Memorandum of Law in Support of ASHA's Motion to Dismiss

Case 2:11-cv-00998-GLL -MPK Document 14 Filed 10/03/11 Page 1 of 21 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

PITTSBURGH DIVISION 

ACADEMY OF DOCTORS OF, ) 

AUDIOLOGY ) 

) CIVIL ACTION FILE NO. 

Plaintiff, ) 2:11-cv-00998-MPK 

) 

vs. ) 

) 

AMERICAN SPEECH-LANGUAGE- ) 

HEARING ASSOCIATION, ) 

) 

Defendant. ) 

MEMORANDUM OF LAW IN SUPPORT OF 

AMERICAN SPEECH-LANGUAGE-HEARING ASSOCIATION'S 

MOTION TO DISMISS 

Defendant, American Speech-Language-Hearing Association (“ASHA”), respectfully 

submits this memorandum in support of its motion to dismiss. 

INTRODUCTION 

Plaintiff, Academy of Doctors of Audiology (“Plaintiff”), filed this lawsuit against 

ASHA attempting to challenge various statements that ASHA made in letters sent to ASHA’s 

certificate holders and on ASHA’s website. None of the statements discussed, referenced, 

implicated, or were directed to Plaintiff. Regardless, Plaintiff endeavors to assert claims against 

ASHA for fraud and negligent misrepresentation. Plaintiff, however, fails to establish a 

fundamental precondition to the exercise of jurisdiction by this Court: a “personal stake in the 

outcome of [a] controversy . . . to warrant [its] invocation of federal-court jurisdiction and to 

justify exercise of the court’s remedial powers on [its] behalf.” Warth v. Seldin, 422 U.S. 490, 

498 – 99 (1975). In short, Plaintiff lacks standing to bring this suit. 

The existence of standing must affirmatively appear in the record. N.J. Physicians, 

Inc. v. President of United States, No. 10-4600, 2011 WL 3366340, at *3 (3d Cir. Aug. 3, 2011).


Yet Plaintiff has failed to allege that it was in any way injured by ASHA’s statements and, 

therefore, fails to establish the existence of an injury in fact—the primary prerequisite of 

individual standing. Similarly, the Complaint does not establish the factors necessary for 

Plaintiff to assert this lawsuit on behalf of its members. First, Plaintiff has not sufficiently 

alleged that its members would have standing because Plaintiff (a) does not identify any of its 

members that received and relied upon ASHA’s statements and (b) does not identify any injury 

that its members have or will imminently suffer which would warrant entry of an injunction. 

Second, the monetary relief that Plaintiff seeks would require the individual participation of 

Plaintiff’s members thereby preventing Plaintiff’s exercise of representational standing. Because 

Plaintiff lacks standing to sue in its own name and in the name of its members, this Court lacks 

jurisdiction to entertain Plaintiff’s claims. 

In addition to failing to establish standing, Plaintiff has failed to state any claims in its 

Complaint for which relief can be granted. While Plaintiff purports to assert claims for fraud and 

negligent misrepresentation, the factual allegations in the Complaint do not provide a basis for 

the Court to infer that anyone justifiably relied on ASHA’s statements to their detriment. 

Because justifiable reliance is an essential element of both of Plaintiff’s claims, this pleading 

omission is detrimental to Plaintiff’s Complaint. Plaintiff’s negligent misrepresentation claim 

suffers from another fatal flaw because Plaintiff has not alleged the existence of a duty, which is 

the primary element in any negligence action. 

For the foregoing reasons and other reasons discussed below, ASHA respectfully requests 

that the Court dismiss Plaintiff’s Complaint with prejudice. 

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FACTUAL BACKGROUND 

ASHA disputes the factual allegations asserted by Plaintiff in the Complaint and will 

disprove them should this litigation proceed. However, ASHA accepts Plaintiff’s version of the 

facts as true for purposes of ASHA’s Motion to Dismiss. 1 

Thus, the factual statements contained 

in this Brief are taken from the Complaint and the exhibits attached thereto. 2 

I. The Parties 

ASHA is a Kansas non-profit organization headquartered in Maryland. Compl. 2. 

ASHA offers certification, training, and credentialing to speech-language pathologists, 

audiologists, and speech, language and hearing scientists nationally and internationally. Id. 

Among the certifications ASHA offers is the Certificate of Clinical Competence in Audiology 

(the “CCC-A”), a voluntary professional certification for audiologists. Id. 6. 

Plaintiff is a Pennsylvania non-profit corporation headquartered in Kentucky. Plaintiff is 

purportedly “dedicated to the advancement of audiology practitioner excellence, high ethical 

standards, professional autonomy and sound business practices in the provision of quality 

audiological care.” Id. 1. 

II. 

Education of Audiologists 

The Doctor of Audiology, a clinical doctoral degree designated Au.D., is an advanced 

degree permitting entry into the clinical practice of audiology in most jurisdictions in the United 

1 See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (noting courts must accept factual 

allegations as true when deciding a motion under Rule 12(b)(6)); PennEnvironment v. RRI 

Energy Ne. Mgmt. Co., 744 F. Supp. 2d 466, 469 (W.D. Pa. 2010). 

2 Mayer v. Belichick, 605 F.3d 233, 230 (3d Cir. 2010), cert. denied, 131 S. Ct. 1607 (2011) (“In 

deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to 

the complaint, matters of public record, as well as undisputedly authentic documents if the 

complainant’s claims are based upon these documents.”); PennEnvironment, 744 F. Supp. 2d at 

469 (“Because a facial challenge [under Rule 12(b)(1)] is one based purely on the allegations in 

the complaint, the court must accept those allegations as true and may consider only the 

complaint and any documents upon which it is based.”). 

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States. Id. 7, 10. Although “some states still require a masters degree” for a license to 

practice audiology, “those states recognize the Au.D. degree as meeting or exceeding the masters 

degree requirement for licensure.” Id. 7. “Academic audiology programs granting the Au.D. 

are accredited by the Council on Academic Accreditation [in Audiology and Speech-Language 

Pathology].” Id. 9. In order to be accredited, an academic institution’s doctoral curriculum in 

audiology must require students to obtain the equivalent of twelve months of full-time clinical 

practice under the supervision of an approved and appropriately credentialed audiologist. Id. 

8. 

III. 

Certification of Audiologists 

The CCC-A is an additional credential available to audiologists beyond clinical doctoral 

and masters degrees. See id. 6. The CCC-A, which is offered by ASHA, costs $455.00 for 

initial certification and $199.00 for renewals. Id. Applicants for the CCC-A “must complete a 

program of study that includes academic course work and a minimum of 1,820 hours of 

supervised clinical practicum . . . by individuals who hold the [CCC-A].” Id. Ex. 4 at 5. 

ASHA’s website makes clear that “[o]nly individuals holding current ASHA certification in 

audiology may supervise the hours required for ASHA certification. Other appropriate 

individuals, as determined by the graduate program, may supervise hours that are acquired 

beyond the ASHA certification requirements.” Id. Ex. 4 at 6. 

While audiologists supervising students in pursuit of their CCC-A must hold a CCC-A, 

the CCC-A is not required for an audiologist to supervise an audiology aide or student not in 

pursuit of the CCC-A. Id. 6, Ex. 4 at 6. Plaintiff wrongly contends that the “CCC-A is not 

required for licensure to practice audiology in any State.” See id. 6. Plaintiff alleges that some 

audiologists no longer “find value in the CCC-A for their private practice” and that “[m]any 

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employers no longer require their audiologists to hold the CCC-A.” Id. 11. Accordingly, 

Plaintiff contends “[a] substantial number of such audiologists no longer hold the CCC-A.” Id. 

IV. 

Relevant ASHA Communications Regarding the CCC-A 

Plaintiff complains about four communications by ASHA relating to the CCC-A. Three 

are contained in letters sent by ASHA and one is a question and answer on the CCC-A standards 

portion of ASHA’s website. 

ASHA maintains a Frequently Asked Questions About 2011/2012 Audiology Standards 

section on its website (the “Website Q&A”) to answer questions persons interested in obtaining 

the CCC-A may have regarding the criteria they must meet in order to receive the CCC-A. Id. 

Ex. 4. Among other things, the Website Q&A informs CCC-A applicants that they are not 

ASHA certified until the CCC-A is actually awarded. 

In January 2011, ASHA sent a letter to approximately 175 CCC-A holders who were in 

danger of losing their CCC-A (the “January 2011 Compliance Letter”). See id. 14, Ex. 2. 

Recipients of the January 2011 Compliance Letter were reminded of the actions they must take 

in order to retain their CCC-A certification. Id. The January 2011 Compliance Letter warned 

that should the recipients not take the steps necessary to maintain their CCC-A by March 31, 

2011, they would lose their CCC-A. Id. 

Approximately ninety-three of the CCC-A holders that received the January 2011 

Compliance Letter did not provide the documentation necessary to maintain their CCC-A. See 

id. 14. Accordingly, in May 2011, ASHA notified these persons that their ASHA affiliation 

and certification had been dropped (the “May 2011 Drop Letter”). Id. Ex. 3. 

Over the past three years, ASHA also sent letters to approximately 150 audiologists who 

had decided to cancel their CCC-A (the “Cancellation Letter”). See id. 14, Ex. 1. ASHA asked 

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the recipients of the Cancellation Letter to return to ASHA a document acknowledging that 

ASHA had informed them of the consequences of losing their CCC-A. Id. 

V. Plaintiff’s Allegations 

The statements in the January 2011 Compliance Letter, the May 2011 Drop Letter, and 

the Cancellation Letter (collectively referred to as the “Letters”) and the Website Q&A, which 

were directed at audiologists who chose to cancel their CCC-A, lost their CCC-A, or were 

awaiting receipt of their CCC-A, indicated that audiologists without the CCC-A may not present 

themselves as being ASHA certified or provide clinical or supervisory services. See id. Exs. 1 – 

4. Plaintiff contends that ASHA’s statements were false. Id. 13 – 15. Accordingly, Plaintiff 

requested that ASHA “cease and desist from making the [allegedly] False Statements.” Id. 20. 

Despite ASHA’s agreement “to revise the [allegedly] False Statements,” Plaintiff initiated this 

litigation asserting claims for fraud and negligent misrepresentation. Id. Plaintiff purports “to 

bring this action in its organizational capacity to further its objectives . . . in its own right and on 

behalf of its members.” Id. 1. However, Plaintiff does not contend that any of the Letters were 

sent to its members, that any of its members viewed the Website, or that any of its members 

reasonably relied on the allegedly false statements. See id. 1 – 29. 

ARGUMENT AND CITATION OF AUTHORITY 

The Federal Rules of Civil Procedure authorize courts to dismiss complaints that fail to 

state a claim upon which relief may be granted and that fail to establish the court's jurisdiction 

over the subject matter, such as when the plaintiff lacks standing to bring the claim. Fed. R. Civ. 

P. 12(b)(1), (6); PennEnvironment v. RRI Energy Ne. Mgmt. Co., 744 F. Supp. 2d 466, 469 

(W.D. Pa. 2010). The purpose of a motion to dismiss is to weed out groundless actions and 

“streamline litigation.” Steinberg v. Sup. Ct. of Pa., Civ. A. No. 09-86, 2009 WL 1684663, at *5 

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(W.D. Pa. June 10, 2009) (citing Neitzke v. Williams, 490 U.S. 319, 326 (1989)). Although the 

court accepts well-pleaded facts as true and in the light most favorable to the plaintiff when 

deciding a motion to dismiss, “a court need not credit bald assertions, unwarranted inferences, or 

legal conclusions cast in the form of factual averments.” Steinberg, 2009 WL 1684663, at *5 

(citation omitted). Indeed, it is well-settled that “pleadings must be something more than an 

ingenious exercise in the conceivable.” United States v. Students Challenging Regulatory 

Agency Procedures (SCRAP), 412 U.S. 669, 688 (1973). Thus, it is the responsibility of the 

complainant to clearly allege facts (1) “demonstrating that he is a proper party to invoke judicial 

resolution of the dispute,” Warth v. Seldin, 422 U.S. 490, 518 (1975), and (2) that do more than 

merely create the suspicion of a legally cognizable cause of action, Ashcroft v. Iqbal, 129 S. Ct. 

1937, 1949 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57, 562–63 (2007). The 

factual allegations in Plaintiff’s Complaint do neither of these things. Accordingly, dismissal is 

appropriate under Federal Rule of Civil Procedure 12(b). Fed. R. Civ. P. 12(b)(1), (6). 

I. Plaintiff Lacks Standing to Bring This Lawsuit 

The federal judiciary may not exercise jurisdiction over any matter that does not 

constitute a case or controversy. Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 

1441 (2011). The “case-or controversy requirement is satisfied only where a plaintiff has 

standing.” Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 258 (3d Cir.), cert. denied, 130 

S. Ct. 1015 (2009) (internal citations omitted). The crux of Article III of the Constitution is that 

“judicial power exists only to redress or otherwise to protect against injury to the complaining 

party, even though the court’s judgment may benefit others collaterally.” Warth, 422 U.S. at 499 

(emphasis added). Accordingly, “the irreducible constitutional minimum” elements of standing 

are: (1) an injury in fact, (2) “a causal connection between the injury and the conduct 

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complained of[,]” and (3) a substantial likelihood that the injury will be redressed by a favorable 

decision of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see N.J. 

Physicians, Inc. v. Pres. of United States, No. 10-4600, 2011 WL 3366340, at *3, (3d Cir. 

Aug. 3, 2011), PennEnvironment, 744 F. Supp. 2d at 477. Without the limitations of the 

standing doctrine, “courts would be called upon to decide abstract questions of wide public 

significance . . . even though judicial intervention may be unnecessary to protect individual 

rights.” Warth, 422 U.S. at 500. 

“As the party asserting jurisdiction, the plaintiff bears the burden of showing that [its] 

claims are properly before the court.” Steinberg, 2009 WL 1684663, at *5 (citation omitted). 

While standing need only be established “‘with the manner and degree of evidence required at 

the successive stages of litigation’ . . . ‘, it is a long-settled principle that standing cannot be 

inferred argumentatively from averments in the pleadings.’” N.J. Physicians, Inc., 2011 WL 

3366340, at *3 (quoting Lujan, 504 U.S. at 561 and FW/PBS, Inc. v. City of Dallas, 493 U.S. 

215, 231 (1990)) (emphasis added). Instead, the necessities of standing “must affirmatively 

appear in the record.” Id. (internal brackets and citations omitted). “A federal court is powerless 

to create its own jurisdiction by embellishing otherwise deficient allegations of standing.” Id. 

(citing Whitmore v. Arkansas, 495 U.S. 149, 155 – 56 (1990)). Thus, a complaint that fails to 

establish the plaintiff’s standing to bring the claims asserted therein should be dismissed 

pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Ballentine v. United States, 

486 F.3d 806, 810 (3d Cir. 2007); PennEnvironment, 744 F. Supp. 2d at 469. 

An organization may have standing to bring claims in two instances. Pa. Prison Soc’y v. 

Cortes (Prison I), 508 F.3d 156, 163 (3d Cir. 2007). It goes without saying, that the organization 

“may have standing in its own right to seek judicial relief from injury to itself and to vindicate 

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whatever rights and immunities the association itself may enjoy.” Warth, 422 U.S. at 511. In 

addition, “in attempting to secure relief from injury to itself the association may assert the rights 

of its members, at least so long as the challenged infractions adversely affect its members’ 

associational ties.” Id. Here, Plaintiff purports to bring suit “in its own right and on behalf of its 

members.” Compl. 1. However, the factual allegations in the Complaint do not establish “the 

irreducible constitutional minimum” elements of standing with regard to Plaintiff or its members. 

Accordingly, Plaintiff’s claims should be dismissed for lack of jurisdiction. Pennenvironment, 

744 F. Supp. 2d at 469. 

A. Plaintiff Has Not Suffered A Cognizable Injury. 

It is well-settled that “the doctrine of standing requires that the party seeking review be 

himself among the injured. This rule applies with special force to organizations, which are 

unable to establish standing solely on the basis of an institutional interest in a legal issue.” 

Prison I, 508 F.3d at 162 (internal citations omitted) (emphasis added). Thus, in order to invoke 

the jurisdiction of a federal court “in its own right,” as Plaintiff purports to do here, an 

association must “ha[ve] suffered some threatened or actual injury resulting from the putatively 

illegal action.” Warth, 422 U.S. at 499 (internal citations omitted). Further, to constitute an 

injury in fact, the injury must be “both (1) concrete and particularized and (2) actual or 

imminent….” N.J. Physicians, Inc., 2011 WL 3366340, at *3 (internal citations omitted). 

Despite the clear and long-established requirement that the plaintiff have suffered an injury in 

fact, the Complaint is empty of any allegations that Plaintiff suffered any injuries let alone a 

concrete, particularized, actual and imminent injury. See Compl. 1 -20. Because an injury in 

fact does not “affirmatively appear in the record,” Plaintiff does not have standing to maintain 

this litigation on its own behalf. Id. 

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B. Plaintiff Cannot Bring This Lawsuit As a Representative of Its Members. 

The Supreme Court has found that “[e]ven in the absence of injury to itself, an 

association may have standing solely as the representative of its members.” Warth, 422 U.S. at 

511. However, the availability of representational standing “does not eliminate or attenuate the 

constitutional requirement of a case or controversy.” Id. To the contrary, an association may be 

an appropriate representative of its members entitled to invoke the court’s jurisdiction “only 

where the record shows that the organization’s individual members themselves have standing to 

bring those claims.” Prison I, 508 F.3d at 163. Thus, before an association may bring claims on 

behalf of its members, the association must establish that: “(a) its members would otherwise 

have standing to sue on their own right; (b) the interests it seeks to protect are germane to the 

organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the 

participation of [the organization’s] individual members in the lawsuit.” Hunt v. Wash. State 

Apple Adver. Comm’n, 432 U.S. 333, 343 (1977); Pa. Prison Soc’y v. Cortes (Prison II), 622 

F.3d. 215, 228 (3d Cir. 2010), cert. denied, 131 S. Ct. 1808 (2011). 

Here, there are no facts from which the Court can infer that any of Plaintiff’s individual 

members have standing. Further, the relief requested in the Complaint would require the 

individual participation of Plaintiff’s members. Thus, Plaintiff cannot establish the first and third 

factors necessary for Plaintiff’s exercise of representational standing. Accordingly, this Court 

lacks jurisdiction over this matter and the Complaint should be dismissed with prejudice. 

1. Plaintiff has not sufficiently alleged that its members have standing to 

bring the claims asserted or to seek the injunctive relief requested. 

a. Plaintiff has not identified any member that suffered harm. 

Because representational standing exists only where an association’s members “would 

otherwise have standing to sue in their own right,” the association seeking to assert such standing 

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“must ‘make specific allegations establishing that at least one identified member has suffered or 

would suffer harm.’” N.J. Physicians, Inc., 2011 WL 3366340, at *5 and Prison II, 622 F.3d at 

228 (both quoting Summers v. Earth Island Inst., 129 S.Ct. 1142, 1151 (2009)) (emphasis 

added); see United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 

544, 552 (1996) (“The association must allege that its members, or any one of them, are 

suffering immediate or threatened injury as a result of the challenged action.”). 

Here, the Complaint generally alleges that “persons in the Western District of 

Pennsylvania” have received the Letters and viewed the Website Q&A. Compl. 13. The 

Complaint does not identify any of these persons or allege that they are members of Plaintiff. 

See id. 1 – 20. Likewise, there is no allegation that any member of Plaintiff received the 

Letters or viewed the Website Q&A and relied upon them. Indeed, “there are no specific facts in 

the record regarding [Plaintiff’s] individual members and whether any of them meets the 

standing requirements to pursue the present claims.” See Prison I, 508 F.3d at 163. This 

deficiency is fatal to Plaintiff’s assertion of representational standing. See id. (finding that 

complaint which only alleged that plaintiff’s “membership totals approximately 3,300 

individuals, many of whom are life sentenced prisoners,” failed to meet the requirements of 

representational standing). 

b. There is no future harm sufficient to justify injunctive relief. 

Similarly, there are no allegations in the Complaint from which the Court could infer that 

Plaintiff’s members would have standing to obtain the injunctive relief Plaintiff seeks. 

Injunctions are intended to provide prospective relief. Steinberg, 2009 WL 1684663, at *19. As 

a result, a party “cannot establish the existence of standing to seek injunctive relief merely by 

showing that he has suffered a past injury.” Id. (citation omitted). Thus, a complaint for 

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injunctive relief fails for lack of standing where “it relates to past injury rather than imminent 

future injury.” Summers, 129 S.Ct. at 1150. An imminent future injury “must be ‘certainly 

impending,’ not an injury that will only occur at ‘some indefinite future time.’” Prison II, 622 

F.3d at 228 (citation omitted). Here, the Complaint merely alleges that some people were injured 

in the past when they relied on the statements in the Letters and the Website Q&A in obtaining 

or renewing their CCC-A. Compl. 17. In addition to only asserting a past injury, the 

Complaint, which alleges that “ASHA has said that it would revise the [allegedly] False 

Statements” in its Letters and on the Website Q&A, specifically undermines any likelihood of 

future harm. See Compl. 20. Because the existence of a “certainly impending” injury cannot 

be inferred from the Complaint, Plaintiff’s members do not have standing to seek injunctive 

relief. Prison II, 622 F.3d at 228. Accordingly, Plaintiff cannot satisfy the first requirement for 

representational standing. 

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2. The relief sought by Plaintiff requires the individual participation of 

its members. 

“[W]hether an association has standing to invoke the court’s remedial powers on behalf 

of its members depends in substantial measure on the nature of the relief sought.” Warth, 422 

U.S. at 515. Plaintiff’s request for restitution is essentially a claim for money damages. 

However, Plaintiff does not have standing to seek this type of relief. First, Plaintiff “alleges no 

monetary injury to itself, nor any assignment of the damages claims of its members. No award 

therefore can be made to the association as such.” Id. at 515. Second, Plaintiff’s claim for 

money damages would “require significant individual participation, which fatally undercuts a 

request for associational standing.” Pa. Psychiatric Soc’y v. Green Spring Health Servs., Inc., 

280 F.3d 278, 284 (3d Cir. 2002). In Pennsylvania, liability for fraud is limited “to those who 

receive misrepresentations and rely on such misrepresentations to their injury.” Michelson v. 

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Exxon Research & Eng’g Co., 629 F. Supp. 418, 423-24 (W.D. Pa. 1986), aff’d, 808 F.2d 1005 

(3d Cir. 1987). Plaintiff acknowledges as much, by asking that ASHA “pay restitution to those 

who renewed their CCC-A status in reliance on the fraud.” Compl. 25 (emphasis added). It is 

clear from the Complaint and the nature of the claims asserted that “whatever injury may have 

been suffered is peculiar to the individual member concerned, and both the fact and extent of 

injury would require individualized proof.” Warth, 422 U.S. at 515-16. The Supreme Court has 

held that in situations such as the one presented here, “to obtain relief in damages, each member 

of [Plaintiff] who claims injury as a result of [ASHA’s] practices must be a party to the suit, and 

[Plaintiff] has no standing to claim damages on [the member’s] behalf.” Id. at 516. 

II. 

Plaintiff Has Failed To State Any Cognizable Claim for Relief 

A. Plaintiff Has Not Pled All of the Elements of Fraud With Particularity. 

In addition to lacking standing to pursue this litigation, Plaintiff has failed to set forth 

allegations sufficient to create any plausible basis for its entitlement to relief against ASHA. It is 

well-settled that a complaint that does not, on its face, state a plausible claim for relief cannot 

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

129 S. Ct. at 1949; Bootay v. KBR, Inc., No. 2:09-cv-1241, 2010 WL 3632720, at *4 (W.D. Pa. 

Sept. 9, 2010). The United States Supreme Court has made it “clear that conclusory or 

‘bare-bones’ allegations will no longer survive a motion to dismiss: ‘threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do not suffice.’” 

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 129 S. Ct. at 

1949). Thus, dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed to “set 

out ‘sufficient factual matter’ to show that the claim is facially plausible,” Fowler, 578 F.3d at 

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210 (quoting Iqbal, 129 S. Ct. at 1948), and failed to “raise a right to relief above the speculative 

level,” Twombly, 550 U.S. at 570. 

Here, Plaintiff has asserted a claim of fraud. Thus, in addition to pleading sufficient 

factual matter to establish facial plausibility, Plaintiff was required to meet the heightened 

pleading standard established by Rule 9 of the Federal Rules of Civil Procedure. Rule 9 

mandates that “in alleging fraud or mistake, a party must state with particularity the 

circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b) (emphasis added). The 

heightened pleading standard for fraud is intended to “give defendants notice of the claims 

against them, provide an increased measure of protection for their reputations, and reduce the 

number of frivolous suits brought solely to extract settlements.” In re: Suprema Specialties, Inc. 

Sec. Litig., 438 F.3d 256, 270 (3d Cir. 2006) (quotations and citation omitted). Thus, 

particularity requires the plaintiff “to interject some degree of precision and substantiation into 

the allegations.” In re O.E.M./Erie, Inc., 405 B.R. 779, 788 (Banka. W.D. Pa. 2009). Failure to 

plead with particularity all of the elements of fraud, with the exception of intent, is grounds for 

dismissal of a party’s fraud claim. See In re: Suprema Specialties, Inc. Sec. Litig., 438 F.3d at 

270; Bootay, 2010 WL 3632720, at *11; Fed. R. Civ. P. 9(b). 

The tort of fraud, as recognized in Pennsylvania, consists of the following elements: 

“(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with 

knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of 

misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the 

resulting injury was proximately caused by the reliance.” Bortz v. Noon, 729 A.2d 555, 560 (Pa. 

1999); Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994) (citations omitted); Sewak v. Lockhart, 699 

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A.2d 755, 759 (Pa. Super. Ct. 1997). 3 

Dismissal of Plaintiff’s fraud claim is proper because 

Plaintiff failed to plead justifiable reliance with particularity. See In re: Suprema Specialties, 

Inc. Sec. Litig., 438 F.3d at 270; Bootay, 2010 WL 3632720, at *11; Fed. R. Civ. P. 9(b). 

1. Plaintiff has not properly pled reliance on the Website Q&A, the 

Cancellation Letter, or the May 2011 Drop Letter. 

With regard to the Website Q&A, Plaintiff’s sole allegations concerning the essential 

element of reliance is based on information and belief. Specifically, Plaintiff alleges that “[o]n 

information and belief, a further much larger number of audiologists obtained the CCC-A and 

never cancelled or failed to renew it, because they relied on the False Statements they saw on the 

Exhibit 4 Website.” Compl. 18; see id. 13 (“On information and belief, . . . the website’s 

false statements have been seen and relied upon by persons in the [Western] District.”). 

However, allegations regarding essential elements of fraud which are “based on information and 

belief are insufficient under Rule 9(b) where Plaintiff has failed to set forth specific facts upon 

which such belief is reasonably based.” Hollander v. Etymotic Research, Inc., 726 F. Supp. 2d 

543, 551 (E.D. Pa. 2010). There are no facts in the Complaint supporting Plaintiff’s blanket 

statement of reliance on the Website Q&A. See Compl. 1 – 20. Thus, Plaintiff’s allegation of 

reliance on the Website Q&A, based solely on information and belief, does not meet the 

heightened pleading standard of Rule 9(b). As a result, Plaintiff has failed to state a claim of 

fraud based on the Website Q&A. 

Similarly, Plaintiff asserts “on information and belief” that “letters have been received 

and relied upon by persons in the Western District of Pennsylvania.” Compl. 13. Just as with 

3 “[A]ll federal courts, when sitting in diversity cases and when deciding questions of 

‘substantive law,’ are bound by state court decisions as well as state statutes.” Marshal v. 

Lombardo, Civ. A. No. 06-215J, 2007 WL 1115227, at *1 (W.D. Pa. Apr. 13, 2007) (citation 

omitted). 

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Plaintiff’s allegations regarding the Website Q&A, this allegation is insufficient to establish 

reliance on any of the Letters. Accordingly, Plaintiff was required “to set forth specific facts 

upon which such belief is reasonably based.” Hollander, 726 F. Supp. 2d at 551. With regard to 

reliance on the Cancellation Letter, however, the only other allegation in the Complaint merely 

states that “[a]n unknown number of persons also decided not to cancel after they received the 

[cancellation] letter.” Compl. 18. Yet this allegation, based on conjecture and devoid of any 

specifics or concrete facts, is no better than one founded on information and belief. Thus, 

Plaintiff has failed “to interject [the] degree of precision and substantiation into the allegations” 

regarding reliance on the Cancellation Letter necessary to satisfy its pleading obligations under 

Rule 9(b). In re O.E.M./Erie, Inc., 405 B.R. at 788 (citation omitted). As a result, Plaintiff 

cannot state a claim for fraud based on the Cancellation Letter. 

Plaintiff has likewise failed to state a claim of fraud based on the May 2011 Drop Letter. 

There are no factual allegations in the Complaint from which the Court could plausibly conclude 

that any recipients of the May 2011 Drop Letter acted upon the statements in that letter to their 

injury. To the contrary, it appears from the Complaint that persons receiving the May 2011 Drop 

Letter had already made the decision, for whatever reasons, not to renew their CCC-A. See 

Compl. Ex. 3. There are no factual allegations in the Complaint from which it can be 

reasonably inferred that any of the recipients of the May 2011 Drop Letter changed their mind 

about the CCC-A following receipt of that letter. Indeed, the fact that statements similar to those 

contained in the May 2011 Drop Letter were included in the January 2011 Compliance Letter 

and that the earlier statements were apparently disregarded undermines Plaintiff’s conclusory 

allegation of reliance. See Compl. 14 and 17 (stating that the May 2011 Drop Letter was only 

sent to those persons that did not renew after receiving the January 2011 Compliance Letter). 

US2008 2812882.1 

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Further, despite attaching to the Complaint a copy of the May 2011 Drop Letter which was sent 

to Pamela Benbow, Plaintiff conspicuously fails to allege that Ms. Benbow renewed her CCC-A 

in reliance on the statements contained within the May 2011 Drop Letter. Plaintiff’s silence on 

this critical point could not be more telling. Because only those misrepresentations on which a 

person “rel[ies] . . . to their injury” are actionable, Plaintiff cannot not maintain a fraud claim 

based on the May 2011 Drop Letter. See Michelson, 629 F. Supp. at 424. 

US2008 2812882.1 

2. The Complaint does not allege that reliance on the Letters or the 

Website Q&A was justifiable. 

Even if reliance on the Website Q&A, the Cancellation Letter, and the May 2011 Drop 

Letter was properly pled, which it is not, there are no allegations in the Complaint from which 

the Court could reasonably infer that any reliance on the Letters or the Website Q&A was 

justifiable. In order to be justifiable, reliance on the statements of another must be reasonable. 

Porreco v. Porreco, 811 A.2d 566, 571 (Pa. 2002). In Pennsylvania, “[w]hether reliance on an 

alleged misrepresentation is justified depends on whether the recipient knew or should have 

known that the information supplied was false.” Id. 

The Complaint does not allege that the recipients of the Letters and the viewers of the 

Website Q&A were ignorant of the alleged falsity of the statements contained therein. Similarly, 

the recipients’ ignorance of the alleged falsity of the statements cannot reasonably be inferred 

from the Complaint. Indeed, the Complaint alleges that “[m]any employers no longer require 

their audiologists to hold the CCC-A,” that “[m]any audiologists do not find value in the 

CCC-A,” and that a “substantial number of such audiologists no longer hold the CCC-A.” 

Compl. 11. The logical inference from these facts is that audiologists know whether or not 

they need the CCC-A in order to provide clinical services or supervise others. Thus, the Court 

should not credit Plaintiff’s bald assertion of deception. See Steinberg, 2009 WL 1684663, at *5 

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(“[A] court need not credit bald assertions, unwarranted inferences, or legal conclusions cast in 

the form of factual averments.”) (citation omitted). Plaintiff has not alleged sufficient facts to 

“nudge[] [its] claim of [Fraud] across the line from conceivable to plausible.” Iqbal, 129 S. Ct. 

at 1950 – 51; Twombly, 550 U.S. at 570. 

US2008 2812882.1 

Indeed, the conceivableness of Plaintiff’s fraud claim is questionable, given that 

Plaintiff’s allegation of fraud is contrary to common sense. Plaintiff would have this Court 

believe that doctors of audiology, a licensed profession, are ignorant of the requirements of their 

profession. Plaintiff’s claim here that audiologists were somehow duped into believing that they 

needed the CCC-A to provide clinical services and supervise others is the equivalent of arguing 

that lawyers could be duped into believing, based solely on statements from the American Bar 

Association, that membership in the American Bar Association is required in order to practice or 

supervise others. Again the failure to plead reliance by the recipient of the January 2011 

Compliance Letter and May 2011 Drop Letter is telling. This ominous omission is further 

evidence that Plaintiff’s claim, like the lawyer analogy, is fanciful and contrary to common 

sense. Courts are not required to dispense with common sense when construing the allegations 

in a complaint. See Iqbal, 129 S. Ct. at 1950 (“Determining whether a complaint states a 

plausible claim for relief will . . . require[] the reviewing court to draw on its judicial experience 

and common sense.”). Plaintiff has not alleged a claim for fraud that is logical, let alone 

plausible; thus, the Complaint should be dismissed. 

B. Negligent Misrepresentation Cannot Be Inferred From the Face of the 

Complaint. 

In Pennsylvania, the tort of negligent misrepresentation requires proof of: “(1) a 

misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter 

ought to have known if its falsity; (3) with an intent to induce another to act on it; and, (4) which 

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results in injury to a party acting in justifiable reliance on the misrepresentation.” Bortz, 729 

A.2d at 561. In addition, like any other cause of action for negligence, negligent 

misrepresentation “requires allegations that establish the breach of a legally recognized duty or 

obligation that is causally connected to the damages suffered by the complainant.” Sharpe v. St. 

Luke's Hosp., 821 A.2d 1215, 1218 (Pa. 2003); Bortz, 729 A.2d at 561. 

As stated in Section II.A.2, supra, justifiable reliance on the Letters and the Website 

Q&A cannot be inferred from the allegations in the Complaint. 4 

While this shortcoming alone is 

fatal to Plaintiff’s claim for negligent misrepresentation, Plaintiff’s claim also suffers from 

another terminal defect. At no point in the Complaint does Plaintiff allege that ASHA owed any 

cognizable duty to any persons that received any of the Letters or that viewed the Website Q&A. 

See Compl. 1 – 20. Thus, Plaintiff has failed to plead an essential element of its claim for 

negligent misrepresentation. See Bortz, 729 A.2d at 561. Accordingly, Plaintiff’s negligent 

misrepresentation claim cannot withstand ASHA’s motion to dismiss. See Constitution Bank v. 

DiMarco, 155 B.R. 913, 920 (E.D. Pa. 1993) (granting a motion for judgment on the pleadings 

where there were no averments that the defendants owed a duty to provide accurate information 

to the plaintiff). 

4 There is a split among the judiciary of this District regarding whether the requirement of Rule 

9(b) of the Federal Rules of Civil Procedure that allegations of fraud and mistake be stated with 

“particularity” applies to claims for negligent misrepresentation. See Kester v. Zimmer Holdings, 

Inc., No. 2:10-cv-00523, 2010 WL 2696467, at *11 No. 9 (W.D. Pa. June 16, 2010) (approvingly 

stating that “[t]he the District Court for the Eastern District of Pennsylvania has noted that the 

‘particularity requirement of Rule 9(b) applies to claims of negligent misrepresentation’”); 

KeyBank Nat’l Ass’n v. Voyager Grp., LP, No. 09-1238, 2010 WL 441464, at *9 (W.D. Pa. Feb. 

4, 2010) (stating that claims of negligent misrepresentation are “not subject to the heightened 

pleading standard”). To the extent that this Court determines that Rule 9(b) should be applied to 

Plaintiff’s negligent misrepresentation claim, Plaintiff’s negligent misrepresentation claim also 

fails for the reasons stated in Section II.A.1, supra. 

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US2008 2812882.1


CONCLUSION 

For the foregoing reasons, ASHA respectfully requests that the Court grant its Motion to 

Dismiss Plaintiff’s Complaint. 

Respectfully submitted, this 3rd day of October, 2011. 

s/ Cindy D. Hanson 

Christina E. Fahmy 

PA 93384 

Kilpatrick Townsend & Stockton LLP 

Suite 900, 607 14th Street, NW 

Washington, DC 20005 

(202) 508-5800 

(202) 204-5610 (facsimile) 

CFahmy@kilpatricktownsend.com 

Cindy D. Hanson 

GA 323920 

Admitted Pro Hac Vice 

Yendelela Neely Anderson 

GA 424429 



1100 Peachtree Street, Suite 2800 

Atlanta, GA 30309 

(404) 815-6500 

(404) 541-3233 (facsimile) 

CHanson@kilpatricktownsend.com 

Yanderson@ kilpatricktownsend.com 

Counsel for Defendant 

US2008 2812882.1 

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that a true and correct copy of the foregoing 

MEMORANDUM OF LAW IN SUPPORT OF AMERICAN SPEECH-LANGUAGE- 

HEARING ASSOCIATION'S MOTION TO DISMISS has been filed with the U.S. District 

Court’s CM/ECF System and that pursuant thereto, a copy of this document has been served 

upon the following persons by electronic mail: 

Robert M. Gippin, Esq. 

Roderick Linton Belfance LLP 

1500 One Cascade Plaza 

Akron, OH 44308 

Samuel H. Foreman, Esq. 

Weber Gallagher Simpson Stapleton Fires & Newby LLP 

603 Stanwix Street, Suite 1450 

Two Gateway Center 

Pittsburgh, PA 15222 

This 3rd day of October, 2011. 


1100 Peachtree Street, Suite 2800 

Atlanta, GA 30309 

(404) 815-6500 

(404) 541-3233 (facsimile) 

CHanson@kilpatricktownsend.com 

s/Cindy D. Hanson 

GA 323920 


Counsel for Defendant 

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US2008 2812882.1

Memorandum of Law in Support of ASHA's Motion to Dismiss

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