ¶ 106, but present no argument on that point in their briefing, noting only in
their statement of genuine issues that the AARP Medigap program had higher rates than its
competitors in some states over some time periods, without any reference to the states in which
plaintiffs lived and purchased their AARP Medigap insurance, see Pls.’ Sealed SMF ¶ 10. This
does not indicate whether plaintiffs in fact could have purchased cheaper health insurance. The
bare allegation that defendants deprived of plaintiffs of their ability “to accurately weigh the pros
and cons of competing health-insurance policies,” Pls.’ Opp’n at 25, is insufficient to show a
concrete injury since plaintiffs have presented no evidence that they would have had any
opportunity or reason to buy a competing health-insurance policy.
Plaintiffs rely on Jeffries v. Volume Serv. America, Inc., 928 F.3d 1059 (D.C. Cir. 2019),
and defendants’ alleged position as a “trusted advisor” to argue that the alleged deprivation of
material information can represent a cognizable injury “regardless of whether the consumer
29
suffered any pecuniary harm.” Pls.’ Opp’n at 25. Jeffries, however, involved an informational
disclosure harm—defined by statute in the Fair and Accurate Credit Transactions Act
(“FACTA”)—that the D.C. Circuit deemed sufficiently familiar to the harm identified by the
common-law tort of breach of confidence to constitute a concrete injury. 928 F.3d at 1064.
More specifically, the D.C. Circuit found that FACTA “vests consumers with a concrete interest
in using their credit and debit cards without incurring an increased risk of identity theft,” and that
the statutory requirement that merchants omit credit card numbers was directed towards that end.
Id. The court then analogized this risk of harm to the breach of confidence tort, which “‘lies
where a person offers private information to a third party in confidence and the third party
reveals that information’ to another.” Id. (quoting Muransky v. Godiva Chocalatier Inc., 922
F.3d 1175, 1190–91 (11th Cir. 2019), reh’g en banc granted, opinion vacated, 939 F.3d 1278(11th Cir. 2019), and on reh’g en banc, 979 F.3d 917 (11th Cir. 2020)).
Here, plaintiffs assert no claim under FACTA, nor is the risk of harm they assert
remotely related to the breach-of-confidence tort described in Jeffries. Plaintiffs do not allege
any confidential relationship between the parties or the disclosure of protected information. Id.While plaintiffs contend that AARP breached plaintiffs’ trust by holding itself out as a “trusted
healthcare advisor” and then failing to disclose its financial stake in the sale of the policy, Pls.’
Opp’n at 25, this is not the kind of breach of trust described in Jeffries, and plaintiffs have not
provided any evidence that defendants encouraged plaintiffs to purchase a product that was in
any way inferior or overpriced. Moreover, the risk of harm they identify is far more attenuated
than that identified in Jeffries. Any person whose credit card information was released could be
at heightened risk of identity theft. Only a small and readily identifiable subset of those
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individuals who purchased AARP Medigap insurance—i.e., those who had better options—could
possibly have experienced a risk of harm under plaintiffs’ comparison shopping theory. 16
Plaintiffs have therefore failed to establish that defendants’ alleged misrepresentation or
omission caused them injury by impeding their ability to comparison shop. 17
* * *
For the foregoing reasons, plaintiffs have failed to establish any injury-in-fact that would
grant them standing under Article III to pursue damages on any of the claims in their First
Amended Complaint.
C. Standing to Pursue Injunctive Relief
Similarly, plaintiffs lack standing to pursue injunctive relief for their claims under Count
I (CPPA), see FAC ¶¶ 114, 116. Plaintiffs must demonstrate standing separately for each form
of relief sought, and standing for prospective relief requires showing continuing or imminent
harm. See Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 879 F.3d 339,
346 (D.C. Cir. 2018). Here, plaintiff Kushim makes no real effort to show a risk of ongoing or
16
As defendants correctly observe, see Defs.’ Reply at 12, the holding of Jeffries is in some tension with the
Supreme Court’s more recent decision in TransUnion LLC, which held that regardless of a provision in the Fair
Credit Reporting Act requiring that credit reporting agencies use reasonable procedures to ensure the accuracy of
credit reports and the failure of the agency to follow such procedures, the plaintiffs did not have standing because
any risk of harm from that failure had not materialized. 141 S. Ct. at 2210–13 (2021); see also Jeffries, 928 F.3d at
1065 (observing that “FACTA punishes conduct that increases the risk of third-party disclosure, not the actual
disclosure itself). Jeffries is sufficiently distinguishable, however, that the continued viability of its holding need not
be addressed.
17
The parties dispute the implications of plaintiffs’ statements in their depositions regarding their interest in
comparison shopping and the effect that disclosure of the magnitude of the AARP payment would have had on that
decision. Compare Defs.’ Mem. at 24 (citing Defs.’ SMF ¶¶ 91, 94, 98) with Pls.’ Opp’n at 38 & n.27; Pls.’ SMF
¶ 98. Notably, the allegation that plaintiff Kushim “would have sought out other cheaper, lawful Medigap
insurance” had she known about the 4.95% fee, FAC ¶ 23, is implausible given that she has continued to hold her
AARP Medigap policy after joining this action, see Defs.’ SMF ¶ 94; Pls.’ SMF ¶ 94. Plaintiffs’ “comparison
shopping” theory of injury is flatly contradicted by plaintiff Kushim’s statement that she had not, even with the
relevant knowledge, engaged in comparison shopping, and has not alleged any switching costs that might explain
her decision not to do so. The dispute over whether plaintiff Krukas’s ability to comparison shop was impeded need
not be resolved since she provides no evidence that, even if she had comparison shopped, a less expensive insurance
policy was available.
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future injury. Even if the disclosure of the payment to AARP were insufficient to make her
realize the nature of AARP’s interest in the sale of AARP Medigap insurance, she is obviously
aware of the details of AARP payment by virtue of her involvement in this litigation and is free
to comparison shop. She has not done so and remains enrolled in the United Medigap program
today. Defs.’ SMF ¶ 94. She may continue paying her premiums, which will go in part to
AARP, but if she does so with full knowledge of the fee structure and is happy with her policy,
she plainly is not being injured by that voluntary and knowing transaction, or by the absence of
the disclosures plaintiffs claim were material to the purchase decision. Nor have plaintiffs
presented any reason to believe that the premiums would be any lower if the agreement between
AARP and United were deemed unlawful and defendants were enjoined to alter their practices as
plaintiffs request in their amended complaint. Indeed, plaintiffs concede that they do not
“challenge the terms and conditions of service between United and its policyholders.” Pls.’ SMF
¶ 102. Accordingly, plaintiffs lacks standing to pursue injunctive relief.
IV. CONCLUSION
Plaintiffs have failed to show that they suffered concrete and particularized injuries, and
their claims are accordingly dismissed for lack of standing. Since this case is being dismissed,
plaintiffs’ motion for class certification is denied as moot.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: November 2, 2021
__________________________
BERYL A. HOWELL
Chief Judge
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