UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JAMES HALPERN and ALLlsoN )
HALPERN, )
)
Plaintiffs, )
) civil case No. 09-2104 (RJL)
v. )
)
AARP, AARP SERVICES, INC., and )
UNITED HEALTHCARE ) F I |_ E D
INSIJRANCE coMPANY,
§ sEP 2 s 2010
Defendants. ) c\erk, u.s. District & Bankruptcy

Courts for the District of Co|umbla

MEMoRA DIJM oP1N1oN
(sepcember 7,?2010) [#18, #19 and #44]

Plaintiffs J ames and Allison Halpem bring this action against AARP and AARP
Services, Inc. ("AARP defendants") alleging violations of the District of Columbia
Consumer Protection Procedures Act ("CPPA") and unjust enrichment. On June 7, 20lO,
this Court granted motions by United HealthCare Insurance Company ("United
HealthCare") and AARP defendants to join United HealthCare as a defendant in this
action. Currently before the Court are AARP defendants’ Motions to Dismiss for failure
to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. l2(b)(6) and
United HealthCare’s Motion to Dismiss also pursuant to Fed. R. Civ. P. l2(b)(6). Upon

consideration of the parties’ pleadings, relevant law, particularly this Court’s related

decision in Whiting v. AARP, 701 F. Supp. 2d 21 (D.D.C. 2010), and the entire record
herein, defendants’ Motions to Dismiss are GRANTED.
BACKGROUND
J ames Halpern is a member of AARP, a nonprofit membership organization
established to promote the interests of Americans over the age of 50. Compl. W 9, 20. In
March 2008, after receiving marketing materials from AARP, Mr. Halpern and his wife
Allison Halpern ("plaintiffs") subscribed to the AARP Medical Advantage Indemnity
Insurance Plan ("MAP Policy"). Compl. 11 33. The MAP Policy is a fixed-benefit
medical indemnity plan underwritten by United HealthCare. AARP’s Mot. to Dismiss at
l; Edson Decl. Ex. 2. According to the marketing materials received from AARP, the
MAP Policy "is not a major medical health plan, but is a good option if you need
essential health benefits today at an affordable price." Edson Decl. Ex. 2. Around the
same time - though in a separate mailing - plaintiffs received marketing material relating
to a different health insurance plan, the AARP Personal Health Insurance Plan (PHIP
Policy). See Pl. Opp’n to AARP defendants’ Mot. To Dismiss ("Pl. AARP Opp’n") at 5;
AARP Reply at 6. Unlike the MAP Policy, the PHIP Policy is a form of primary health
coverage and promotes itself as such. Edson Decl. Ex. 3.
In May 2008, Mrs. Halpem tested positive for a genetic mutation associated with

increased risk of developing breast and ovarian cancer. Compl. 11 35. While the
possibility of undergoing a prophylactic procedure to reduce the risk of these cancers was

available to her, the MAP Policy would only cover a fixed portion of the costs. Ia'. 1[ 36.
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In April 2009, Mrs. Halpem was diagnosed with breast cancer. Ia’. 11 37. Accordingly,
Mrs. Halpem underwent surgery and chemotherapy. Ia’. 11 37, 39. Because the MAP
Policy only covered a fixed portion of these procedures, plaintiffs found themselves
responsible for almost $75,000 in medical expenses. See id. jl 38.
ANALYSIS
Federal Rule of Civil Procedure l2(b)(6) provides that a district court shall dismiss

a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ.
P. l2(b)(6). Although all factual allegations in a complaint are assumed to be true when
deciding a Rule l2(b)(6) motion, and all reasonable inferences are drawn in a plaintiffs
favor, the Court need not accept either inferences "unsupported by the facts set out in the
complaint" or "legal conclusions cast in the form of factual allegations." Kowal v. MCI
Commc ’ns Corp., l6 F.3d l27l, 1276 (D.C. Cir. 1994). "While a complaint attacked by
a Rule l2(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff s
obligation to provide the grounds of his entitle[ment] to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(citations and internal quotation marks omitted). To survive a motion to dismiss, a
complaint must contain sufficient factual matter that, if accepted as true, "state[s] a claim
to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged." Ashcro]? v. Iqbal, 129 S.Ct.
3

1937, 1949 (2009). This plausibility standard "asks for more than a sheer possibility that
a defendant has acted unlawfully." Ia'. In addition, "when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief, ‘this basic deficiency should
. . . be exposed at the point of minimum expenditure of time and money by the parties
and the court."’ Twombly, 550 U.S. at 558 (quoting 5 WRIGHT & MILLER § 1216 at 233-
234) (alteration in original).

Here, plaintiffs allege violations of the CPPA and unjust enrichment; however,

after plaintiffs filed their Complaint, this Court decided Whz`ting v. AARP, 701 F. Supp.
2d 21 (D.D.C. 2010). W'lzz`tz`ng is, in all relevant respects, identical to this case. Whiting’s
claims for violations of the CPPA and unjust enrichment are almost identical, and often
verbatim, to plaintiffs’ claims. Compare Compl. 1111 91-102 Whitl`ng, 701 F. Supp 2d at
21 (No. 09-455) with Compl. 1111 52-63. The facts, moreover, are substantively similar.
In both cases the plaintiffs subscribed to the MAP Policy based on the same marketing
materials circulated by AARP. See Pl. AARP Opp’n at l2. In both cases, plaintiffs
suffered illness and were saddled with very high medical expenses that were not covered
by their policy. See AARP Mot. to Dismiss at l-2. Finally, in both cases, plaintiffs
claimed that the MAP Policy materials misrepresented the nature of the insurance and
misled consumers by not disclosing the limited benefits available. Compare Compl. 1111
96-97 Whz'tz'ng, 701 F. Supp 2d at 21 (No. 09-455) with Compl. 1111 56-57.

ln Whz`tz'ng, as in this case, the Court reviewed AARP and United HealthCare’s

motions to dismiss pursuant to Fed. R. Civ. P 12(b)(6). Based on its review of the
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marketing materials, the same materials at issue in this case, this Court found that the
language in question, "especially when viewed in context, would not have misled a
reasonable consumer into thinking that the AARP Medical Advantage Plan constituted
comprehensive, major medical health insurance." Whiting, 701 F. Supp 2d at 29. In fact,
the Court determined that the very statements plaintiffs here challenge were, in fact,
"accurate, not misleading to a reasonable consumer, or mere puffery. ]d.
Notwithstanding this clear precedent, plaintiffs attempt to raise various issues to
distinguish this case from W'fzz'ting. Unfortunately, plaintiffs’ attempts are unavailing.
Plaintiffs argue that the issues in their complaint relating to the phrase "primary health
insurance" were not fully debated in Whz'tz'ng. Pl. AARP Opp’n at 2, l2; Pl. Opp’n to
United HealthCare’s Mot. to Dismiss ("Pl. United Opp’n") at l2. However, it is unclear
what more there is to say. The very language in question here was reviewed in Whitz`ng,
and the Court found that, in context, it did not support the plaintiffs claims. Whz`ting,
701 F. Supp 2d at 29. Plaintiffs here, nonetheless, attempt to support their assertion by
claiming that expert testimony would show that a reasonable consumer would understand
"primary health insurance" to mean insurance that covers "most of their health care
costs." Pl. United Opp’n at 11. This claim, however, is irrelevant. In l/Vhiting this Court
determined that the MAP Policy does not claim to be primary health insurance, nor
would a reasonable consumer be misled into thinking that the MAP Policy is primary
health insurance. See Whitz`ng, 701 F. Supp 2d at 29-30. It, thus, would not be relevant

what a reasonable consumer would understand primary health insurance to mean.

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Finally, plaintiffs claim that because AARP sent mailings relating to both the
MAP Policy and the PHIP Policy and because these mailing both included the words,
"primary health insurance," a reasonable consumer would assume that both policies are
substantively similar. Pl. United Opp’n at 12; Pl. AARP Opp’n atl2. Again, in light of
my earlier findings in Whz'ting, plaintiffs’ reasoning is - at best - indecipherable. Indeed,
the Court agrees with AARP defendants’ contention that by sending two separate
mailings relating to two separate plans, a reasonable consumer would not assume that the
plans were necessarily the same at all. See AARP Reply at 6. lf anything, having
information readily available to compare the policies, a consumer could easily determine
the limited benefits available through the MAP Policy as compared to the comprehensive
PHIP Policy. Id. For the reasons stated in Whiting, therefore, this Court finds that there
is no issue of material fact to warrant sustaining plaintiffs’ claims.
CONCLUSION
For all of the foregoing reasons, the Court GRANTS the defendant’s

Motion To Dismiss and DISMISSES the action in its entirety. An order consistent with

this decision accompanies this Memorandum Opinion.

RICHARD~J..I)EGN
United States District Judge

