Bandy v. Alliance for Shared Health Inc et al

Filing 33

ORDER DENYING IN PART AND GRANTING IN PART 15 & 18 DEFENDANTS' MOTION TODISMISS. Plaintiff's claim for deceptive business practices in violation of the Washington Consumer Protection Act, ECF No. 1 at 2526, is DISMISSED WITHOUT PREJUDICE. Plaintiff's claims for illegal contract and unfair business practices in violation of the Washington Consumer Protection Act remain. Signed by Judge Salvador Mendoza, Jr. (TR, Case Administrator)

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Case 2:22-cv-00025-SMJ ECF No. 33 1 Sep 16, 2022 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 MARTIN BANDY, 5 8 9 SEAN F. MCAVOY, CLERK No. 2:22-cv-00025-SMJ Plaintiff, 6 7 PageID.296 Page 1 of 17 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 4 filed 09/16/22 v. ALLIANCE FOR SHARED HEALTH, INC., and CHRISTIAN DISCOUNT ALLIANCE, LLC d/b/a SHARED HEALTH ALLIANCE, ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS Defendants. 10 11 Before the Court are Defendant Alliance for Shared Health Inc.’s Motion to 12 Dismiss, ECF No. 15, and Defendant Christian Discount Alliance’s Motion to 13 Dismiss, ECF No. 18. On August 23, 2022, the Court heard argument from the 14 parties on the motions and reserved judgment. After reviewing the motions and the 15 file, the Court is fully informed and grants in part and denies in part each of the 16 motions. The Court declines to dismiss Plaintiff’s claims in full but agrees that 17 Plaintiff’s deceptive practices claim sounds in fraud but fails to meet Federal Rule 18 of Civil Procedure 9(b) heightened pleading standard. As such, that claim is 19 dismissed with leave to replead. 20 // ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 1 Case 2:22-cv-00025-SMJ 1 ECF No. 33 filed 09/16/22 PageID.297 Page 2 of 17 BACKGROUND 2 Plaintiff Martin Bandy brings this class action under the Washington 3 Consumer Protection Act (CPA), WASH. REV. CODE §19.86, and contract law, 4 against Defendants Alliance for Shared Health, Inc. (ASH), and Christian Discount 5 Alliance, LLC d/b/a Shared Health Alliance (SHA), on behalf of himself and other 6 Washington consumers who were allegedly marketed and sold unauthorized health 7 insurance plans that were deceptively marketed as being offered by a Health Care 8 Sharing Ministry in Washington by Defendants. ECF No. 1 at 1–2. 9 Plaintiff enrolled in an ASH healthcare plan on April 24, 2020, paying a $125 10 one-time enrollment fee and a monthly premium of approximately $355.50. Id. at 11 14. Once enrolled, Plaintiff received what he believed was an insurance card from 12 ASH. Id. The insurance card purportedly certified Plaintiff’s membership in a 13 “Health Care Sharing” community. Id. In June 2021, after experiencing symptoms 14 of a stroke, Plaintiff received care at the emergency room and was admitted to the 15 hospital, where he continued to receive extensive care. Id. at 15. When Plaintiff 16 tried to have these costs covered by what he believed was his insurance, Defendants 17 denied Plaintiff’s claims for coverage of services in the emergency room and during 18 his overnight stay at the hospital. Id.. The complaint alleges Plaintiff was forced to 19 pay out-of-pocket for services he believed would be covered by ASH, and now has 20 more than $40,000 in medical debt, which he continues to pay. Id. ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 2 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.298 Page 3 of 17 1 Plaintiff alleges Defendants entered into illegal contracts and engaged in 2 unfair and deceptive business practices by illegally acting as insurers and selling 3 sham plans to more than 3,000 Washingtonians in violation of contract law and the 4 Washington CPA. Id. at 1, 15. Defendants both now move to dismiss this action. 5 See generally ECF Nos. 15, 18. Defendant ASH argues Plaintiff’s three claims 6 should be dismissed as (1) the illegal contract claim fails because Plaintiff has not— 7 and cannot—establish the plan as an insurance contract, (2) Plaintiff cannot state a 8 claim for unfair business practices, as ASH’s disclosures bar this claim, and (3) the 9 deceptive business practices claim is deficient because it does not comply with Rule 10 9(b). ECF No. 15 at 6. Defendant SHA argues Plaintiff’s claims should be dismissed 11 because (1) Plaintiff did not have a contract with SHA, and (2) Plaintiff cannot sue 12 under the CPA because he never interacted with or had a relationship with SHA. 13 ECF No. 18 at 1–2. 14 LEGAL STANDARD 15 A complaint must contain “a short and plain statement of the claim showing 16 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Federal Rule of 17 Civil Procedure 12(b)(6), the Court must dismiss the complaint if it “fail[s] to state 18 a claim upon which relief can be granted.” 19 In deciding a Rule 12(b)(6) motion, the court construes the complaint in the 20 light most favorable to the plaintiff and draws all reasonable inferences in the ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 3 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.299 Page 4 of 17 1 plaintiff’s favor. Ass’n for L.A. Deputy Sheriffs v. County of Los Angeles, 648 F.3d 2 986, 991 (9th Cir. 2011). Thus, the Court must accept all factual allegations 3 contained in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 4 However, the Court may disregard legal conclusions couched as factual allegations. 5 See id. 6 To survive a Rule 12(b)(6) motion, the complaint must contain “some viable 7 legal theory” and provide “fair notice of what the claim is and the grounds upon 8 which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 562 (2007) (internal 9 quotation marks and ellipsis omitted). While the complaint need not contain 10 detailed factual allegations, threadbare recitals of a cause of action’s elements, 11 supported only by conclusory statements, do not suffice. Iqbal, 556 U.S. at 663. 12 Thus, the complaint must contain “sufficient factual matter, accepted as true, to 13 ‘state a claim to relief that is plausible on its face.’” Id. at 678 (quoting Twombly, 14 550 U.S. at 570). Facial plausibility exists where the complaint pleads facts 15 permitting a reasonable inference that the defendant is liable to the plaintiff for the 16 misconduct alleged. Id. Plausibility does not require probability but demands more 17 than a mere possibility of liability. Id. Whether the complaint states a facially 18 plausible claim for relief is a context-specific inquiry requiring the Court to draw 19 from its judicial experience and common sense. Id. at 679. 20 // ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 4 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.300 Page 5 of 17 1 While a court generally does not consider any material beyond the pleadings 2 in ruling on a Rule 12(b)(6) motion to dismiss, there are certain exceptions. 3 Relevant here, the Court may consider documents incorporated by reference in the 4 complaint. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). A document 5 “may be incorporated by reference into a complaint if the plaintiff refers extensively 6 to the document or the document forms the basis for the plaintiff’s claim.” Id. “In 7 other words, a court ‘may consider a document the authentic of which is not 8 contested, and upon which the plaintiff’s complaint necessarily relies.’” Lopez v. 9 Stages of Beauty, LLC, 307 F. Supp. 3d 1058, 1064 (S.D. Cal. 2018) (quoting 10 Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statue on 11 other grounds in Abrego v. Dow Chem. Co., 443 F.3d 676, 681–82 (9th Cir. 2006)). 12 In this case, the Court relies on ASH’s Membership Guidelines, ECF No. 15-2, as 13 they are repeatedly cited and quoted in the Complaint and form the basis of 14 Plaintiff’s claims. DISCUSSION 15 16 A. The Illegal Contract Claim 17 Plaintiff alleges that the insurance plans he and other Washingtonians entered 18 with Defendants are illegal contracts because Defendants were not authorized to 19 issue health insurance in Washington. ECF No. 24. Any entity that sells insurance 20 as defined by Washington law must obtain a certification of authorization from the ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 5 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.301 Page 6 of 17 1 State, or else the issued insurance is illegal. WASH. REV. CODE §48.05.030 (2022). 2 As defined, insurance is “a contract whereby one undertakes to indemnify another 3 or pay a specified amount upon determinable contingencies.” WASH. REV. CODE 4 §48.01.040 (2022). 5 Defendants have provided two general arguments against Plaintiff’s common 6 law claim for illegal contract. First, that ASH is a Health Care Sharing Ministry 7 (HCSM) and is therefore exempt form more onerous state and federal insurance 8 laws, and second, that even if ASH is not an HCSM, Plaintiff’s allegations do not 9 support a claim that the plans at issue are insurance. Neither of these arguments 10 prove persuasive; the Court addresses each in turn. 11 1. Health Care Sharing Ministry 12 The Court must first determine whether ASH is a valid HCSM. If an 13 organization qualifies as a Health Care Sharing Ministry (HCSM), it can sell health 14 plans in Washington that provide fewer benefits than Washington law or the ACA 15 require. See WASH. REV. CODE §48.43.009 (2022). “If an entity meets the federal 16 requirements of an HCSM, it then qualifies as an HCSM under Washington law, 17 and is exempt from obtaining a certificate of authority from the Washington 18 Insurance Commissioner.” Jackson v. Aliera Co., 462 F. Supp. 3d 1129,1132 (W.D. 19 Wash. 2020). To qualify as an HCSM, an organization must meet the five 20 ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 6 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.302 Page 7 of 17 1 requirements set forth in 26 U.S.C. § 5000A(d)(2)(B)(ii). An HCSM must be an 2 entity: 3 4 5 6 7 8 9 10 (I) which is described in section 501(c)(3) and is exempt from taxation under section 501(a), (II) [whose] members of which share a common set of ethical or religious beliefs and share medical expenses among members in accordance with those beliefs and without regard to the State in which a member resides or is employed, (III) [whose] members of which retain membership even after they develop a medical condition, (IV) which (or a predecessor of which) has been in existence at all times since December 31, 1999, and medical expenses of its members have been shared continuously and without interruption since at least December 31, 1999, and (V) which conducts an annual audit which is performed by an independent certified public accounting firm in accordance with generally accepted accounting principles and which is made available to the public upon request. 11 12 26 U.S.C. § 5000A(d)(2)(B) 4. But an entity that fails to qualify as an HCSM and 13 operates without a certificate of authority is an unauthorized insurer and any plans 14 an unauthorized insurer markets or sells are illegal plans. WASH. REV. CODE §§ 15 48.01.04, 48.01.050, 48.05.030 (2022). 16 Taking the plausible allegations as true, Plaintiff has sufficiently alleged that 17 ASH is not a valid HCSM. Plaintiff alleges that ASH did not form until 2017 and 18 did not attain 501(c)(3) status until 2019. ECF No. 1 at 4, 12. Given this, Plaintiff 19 has plausibly alleged that ASH does not meet the fourth requirement for HCSM 20 status that the HCSM be in continuous existence since 1999 and have shared ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 7 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.303 Page 8 of 17 1 medical expenses “continuously and without interrupts” since that time. 26 U.S.C. 2 § 5000A(d)(2)(B)(ii)(IV). 3 Although ASH argues that it is a continuation of the entity known as the Bible 4 Army International Church (BAIC) which has been operating since or before 1999, 5 Plaintiff provides plausible reason to doubt this claim. See ECF No. 1 at 11–12. 6 Plaintiff alleges the Washington Office of the Insurance Commissioner (OIC) 7 launched a formal investigation into ASH in May 2019, shortly after the IRS 8 afforded it 501(c)(3) status. Id. at 4, 10. The OIC’s investigation ultimately 9 determined (1) that ASH did not qualify as an HCSM under state or federal law, (2) 10 that ASH operated as an unauthorized health insurer, and (3) that SHA acted as an 11 insurance producer without a license. Id. at 12–13. Accordingly, the OIC issued 12 ASH and SHA cease and desist orders and eventually issued consent orders against 13 ASH and SHA. Id. at 13–14. In one order, ASH was ordered to cease and desist 14 from further insurance transactions in Washington and to terminate all existing ASH 15 plans by the end of 2021. Id. at 14. Two days later, Plaintiff enrolled in an ASH 16 healthcare plan. 17 Plaintiff also notes that the Predecessor Agreement between ASH and BAIC 18 did not establish ASH as a successor of BAIC, noting that in ASH’s 2018 19 application for nonprofit status to the Internal Revenue Service (IRS), “ASH 20 represented it was not a successor to another organization. ASH did not acquire ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 8 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.304 Page 9 of 17 1 BAIC, and the entities did not merge. They remain distinct entities.” Id. at 12. As 2 such, disposition on this contested issue is inappropriate at the motion-to-dismiss 3 stage. 4 2. Health Plans as Insurance Contracts 5 Defendants next argue that dismissal is appropriate because ASH’s plan, as 6 alleged, does not qualify as insurance under Washington law. As mentioned above, 7 “[i]nsurance is a contract whereby one undertakes to indemnify another or pay a 8 specified amount upon determinable contingencies.” WASH. REV. CODE §48.01.040 9 (2022). The essential elements of an insurance contract include: (1) an insurer; (2) 10 an insured or beneficiary; (3) a premium payment and (4) a loss or injury to be 11 protected against. State ex rel. Fishback v. Globe Casket & Undertaking Co., 82 12 Wn. 124, 128 (1914). 13 Looking to the provided Member Guidelines and taking Plaintiff’s plausible 14 allegations as true, the Court finds that ASH’s health plans meet these elements. 15 ASH shares 100 percent of bills for any medical incident exceeding the Member 16 Responsibility Amount or “MRA” up to the annual sharing maximum, as long as 17 all other Guidelines are met. ECF No. 15-2 at 9. The MRA is a deductible which 18 must be paid to obtain benefits. ECF No. 1 at 7. After the MRA is satisfied, medical 19 bills are paid in accordance with schedules set forth in the plan’s Guidelines. Id. at 20 23. The plans require “members” to pay a “monthly contribution.” Id. Failure to pay ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 9 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.305 Page 10 of 17 1 this monthly fee gives ASH the right to “automatically cancel the membership.” Id. 2 at 7. In return for this monthly fee, ASH, as stated above, allegedly shares 100 3 percent of bills. ECF No. 15-2 at 9. And, finally, the plans are accompanied by the 4 indicia of insurance: members are issued ID cards that Defendants urge members 5 to give providers “if they ask for proof of insurance.” ECF No. 1 at 24. Because 6 ASH provides a plan that shares 100 percent of bills to members, the Court finds 7 Plaintiff has sufficiently pled ASH is an insurer; the “members” are the insured or 8 beneficiaries; the “MRA” is a premium payment, and the plan provides a way to 9 pay for loss or injuries, as set out in the schedules. 10 Although the Member Guidelines state that the health plans are not a form of 11 “insurance,” “[n]o one can change the nature of insurance business by declaring in 12 the contract that it is not insurance.” McCarty v. King Cty. Med. Serv. Corp., 26 13 Wn.2d 660, 678 (1946). Here, given the language of the plans and the issued ID 14 cards that are to be shown to providers upon request for insurance, the Complaint 15 plausibly alleges that Defendants issued insurance. Regardless of how many 16 disclaimers and attestations Defendants put forth, the content of the plans, as 17 alleged, are virtually indistinguishable from those of a health insurance plan. As 18 such, Plaintiff has met his burden at this stage, and the Court denies the motion to 19 dismiss this claim. 20 // ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 10 Case 2:22-cv-00025-SMJ 1 B. ECF No. 33 filed 09/16/22 PageID.306 Page 11 of 17 Unfair Business Practices 2 To establish a claim under the Consumer Protection Act (CPA), a plaintiff 3 must prove five elements: (1) an unfair or deceptive act or practice that (2) affects 4 trade or commerce and (3) impacts the public interest, and (4) the plaintiff sustained 5 damage to business or property that was (5) caused by the unfair or deceptive act or 6 practice. Keodalah v. Allstate Ins. Co., 194 Wn.2d 339, 349 (2019). All five 7 elements must be established, and certain elements can be satisfied per se based on 8 the violation of another statute. Id. at 350. For instance, the first two elements are 9 established where a statute declares that a violation is a per se unfair trade practice, 10 and the third element—that the violation impacts the public interest— also may be 11 established per se based on a showing that a statue has been violated that contains 12 a specific legislative declaration of public interest impact. Id. “By broadly 13 prohibiting ‘unfair or deceptive acts or practices in the conduct of any trade or 14 commerce,’ the legislature intended to provide sufficient flexibility to reach unfair 15 or deceptive conduct that inventively evades regulation.” Panag v. Farmers Ins. Co. 16 of Wash., 166 Wn.2d 27, 49 (2009). 17 Plaintiff alleges that because ASH’s health plans are not licensed with the 18 State of Washington and do not comply with the ACA or Washington law, 19 Defendant engaged in unfair business practices under the CPA. ECF No. 1 at 27. 20 The Complaint also alleges that Defendants’ plans failed to provide coverage for ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 11 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.307 Page 12 of 17 1 treatments and conditions that are mandated “essential” benefits under the ACA and 2 Washington law. Id. at 8, 27. Specifically, ASH’s plans excluded coverage for pre‐ 3 existing conditions, imposed waiting periods, annual and lifetime caps, and limits 4 on coverage, all of which are prohibited by the ACA and Washington law. Id. 5 Plaintiff 6 “common course of unfair conduct caused substantial injury to consumers,” and 7 “[t]housands of Washingtonians have been affected by Defendants’ unfair 8 practices” and that this conduct caused injury. Id. at 28. alleges that Defendants’ 9 Defendants argue that Plaintiff’s CPA claim based on unfair business 10 practices is barred because the Guidelines disclosed the alleged statutory violations 11 that Plaintiff alleges are unfair. ECF No. 15 at 17. Defendants argue every alleged 12 statutory violation is plainly disclosed to prospective members in the Guidelines, 13 including limitations on sharing for pre-existing conditions, waiting periods, annual 14 and lifetime caps on sharing, and ASH’s lack of an insurance license. Id. at 14. 15 Defendant argues that because the alleged violations are disclosed, there cannot be 16 a claim for unfair business practices. Id. However, there is no support for this 17 assertion. The only case Defendants point to involving the CPA is Lowden v. T‐ 18 Mobile USA, Inc., No. C05‐1482 MJP, 2009 WL 537787 (W.D. Wash. Feb. 18, 19 2009), aff’d, 378 F. App’x 693 (9th Cir. 2010). Lowden is distinguishable. There, 20 the plaintiff alleged that T–Mobile violated the CPA by assessing additional charges ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 12 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.308 Page 13 of 17 1 without disclosing them, but the court found that T-Mobile’s contract adequately 2 informed customers that they may be charged for regulatory costs imposed on T– 3 Mobile. Id. at *2. Those disclosures, in contrast to those at issue here, were not 4 alleged to be contrary to Washington law. See id. Instead, the Ninth Circuit 5 addressed a valid, legal contract that included terms and disclosures that are 6 permissible under Washington law. 7 Here, Plaintiff has sufficiently alleged that ASH’s health plans were in 8 violation of the ACA and Washington law, as ASH was plausibly not a valid HCSM 9 and therefore was not exempt from obtaining a certificate of authority from the 10 Washington Insurance Commission. Absent a certificate of authority, the health 11 plans were illegal, WASH. REV. CODE §48.05.030 (2022) (“All entities that sell 12 products in Washington meeting the definition of insurance must obtain a certificate 13 of authorization.”), and allegations of illegality satisfy the CPA’s unfair practice 14 element. See, e.g., Bess v. Ocwen Loan Servicing, LLC, 727 F. App’x 918, 921 (9th 15 Cir. 2018) (“By alleging Ocwen entered Bess’s property pursuant to the unlawful 16 entry provisions in the parties’ deed of trust, Bess has plausibly alleged an unfair or 17 deceptive practice”); Wilson v. PTT, LLC, 351 F. Supp. 3d 1325, 1339 (W.D. Wash. 18 2018) (denying motion to dismiss CPA claim based on allegation that defendant 19 violated statutory prohibition on gambling). As such, the Court denies the motion 20 to dismiss the unfair business practice theory of Plaintiff’s CPA claim. ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 13 Case 2:22-cv-00025-SMJ 1 C. ECF No. 33 filed 09/16/22 PageID.309 Page 14 of 17 Deceptive Business Practices 2 Next, Defendants argue that Plaintiff’s CPA deceptive practices claim must 3 be subjected to Rule 9(b)’s heightened pleading standard and, evaluating the claim 4 under that standard, the claim must be dismissed. The Court agrees. 5 Under Rule 9(b), a party “alleging fraud or mistake . . . must state with 6 particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). 7 This heightened standard applies so long as the claim is “grounded in fraud” or 8 “sounded in fraud,” even if fraud is not an essential element of claim alleged. Vess 9 v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (“[I]n cases in which fraud is not 10 an essential element of the claim, Rule 9(b) applies, but only to particular averments 11 of fraud.”). 12 Plaintiff argues his claim is based on deceptive conduct but is neither 13 “grounded in fraud” nor does it “sound in fraud” because Plaintiff does not allege 14 that Defendants intentionally engaged in a “unified course of fraudulent conduct.” 15 Vess v. Ciba‐Geigy Corp. USA, 317 F.3d 1097, 1103–04 (9th Cir. 2003). But a 16 “unified course of fraudulent conduct” is virtually indistinguishable from 17 Defendants’ alleged “common course of deceptive conduct.” See ECF No. 1 at 25. 18 Plaintiff, in several places, alleges that he or members of the prospective class were 19 misled by material misrepresentations about what were (insurance companies) and 20 what they could offer (insurance), allegations that seemingly sound in fraud. ECF ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 14 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.310 Page 15 of 17 1 No. 1 at 25–26. As such, his allegations, as opposed to what he is required to prove 2 in support of his claim, sound in fraud and the Court must subject the allegations to 3 Rule 9(b)’s heightened pleading standard. 4 Even so, Plaintiff argues, regardless of whether Rule 9(b) is applicable, the 5 Complaint would satisfy the rule because “it identifies the circumstances 6 constituting fraud so that the defendant can prepare an adequate answer from the 7 allegations.” Stellar J. Corp. v. Argonauts Ins. Co., No. 3:12–cv–05982 RBL, 2014 8 WL 3673301, at *2 (W.D. Wash. Jul. 23, 2014) (quoting Neubronner v. Milken, 6 9 F.3d 666, 671‐672 (9th Cir. 1993)). For example, Plaintiff identified the 10 communications that had the capacity to deceive and what they said (that ASH is 11 an HCSM and that the plans were insurance); where the communications were 12 promulgated (on SHA’s website, through brokers, in ASH’s Guidelines, and on 13 membership cards); who saw or heard them (Plaintiff, consumers who complained 14 to OIC, and OIC); how the communications were false, unfair, and deceptive (ASH 15 does not meet the requirements of an HCSM and the health plans are not ACA‐ 16 compliant); and the time period during which the alleged practice occurred (from 17 2019 to 2021). ECF No. 1 at 2, 5, 10–11, 13–14, 17–20, 25. 18 But Rule 9(b) requires greater specificity in pleading allegations that sound 19 in fraud. Rule 9(b) requires a plaintiff to “identify the ‘who, what, when, where, and 20 how of the misconduct charged,’ as well as ‘what is false or misleading about [the ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 15 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.311 Page 16 of 17 1 conduct] and why it is false.” Cafasso, ex rel. U.S. v. Gen. Dynamica C4 Sys., Inc., 2 637 F.3d 1047, 1055 (9th Cir. 2011) (quoting Ebeid ex rel. U.S. v. Lungwitz, 616 3 F.3d 993, 998 (9th Cir. 2010). Plaintiff’s complaint lumped both Defendants, which 4 is not “specific enough to give defendants notice of the particular misconduct… so 5 that they can defend against the change and not just deny that they have done 6 anything wrong.” Neubronner v. Miken, 6 F.3d 666, 672 (9th Cir. 1993). 7 Despite this deficiency, the Court finds good cause to grant Plaintiff leave to 8 amend his complaint. Under Federal Rule of Civil Procedure 15(a)(2), “[t]he 9 [C]ourt should freely give leave when justice so requires.” “In general, a court 10 should liberally allow a party to amend its pleading.” Sonoma Cty. Ass'n of Retired 11 Employees v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (citing Fed. R. Civ. 12 P. 15(a)). Still, the Court “may exercise its discretion to deny leave to amend due 13 to ‘undue delay, bad faith or dilatory motive on part of [Plaintiff], repeated failure 14 to cure deficiencies by amendments previously allowed undue prejudice to the 15 opposing party, ... [and] futility of amendment.’” Carvalho v. Equifax Info. Servs., 16 LLC, 629 F.3d 876, 892–93 (9th Cir. 2010) (quoting Foman v. Davis, 371 U.S. 178, 17 182 (1962)). Here, there is no evidence of undue delay, bad faith, dilatory motive, 18 failure to cure deficiencies, or futility of amendment, and when given the 19 opportunity to address prejudice, ASH’s counsel offered only that having a pending 20 case against ASH that alleges deceptive practices is harmful to the organization. ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 16 Case 2:22-cv-00025-SMJ ECF No. 33 filed 09/16/22 PageID.312 Page 17 of 17 1 The mere fact that a company’s reputation may be harmed by a deceptive practices 2 claim filed against it is not enough for the Court to deny Plaintiff leave to amend 3 his deceptive-practices claim. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. Defendants’ motions to dismiss, ECF Nos. 15, 18, are GRANTED IN 6 PART and DENIED IN PART. Plaintiff’s claim for deceptive 7 business practices in violation of the Washington Consumer Protection 8 Act, ECF No. 1 at 25–26, is DISMISSED WITHOUT PREJUDICE. 9 Plaintiff’s claims for illegal contract and unfair business practices in violation of the Washington Consumer Protection Act remain. 10 11 12 13 14 15 2. The Court GRANTS Plaintiff leave to file a first amended complaint by no later than October 13, 2022. IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 16th day of September 2022. 16 17 SALVADOR MENDOZA, JR. United States District Judge 18 19 20 ORDER RULING ON DEFENDANTS’ MOTIONS TO DISMISS – 17

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