In re APA ASSESSMENT FEE LITIGATION

Filing 27

MEMORANDUM OPINION. Signed by Judge John D. Bates on 5/30/2012. Associated Cases: 1:10-cv-01780-JDB, 1:10-cv-01898-JDB (lcjdb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

In re: APA Assessment Fee Litigation
Ellen G Levine, et al.,
Plaintiffs,
v.
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC. and AMERICAN
PSYCHOLOGICAL ASSOCIATION
PRACTICE ORGANIZATION,

Civil Action No. 10-1780 (JDB)
(consolidated with Civil Action No. 101898 (JDB))

Defendants.

ERIC S. ENGUM,
Plaintiff,
v.
AMERICAN PSYCHOLOGICAL
ASSOCIATION, INC. and AMERICAN
PSYCHOLOGICAL ASSOCIATION
PRACTICE ORGANIZATION,
Defendants.

MEMORANDUM OPINION
This matter is before the Court on [16] defendants' motion to dismiss plaintiffs' claims for
unjust enrichment and violations of California consumer protection laws. Plaintiffs, on behalf of
a proposed class, claim that they paid a "special assessment" or a "practice assessment" to the
American Psychological Association ("APA") for use by its lobbying arm, the American
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Psychological Association Practice Organization ("APAPO"), under the mistaken belief that
payment of that assessment was required for membership in the APA. Compl. [ECF 15] ¶ 22.
Plaintiffs contend that the APA intentionally misled its members by stating that payment of the
special assessment was mandatory, when, in fact, the APA considered the payment of the
assessment to be "purely voluntarily." Id. These misrepresentations, plaintiffs argue, unjustly
enriched the APA and APAPO and violated California consumer protection laws. Id. ¶¶ 33-53.
Defendants argue that plaintiffs cannot bring the quasi-contract claim of unjust enrichment when
an actual contract governs the relationship between the APA and its members; that the APA's
statements were not misleading; and that choice of law principles dictate that District of
Columbia law, not California law, applies to this dispute. The Court agrees with defendants that
plaintiffs' claims as currently stated suffer from fatal threshold flaws and therefore must be
dismissed.
I. Background
These facts are drawn from [15] plaintiffs' complaint. In the context of this motion to
dismiss, the Court takes the allegations in the complaint as true. See Scheuer v. Rhodes, 416
U.S. 232, 236 (1974).
The APA is "the world's largest organization representing psychologists" and has
"hundreds of thousands of members" throughout the United States. Compl. ¶¶ 2, 15. As a
501(c)(3) organization, the APA may not engage in significant lobbying. Id. ¶ 15. Hence, in
2001, the APA formed the APAPO, a 501(c)(6) organization, to "conduct[ ] professional
advocacy and lobbying" on behalf of the APA's members. Id. ¶¶ 3, 5, 15. The APA and the
APAPO have the same membership list, board of directors, physical address, and accounting and

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billing system. Id. ¶ 13. Plaintiffs allege that at all relevant times "each of the Defendants was
the agent, servant, representative, officer, director, partner or employee of the other. . . . [and
was] engaged in a joint venture, partnership and common enterprise." Id. ¶ 14.
Plaintiffs' complaint is based on payments made by APA members to support the
APAPO's activities. According to plaintiffs, the "APA has been assessing clinicians – those
psychologists who actually practice clinical psychology and do psychotherapy – a special fee
with their APA dues, which is represented to those clinicians on their billing statements as a
mandatory practice assessment, which is then allocated by APA leadership to the APAPO." Id. ¶
15. Plaintiffs point to several statements that they claim misleadingly imply that the special
assessment was mandatory. They assert that the APA's website stated in 2002 and for a number
of years thereafter that members "must pay" the special assessment. Id. ¶ 17. The annual dues
statement came pre-printed with the amount of the special assessment filled in, and the
instructions explained that members who provided "any" health services "must pay" the special
assessment. Id. ¶ 16. Additionally, the APA announced in 2005 that it would no longer exempt
new members from payment of the special assessment, but that instead "all APA members who
are licensed psychologists will be billed the assessment." Id. ¶ 18 (internal quotation marks
omitted). When the APA eventually began allowing online payment of dues, the website did not
allow members to forego payment of the special assessment. Id. ¶ 19.
In 2010, some APA members discovered that "the purportedly mandatory APAPO
special or practice assessment fee was purely voluntary" and disseminated that information to
members of an APA email list. Id. ¶ 22. Thereafter, the APA made some efforts to clarify to
members that payment of the special assessment to fund the APAPO was not, in fact, a condition

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of membership in the APA. On May 5, 2010, members of the APA/APAPO board explained in
an APA newsletter that:
The manner in which the APA, APAPO, and Division dues have been combined
on past due statements does not make clear that the mandatory practice
assessment payment is required for APAPO membership but not for APA
membership. The 2011 dues statement instructions will be modified to clarify this
point.
Id. ¶ 23 (internal quotation marks omitted). The 2011 dues statement was then modified so that
it no longer said that members "must pay" the special assessment, and it specifically stated that
nonpayment of the assessment did not affect APA membership. Id. ¶ 25. The APA also clarified
that members could opt out of payment of the special assessment by paying their dues by phone,
although there was no option to pay only the basic dues online. Id. ¶ 28.
In May 2010, Dr. Glenn Ally, a member of a committee that has "governance
responsibilities" for the APA and the APAPO, explained on an APA email list why the APA had
not previously characterized the special assessment as voluntary:
I’m assuming you know the statistics that psychologists are at the bottom (AT
THE BOTTOM) of the list of professions regarding voluntary contributions, even
political advocacy contributions. What you are suggesting here is to make the
primary and largest advocacy arm of our organization dependent on the voluntary
contributions of the cheapest profession around. . . Again, I don’t mean to be
offensive, but try running your practice on voluntary contributions and see if your
family gets everything they want and deserve to have. The PO is a business and
they are in the business of advocating for practice. WE have decided we need this,
and we decided long ago that we were not getting enough advocacy when we had
to depend on the larger “APA.” We wanted our own practice advocacy for a
variety of reasons. That “business” has to depend on a relatively stable revenue
source. Would the lobbyist for your state organization represent you if you told
him/her that you were going to pay him/her differently each year based on
“voluntary donations?”
Id. ¶ 24 (internal quotation marks omitted).
Other APA members, however, gave somewhat different explanations for the APA's
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characterization of the special assessment as mandatory. In January 2011, in response to a
request to refund past dues, the APA's Executive Director for Public and Member
Communications explained that "[i]n general, licensed providers are expected to pay the
assessment" even though their APA membership would not be terminated if the assessment was
not paid. Id. ¶ 27. In their briefing, defendants explain that the APA regards the payment of the
special assessment as a moral and professional obligation, and hence mandatory, even though
payment is not a condition of membership in the APA. Defs.' Mem. in Supp. of Mot. to Dismiss
("Defs.' MTD") at 1.
Plaintiffs are two California residents and a Tennessee resident who paid special
assessment fees between 2001 and 2010. Compl. ¶¶ 10-12. They represent a proposed class of
"current and former APA members who have paid special or practice assessment fees as part of
their annual dues, which were misrepresented as being a mandatory part of those dues." Id. ¶ 1.
According to plaintiffs, the putative class paid some $6,000,000 per year in special assessments.
Plaintiffs have reformulated their complaint several times and have now consolidated two
cases brought on behalf of APA members. After plaintiffs filed their consolidated class action
complaint on January 31, 2011, defendants filed the instant motion to dismiss, and a hearing was
held on the motion on August 11, 2011.
II. Standard of Review
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
other words, a plaintiff must "plead[] factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
In ruling on a motion to dismiss, "the allegations of the complaint should be construed
favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Leatherman v. Tarrant
Cnty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons,
591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations in the complaint must be
presumed true, and plaintiff must be given every favorable inference that may be drawn from the
allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000). The Court "need not, however, accept inferences drawn by plaintiffs if
those inferences are unsupported by facts alleged in the complaint; nor must the Court accept
plaintiffs' legal conclusions." Chandler v. W.E. Welch & Assoc., Inc., 533 F. Supp. 2d 94, 102
(D.D.C. 2008).
In addition to the facts alleged in the complaint, the Court may consider "any documents
either attached to or incorporated by reference in the complaint, matters of which the court may
take judicial notice, and matters of public record.” Felder v. Johanns, 595 F. Supp. 2d 46, 58-59
(D.D.C. 2009) (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997)).
III. Discussion
A. Unjust Enrichment
Plaintiffs contend that the putative class paid the special assessment in reliance on the
APA's allegedly misleading statements, and that the APA and APAPO were unjustly enriched by
those payments. Defendants dispute both parts of that claim, arguing that the statements were
not misleading and that an unjust enrichment claim is foreclosed here. The Court will begin with

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the latter argument.
Unjust enrichment is an equitable quasi-contract claim. In other words, it is a "'[l]egal
fiction invented by common law courts to permit recovery by contractual remedy in cases where,
in fact, there is no contract." 4934, Inc. v. D.C. Dep’t of Employment Servs., 605 A.2d 50, 55
(D.C. 1992) (quoting Black’s Law Dictionary 324 (6th ed. 1990)). When an actual contract
exists between the parties, an unjust enrichment claim is generally inappropriate, because a court
should not "displace the terms of that contract and impose some other duties not chosen by the
parties." Emerine v. Yancey, 680 A.2d 1380, 1384 (D.C. 1996). An exception to this rule exists,
however, if the contract does not cover the issue under dispute or if the contract's validity is in
doubt. See id. at 1383; Armenian Assembly of Am., Inc. v. Cafesjian, 597 F. Supp. 2d 128, 135
(D.D.C. 2009); see also Klein v. Arkoma Production Co., 73 F.3d 779, 786 (8th Cir. 1996).
Hence, the Court must determine whether a contract exists between plaintiffs and
defendants and whether that contract covers the matter in dispute. Defendants have provided the
bylaws of the APA and the APAPO, as well as the APA Association Rules. It is well-established
that bylaws and rules of a membership organization can be "construed as a contractual agreement
between the organization and its members." Meshel v. Ohev Sholom Talmud Torah, 869 A.2d
343, 361 (D.C. 2005). Defendants contend that the Court can take judicial notice of the rules
and bylaws, and that their mere existence forecloses defendants' claims. Plaintiffs do not dispute
the authenticity of the bylaws and rules, but vigorously argue that the Court cannot review them
or even take notice of their existence in the context of this motion to dismiss.
Caselaw supports defendants' position that the Court can consider the bylaws and rules.
In Schiff v. Am. Ass'n of Retired Persons, 697 A.2d 1193, 1194 n.2 (D.C. 1997), a case similar

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in many ways to this one, the court held that "the existence of two express contracts between
Schiff and AARP can be determined from the allegations in the complaint" and that those
contracts could therefore be considered on a motion to dismiss, even though "the existence of
any express contracts ha[d] not been alleged" specifically in the complaint. Without rebutting
Schiff, plaintiffs argue that the Court can only consider documents that are specifically referred
to in their complaint. See Plfs.' Opp. to Defs' Mot. to Dismiss [ECF 19] ("Plfs.' Opp.") at 11-12.
But even putting aside Schiff – and plaintiffs have not offered any reason that the Court should
do so – this Court agrees with those circuits that have held that "a court may consider an
undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if
the plaintiff's claims are based on the document." PBGC v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3rd Cir. 1993); see also Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir.
1997) (same). Adhering to a more rigid rule would allow a plaintiff to avoid the dismissal of a
deficient claim "simply by failing to attach a dispositive document on which it relied" to the
complaint. PBGC, 998 F.2d at 1196. As the Third Circuit explained:
[Considering these documents] will not undermine the rationale underlying Rule
12(b)(6)'s requirement that a motion to dismiss be converted to a summary
judgment motion if a court considers matters outside the pleadings. The reason
that a court must convert a motion to dismiss to a summary judgment motion if it
considers extraneous evidence submitted by the defense is to afford the plaintiff
an opportunity to respond. See Cortec, 949 F.2d at 48. When a complaint relies on
a document, however, the plaintiff obviously is on notice of the contents of the
document, and the need for a chance to refute evidence is greatly diminished.
Id. at 1196-97.
Here, plaintiffs' claim revolves around whether payment of the special assessment was
required for membership in the APA. The bylaws and rules, which constitute the membership
agreement between the APA and the plaintiffs, actually set out the membership requirements.
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By definition, then, they are the basis for a claim that is fundamentally about membership
requirements. Indeed, it is difficult to see how plaintiffs could have realized that the special
assessment was not required for membership in the APA other than by referring to the bylaws
and rules. It is unclear why plaintiffs did not attach those documents to their complaint, and it is
similarly unclear what could be gained by denying the motion to dismiss due to a "simpl[e]
failure to attach a dispositive document." PBGC, 998 F.2d at 1196. Hence, in light of Schiff, as
well as the centrality of the membership contracts to plaintiffs' claims, the Court concludes that it
can consider the bylaws and rules.1
The next question is whether the existence of the bylaws and rules, or their contents,
preclude plaintiffs' unjust enrichment claim. As noted above, defendants argue that the mere fact
of a contract between defendants and plaintiffs forecloses any quasi-contract claim. But as
previously explained, the existence of an express contract between two parties only forecloses an
unjust enrichment claim if the contract controls the relevant subject matter. See supra at 7.
Hence, the Court must examine the bylaws and rules in order to determine whether plaintiffs'
unjust enrichment claim can proceed.
Neither the APA bylaws, the APA rules, nor the APAPO bylaws specifically addresses
the practice assessment. They do, however, address membership in the APA and the APAPO.

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Plaintiffs argue in a footnote that "the Court cannot conclude or presume that these
documents were in place or effective during the entire 2001-2010 time frame for the proposed
class." Plfs.' Opp. at 12. But again, plaintiffs' claims are based on the contract or contracts in
effect during the entire 2001-2010 period, and plaintiffs should not profit from their failure to
attach dispositive documents on which they rely. See PBGC, 998 F.2d at 1196. Notably,
plaintiffs do not show or even allege that the documents before the Court changed in any
relevant way during the 2001-2010 time period. A completely unsupported hypothetical in a
brief cannot, standing alone, avert dismissal of an otherwise unsustainable unjust enrichment
claim.
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Article II of the APA bylaws describes different categories of membership, as well as the ethical,
educational, and professional requirements for members. Defs.' MTD, Ex. B at B2-B4. Article
XIX, entitled "Dues and Subscriptions," explains that "[t]he basic Association dues to be paid
annually by Members and Associate Members shall be determined by Council . . . . In addition to
the basic dues, each Member shall pay a fixed amount, to be determined by Council, for each
Division over and above the one to which the Member belongs." Id. at B15. The special
assessment is not mentioned. Article XIX further states that "Nonpayment of dues for one year
shall be considered as equivalent to a resignation from the Association." Id. The APA rules
similarly describe the classes of members, see Defs.' MTD, Ex. D. at D6. In a section entitled
"Termination of Membership," the rules state that "membership in the Association may be
terminated by the death of a member, resignation, dropping for nonpayment of dues, or as
provided in the Ethics Committee's Rules and Procedures." Id. at D9. That section also states
that "[a] member may resign from any division by not paying dues or assessment of that division
in connection with the annual Association dues statement." Id. Lastly, the APAPO bylaws
address membership and dues briefly, explaining in Article IV that the APAPO "shall have two
categories of members. One category of members, who are payers of the practice assessment,
shall be known as 'Practice Constituents.' The second category of members, who are payers to
the Education Advocacy Trust, shall be known as 'Education Constituents.'" Defs.' MTD, Ex. C
at C1.
The crux of plaintiffs' claim is that they were misled to believe that payment of the
special assessment was required for membership in the APA, when in fact it was not. The
critical issue, then, is what the requirements of APA membership were. The Court concludes

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that the contract is controlling on that question. The dues statements reminded members of their
obligations or opportunities to contribute to the APA, but the membership contract actually
explained which dues were required and the bases upon which membership could be terminated.
Even assuming arguendo that the dues statements were intentionally misleading, plaintiffs were
fully capable of noting the discrepancy between the statements and the membership contracts –
as, indeed, it appears that they eventually did – to determine which dues were truly mandatory.
That the bylaws and rules were not perfectly clear on whether "basic dues" included the special
assessment is irrelevant; such problems with the contract are the basis for a contract claim, not a
quasi-contract claim for unjust enrichment. Hence, because the terms and conditions of APA
membership are defined in express contracts, the Court agrees with defendants that plaintiffs'
unjust enrichment claim must be dismissed.
Plaintiffs argue in a footnote that "even if there was an express contract between
Plaintiffs and the APA covering the Assessments, Plaintiffs could still have an unjust enrichment
claim against the APAPO, a third party to any such contract." Plfs.' Opp. at 18 n.13 (citing
McWilliams Ballard, Inc. v. Level 2 Development, 697 F. Supp. 2d 101, 106-07 (D.D.C. 2010)).
Unfortunately, this footnote is the extent of the parties' briefing on this issue. Although courts
have struggled with the question whether an unjust enrichment claim may be brought against a
third party to a contractual relationship, the trend is clearly against allowing such claims. See,
e.g., Air Atlanta Aero Eng'g Ltd. v. SP Aircraft Owner I, LLC, 637 F. Supp. 2d 185, 196
(S.D.N.Y. 2009) (collecting cases). That position is particularly persuasive where, as here, the
third party is functionally identical to one of the parties to the contract. See Compl. ¶¶ 13, 14
(alleging that the APA and APAPO have the same board of directors and address, and that "each

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of the Defendants was the agent . . . of the other"). The principle that a court should not displace
agreed-upon contractual remedies would be meaningless if plaintiffs could simply bring their
claims against the APA leadership by suing them in their role as the APAPO leadership. See
Emerine, 680 A.2d at 1384.
Plaintiffs' only caselaw in support of their third-party unjust enrichment claim is
McWilliams, but that case is too different from this one to be helpful. There, the plaintiff was
permitted to bring an unjust enrichment claim against a corporate defendant with whom it had a
contractual relationship; the defendant apparently did not raise the existence of the contract as a
bar to the claim. McWilliams, 697 F. Supp. 2d at 105-07. The primary defendant had turned
plaintiff's payment over to several other individual and corporate defendants, who shared a
"unity of ownership and interest" with the primary defendant. Id. Hence, the court assumed that
the unjust enrichment claim applied to all defendants. Id. But McWilliams never actually
discussed whether and why the unjust enrichment claim could proceed against the third-party
defendants despite the existence of the contract; indeed, as noted, the court did not even discuss
whether the existence of the contract barred the unjust enrichment claim against the primary
defendant. The only clear principle that emerges from McWilliams, then, is that the primary
defendant and any third-party defendants should be treated alike, at least when they share a
"unity of ownership and interest." Here, that means that if the claim against the APA is barred
by the express contract, so too is the claim against the APAPO.
The remaining question is whether plaintiffs should have the opportunity to amend their
complaint. In their briefing, plaintiffs asked for leave to amend their complaint to allege
fraudulent inducement and rescission of the APAPO membership contract if the Court found that

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their unjust enrichment claim was foreclosed by the existence of express contracts. See Plfs.'
Opp. at 18. Defendants, however, argue that plaintiffs' claim is so fundamentally flawed that
repleading will be futile. Defs.' Reply in Supp. of Mot. to Dismiss [ECF 21] ("Defs.' Reply") at
9 n.5.
Leave to amend should be "freely given" except in special circumstances, "such as undue
delay, bad faith or dilatory motive, . . . repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposition party by virtue of the allowance of the
amendment, [or] futility of the amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). Here,
defendants argue that plaintiffs should not be allowed to amend the complaint because (1) the
current complaint is plaintiffs' fourth, and plaintiffs expressly chose to remove certain contractbased claims they had asserted in past complaints, and (2) plaintiffs' misrepresentation claims,
however pled, are "fatally flawed" because the APA's statements were not misleading. See
Defs.' Reply at 9; Tr. of Mot. Hearing (August 11, 2011) ("Tr.") at 17. The Court will take these
arguments in order.
Although this is plaintiffs’ fourth complaint, this is the first round of briefing on the case.
With the benefit of that briefing, the hearing in this case, and this Court's opinion, it is possible
that plaintiffs will be able to select a theory that better fits the facts of this case. See Foman, 371
U.S. at 182. As to the second argument, the Court is unpersuaded that plaintiffs' contract-based
misrepresentation claims are fatally deficient. In both contract and tort cases, a court asks
whether a reasonable person would find the representation false or misleading, not whether it is
possible to construct an explanation for why the representation could be technically true. See,
e.g., Whiting v. Am. Ass'n of Retired Persons, 637 F.3d. 355, 357-58 (D.C. Cir. 2011) (noting

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that contract claims, as well as statutory fraud and unjust enrichment claims, depend on whether
“a reasonable person would be led astray” by the representations). In the context of a dues
statement, a reasonable person could plausibly believe that an assessment labeled "must pay"
was a condition of membership, not a simple professional obligation.
However, even if plaintiffs may be able to bring a viable claim based on defendants'
statements, it is unclear how the facts of this case support a fraudulent inducement and rescission
claim. Accordingly, the Court will grant leave to amend the complaint only if plaintiffs can
demonstrate that allowing amendment will not be futile. A separate order will outline the
procedure for providing additional briefing on that issue.
B. Consumer Protection Laws
Drs. Levine and Fallenbaum, who are residents of California, bring additional claims
under California's unfair competition law and false advertising law. See Compl., ¶¶ 40-53; see
also Cal. Bus. & Prof. Code §§ 17200 et seq. (unfair competition) & 17500 et seq. (false
advertising). Defendants argue that the District of Columbia's Consumer Protection Procedures
Act ("CPPA"), rather than California's consumer protection laws, applies to this action brought
in the District of Columbia. Both parties agree that the APA and APAPO are exempt from suit
under the CPPA, so the question is whether the CPPA applies. See Defs.' MTD at 25-26; Plfs.'
Opp. at 25; see also D.C. Code § 28-3905(k)(5).
The District of Columbia's choice-of-law principles determine which state's substantive
law applies in this diversity suit. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496
(1941). The District of Columbia employs a "modified governmental interests" analysis, under
which a court "evaluate[s] the governmental policies underlying the applicable laws and

14

determine[s] which jurisdiction's policy would be more advanced by the application of its law to
the facts of the case under review." Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 43
(D.C.1989) (internal quotation marks omitted); Moore v. Ronald Hsu Constr. Co., 576 A.2d 734,
737 (D.C. 1990). As part of that evaluation, the Court considers the factors set out in the
Restatement (Second) Conflict of Laws § 145, which apply to tort cases generally:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and place of
business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
Restatement (Second) Conflict of Laws § 145 (1971 & Supp. 2011). In addition, § 148 of the
Restatement sets out a lengthier list of factors courts should consider in fraud and
misrepresentation cases:
(a) the place, or places, where the plaintiff acted in reliance upon the defendant's
representations,
(b) the place where the plaintiff received the representations,
(c) the place where the defendant made the representations,
(d) the domicil, residence, nationality, place of incorporation and place of
business of the parties,
(e) the place where a tangible thing which is the subject of the transaction
between the parties was situated at the time, and
(f) the place where the plaintiff is to render performance under a contract which
he has been induced to enter by the false representations of the defendant.
Restatement (Second) Conflict of Laws § 148 (1971 & Supp. 2011).
The D.C. Court of Appeals has held that § 148 "provides a useful framework for
selecting the law which applies to multi-state misrepresentation claims," Hercules, 566 A.2d at
43, but in a recent fraud and misrepresentation case similar to this one, the Court of Appeals
relied primarily on § 145 and considered § 148 only in a footnote. See Washkoviak v. Student
Loan Mktg. Ass'n, 900 A.2d 168, 182 & n.18 (D.C. 2006).
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Washkoviak provides useful background for this case. There, the plaintiffs alleged that
the defendant, Sallie Mae, had employed deceptive practices in the disclosure and collection of
late fees on student loans. Id. at 173. Plaintiffs, Wisconsin residents who made their loan
payments in Wisconsin, alleged that Sallie Mae's deceptive practices were "formulated and
conceived . . . in the District of Columbia, . . . directed . . . in the District of Columbia, and
emanated from . . . the District of Columbia." Id. at 181 (internal quotation marks omitted).
Sallie Mae, by contrast, denied that the policies were created or carried out in Washington, D.C.
Id. at 175.
The Washkoviak court began by asking whether "the policies of either jurisdiction would
be more advanced than the policies of the other by the application of its law to [the] complaint."
Id. at 180. The court concluded that Wisconsin's interest in protecting its residents and the
District of Columbia's interest in "ensuring that its corporate citizens refrain from fraudulent
activities" were "equally strong." Id. at 180-81. Hence, the court turned to the factors
enumerated in § 145. It found that the injuries occurred in Wisconsin, where the
misrepresentations were received and the payments made; that the conduct causing the injury
occurred in Washington, D.C.; that the plaintiffs were domiciled in Wisconsin and Sallie Mae
was headquartered in Washington, D.C.; and that the relationship was "centered" in Wisconsin.
Id. at 181. Hence, two of the factors tipped in favor of Wisconsin, one tipped in favor of the
District of Columbia, and one was split. Id. But, cautioning that "mere counting of contacts is
not what is involved," the court weighed the contacts "on a qualitative rather than quantitative
scale." Id. (internal quotation marks and citation omitted). In doing so, the court noted that "'the
place of injury is less significant in the case of fraudulent misrepresentations'" and accordingly

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"discounted" that factor. Id. at 182 (citing Restatement (Second) Conflicts § 145 cmt. f). Hence,
the court found that the § 145 analysis did not point strongly in either direction. In a footnote,
the court applied the § 148 factors and concluded they did not change the relatively even balance
of interests. Id.
Given that equality of interest, the Washkoviak court relied on two tiebreakers. First, the
record contained conflicting evidence about the connections between the parties and the two
jurisdictions, but the court had to "resolve any uncertainty in [plaintiffs'] favor" in the context of
a motion to dismiss. Id. at 182. Second, the court held that "'[w]hen both jurisdictions have an
interest in applying their own laws to the facts of the case, the forum law will be applied unless
the foreign jurisdiction has a greater interest in the controversy.'" Id. (quoting Logan v.
Providence Hosp., Inc., 778 A.2d 275, 278 (D.C. 2001)). Since both tiebreakers favored using
District of Columbia law, the court held that that law should be applied. Id.
Here, the complaint alleges that both the APA and the APAPO are based in the District of
Columbia, have their principal place of business in the District of Columbia, and are "operated"
from an address in the District of Columbia. Compl. ¶¶ 2-3, 13. In a section of the complaint
entitled "jurisdiction and venue," plaintiffs allege that "[v]enue is proper in the District . . .
because Defendants are citizens of and are located in this District and significant events giving
rise to this case took place in this District." Id. ¶ 9. The complaint further alleges that Drs.
Levine and Fallenbaum are residents of California, and that the APA and APAPO "disseminated
throughout California and the United States, advertising, publications, statements, and/or other
materials that were untrue or misleading." Id. ¶¶ 10, 11, 50.
Here, as was the case in Washkoviak, this Court must begin with the question whether

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"the policies of either jurisdiction would be more advanced than the policies of the other by the
application of its law to [the] complaint." And here, as in Washkovkiak, the two jurisdictions'
interests are "equally strong." California has an obvious interest in protecting its residents. The
District of Columbia, on the other hand, has an interest in regulating the behavior of the
corporations headquartered in the District. In this case, the District has chosen to exempt nonprofit organizations from its consumer protection laws, except in circumstances not applicable
here. See D.C. Code § 28-3905(k)(5). An explicit decision to limit liability for certain types of
organizations is a regulatory decision; therefore, plaintiffs' assertion that "[t]he District of
Columbia's interests in regulating its business community cannot be advanced by this litigation"
is incorrect. See Travelers Ins. Co. v. SCM Corp., 600 F. Supp. 493, 497 (D.D.C. 1984)
(describing a limitation on liability as "an obvious policy choice").
Given the "equally strong" interests of the two jurisdictions, the Court must consider the
§ 145 factors. The injury occurred in California, where the materials were received and the
payments were presumably made. Here, unlike in Washkovkiak, the plaintiffs did not explicitly
allege that the purportedly misleading statements were "formulated and conceived" in the
District of Columbia. See 900 A.2d at 181. However, plaintiffs did allege that defendants had
their principal place of business in Washington, D.C., and that "significant events giving rise to
this case took place in this District." Compl. ¶¶ 2-3, 9, 13. The clear implication of these
allegations is that at least some of the conduct causing the injury took place in Washington, D.C.,
and nothing in the complaint or plaintiffs' briefing suggests any other location where the conduct
could have occurred. As to the third factor, the plaintiffs' domicile is in California and the
defendants' place of business is in the District of Columbia. And as to the fourth and final factor,

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it is unclear where the relationship between the parties is "centered." In the context of a
borrower and a lender, the relationship is centered where the borrower lives; in the context of a
"fraternal beneficial organization," however, the relationship is centered where the organization
is headquartered. Washkoviak, 900 A.2d at 181; Modern Woodmen of America v. Mixer, 267
U.S. 544, 551 (1925). The APA is neither a national financial institution nor a fraternal benefit
organization, but rather has aspects of each. Turning to the Restatement itself, the illustrative
examples in the Restatement suggest that this factor may be more applicable when the parties
conduct at least some of their activities in the same jurisdiction. See Restatement (Second)
Conflicts § 145, cmt. e. Because that is not the case here, the Court concludes that the fourth
factor does not weigh strongly in favor of either party.2
Hence, one factor favors application of District of Columbia law; one factor favors
application of California law; one factor is split; and one factor does not tip in either direction.
Given that inconclusive result, the Court is left with the baseline principle that "'when both
jurisdictions have an interest in applying their own laws to the facts of the case, the forum law
will be applied unless the foreign jurisdiction has a greater interest in the controversy.'"
Washkoviak, 900 A.2d at 182 (quoting Logan, 778 A.2d at 278).3 Here, that rule points to
2

The analysis under § 148 is similar. Plaintiffs received and acted upon the
representations in their state of residence, California; defendants engaged in the allegedly illegal
conduct from their principal place of business, Washington, D.C.; and the last two factors are
inapplicable here. See Washkoviak, 900 A.2d at 182 & n.18.
3

Unlike in Washkoviak, drawing all reasonable inferences in favor of the plaintiffs here
does not advance their case. There, the parties disputed where the challenged policy had been
conceived and carried out; adopting plaintiffs' view of that dispute supported the plaintiffs' view
of the choice-of-law question. See 900 A.2d at 175. Here, by contrast, the only reasonable
inference that can be drawn from plaintiffs' complaint is that the challenged actions took place in
the District of Columbia. Plaintiffs have made no allegations suggesting otherwise, and the
Court cannot draw inferences in plaintiffs' favor that are "unsupported by facts alleged in the
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application of the District of Columbia's law. And in this case, that rule works no unfairness to
plaintiffs, because they chose to pursue their claim in the District of Columbia – a jurisdiction
that enacted a law providing that suits under the CPPA against a nonprofit organization "shall
not be based on membership in such organization, membership services, . . . or any other
transaction, interaction, or dispute not arising from the purchase or sale of consumer goods or
services in the ordinary course of business." D.C. Code § 28-3905(k)(5).
As noted above, the parties agree that the APA and APAPO are both exempt from the
coverage of the CPPA. Defs.' MTD at 25-26; Plfs.' Opp. at 25. The Court concurs in that view.
Plaintiffs' claims are clearly based on "membership in such organization [and] membership
services," not "the purchase or sale of consumers goods or services in the ordinary course of
business." Hence, because the CPPA applies to plaintiffs' claims, those claims must be
dismissed.
C. Jury Trial
Defendants have asked the Court to strike plaintiffs' request for a jury trial because
plaintiffs raise only equitable claims. Defs.' MTD at 31-33. The Court has now dismissed
plaintiffs' claims, so this issue is moot. If plaintiffs' reformulated claims raise the issue anew, the
Court will address the issue at the appropriate time.
IV. Conclusion
For the reasons explained above, [16] defendants' motion to dismiss will be granted. A
separate Order accompanies this opinion.

complaint." Chandler v. W.E. Welch & Assocs., Inc., 533 F. Supp. 2d 94, 102 (D.D.C. 2008).
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/s/ John D. Bates
JOHN D. BATES
United States District Judge

Dated: May 30, 2012

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