United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANT'S MOTION
TO DISMISS AND DENYING PLAINTIFF'S MOTION FOR PRELIMINARY
INJUNCTION AS MOOT
F. Cox United States District Judge.
December of 2016, Defendant International Hearing Society
held a training program on tinnitus care in Orlando, Florida.
Defendant's program description states that Defendant
will provide a “Tinnitus Care Provider
Certificate” to certain persons who complete the
program and pass an examination.
the program was actually held, Plaintiff Academy of Doctors
of Audiology brought this action against Defendant, asserting
false advertising claims under the Lanham Act and Michigan
common law, and a claim under the Michigan Consumer
Protection Act. The sole relief sought by Plaintiff is a
preliminary and permanent injunction barring Defendant from
issuing a certificate to some of the persons who attended
that program, specifically, hearing aid dealers.
pending before the Court are: 1) Plaintiff's Motion for
Preliminary Injunction; and 2) a Motion to Dismiss filed by
Defendant. Defendant's Motion to Dismiss challenges
Plaintiff's standing to bring this action and also
asserts that Plaintiff's Complaint fails to state a claim
under Fed.R.Civ.P. 12(b)(6). The motions have been fully
briefed by the parties. The Court finds that oral argument
would not aid the decisional process. See Local Rule
7.1(f)(2), U.S. District Court, Eastern District of Michigan.
The Court therefore orders that the motions will be decided
upon the briefs.
explained below, the Court shall GRANT Defendant's Motion
to Dismiss. Defendant's motion raises a facial attack to
standing - which challenges the sufficiency of the
allegations in the complaint. Plaintiff, as the party
invoking federal jurisdiction, bears the burden to
demonstrate standing and it must plead its components with
specificity. Plaintiff has failed to do so. First, Plaintiff
contends in its response brief that it has standing on its
own to bring this case, based upon a “diversion of
resources” theory. But there are no allegations in the
complaint to support that theory. Second, Plaintiff contends
that it has organizational or representative standing to
bring this action on behalf of its members. In order to have
such standing, Plaintiff's members must have standing
themselves. As explained below, ADA has failed to do so
because it has failed to sufficiently allege the
injury-in-fact component, and because it is not likely that
Plaintiff's members' claimed injury will be redressed
by the injunction sought here.
addition, although the Court need not reach of any
Defendant's 12(b)(6) challenges, the Court concludes that
Plaintiff's claims would also be properly dismissed as to
those challenges. For example, Plaintiff fails to state a
claim under Michigan's Consumer Protection Act because
the conduct at issue here does not involve consumer purchases
(purchases made primarily for personal, family, or household
purposes); instead it involves the issuance of a certificate
in connection with a business seminar. Plaintiff's
“contributory false advertising” claim under the
Lanham Act is subject to dismissal because the Sixth Circuit
has not recognized such a claim. Finally, Plaintiff's
false advertising claim under the Lanham Act fails for
October 28, 2016, Plaintiff Academy of Doctors of Audiology
(“Plaintiff” or “ADA”) filed this
action against Defendant International Hearing Society
(“Defendant” or “IHS”) in federal
court, based upon federal-question jurisdiction and diversity
jurisdiction. Plaintiff's Complaint asserts the following
claims: 1) “FIRST CLAIM (False Advertising - Lanham
Act);” 2) “SECOND CLAIM (Contributory False
Advertising - Lanham Act);” 3) “THIRD CLAIM
(Deceptive Trade Practices under M.C.L. §
445.903(1)(a)-(c));” and 4) “FOURTH CLAIM (Unfair
Competition under Michigan Common Law).”
Plaintiff's Complaint requests the following relief:
ADA requests the following relief against IHS:
A. Judgment granting preliminary and permanent injunctions
against IHS and all persons affiliated with it as set forth
in Fed. R. Civ. Proc. 65(d)(2)(A), (B) and (C), prohibiting
the issuance by IHS of a “Tinnitus Care Provider
Certificate” to Hearing Aid Dealers (persons licensed
under M.C. L. §§ 339.1301 et seq. or the comparable
statutes of other States);
B. ADA's costs, reasonable attorney fees and expenses of
C. Such other and further relief to which ADA may be found to
be entitled upon the evidence and law.
(D.E. No. 1 at Pg ID 16).
November 16, 2017, Plaintiff filed a Motion for Preliminary
Injunction. Thereafter, the Court brought the parties in for
a Status Conference on November 18, 2016. The parties
believed that they had reached an agreement that would
resolve the Motion for Preliminary Injunction and Plaintiff
then withdrew the motion on the record that day.
November 22, 2016, the Court issued a Scheduling Order in
this action that provides that discovery closes on May 18,
2017, and the deadline for filing motions is June 19, 2017.
December 15, 2016, Plaintiff's filed a Renewed Motion for
Preliminary Injunction. (D.E. No. 12). Defendant filed a
response to that motion (D.E. No. 14), and Plaintiff filed a
reply. (D.E. No. 16). Thus, the motion has been fully
December 20, 2016, Defendant filed a Motion to Dismiss. (D.E.
No. 13). Plaintiff filed a response to that motion (D.E. No.
15), and Defendant filed a Reply. (D.E. Nl. 17). Thus, this
motion has also been fully briefed.
Motion to Dismiss asks this Court to dismiss all of
Plaintiff's claims in this action. If the Court were to
grant that motion, then Plaintiff's Motion for
Preliminary Injunction would be moot. In addition, the motion
raises a standing challenge and if this Court determines that
Plaintiff lacks standing to bring this action, the Court
should not proceed any further and should dismiss the case.
As such, the Court considers this motion first.
Standard Applicable To Defendant's Motion To
motion challenges Plaintiff's standing to bring this
action and also asserts that Plaintiff fails to state a claim
upon which relief may be granted. Thus, Defendant brings the
instant Motion to Dismiss under Fed.R.Civ.P. 12(b)(1) and
is, of course, a threshold requirement for federal
jurisdiction. If a party does not have standing to bring an
action, then the court has no authority to hear the matter
and must dismiss the case.” Binno v. American Bar
Assoc., 826 F.3d 338, 344 (6th Cir. 2016). Thus, this
Court should “consider the 12(b)(1) motion first, since
the Rule 12(b)(6) challenge becomes moot if this court lacks
subject matter jurisdiction.” Wayside Church v. Van
Burden Cty., ___ F.3d ___, WL ___ at * ___ (6th Cir.
Feb. 10, 2017).
explained by the Sixth Circuit, subject-matter-jurisdiction
challenges under Fed.R.Civ.P. 12(b)(1) come in two varieties:
a facial attack and a factual attack. Id. (citations
omitted). A facial attack - like the one IHS makes in its
motion - “questions merely the sufficiency of the
pleading.” Id. (emphasis added). When
reviewing such a facial attack, a district court takes the
factual allegations in the complaint as true, just as in a
Rule 12(b)(6) motion. Id.
in reviewing IHS's challenge to standing, this Court
considers only ADA's complaint and its exhibits. Id.;
Binno, 826 F.3d at 344. ADA, as the party invoking
federal jurisdiction, bears the burden to demonstrate
standing and it must “plead its components with
ADA filed its Complaint on October 28, 2016. Plaintiff has
not sought leave to file an amended complaint, even after
Defendant's filed their Motion to Dismiss which
challenges the sufficiency of Plaintiff's Complaint.
health care is provided in the United States mainly by three
categories of persons, with different levels of training and
state-licensed scopes of practice: 1) Medical Doctors,
especially otolaryngologists, who specialize in diseases of
the ear; 2) Audiologists and 3) Hearing Aid Dealers, as they
are called in Michigan (in other states variously called
Hearing Instrument Specialists, Hearing Instrument
Dispensers, Hearing Instrument Dealers, Hearing Aid
Dispensers, or Hearing Aid Specialists, all here referred to
as “Dealers” regardless of state-specific
title).” (Compl. at ¶ 9).
Doctors are generally required to receive undergraduate and
medical school degrees and to complete internship and
residency. They have unlimited scopes of practice, including
the treatment of tinnitus.” (Id. at ¶
provide professional clinical services related to the
prevention of hearing loss and the audiologic identification,
assessment, diagnosis, and treatment of persons with
impairment of auditory and vestibular (balance) function, and
to the prevention of impairments associated with them. Their
licensed scopes of practice encompass those activities.
Audiologists assess and provide audiologic treatment for
persons with tinnitus using techniques that include, but are
not limited to, biofeedback, masking, hearing aids,
education, and counseling. (Source: American Academy of
Audiology.).” (Id. at ¶ 11).
entering the profession since 2007 have generally been
required for licensure in Michigan and the other States to
hold an undergraduate degree and the degree of Doctor of
Audiology (Au.D.), usually requiring four years of
postgraduate education, including a clinical externship.
Prior to the universal Au.D. entry-level requirement,
audiologists generally held an undergraduate degree and a
two-year Masters degree or a Ph.D. in Hearing Sciences. Some
audiologists continue to practice under pre-Au.D. licenses
and their associated academic degrees.” (Id.
at ¶ 12).
in Michigan (like Dealers in the other States through similar
statutes) are licensed pursuant to M.C.L. §§
339.1301 et seq., to engage in the sale or offering for sale
at retail of hearing aids. ‘Hearing aid' means an
instrument or device designed for regular and constant use in
or proximate to the human ear and represented as aiding or
improving defective human hearing. The ‘Practice of
selling or fitting a hearing aid' means the selection,
adaptation, and sale of a hearing aid and includes the
testing of hearing by means of an audiometer and other means
for the sale of a hearing aid. The practice also includes the
making of an impression for an ear mold.” (Id.
at ¶ 13).
Michigan, as is typical of other States, a Dealer may be
licensed if the Dealer is a graduate of an accredited high
school or secondary school, has served as a salesperson under
a licensed Dealer for two years and passes a written
examination. M.C.L. § 339.1305. (In a few States, a
two-year post-secondary degree is required, in other States
the requirements are even lower than in Michigan.)”
(Id. at ¶ 14).
“IHS is a Michigan non-profit corporation with its
principal place of business at 16880 Middlebelt Road Livonia,
Michigan 48154. There are approximately 3, 000 members of
IHS, in Michigan and throughout the United States. A very
large proportion of IHS members are Hearing Aid Dealers (as
designated in Michigan) and IHS seeks to further their
interests. IHS members provide services for the testing,
selection and fitting of hearing aids, as well as ongoing
follow-up care and counseling. Individuals who have met
the standards and requirements established by the current IHS
bylaws and Code of Ethics are designated by IHS as Hearing
Instrument Specialists®.” (Compl. at ¶ 2)
“ADA is a Pennsylvania non-profit corporation with its
principal place of business at 446 E. High St., Suite 10,
Lexington, Kentucky 40507. ADA is dedicated to the
advancement of audiology practitioner excellence, high
ethical standards, professional autonomy and sound
business practices in the provision of quality audiology
care. ADA has approximately 1, 500 members in Michigan
and throughout the United States. It brings this action
in its organizational capacity to further its objectives and
those of its members in connection with the treatment of
tinnitus, including those concerning high ethical
standards and the protection of the public.” (Compl. at
¶ 1) (emphasis added).
the Complaint does not include allegations as to the
professions or educational backgrounds of ADA's own
members (ie., it does not allege whether its members are
medical doctors, audiologists, Dealers, other audiology
practitioners, or all of the above). The Complaint alleges
that ADA's members have “objectives”
“in connection with the treatment of tinnitus.”
Unlike the allegations about IHS's members, the Complaint
lacks allegations as to what services ADA's members
provide to their patients (assuming they treat patients in a
practice setting) or whether they provide tinnitus care to
described on the website of the American Tinnitus Association
‘Tinnitus is the perception of sound when no actual
external noise is present. While it is commonly referred to
as “ringing in the ears, ” tinnitus can manifest
many different perceptions of sound, including buzzing,
hissing, whistling, swooshing, and clicking. In some rare
cases, tinnitus patients report hearing music. Tinnitus can
be both an acute (temporary) condition or a chronic (ongoing)
Millions of Americans experience tinnitus, often to a
debilitating degree, making it one of the most common health
conditions in the country. The U.S. Centers for Disease
Control estimates that nearly 15% of the general public -
over 50 million Americans - experience some form of tinnitus.
Roughly 20 million people struggle with burdensome chronic
tinnitus, while 2 million have extreme and debilitating
In general, there are two types of tinnitus:
Subjective Tinnitus: Head or ear noises that are perceivable
only to the specific patient. Subjective tinnitus is usually
traceable to auditory and neurological reactions to hearing
loss, but can also be caused by an array of other catalysts.
More than 99% of all tinnitus reported tinnitus cases are of
the subjective variety.
Objective Tinnitus: Head or ear noises that are audible to
other people, as well as the patient. These sounds are
usually produced by internal functions in the body's
circulatory (blood flow) and somatic (musculo-skeletal
movement) systems. Objective tinnitus is very rare,
representing less than 1% of total tinnitus cases.
There is currently no scientifically-validated cure for most
types of tinnitus. There are, however, treatment options that
can ease the perceived burden of tinnitus, allowing patients
to live more comfortable, productive lives.'
(Id. at ¶ 15).
of tinnitus is within the licensed scope of practice of
Medical Doctors and Audiologists in Michigan and every other
State. Treatment of tinnitus is not within the licensed scope
of practice of Dealers in Michigan and the other States,
except for North Carolina. N.C. G.S.A. § 93D-1.1.”
(Id. at ¶ 16).
of tinnitus is complex, currently lacks some areas of
research-backed effectiveness data and is evolving. Tinnitus,
in some cases, can be a symptom of a more serious medical or
surgical condition. There are significant risks to patients
in tinnitus treatment. See, Clinical Practice Guideline:
Tinnitus (American Academy of Otolaryngology, 2014),
attached as Exhibit 1. While the Guideline notes that case
management and evaluation may be provided by non-physicians
such as Audiologists, Guideline at S3, it
makes reference to Dealers limited only to potentially custom
fitting hearing aids, at S20.” (Id.
at ¶ 17).
Masking Devices' are potentially useful in the treatment
of tinnitus. As described by the ATA, “These are
devices or applications that provide generic background noise
- often white noise, pink noise, nature sounds or other
ambient, subtle sounds. The noise generated by sound machines
can partially or fully mask a patient's perception of
tinnitus, providing relaxation and temporary respite from the
condition.” Id. at ¶ 18).
aids may also potentially alleviate symptoms of tinnitus.
Further, as described by the ATA, “Many hearing aids
now come with integrated sound generation technology that
delivers white noise or customized sounds to the patient on
an ongoing basis. These devices combine the benefits of a
hearing aid with those of other sound therapies, and are
particularly well suited for tinnitus patients with
measurable hearing loss. Also, because of the portable nature
of these devices they can provide semi-continuous use and
more consistent benefit throughout the day.'”
(Id. at ¶ 19).
aids are regulated by the United States Food and Drug
Administration, 21 CFR Part 874. Sound masking devices
incorporated into hearing aids, or ‘Tinnitus Maskers,
' are likewise regulated by the FDA as a Class II
Prosthetic Device, 21 CFR § 874.3400. Tinnitus Maskers
may only be sold with patient labeling regarding
‘Hearing health care professional diagnosis, fitting of
the device and followup care, ' id., (1). A
Tinnitus Masker may only be sold on the prescription or order
of a practitioner licensed by the applicable State to order
such use. 21 CFR § 801.809. Thus, only Medical Doctors
and Audiologists may order such use, other than in North
Carolina, where Dealers may do so.” (Id. at
intends to offer a ‘Tinnitus Care Provider
Certificate' (‘the Certificate'), in
conjunction with a training program to be offered December
2-3, 2016, in Orlando, Florida (‘the Program'). The
Program is open to Dealers from every State. See, Program
description attached as Exhibit 2. While the description
advises participants to check what are permitted practices as
to tinnitus care under their state licensure, IHS intends to
issue the Certificate to Dealers who meet the experience
requirements and successfully complete the training, as shown
by passing an examination, regardless of whether they are
licensed to provide tinnitus care.” (Id. at
to Dealers licensed by Michigan and every other State except
North Carolina, the Certificate will falsely or misleadingly
convey to the public that the Dealer holding it is legally
permitted to provide tinnitus care. There is a
substantial risk that such Dealers will display and advertise
the Certificate to the public, resulting in members of the
public seeking tinnitus care from them and being provided
such care illegally.” (Id. at ¶ 22)
Program will not provide Dealers with sufficient knowledge
and skill to provide appropriate tinnitus care, given their
limited education, training and experience. For that reason,
the Certificate will falsely or misleadingly convey to the
public that the Dealer holding it is competent to provide
tinnitus care. There is a substantial risk that such Dealers
will display and advertise the Certificate to the public,
resulting in members of the public seeking tinnitus care from
them and receiving inadequate such care.” (Id.
at ¶ 23).
public will thus be harmed by the issuance of the Certificate
to Dealers. The members of ADA will be harmed by the
diversion of tinnitus care patients to Dealers holding the
Certificate. The organizational purpose of ADA to ensure the
provision of ethical and high quality hearing health care to
the public will be defeated.” (Id. at
¶ 24) (emphasis added).
Advertising Claim Under Lanham Act (Count I)
first claim is a false advertising claim under Section
43(a)(1)(B) of the Lanham Act, 15 U.S.C. §
1125(a)(1)(B). ADA alleges that the Certificate will falsely
or misleadingly communicate that a Dealer (other than one in
North Carolina) holding it: 1) is legally permitted to
provide tinnitus care; and 2) is competent to provide
tinnitus care. (Compl. at ¶¶ 26-27).
False Advertising Under Lanham Act (Count II)
second claim is a contributory false advertising claim under
the Lanham Act. ADA claims that the issuance of the
Certificate by IHS will induce Dealers (other than those in
North Carolina) who receive it to advertise falsely that: 1)
they are legally permitted to provide tinnitus care; and 2)
they are competent to provide tinnitus care. ADA claims that,
unless enjoined, IHS will issue the Certificate to Dealers
who are not legally or competently able to provide tinnitus
care, but who nevertheless are likely to display and
advertise the Certificate to the public to attract business.
ADA alleges that IHS will thereby “in connection with
goods or services, induce the use interstate commerce of
words, terms, names, symbols, devices, and combinations
thereof, false or misleading descriptions of fact, and false
or misleading representations of fact, which in commercial
advertising or ...