Miller Stephanie 2017 04 10 TS Class Action Complaint Final

Miller v ARDMS-
US District Court- Northern Ohio
The suit alleges ARDMS falsely reported that sonography professionals who took certification
exams between September 2016 and March 2017 failed the tests when they had, in fact, passed,
and that those false reports harmed affected professionals in a number of ways.
Case: 1:17-cv-00763 Doc #: 1 Filed: 04/10/17 1 of 29. PageID #: 1
IN THE UNITED STATES DISTRICT COURT FOR

NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEPHANIE MILLER CASE NO.
PLAINTIFFS STEPHANIE MILLERS

and AND MARY ALYCE DAWSONS,
INDIVIDUALLY AND ON BEHALF OF
MARY ALYCE DAWSON ALL OTHERS SIMILARLY SITUATED,
CLASS ACTION COMPLAINT WITH
individually, and on behalf of all others JURY DEMAND ENDORSED

similarly situated, HEREON
Plaintiffs,
v.
INTELEOS, INC., an Ohio corporation,

f/k/a the AMERICAN REGISTRY OF
DIAGNOSTIC MEDICAL
SONOGRAPHY, INC.
1401 Rockville Pike, Suite 600
Rockville, Maryland 20852
Defendant.
Plaintiffs STEPHANIE MILLER and MARY ALYCE DAWSON (collectively
Plaintiffs), individually, and on behalf of all others similarly situated, by and
through counsel, and for their Class Action Complaint against Defendant
INTELEOS, INC., an Ohio corporation, f/k/a the AMERICAN REGISTRY OF
DIAGNOSTIC MEDICAL SONOGRAPHY, INC. (Defendant) state as follows:
1
INTRODUCTION
1. This case arises out of Defendants failure to properly administer and
score certification examinations of the American Registry of Diagnostic Medical
Sonography in the areas of ultrasound (the Exam). The Exam is widely used as a
means to test an individuals competency in the field of sonography, and Defendant
has administered the Exam to sonographers, including Plaintiffs, throughout the
United States. However, from September 6, 2016 to March 14, 2017 (the Class
Period), Defendant improperly scored individuals results of the Exam and
Defendant falsely reported that Plaintiffs and other sonographers failed the Exam
when, in fact, they had actually passed the Exam.
2. Plaintiffs bring this cause of action individually and on behalf of a
nationwide Class of similarly situated individuals who passed the Exam but for
whom Defendant reported an erroneous failing score.
3. As a result of Defendants conduct, Plaintiffs and Class members
suffered adverse actions regarding their employment and/or ability to practice
sonography, damage to their professional reputations, aggravation, and emotional
distress.
PARTIES, JURISDICTION, AND VENUE
4. Plaintiff STEPHANIE MILLER (Plaintiff Miller) is a natural person
residing in Ashtabula County, Ohio.
5. Plaintiff MARY ALYCE DAWSON (Plaintiff Dawson) is a natural
person residing in Lake County, Ohio.
2
6. Defendant INTELEOS, INC. is an Ohio corporation f/k/a the
AMERICAN REGISTRY OF DIAGNOSTIC MEDICAL SONOGRAPHY, INC., with
its principal place of business in Rockville, Maryland.
7. This Court has subject matter jurisdiction over this action under 28
U.S.C. 1332. Plaintiffs bring this Complaint on behalf of a nationwide class, and at
least one Class member is a citizen of a state different from Defendant. Upon
information and belief, the Class consists of hundreds of members, and the matter in
controversy exceeds $5,000,000.
8. Venue is proper in this District, pursuant to 28 U.S.C. 1391 because
Defendant is a citizen of the state of Ohio and is subject to the Courts personal
jurisdiction.
FACTUAL ALLEGATIONS
The Exam
9. Defendant touts that its credentials have been awarded to over 90,000
medical professionals worldwide and are recognized as the international standard in
sonography credentialing.1 ARDMS-awarded credentials include Registered
Diagnostic Medical Sonographer (RDMS), Registered Diagnostic Cardiac
Sonographer (RDCS), Registered Vascular Technologist (RVT), Registered
Musculoskeletal Sonographer (RMSKS), Registered Physician in Vascular
Interpretation (RPVI), and Registered in Musculoskeletal (RMSK) Sonography.
Defendant represents that its RVT credential has received formal endorsement from
1 http://www.ardms.org/Discover-ARDMS/about-us/Pages/About%20ARDMS.aspx
3
the Society of Vascular Technology, making ARDMS credential the premier
credential for vascular technologists.2
10. The Exam is designed to test an individuals competency in the field of
sonography. Medical facilities that employ sonographers rely on the fact that a
sonographer passed the Exam when considering the sonographer for employment,
promotion, or other merit-based benefit. Indeed, employers throughout the country
require and/or encourage sonographers to take and pass the Exam and obtain the
certification credential.
11. Defendant is in the business of administering and scoring the Exam
and, as such, Defendant is aware that an individual who fails the Exam may be
subjected to adverse actions regarding that individuals employment and/or ability to
practice sonography. Defendant is aware that an individual who fails the Exam may
also suffer aggravation, emotional distress, damage to his or her professional
reputation, and other similar injuries.
12. Defendant makes assurances to the public on its website that its cut-off
scores for passing or failing the Exam are derived fairly. Specifically, Defendant
represents that it uses a criterion-referenced method for scoring all examinations,
that it rel[ies] on a cut-off, or minimum, score that represents basic competency,
and that it spend[s] a great deal of time ensuring that the cut-off scores are derived
fairly. 3
2 http://www.ardms.org/Pages/Progress-through-time.aspx
3http://www.ardms.org/Discover-ARDMS/exam-development-scoring-and-
security/Pages/Notification-of-Results-and-Scoring.aspx
4
13. If an individual fails the Exam, Defendant does not allow that
individual to re-take the Exam for a minimum of sixty (60) days.
14. Defendant has a standardized online application process, which
Plaintiffs and Class members must use to apply to take the Exam. Plaintiffs and
Class members have no ability to negotiate any of the terms of the application
process required to take the Exam.
Facts Relevant to Plaintiffs
15. Plaintiffs practice as sonographers in the state of Ohio.
16. Plaintiffs employer required Plaintiffs to take and pass the Exam.
17. Plaintiff Dawson registered for the Exam using Defendants online
system. As part of her registration, Defendant required Plaintiff Dawson to pay a
$250 fee in order to sit for the Exam. Plaintiff Dawson paid the $250 fee to
Defendant.
18. In October 2016, Plaintiff Dawson took the Exam. Plaintiff Dawson
passed the Exam, but she received from Defendant an incorrect score falsely stating
that she failed the Exam. Plaintiff Dawson was prohibited by Defendant from re-
taking the Exam for a minimum of sixty (60) days.
19. Relying on Defendants erroneous scoring of her Exam results and
believing that she failed the Exam, Plaintiff Dawson registered to re-take the Exam
and paid another $250 fee to Defendant. Plaintiff Dawson spent additional time and
effort to study for the Exam again.
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20. In December 2016, Plaintiff Dawson took and passed the Exam again.
As Plaintiff Dawson had unknowingly already passed the Exam, she received no
benefit from re-taking the Exam.
21. Plaintiff Millers employer creates work schedules for Plaintiff Miller
and other sonographers on a monthly basis. Prior to April 2017, Plaintiff Millers
employer informed Plaintiff Miller that she would not be placed on the work
schedule for the month of April 2017 until she took and passed the Exam.
22. Plaintiff Miller registered for the Exam using Defendants online
system. As part of her registration, Defendant required Plaintiff Miller to pay a
$250 fee in order to sit for the Exam. Plaintiff Miller paid the $250 fee to Defendant.
23. In March 2017 (during the Class Period), Plaintiff Miller took the
Exam. Plaintiff Miller was instantaneously given her results. Plaintiff Miller
actually passed the Exam, but she received from Defendant an incorrect score falsely
stating that she failed the Exam. Plaintiff Miller was prohibited by Defendant from
re-taking the Exam for a minimum of sixty (60) days.
24. After Defendant falsely reported that Plaintiff Miller failed the Exam,
Plaintiff Miller relied on Defendants false report and informed her employer that
she failed the Exam.
25. Plaintiff Millers employer created the work schedule for the month of
April 2017 after Plaintiff Miller informed her employer that she failed the Exam.
Because her employer believed that she failed the Exam, Plaintiff Miller was not
scheduled to perform any work for the month of April 2017.
6
26. During the last week of March 2017, Defendant acknowledged that it
experienced a system-wide internal error in the calculation of Exam scores that
resulted in Defendant erroneously calculating and falsely reporting failing scores for
sonography professionals who took the Exam from September 6, 2016 until March
14, 2017.
Harm to Plaintiff and Class Members
27. From September 6, 2016 until March 14, 2017, Defendant continuously
falsely reported that Class members failed the Exam, even though they had actually
passed the Exam. Defendants conduct caused damage to Plaintiffs and Class
members.
28. Prior to being allowed to sit for the Exam, Plaintiffs and Class members
paid a $250 fee to Defendant in exchange for Defendants proper administration and
accurate scoring of the Exam. Plaintiffs and Class members suffered the loss of this
fee because they paid for an Exam that was improperly scored, and their Exam
results were inaccurately reported.
29. Indeed, because Plaintiff Dawson and other Class members falsely
believed that they had failed the Exam, they paid another $250 fee to Defendant in
order to re-take the Exam, even though they had already passed the Exam and
received no benefit from re-taking the Exam.
30. Plaintiffs and Class members were also subject to adverse actions
regarding their employment and/or ability to practice sonography. Plaintiffs and
Class members damages include, but are not limited to, lost wages, lost employment
7
opportunities, loss of certification to practice sonography, denial of certification to
practice sonography, termination from employment, inability to find employment in
the field of sonography, decrease in hours scheduled or worked, demotion, and
decrease in pay.
31. Plaintiffs and Class members also suffered damage to their professional
reputation because it was falsely reported to their employers and co-workers that
Plaintiffs and Class members failed the Exam. Plaintiffs and Class members were
required to pass the Exam to demonstrate their competency in the field of
sonography. Indeed, Defendant states that the score required to pass the Exam is
the minimum score that represents basic competency in the field.4 Because
Defendant falsely reported that they failed the Exam, Plaintiffs and Class members
were perceived by their employers and co-workers as lacking the requisite
knowledge, skill, and expertise to practice in their field.
32. Plaintiffs and Class members were also damaged because Defendants
false report that they failed the Exam caused Plaintiffs and Class members undue
aggravation and emotional distress. For example, after being told she failed the
Exam in October 2016, Plaintiff Dawson experienced anxiety, stress, and used her
vacation days to study for another Exam in December 2016, all of which negatively
impacted her personal relationships.
8
33. Additionally, Defendant required several Class members to pay a $35
fee for Defendant to re-score the results of their individual Exams.5 These Class
members were damaged because they had to pay an additional fee for Defendant to
re-score their erroneously reported failing scores.
CLASS ALLEGATIONS
34. Class Definition: Plaintiffs bring this action pursuant to Fed R. Civ. P.
23 on behalf of a nationwide class of similarly situated individuals (the Class),
defined as follows:
All individuals in the United States who took an American

Registry of Diagnostic Medical Sonography credentialing
examination from September 6, 2016 to March 14, 2017, and
who passed the examination but received an incorrect failing
score.
Excluded from the Class are: (1) Defendant, Defendants agents, subsidiaries,
parents, successors, predecessors, and any entity in which Defendant or its parents
have a controlling interest, and those entities current and former employees,
officers, and directors; (2) the Judge to whom this case is assigned and the Judges
immediate family; (3) any person who executes and files a timely request for
exclusion from the Class; (4) any persons who have had their claims in this matter
finally adjudicated and/or otherwise released; and (5) the legal representatives,
successors and assigns of any such excluded person.
35. Ohio Subclass Definition: Plaintiffs also bring this action pursuant to
Fed. R. Civ. P 23 on behalf of a subclass of similarly situated individuals (the Ohio
Subclass), defined as follows:
All individuals in the state of Ohio who took an American

Registry of Diagnostic Medical Sonography credentialing
examination from September 6, 2016 to March 14, 2017, and
9
who passed the examination but received an incorrect failing

score.
Excluded from the Ohio Subclass are: (1) Defendant, Defendants agents,
subsidiaries, parents, successors, predecessors, and any entity in which Defendant or
its parents have a controlling interest, and those entities current and former
employees, officers, and directors; (2) the Judge to whom this case is assigned and
the Judges immediate family; (3) any person who executes and files a timely request
for exclusion from the Ohio Subclass; (4) any persons who have had their claims in
this matter finally adjudicated and/or otherwise released; and (5) the legal
representatives, successors and assigns of any such excluded person.
36. Numerosity: The Class and Ohio Subclass are so numerous that joinder
of all individual plaintiffs would be impracticable. Defendant administers the Exam
to sonographers worldwide. Throughout the field of sonography, the Exam is
recognized as a standard to test an individual sonographers competency, knowledge,
and expertise. Medical care providers throughout the country require and/or
encourage sonographers to take and pass the Exam and obtain the certification
credential. Exams were conducted continuously throughout the Class Period. Upon
information and belief, the Class and Ohio Subclass consists of hundreds of
members, if not more.
37. The exact number of Class and Ohio Subclass members is presently
unknown but can be ascertained through Defendants own records. Upon
information and belief, Defendant has actual knowledge of the identities of all Class
and Ohio Subclass members.
38. Commonality and Predominance: All members of the Class and Ohio
Subclass have been subject to and affected by a uniform course of conduct:
specifically, Defendant falsely reported to all Class and Ohio Subclass members that
10
they failed the Exam when, in fact, they has actually passed the Exam. There are
questions of law and fact common to the proposed Class and Ohio Subclass that
predominate over any individual questions.
39. Typicality: Plaintiffs claims are typical of the claims of the proposed
Class and Ohio Subclass. All claims are based on the same legal and factual issues.
Plaintiffs paid a registration fee to Defendant and took the Exam in order to test
their knowledge and expertise in the field of sonography. Plaintiffs passed the
Exam, but Defendant falsely reported that Plaintiffs failed the exam. As a result of
Defendants inaccurate score and false report, Plaintiffs suffered financial damages,
adverse actions regarding their employment and/or ability to practice sonography,
damage to their professional reputations, aggravation, and emotional distress.
40. Adequacy of Representation: Plaintiffs will fairly and adequately
represent and protect the interests of the Class and Ohio Subclass. Plaintiffs have
retained counsel competent and experienced in complex class actions. Plaintiffs have
no interest antagonistic to those of other Class and Ohio Subclass members, and
Defendant has no defenses unique to Plaintiffs.
41. Superiority: A class action is superior to other available methods for the
fair and efficient adjudication of this controversy. The expense and burden of
individual litigation would make it impracticable or impossible for proposed Class
and Ohio Subclass members to prosecute their claims individually. The trial and the
litigation of Plaintiffs claims are manageable.
11
42. If individual Class and Ohio Subclass members prosecuted separate
actions it may create a risk of inconsistent or varying judgments that would
establish incompatible standards of conduct. A class action is the most appropriate
method for the quick and efficient adjudication of this controversy.
COUNT I
BREACH OF CONTRACT
(On behalf of Plaintiffs, the nationwide Class, and the Ohio Subclass)
43. Plaintiffs repeat and re-allege paragraphs 1-42 with the same force and
effect as though fully set forth herein.
44. Plaintiffs and Class members entered into a valid contract with
Defendant, in which Plaintiffs and Class members agreed to pay $250 to Defendant
in exchange for Defendant to properly administer the Exam and accurately score and
report Plaintiffs and Class members Exam results.
45. The contract between Defendant and Plaintiffs and Class members
satisfied the requirements of a valid contract. Through Defendants standardized
online application process, Defendant offered to properly administer the Exam and
accurately score and report Plaintiffs and Class members Exam results in exchange
for $250. Plaintiffs and Class members accepted Defendants offer by registering for
the Exam through Defendants online system. There was sufficient consideration
between the parties for Defendants proper administration and accurate scoring of
the Exam because Plaintiffs and Class members paid $250 to Defendant.
46. It was within the contemplation of the parties at the time of contracting
that Defendants failure to accurately score and report that Plaintiffs and Class
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members passed the Exam would subject Plaintiffs and Class members to adverse
actions regarding their employment and/or ability to practice sonography.
Defendant knew that sonographers, including Plaintiffs and Class members, may be
required to pass the Exam and obtain a certification credential as a condition of their
employment, promotion, or other condition that would affect their circumstances of
employment and/or ability to practice sonography. Defendant also knew that, if it
falsely reported that a sonographer failed the Exam when, in fact, that sonographer
actually passed the exam, the sonographer could be terminated from his or her
employment, be unable to find employment in the field of sonography, or suffer other
adverse consequences in his or her employment including, but not limited to, harm
to their professional reputation, the denial of a promotion, a decrease in hours
scheduled or worked, a demotion, or a decrease in pay.
47. It was further within the contemplation of the parties at the time of
contracting that, if an individual sonographer falsely believed that he or she failed
the Exam, the sonographer (1) may pay a $35 fee for Defendant to re-score the
results of the Exam, (2) would be prohibited from re-taking the Exam until 60 days
had passed, (3) may pay an additional $250 registration fee to re-take the Exam
after the 60 day waiting period, and (4) devote additional time and effort to
needlessly study for the Exam again.
48. Plaintiffs and Class members performed under the contract because
they paid the $250 Exam fee to Defendant.
13
49. Defendant breached its contractual obligation to Plaintiffs and Class
members because it failed to properly administer the Exam and failed to accurately
score Plaintiffs and Class members Exam results, and Defendant falsely reported
that Plaintiffs and Class members failed the Exam when, in fact, they had actually
passed the Exam.
50. As a result of Defendants breach of contract, Plaintiffs and Class
members suffered damages in the form of the loss of the $250 registration fee that
they paid to Defendant to properly administer the Exam and accurately score and
report their Exam results. Plaintiffs and Class members paid for a service that they
did not receive.
51. Plaintiffs and Class members also suffered incidental and consequential
damages as a result of Defendants breach of contract in the form of adverse actions
suffered by Plaintiffs and Class members regarding their employment and/or ability
to practice sonography, harm to their professional reputation, additional fees paid to
Defendant to re-score the results of the Exam and to re-take the Exam, additional
time and effort to study for the Exam again, aggravation, and emotional distress.
These incidental and consequential damages were reasonably foreseeable results of
Defendants failure to properly administer the Exam and accurately score and report
the Exam results at the time the Plaintiffs and Class members entered into their
contracts with Defendant.
52. Maryland has a unique interest in regulating Defendants breach of
contract.
14
53. Plaintiffs and Class members paid the $250 Exam fee by using
Defendants online system that, on information and belief, was created by or at the
direction of Defendants headquarters in the state of Maryland. When Plaintiffs and
Class members interacted with Defendants online system, they communicated with
Defendants headquarters in the state of Maryland. When Plaintiffs and Class
members paid the $250 registration fee, the fee was paid to Defendants
headquarters in the state of Maryland. Upon information and belief, Defendants
internal error in its administration and scoring of the Exam and its falsely reporting
the Exam results emanated from Defendants headquarters in the state of Maryland.
COUNT II
NEGLIGENCE
55. Defendant owed a duty of care to the plaintiffs to (1) reasonably monitor
whether its internal systems were operating correctly, (2) reasonably monitor its
internal systems for errors, (3) promptly correct errors in its internal systems, and
(4) ensure that its internal systems properly administered the Exam and accurately
scored and reported the Exam results.
56. Defendant breached its duty of care to Plaintiffs and Class members by
failing to reasonably monitor whether its internal systems were operating correctly,
failing to reasonably monitor its internal systems for errors, failing to promptly
correct errors in its internal systems, failing to ensure that its internal systems
15
properly administered the Exam and accurately scored and reported the Exam
results, and falsely reporting that Plaintiffs and Class members failed the Exam
when, in fact, they had actually passed the exam.
57. The foregoing failures and breaches of Defendants duties to Plaintiffs
and Class members were the direct and proximate result of Defendants negligent
conduct.
58. Upon information and belief, the foregoing failures and breaches of
Defendants duties to Plaintiffs and Class members occurred at and emanated from
Defendants headquarters in the state of Maryland.
59. As a direct and proximate result of Defendants negligent conduct,
Plaintiffs and Class members suffered damages because Defendant falsely reported
that they failed the Exam when, in fact, they actually passed the Exam. Plaintiffs
and Class members were damaged because they were subject to adverse actions
regarding their employment and/or ability to practice sonography. Plaintiffs and
Class members damages include, but are not limited to, lost wages, lost employment
opportunities, termination from employment, inability to find employment in the
field of sonography, decrease in hours scheduled or worked, demotion, and a decrease
in pay.
reputations because it was falsely reported to their employers and co-workers that
Plaintiffs and Class members failed the Exam. Because Defendant falsely reported
that they failed the Exam, Plaintiffs and Class members were perceived by their
16
employers and co-workers as lacking the requisite knowledge, skill, and expertise to
practice in their field.
aggravation and emotional distress, caused them to pay fees for Defendant to re-
score the Exam and to take the Exam again, and caused them to spend additional
time to needlessly study for the Exam again.
62. Plaintiffs and Class members would not have suffered the foregoing
damages if Defendant had not breached its foregoing duties that it owed to them.
63. It was foreseeable to Defendant that if it breached its foregoing duties
and falsely reported that Plaintiffs and Class members failed the Exam, it would
result in Plaintiffs and Class members sustaining the foregoing damages. Defendant
knew that the damages suffered by Plaintiffs and Class members were likely
outcomes of its foregoing breaches of its duties owed to Plaintiffs and Class
members.
64. The damages suffered by Plaintiffs and Class members are not solely
economic damages, as Plaintiffs and Class members also suffered non-economic
damages such as harm to their professional reputation and emotional distress.
COUNT III
VIOLATION OF THE MARYLAND CONSUMER PROTECTION ACT
MD Code, Commercial Law, 13-301, et seq.
(On behalf of Plaintiffs and the nationwide Class)
17
66. At all relevant times, there was in full force and effect the Maryland
Consumer Protection Act (MCPA), MD Code, Commercial Law, 13-301, et seq.
67. At all relevant times, Defendant was engaged in the business of
administering the Exam and scoring and reporting the Exam results.
68. To state a claim under the MCPA, the Plaintiffs must show: 1) an unfair
or deceptive trade practice or misrepresentation, 2) that was relied upon, and 3)
caused an injury. See Boardley v. Household Finance Corp. III, 39 F.Supp.3d 689,
713 (D. Md. 2014).
69. Unfair or deceptive trade practices are defined in 13-301. They
include: (1) a false or misleading oral or written statement that has the capacity,
tendency, or effect of deceiving or misleading consumers; (2) the failure to state a
material fact that deceives or tends to deceive; and (3) disparagement of the services
or business of another by a false or misleading representation of a material fact.
70. Even an innocent misrepresentation is actionable under the MCPA.
Luskins Inc. v. Consumer Protection Div., 353 Md. 335, 366 (Ct. App. 1999).
71. Plaintiffs and Class members are consumers under the MCPA.
72. Defendant knew, or should have known through reasonable due
diligence, of the errors in its internal systems that resulted in inaccurate scoring and
false reporting of Exam scores.
73. Defendant engaged in deceptive and unfair acts and practices by
concealing and failing to disclose to Plaintiffs and Class members that their Exam
scores could be incorrectly calculated and reported.
18
making material misrepresentations to consumers, including Plaintiffs and Class
members, on Defendants website wherein Defendant assured consumers that it
derives its cut-off scores for passing the Exam fairly when, in fact, Defendants
calculation of Plaintiffs and Class members Exam scores was erroneous.
making further misrepresentations when it falsely reported that Plaintiffs and Class
members failed the Exam, even though they had actually passed the Exam.
76. Plaintiffs and Class members reasonably relied upon Defendants
misrepresentations and omissions.
77. As a direct and proximate result of Defendants deceptive and unfair
acts and practices, Plaintiffs and Class members suffered damages because
Defendant falsely reported that they failed the Exam when, in fact, they actually
passed the Exam. Plaintiffs and Class members were damaged because they were
subject to adverse actions regarding their employment and/or ability to practice
sonography. Plaintiffs and Class members damages include, but are not limited to,
lost wages, lost employment opportunities, termination from employment, inability
to find employment in the field of sonography, decrease in hours scheduled or
worked, demotion, and a decrease in pay.
19
80. Upon information and belief, Defendants decision-making and its
misrepresentations and omissions to consumers, including Plaintiffs and Class
members, occurred at Defendants headquarters in the state of Maryland.
81. Upon information and belief, the error in Defendants internal systems
that caused Defendant to make the unfair and deceptive misrepresentations
emanated from Defendants headquarters in the state of Maryland.
COUNT IV
VIOLATION OF THE OHIO CONSUMER SALES PRACTICES ACT
R.C. 1345.01, et seq.
83. At all relevant times, there was in full force and effect the Ohio
Consumer Sales Practices Act (OCSPA), R.C. 1345.01, et seq.
20
85. The OSCPA directs the Ohio Attorney General to adopt, amend, and
repeal substantive rules defining with reasonable specificity acts or practices that
violate sections 1345.02, 1345.03, and 1345.031 of the Revised Code. R.C.
1345.05(B).
86. The Ohio Attorney General has issued a substantive rule which states
that it shall be a deceptive act or practice for any supplier to make the performance
of any repair or service contingent upon a consumers waiver of any rights provided
for in this rule. O.A.C. 109:4-3-05(D)(1).
87. Defendants online registration for the Exam required all applicants,
including the Plaintiffs, to accept and agree to the terms of the ARDMS Application
Agreement, which stated at paragraph 10 that you hereby agree to release and
exonerate, and shall indemnify and hold harmless, ARDMSfrom any and all
liability of every nature and kind growing out of any action or inaction by any
Indemnified Party pertaining to your application, eligibility, examination,
certification, or status.
88. The broad, sweeping release was unconscionable in that all applicants,
including the Plaintiffs and Class members, were required to consent to such
language as a condition of submitting an application, and the broad sweeping release
was deceptive in that it required the applicants, including the Plaintiffs and Class
members, to waive rights afforded to them under the OSCPA in violation of O.A.C.
109:4-3-05(D)(1).
21
89. The OCSPA prohibits a supplier from committing an unfair or deceptive
act or practice in connection with a consumer transaction. Wall v. Planet Ford, Inc.,
159 Ohio App.3d 840, 847 (2d Dist. 2005).
90. A consumer does not have to prove that the supplier intended to be
unfair or deceptive in order to recover under the OCSPA. Wall, 159 Ohio App.3d at
847.
91. The OSCPA applies extraterritorially when the business communicates
with non-Ohio Class members, either directly or indirectly, from Ohio. See Boundas
v. Abercrombie & Fitch Stores, Inc., 2011 WL 5903495, at *2 (N.D. Ill. 2011).
92. Defendant is a supplier, and Plaintiffs and Class members are
consumers under the OCSPA. Further, Defendants administration and scoring of
Plaintiffs and Class members Exams in exchange for a $250 fee is a consumer
transaction.
93. Defendant knew, or should have known through reasonable due
diligence, of the errors in its internal systems that resulted in inaccurate scoring and
false reporting of Exam scores.
concealing and failing to disclose to Plaintiffs and Class members that their Exam
scores could be incorrectly calculated and reported.
making material misrepresentations to consumers, including Plaintiffs and Class
members, on Defendants website wherein Defendant assured consumers that it
22
derives its cut-off scores for passing the Exam fairly when, in fact, Defendants
calculation of Plaintiffs and Class members Exam scores was erroneous.
making further misrepresentations when it falsely reported that Plaintiffs and Class
members failed the Exam, even though they had actually passed the Exam.
97. Defendants knew, or should have known, that the conduct alleged in the
preceding paragraphs violated one or more of the provisions of the OSCPA, and that
such conduct had been determined to be unfair, deceptive, and/or unconscionable by
the Ohio Attorney General, and one or more Ohio courts.
98. Plaintiffs and Class members reasonably relied upon Defendants
misrepresentations and omissions.
23
102. Defendant is an Ohio corporation. At all relevant times, the
aforementioned misrepresentations were communicated to Class members indirectly
from the state of Ohio.
COUNT V
VIOLATION OF THE OHIO DECEPTIVE TRADE PRACTICES ACT
R.C. 4165.01, et seq.
104. At all relevant times, there was in full force and effect the Ohio
Deceptive Trade Practices Act (ODTPA), R.C. 4165.01, et seq.
106. The ODTPA prohibits any person from engaging in a deceptive practice
in the course of business. See R.C. 4165.02. Under the ODTPA, it is expressly
24
prohibited for a supplier to: a) disparage services or business of another by false
representation of fact; or b) represent that goods or services are of a particular
standard, quality, or grade, if they are another. See id.
107. Defendant is a person, and Plaintiffs and Class members are
consumers under the ODTPA.
108. Defendant made a false representation of fact to consumers, including
Plaintiffs and Class members, on Defendants website wherein Defendant assured
consumers that it derives its cut-off scores for passing the Exam fairly when, in fact,
Defendants calculation of Plaintiffs and Class members Exam scores was
erroneous.
109. Defendant made further false representation of fact and disparaged the
professional reputation of Plaintiffs and Class members when it falsely reported that
they failed the Exam, even though they had actually passed the Exam.
110. Plaintiffs and Class members reasonably relied upon Defendants false
representations of fact.
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114. Defendant is an Ohio corporation. At all relevant times, the
aforementioned misrepresentations were communicated to Class members indirectly
from the state of Ohio.
COUNT VI
UNJUST ENRICHMENT
116. To recover under the theory of unjust enrichment, the plaintiff must
prove the following elements: (1) the plaintiff conferred a benefit on the defendant;
26
(2) the defendant had knowledge of the benefit; and (3) the defendant retained the
benefit under circumstances where it would be unjust for him to retain that benefit
without payment. Apostolos Grp., Inc. v. Josephson, 2002-Ohio-753 (citing
Hambleton v. R.G. Barry Corp. (1984), 12 Ohio St.3d 179, 183, 465 N.E.2d 1298)).
117. Plaintiffs and Class members were required to pay Defendant a $250
fee to take the Exam. Defendant also charged Plaintiff Dawson and other Class
members another $250 Exam fee to re-take the Exam because Defendant falsely
reported they did not pass the Exam the first time. Defendant also charged Class
members a $35 fee for Defendant to re-score the results of their individual Exams
after Defendant falsely reported that they failed the Exam.
118. These payments by Plaintiffs and Class members conferred benefits on
Defendant.
119. Defendant has knowledge that it received these benefits at the expense
of Class members.
120. Defendant has acquired and retained money belonging to Plaintiffs and
Class members as a result of its wrongful conduct.
121. Defendants retention of the benefit violates the fundamental principles
of justice, equity, and good conscience because Defendant knew or should have
known of the error in its internal systems. It is unjust for Defendant to retain these
payments made by Plaintiffs and Class members given Defendants improper
administration of the Exam and erroneous scoring and reporting of Exam results.
27
122. Under the principles of equity, Defendant should not be allowed to keep
the payments because Defendant has unjustly received them as a result of its actions
described herein.
123. Plaintiffs, individually and on behalf of the Class and Ohio Subclass,
seek restitution for Defendants unjust enrichment, as well as interest and attorneys
fees and costs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs STEPHANIE MILLER and MARY ALYCE
DAWSON, individually, and on behalf of the Class and the Ohio Subclass, pray for
an Order as follows:
A. Finding that this action satisfies the prerequisites for maintenance as a

class action and certifying the Class and/or the Ohio Subclass defined
herein;
B. Designating Plaintiffs as representatives of the Class and/or the Ohio

Subclass and their undersigned counsel as Class Counsel;
C. Entering judgment in favor of Plaintiffs and the Class and/or Ohio

Subclass, and against Defendant;
D. Enjoining Defendant from making false representations of fact

concerning the Exam and Exam results;
E. Awarding Plaintiffs, the Class, and/or the Ohio Subclass damages equal
to the amount of actual damages that they sustained, plus incidental
damages, consequential damages, treble damages, and punitive
damages;
F. Ordering disgorgement of the amount of money that was wrongfully

conferred on Defendant by Plaintiffs, the Class, and/or the Ohio
Subclass;
G. Awarding Plaintiffs, the Class, and/or the Ohio Subclass attorneys fees
and costs, including interest thereon, as allowed or required by law; and
28
H. Granting all such further and other relief as the Court deems just and
appropriate.
Respectfully Submitted,
/s/ Marc E. Dann

Marc E. Dann 0039425
William C. Behrens 0093031
The Dann Law Firm Co., LPA
P.O. Box. 6031040
Cleveland, Ohio 44103
(216) 373-0539
(216) 373-0536 fax
notices@dannlaw.com
/s/ Thomas A. Zimmerman, Jr.

Thomas A. Zimmerman, Jr.
Zimmerman Law Offices, PC
77 W. Washington Street, Suite 1220
Chicago, Illinois 60602
(312) 440-0020
(312) 440-4180 fax
tom@attorneyzim.com
(Pro Hac Vice to be applied for)

Attorneys for Plaintiffs and the Class
JURY DEMAND
Plaintiffs hereby request a trial by jury on all issues so triable.
/s/ Marc E. Dann

Marc E. Dann 0039425
William C. Behrens 0093031
29
Case: 1:17-cv-00763 Doc #: 1-1 Filed: 04/10/17 1 of 2. PageID #: 30
JS 44 (Rev. 08/16) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

Stephanie Miller, et. al. Inteleos, Inc., an Ohio Corporation fka the American Registry
of Diagnostic Medical Sonography, Inc.
(b) County of Residence of First Listed Plaintiff Ashtabula County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
PO Box 6031040, Cleveland, OH 44103
II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an X in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark 460 Deportation
Student Loans 340 Marine Injury Product 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 480 Consumer Credit
of Veterans Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) 490 Cable/Sat TV
160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 850 Securities/Commodities/
190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI Exchange
195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 890 Other Statutory Actions
196 Franchise Injury 385 Property Damage 751 Family and Medical 891 Agricultural Acts
362 Personal Injury - Product Liability Leave Act 893 Environmental Matters
Medical Malpractice 790 Other Labor Litigation 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS Act
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff 896 Arbitration
220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) 899 Administrative Procedure
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRSThird Party Act/Review or Appeal of
240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision
245 Tort Product Liability Accommodations 530 General 950 Constitutionality of
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION State Statutes
Employment Other: 462 Naturalization Application
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration
Other 550 Civil Rights Actions
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an X in One Box Only)
1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
28 USC 1332, ORC 1345, ORC 4165, MD Commercial Law 13-301
VI. CAUSE OF ACTION Brief description of cause:
Ohio CSPA, Deceptive Trades, Breach of Contract, Unjust Enrichment, Maryland CSPA
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
04/10/2017 /s/ Marc E. Dann
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
I. Civil Categories: (Please check one category only).
1. General Civil
2. Administrative Review/Social Security
3. Habeas Corpus Death Penalty
*If under Title 28, 2255, name the SENTENCING JUDGE:
CASE NUMBER:
II. RELATED OR REFILED CASES. See LR 3.1 which provides in pertinent part: "If an action is filed or removed to this Court
and assigned to a District Judge after which it is discontinued, dismissed or remanded to a State court, and
subsequently refiled, it shall be assigned to the same Judge who received the initial case assignment without regardfor
the place of holding court in which the case was refiled. Counsel or a party without counsel shall be responsible for
bringing such cases to the attention of the Court by responding to the questions included on the Civil Cover Sheet."
This action is RELATED to another PENDING civil case. This action is REFILED pursuant to LR 3.1.
If applicable, please indicate on page 1 in section VIII, the name of the Judge and case number.
III. In accordance with Local Civil Rule 3.8, actions involving counties in the Eastern Division shall be filed at any of the
divisional offices therein. Actions involving counties in the Western Division shall be filed at the Toledo office. For the
purpose of determining the proper division, and for statistical reasons, the following information is requested.
ANSWER ONE PARAGRAPH ONLY. ANSWER PARAGRAPHS 1 THRU 3 IN ORDER. UPON FINDING WHICH
PARAGRAPH APPLIES TO YOUR CASE, ANSWER IT AND STOP.
(1) Resident defendant. If the defendant resides in a county within this district, please set forth the name of such
county
COUNTY:
Corporation For the purpose of answering the above, a corporation is deemed to be a resident of that county in which
it has its principal place of business in that district.
(2) Non-Resident defendant. If no defendant is a resident of a county in this district, please set forth the county
wherein the cause of action arose or the event complained of occurred.
COUNTY:
(3) Other Cases. If no defendant is a resident of this district, or if the defendant is a corporation not having a principle
place of business within the district, and the cause of action arose or the event complained of occurred outside
this district, please set forth the county of the plaintiff's residence.
COUNTY:
Ashtabula
IV. The Counties in the Northern District of Ohio are divided into divisions as shown below. After the county is
determined in Section III, please check the appropriate division.
EASTERN DIVISION
AKRON (Counties: Carroll, Holmes, Portage, Stark, Summit, Tuscarawas and Wayne)
CLEVELAND (Counties: Ashland, Ashtabula, Crawford, Cuyahoga, Geauga, Lake,
Lorain, Medina and Richland)
YOUNGSTOWN (Counties: Columbiana, Mahoning and Trumbull)
WESTERN DIVISION
TOLEDO (Counties: Allen, Auglaize, Defiance, Erie, Fulton, Hancock, Hardin, Henry,
Huron, Lucas, Marion, Mercer, Ottawa, Paulding, Putnam, Sandusky, Seneca
VanWert, Williams, Wood and Wyandot)
AO 440 (Rev. 12/09) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
NorthernDistrict
__________ Districtofof__________
Ohio
Stephanie Miller, et. al.

)
)
Plaintiff
)
v. ) Civil Action No.
Inteleos, Inc. fka the American Registry of Diagnostic )
Medical Sonography, INc. )
Defendant
)
SUMMONS IN A CIVIL ACTION
To: (Defendants name and address)

Inteleos, Inc.
fka the American Registry of Diagnostic Medical Sonography, Inc.
1401 Rockville Pike, Suite #600
Rockville, MD 20852
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are:
Marc E. Dann
PO Box 6031040
Cleveland, OH 44103
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
SANDY OPACICH, CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 12/09) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)

was received by me on (date) .
I personally served the summons on the individual at (place)

on (date) ; or
I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individuals last known address; or
I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
I returned the summons unexecuted because ; or
Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:

Miller Stephanie 2017 04 10 TS Class Action Complaint Final

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Miller v ARDMS-

US District Court- Northern Ohio

IN THE UNITED STATES DISTRICT COURT FOR

STEPHANIE MILLER CASE NO.

PLAINTIFFS STEPHANIE MILLERS

individually, and on behalf of all others JURY DEMAND ENDORSED

INTELEOS, INC., an Ohio corporation,

Plaintiffs STEPHANIE MILLER and MARY ALYCE DAWSON (collectively

Plaintiffs), individually, and on behalf of all others similarly situated, by and

INTELEOS, INC., an Ohio corporation, f/k/a the AMERICAN REGISTRY OF

DIAGNOSTIC MEDICAL SONOGRAPHY, INC. (Defendant) state as follows:

1. This case arises out of Defendants failure to properly administer and

score certification examinations of the American Registry of Diagnostic Medical

means to test an individuals competency in the field of sonography, and Defendant

has administered the Exam to sonographers, including Plaintiffs, throughout the

Period), Defendant improperly scored individuals results of the Exam and

when, in fact, they had actually passed the Exam.

2. Plaintiffs bring this cause of action individually and on behalf of a

whom Defendant reported an erroneous failing score.

3. As a result of Defendants conduct, Plaintiffs and Class members

suffered adverse actions regarding their employment and/or ability to practice

sonography, damage to their professional reputations, aggravation, and emotional

PARTIES, JURISDICTION, AND VENUE

4. Plaintiff STEPHANIE MILLER (Plaintiff Miller) is a natural person

residing in Ashtabula County, Ohio.

5. Plaintiff MARY ALYCE DAWSON (Plaintiff Dawson) is a natural

person residing in Lake County, Ohio.

6. Defendant INTELEOS, INC. is an Ohio corporation f/k/a the

AMERICAN REGISTRY OF DIAGNOSTIC MEDICAL SONOGRAPHY, INC., with

its principal place of business in Rockville, Maryland.

controversy exceeds $5,000,000.

8. Venue is proper in this District, pursuant to 28 U.S.C. 1391 because

medical professionals worldwide and are recognized as the international standard in

sonography credentialing.1 ARDMS-awarded credentials include Registered

Diagnostic Medical Sonographer (RDMS), Registered Diagnostic Cardiac

Sonographer (RDCS), Registered Vascular Technologist (RVT), Registered

Musculoskeletal Sonographer (RMSKS), Registered Physician in Vascular

Interpretation (RPVI), and Registered in Musculoskeletal (RMSK) Sonography.

the Society of Vascular Technology, making ARDMS credential the premier

credential for vascular technologists.2

10. The Exam is designed to test an individuals competency in the field of

promotion, or other merit-based benefit. Indeed, employers throughout the country

11. Defendant is in the business of administering and scoring the Exam

subjected to adverse actions regarding that individuals employment and/or ability to

also suffer aggravation, emotional distress, damage to his or her professional

reputation, and other similar injuries.

represents that it uses a criterion-referenced method for scoring all examinations,

that it rel[ies] on a cut-off, or minimum, score that represents basic competency,

individual to re-take the Exam for a minimum of sixty (60) days.

14. Defendant has a standardized online application process, which

process required to take the Exam.

Facts Relevant to Plaintiffs

15. Plaintiffs practice as sonographers in the state of Ohio.

system. As part of her registration, Defendant required Plaintiff Dawson to pay a

taking the Exam for a minimum of sixty (60) days.

19. Relying on Defendants erroneous scoring of her Exam results and

effort to study for the Exam again.

benefit from re-taking the Exam.

system. As part of her registration, Defendant required Plaintiff Miller to pay a

re-taking the Exam for a minimum of sixty (60) days.

she failed the Exam.

scheduled to perform any work for the month of April 2017.

experienced a system-wide internal error in the calculation of Exam scores that

Harm to Plaintiff and Class Members