Full opinion text
OPINION DEBEVOISE, Senior District Judge. On February 3, 2010, Beverly Clark, Jesse J. Paul, and Marc H. Litwack (“Plaintiffs”) filed an amended putative class action complaint against Prudential Insurance Company of America (“Prudential”) alleging claims for fraudulent misrepresentation, fraudulent omissions, breach of the duty of good faith and fair dealing, violation of California’s Unfair Competition Law, and violation of the New Jersey Consumer Fraud Act. The motion is directed at the Plaintiffs’ individual claims for relief as they have yet to move for class certification. Prudential moves to dismiss all counts of the Third Amended Complaint (TAC) with the exception of Clark’s claim for breach of the implied covenant of good faith and fair dealing. For the reasons set forth below, Prudential’s motion to dismiss will be granted in part and denied in part. I. BACKGROUND A. Procedural History In the original Complaint, filed December 17, 2008, the two original plaintiffs, Clark and Paul, asserted three causes of action for: (1) violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. 56:8-1 et. seq, (“NJCFA”); (2) breach of fiduciary duty; and (3) breach of the duty of good faith and fair dealing. Prudential moved to dismiss the individual plaintiffs’ claims. In an Opinion and Order dated September 15, 2009, the Court granted the motion in part, and denied it in part. The Court dismissed Paul’s claims with prejudice, and dismissed Clark’s claims for consumer fraud and breach of fiduciary duty without prejudice. Clark’s claim for breach of the implied covenant of good faith and fair dealing was not dismissed. Clark v. Prudential Ins. Co. of Am., Civ. No. 08-6197, 2009 WL 2959801, 2009 U.S. Dist. LEXIS 84093 (D.N.J. Sept. 14, 2009). In its September 2009 Opinion, the Court applied New Jersey’s choice of law analysis and determined that Clark and Paul’s home states at the time they purchased their CHIP policies—California and Indiana, respectively—have the greatest interest in having their laws applied to the consumer fraud, breach of fiduciary duty, and breach of good faith and fair dealing claims. Id. at *15-16, 2009 U.S. Dist. LEXIS 84093 at *47. The Court found that under Indiana law, each of Paul’s claims was barred by the applicable statute of limitations. The Court dismissed Clark’s consumer fraud claim with leave to re-plead under the appropriate California law; dismissed Clark’s breach of fiduciary duty claim for failure to allege that the relationship between Clark and Prudential involved a fiduciary duty under California law; and found that Clark’s claim for breach of the duty of good faith and fair dealing stated a claim under California law. Id. Subsequently, on October 30, 2009, Clark filed an Amended Complaint, asserting claims for unfair competition and breach of the duty of good faith and fair dealing against Prudential under California law. Thereafter, the parties stipulated that Clark and Paul would file a Second Amended Complaint asserting additional claims for common law fraudulent misrepresentation and fraudulent omission. The Second Amended Complaint (SAC) was filed on November 12, 2009, and Prudential filed a motion to dismiss the SAC on December 3, 2009. After that motion was partially briefed, the parties stipulated that the Plaintiffs could file the TAC, adding Litwack as a new plaintiff. The parties agreed that the Court would address, during a single motion hearing, the issues raised in both the motion to dismiss the SAC and the motion to dismiss the TAC. For ease of reference, the Court will refer to the present motion as a motion to dismiss the TAC, as the TAC contains all of the relevant allegations. B. Allegations of the Complaint The TAC alleges five claims for relief: (1) fraudulent misrepresentation, on behalf of Clark, Litwack, and Paul; (2) fraudulent omissions, on behalf of Clark, Litwack, and Paul; (3) breach of the duty of good faith and fair dealing, on behalf of Clark and Litwack; (4) violation of California’s Unfair Competition Law (UCL), Cal. Bus. & Prof.Code § 17200, et seq., on behalf of Clark; and (5) violation of the NJCFA on behalf of Litwack. The following are the allegations of the TAC, which are, for the purpose of this motion only, accepted as true and construed in the light most favorable to the Plaintiffs. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). i. Prudential Prudential is, and at all relevant times was, a corporation organized and existing under the laws of the State of New Jersey with its principal place of business in Newark, New Jersey. (TAC ¶ 15.) Prior to 2001, Prudential was a mutual life insurance company. (Id. ¶ 16.) Prudential sold an individual health policy, known as the Comprehensive Health Insurance Policy (“CHIP”), to individuals throughout the United States from 1973 through 1981. (Id. ¶ 1.) CHIP is a major medical insurance policy designed to provide policyholders with coverage for medical expenses, including high or unexpected medical expenses. (Id. ¶2.) The risk of high medical expenses is managed by Prudential through the creation of a risk pool, where a large group shares the risk that certain policyholders will generate higher than expected claims. (Id.) Large premium increases are generally not necessary in a functioning risk pool because the premiums of healthy low-cost members subsidize the higher costs of less-healthy members. (Id.) Prudential developed, marketed, and sold CHIP in the District of Columbia and all 50 states of the United States. (Id. ¶ 18.) The CHIP stated the following regarding continuation or termination of the policy: You may continue this Policy in force for successive premium periods of one month each by payment of the premiums as specified in the following paragraphs. However, Prudential may refuse to continue this Policy as of any Policy Date anniversary, but only if Prudential is then refusing to continue all policies with the same provisions and premium rate basis in the jurisdiction where you reside. If Prudential takes this action you will be notified not less than 31 days before the Policy Date anniversary. (Id. ¶ 20.) ii. Prudential “Closes the Block” In 1981, Prudential ceased selling CHIP to new policyholders (it “closed the block”). (Id. ¶ 1.) Prudential did not disclose to its policyholders that it had closed the block. (Id.) The block closure prevented new policyholders from entering into the CHIP risk pool. (Id. ¶ 3.) New policyholders are generally healthier, and their premiums subsidize the premiums of less-healthy policyholders, who have higher rates of claims. (Id.) Prudential knew that the result of closing the CHIP block would be that the CHIP risk pool would face an “anti-selection crisis” where healthy policyholders who could secure coverage elsewhere terminated their CHIP. (Id.) With CHIP closed to new entrants, and an insufficient percentage of healthy policyholders remaining to subsidize the costs of unhealthy policyholders, Prudential knew the result would be what is called a “death spiral.” (Id.) In a death spiral, repeated cycles of higher premiums and a continually shrinking number of healthy policyholders cause premiums to eventually become so high that they force policyholders to drop their policies. (Id.) Prudential knew at the time it closed the block that the design features of the CHIP policy made a death spiral inevitable after the block was closed. (Id. ¶ 4.) For example, the CHIP policy lacked inside limits on specific policy benefits, which allowed very ill policyholders to incur massive claims. (Id. ¶ 25.) A lack of inside limits accentuates the dynamics of a death spiral. (Id.) Prudential had access to the relevant actuarial data related to the CHIP and the risk pool, and policyholders relied on Prudential’s actuarial expertise in managing the pool. (Id. ¶ 27.) Although Prudential knew that massive increases in premiums in the future were inevitable because it had closed the block, it concealed these facts from policyholders. (Id. ¶ 4.) Policyholders were informed when premiums increased, but they had no reason to know that the premium increases were a result of closing the block. (Id. ¶ 5.) Prudential made uniform written representations to policyholders about individual rate increases, but in such documents it never disclosed that the reason for the rate increase was that the CHIP block had closed or that such closure made extreme rate increases inevitable. (Id.) Prudential also did not disclose that, by the time the inevitable massive increases in the premiums forced them to drop their policies, the policyholders might be unable to secure comparable coverage for medical conditions that they developed later. (Id. ¶ 6.) Because Prudential failed to disclose that closing the CHIP block would inevitably result in unaffordable premiums, policyholders were unable to make an informed choice whether to renew CHIP or search for alternative health insurance. (Id. ¶ 7.) Expert information and actuarial knowledge concerning the existence and ramifications of the block closure was in the sole possession of Prudential and, because it was not disclosed, policyholders continued to renew their CHIP policies rather than look for alternative health insurance coverage. (Id. ¶ 28.) Plaintiffs allege that policyholders expected that they would not be forced to search for alternative health insurance because Prudential limited its right to discontinue the CHIP policy. (Id. ¶ 8.) The CHIP policy states that policyholders “may continue this Policy in force ... by payment of premiums,” and that Prudential retained the right to discontinue the policy “only if Prudential is then refusing to continue all policies with the same provisions and premium rate basis in the jurisdiction where [the policyholder] reside[s].” (Id.) At the time Paul purchased his CHIP policy in 1980, Prudential made written representations that, The premiums for your plan depend on the current costs of medical care and treatment. We continually review these costs and make adjustments in the premiums you pay so that they are kept current for the ages of those insured under your plan and the area in which you live. Medical care costs have been rising in recent years also. There is also a tendency for individual costs to increase with age. As a result, you may expect that there will be an increase in your premium each year on the anniversary date of your policy. We assure you that any increase will be held to the minimum possible that is consistent with our being able to continue providing this coverage. (Id. ¶ 21.) Clark, Litwack, and CHIP policy holders generally received substantially the same representations when they purchased the policy. (Id.) In communications with Clark, Prudential affirmatively misrepresented the reasons for the escalating premiums. (Id. ¶ 33.) When Prudential increased Clark’s rates in 1996, 1997, 1998, 1999, and 2000, it sent Clark a form letter stating that the reasons CHIP premiums were increasing was simply due to the general rising medical costs and her increasing age. (Id.) The form letters stated, in relevant part, Several factors have caused CHIP premiums to increase. Briefly, they are: Increase in Age You (and your dependent spouse if included under your policy) are a year older than last year. Claim experience indicates that the frequency and size of claims generally increases as one gets older. Increasing Cost of Medical Care The cost of medical care continues to rise at a rate greater than the general rate of inflation. New medical equipment and complex medical procedures have resulted in remarkable advances in medical care, but they are expensive. Your CHIP benefits automatically adjust to the higher levels of health care costs. (Id.) The Plaintiffs allege, on information and belief, that all CHIP policy holders received the same form letters. (Id.) ii. Ms. Clark In 1978, Clark, who is currently a resident of Vancouver, British Columbia, purchased CHIP from Prudential in San Die go, California, where she then resided. (Id. ¶ 12.) Clark also lived in Arizona for a period of time during which she had her CHIP. Her premium in 1982 was $149.66 per month (or $1,795.92 per year). (Id.) Prudential did not inform Clark that (1) it had closed the block for CHIP, (2) the closure would eventually force her policy into a death spiral, (3) her premiums were increasing because the block was closed, or (4) she might be unable to secure coverage for medical conditions she developed subsequent to the closure of the block if she were forced to terminate her CHIP due to high premiums. (Id.) From 2002 to 2004, Clark’s premiums increased from $1,458.71 per month to $4,217.65 per month (or from $17,504.52 to $50,611.80 per year). (Id. ¶5.) In September 2005, Prudential notified Clark that her premium was scheduled to increase to $5,699 per month (or $63,388 per year). (Id. ¶ 36.) Clark then stopped making her payments and Prudential terminated her policy on September 12, 2005. (Id.) In response to correspondence with an attorney representing Clark and an inquiry from the California Department of Insurance, Prudential continued to state that Clark’s CHIP premiums were rising because of her increasing age and the higher medical costs of the insured group. (Id. ¶ 37.) The TAG alleges that had Prudential disclosed the block closure and its implications, she would have discontinued her policy and purchased less expensive alternative insurance. (Id. ¶ 38.) iv. Mr. Paul In 1980, Paul, who was then and is currently a resident of Indiana, purchased CHIP from Prudential. His initial premium was $25.50 per month (or $306 per year). (Id. ¶ 13.) Prudential did not inform him that (1) its closure of the block would make his policy vulnerable to an inevitable death spiral, (2) his premiums were increasing because the block was closed, or (3) he might be unable to secure coverage for medical conditions he developed subsequent to the closure of the block if he were forced to terminate his CHIP due to high premiums. (Id.) From 2002 to 2006, Paul’s premiums increased from $715.99 per month to $3,057.45 per month (or from $8,591.88 to $36,689.40 per year). (Id. ¶ 40.) In 2007, Prudential notified Paul that his premium was scheduled to increase to $4,284.11 per month (or $51,409.32 per year). (Id. ¶ 41.) Shortly after this increase, Paul stopped making payments and his policy was terminated. (Id.) Even after Paul initiated an investigation in 2003, Prudential stated, in response to an inquiry from the Indiana Department of Insurance, that his premium increases were due to his increasing age and the higher medical costs of the insured group. (Id. ¶ 42.) If Paul had been informed about the block closure and its implications, he would have discontinued his CHIP policy and purchased less expensive alternative insurance. (Id. ¶ 43.) v. Mr. Litwack In 1979, Litwack, who was then and is currently a resident of New Jersey, purchased CHIP from Prudential. (Id. ¶ 14.) After Litwack increased his deductible to $300, his premium in 1984 was $77.48 a month (or $929.76 a year). (Id.) Prudential did not inform him that (1) its closure of the block would make his policy vulnerable to an inevitable death spiral, (2) his premiums were increasing because the block was closed, or (3) he might be unable to secure coverage for medical conditions he developed subsequent to the closure of the block if he were forced to terminate his CHIP due to high premiums. (Id.) From 2007 to 2009, Litwack’s premium increased from $1,353.49 to $2,068.68 per month (or from $16,241.88 to 24,824.16 per year). In 2009, Litwack increased his deductible from $300 to $5,000 in order to reduce his monthly premiums. The higher deductible reduced his 2009 premium to $1,327.67 per month (or $15,932.04 per year). In 2010, Prudential again raised his monthly premium to $1,682.67 (or $20,192.04 per year). (Id. ¶ 45.) If Prudential had disclosed the block closure and its implications, Litwack would have discontinued his CHIP policy and purchased less expensive alternative insurance. (Id. ¶ 43.) B. Relief Sought The Plaintiffs seek to maintain this action as a class action, though they have not yet moved for certification of the class. They also seek (1) compensatory damages; (2) punitive or exemplary damages; (3) a permanent injunction against Prudential enjoining it from engaging in the practices alleged in the TAC; (4) a refund of all moneys acquired from Litwack and the putative New Jersey subclass by means of the unlawful practices; (5) a restoration of all money or property acquired by Prudential by means of unfair competition; (6) trebling of damages under the NJCFA; (7) declaratory relief; (8) trebling of damages under the California Civil Code § 3345; and (9) reasonable attorneys’ fees and costs. II. DISCUSSION The TAC states claims for (1) fraudulent misrepresentation, on behalf of Clark, Litwack, and Paul; (2) fraudulent omissions, on behalf of Clark, Litwack, and Paul; (3) breach of the duty of good faith and fair dealing, on behalf of Clark and Litwack; (4) violation of the UCL on behalf of Clark; and (5) for violation of the NJCFA on behalf of Litwack. Prudential argues that the common law fraud claims for each of the Plaintiffs are deficient. Specifically, Prudential asserts that (1) Clark’s common law fraud claims should be dismissed for failure to properly plead a misrepresentation, omission or causation, and because they are barred by the relevant statute of limitations; (2) Paul’s common law fraud claims fail to properly plead injury, a duty to disclose, a material misrepresentation, or causation; and (3) Litwack’s common law fraud claims fail to properly plead a material omission or misrepresentation. Additionally, Prudential argues that Clark’s claims under the UCL should fail (1) as barred by the statute of limitations; (2) because she is ineligible for the equitable relief available under the UCL; and (3) for failure to state a claim. Moreover, if the Court does decide to allow Clark’s UCL claim to proceed, she should be barred from collecting treble damages. Prudential also asserts that Clark’s claim under the UCL is not subject to the treble damages under California Civil Code § 3345. Prudential asserts that Litwack’s claims are all barred by the filed rate doctrine. In the alternative, Litwack’s claim for breach of the implied covenant of good faith and fair dealing fails to state a claim, and his claim under the NJCFA fails to plead ascertainable loss or unlawful conduct. A. Standard of Review Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint for failure to state a claim upon which relief can be granted. When considering a motion under Rule 12(b)(6), the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). The Court’s inquiry “is not whether plaintiffs will ultimately prevail in a trial on the merits, but whether they should be afforded an opportunity to offer evidence in support of their claims.” In re Rockefeller Ctr. Prop., Inc., 311 F.3d 198, 215 (3d Cir.2002). The Supreme Court recently clarified the standard for a motion to dismiss under Rule 12(b)(6) in two cases: Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The decisions in those cases abrogated the rule established in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim, which would entitle him to relief.” In contrast, the Court in Bell Atlantic held that “[fjactual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 545, 127 S.Ct. 1955. The assertions in the complaint must be enough to “state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. The plausibility standard requires that the facts alleged “allow [] the court to draw the reasonable inference that the defendant is liable for the conduct alleged” and demands “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949; see also, Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir.2008) (in order to survive a motion to dismiss, the factual allegations in a complaint must “raise a reasonable expectation that discovery will reveal evidence of the necessary element,” thereby justifying the advancement of “the case beyond the pleadings to the next stage of litigation.”). When assessing the sufficiency of a complaint, the Court must distinguish factual contentions—which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted—from “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 129 S.Ct. at 1949. Although for the purposes of a motion to dismiss the Court must assume the veracity of the facts asserted in the complaint, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 1950. Thus, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. B. Litwack’s Claims and the Filed Rate Doctrine The Court will begin by addressing the filed rate doctrine since Prudential asserts that it should bar all of Litwack’s claims, including his asserted causes of action under the NJCFA, and his common law claims for fraudulent misrepresentation, fraudulent omission, and breach of the duty of good faith and fair dealing. Prudential asserts that the filed rate doctrine bars claims seeking monetary damages or refunds that either directly or effectively would result in the policyholder paying less than the approved rate. Litwaek argues that the filed rate doctrine does not bar his claims since this suit challenges communications to policyholders, rather than the calculation or approval of CHIP premium rates. Generally, the filed rate doctrine provides that a rate filed with and approved by a governing regulatory agency is unassailable in judicial proceedings brought by ratepayers. Alston v. Countrywide Fin. Corp., 585 F.3d 753, 763 (3d Cir.2009). The doctrine has developed as federal common law, which allows the Court to “fill in the interstices of the doctrine by drawing on state law.” In re Pa. Title Ins. Antitrust Litig., 648 F.Supp.2d 663, 673 (E.D.Pa.2009) (citing Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 97-98, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991)). The Court will focus principally on New Jersey law for guidance because this case involves the doctrine’s application to a New Jersey regulatory agency’s rate-making with regards to the CHIP policy. See id. Prudential asserts that New Jersey jurisprudence and the relevant statutes governing the regulation of health insurance in the State of New Jersey require application of the filed rate doctrine to bar Litwack’s claims. When a federal court applies state substantive law, it should apply the law as decided by the highest court of the state whose law governs the action. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1373 (3d Cir.1996). When a state’s highest court has not addressed the precise question before the court, a federal court must predict how the state’s highest court would resolve the issue. Borman v. Raymark Indus., Inc., 960 F.2d 327, 331 (3d Cir.1992). Although not dispositive, decisions of state intermediate appellate courts should be accorded significant weight in the absence of an indication that the highest state court would rule otherwise. Rolick v. Collins Pine Co., 925 F.2d 661, 664 (3d Cir.1991), cert. denied, 507 U.S. 973, 113 S.Ct. 1417, 122 L.Ed.2d 787 (1993). The filed rate doctrine provides that a rate filed with and approved by a governing regulatory agency is unassailable in judicial proceedings brought by ratepayers. Alston v. Countrywide Fin. Corp., 585 F.3d 753, 763 (3d Cir.2009) (citing Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir.1994)). The doctrine is considered to have originated in Keogh v. Chicago & Northwestern Railway Co., 260 U.S. 156, 161-65, 43 S.Ct. 47, 67 L.Ed. 183 (1922), in which the Supreme Court of the United States determined that the Interstate Commerce Commission’s approval of freight rates submitted by the defendants precluded a private antitrust action seeking damages on the basis of those rates. The filed rate doctrine’s application is only necessary when one of its core purposes is implicated. Smith v. SBC Communications, Inc., 178 N.J. 265, 275, 839 A.2d 850 (2004) (citing AT & T v. Central Office Tel., Inc., 524 U.S. 214, 223, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998)). The two core policy goals of the doctrine are (1) the non-discrimination strand, or the prevention of price discrimination by carriers as among ratepayers; and (2) the non-justiciability strand, or the preservation of the role of regulatory agencies in approving reasonable rates and the exclusion of the courts from the rate-making process. Fax Telecomms., Inc. v. AT & T, 138 F.3d 479, 489 (2d Cir.1998); H.J., Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 488 (8th Cir.1992). The non-discrimination strand is premised in part on the concept that awarding damages to plaintiffs while leaving less litigious customers paying the filed rates would be discriminatory. See Goldwasser v. Ameritech Corp., 222 F.3d 390, 402 (7th Cir.2000). The non-justiciability strand reflects the courts’ general reluctance to substitute their judgment for the judgment of the regulatory agency vested with primary authority to make such decisions and the courts’ limited ability to determine the reasonableness of rates. See AT &T v. JMC Telecom. LLC, 470 F.3d 525, 535 (3d Cir.2006). Thus, part of the “focus for determining whether the filed rate doctrine applies is the impact the court’s decision will have on agency procedures and rate determinations.” H.J., Inc., 954 F.2d at 489; JMC Telecom, 470 F.3d at 535 (dismissing negligent misrepresentation claim because “to rule otherwise would force the courts to determine what the reasonable rate would be in order to assess damages.”). Where applicable, the doctrine prevents a customer from enforcing contract or tort rights that contradict the tariff. JMC Telecom, 470 F.3d at 532 (citing Central Office, 524 U.S. at 226, 118 S.Ct. 1956). The effect of the doctrine is that “[rjegardless of the carrier’s motive— whether it seeks to benefit or harm a particular customer—the policy of nondiscriminatory rates is violated when similarly situated customers pay different rates for the same services.” Central Office, 524 U.S. at 223, 118 S.Ct. 1956 (citing MCI Telecomms. Corp. v. AT & T, 512 U.S. 218, 229, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994)). “Thus, even if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate if it conflicts with the published tariff.” Central Office, 524 U.S. at 222, 118 S.Ct. 1956 (citing Kansas City S.R. Co. v. Carl, 227 U.S. 639, 653, 33 S.Ct. 391, 57 L.Ed. 683 (1913)); see also Weinberg v. Sprint Corp., 173 N.J. 233, 243, 801 A.2d 281 (2002) (“[T]he filed rate doctrine bars money damages ... where the damage claims are premised on state contract principles, consumer fraud, or other basis on which plaintiffs seek to enforce a rate other than the filed rate.”); Richardson v. Standard Guar. Ins. Co., 371 N.J.Super. 449, 470, 853 A.2d 955 (App.Div.2004) (“[T]he doctrine precludes a claim for damages which would indirectly cause the application of rates different from the filed rates.”) Accordingly, there is no fraud exception to the filed rate doctrine. JMC Telecom, 470 F.3d at 535. Where fraud is present, the courts have left enforcement to the regulators, who are best situated to discover when regulated entities engage in fraud and to remedy fraud when it arises. Wegoland, 27 F.3d at 21. Additionally, fraud may be difficult to prove because under the doctrine, “[a]ll customers are conclusively presumed to have constructive knowledge of the filed tariff under which they receive service.” Fax Telecomms., 138 F.3d at 489. In short, a filed tariff is said to “conclusively and exclusively enumerate the rights and liabilities of the contracting parties.” Marcus v. AT & T, 138 F.3d 46, 56 (2d Cir.1998). The doctrine bars a plaintiff “from seeking relief, whether equitable or legal, for having been misled by unconscionable sales practices which caused [a] plaintiff to enter into a contract consistent with the filed rate.” Richardson, 371 N.J.Super. at 470, 853 A.2d 955. “Although the filed rate doctrine produces harsh results ... such equitable concerns have been rejected by the Supreme Court.” JMC Telecom, 470 F.3d at 533 n. 11 (citing Central Office, 524 U.S. at 223, 118 S.Ct. 1956; Maislin Indus. v. Primary Steel, Inc., 497 U.S. 116, 128, 110 S.Ct. 2759, 111 L.Ed.2d 94(1990)). As a preliminary matter, the Court will explore the development of the filed rate doctrine in New Jersey with respect to two issues; first, the application of the doctrine to state (as well as federal) rate-making, and second, the doctrine’s relevance in the context of insurance regulation. The Appellate Division of the Superior Court of New Jersey reasoned in a recent opinion that the filed rate doctrine should apply to state as well as federal rate-making. Richardson, 371 N.J.Super. at 462, 853 A.2d 955. The Appellate Division cited cases from various federal courts of appeals in support of this finding. See id. (citing Wegoland, Ltd. v. NYNEX Corp., 27 F.3d 17, 20 (2d Cir.1994); Taffet v. Southern Co., 967 F.2d 1483, 1494 (11th Cir.1992), cert. denied, 506 U.S. 1021, 113 S.Ct. 657, 121 L.Ed.2d 583 (1992); H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 488 (8th Cir.1992), cert. denied, 504 U.S. 957, 112 S.Ct. 2306, 119 L.Ed.2d 228 (1992)). Accordingly, the Court finds that the filed rate doctrine may be applied to rate-making by a New Jersey regulatory agency. Second, although the filed rate doctrine traditionally applied to public utilities and common carriers, the Appellate Division has held that it also applies to insurance regulation. Richardson, 371 N.J.Super. at 463, 853 A.2d 955. The plaintiff in Richardson alleged that the sales practices of three insurance companies and a credit card company fraudulently induced her to purchase various insurance policies, including credit interruption of income insurance, combined credit life and credit disability insurance, and credit family leave insurance. Id. at 458-59, 853 A.2d 955. In determining that the filed rate doctrine should apply to insurance rate-making, the Appellate Division found that (1) many other jurisdictions had applied the doctrine to insurance industry rate-making; (2) the insurance industry in New Jersey is heavily regulated; and (3) the statutory framework governing rate-making for credit insurance in New Jersey is meaningful and extensive. Although the Court has not found any instance of a New Jersey court applying the filed rate doctrine to rate-making in the health insurance context, the Court has found a group of state and federal courts that have applied the filed rate doctrine to state regulation of health insurance. See Roussin v. AARP, 664 F.Supp.2d 412 (S.D.N.Y.2009), aff'd by 379 Fed.Appx. 30 (2d Cir.2010) (applying filed rate doctrine to bar claim for breach of fiduciary duty challenging a fee charged under a health insurance plan); Fersco v. Empire Blue Cross & Blue Shield, 1994 WL 445730, 1994 U.S. Dist. LEXIS 11479 (S.D.N.Y. Aug. 17, 1994) (dismissing as barred by the filed rate doctrine claims that the health insurance company had defrauded its insured by filing inaccurate financial reports to obtain excessive rate increase); In re Empire Blue Cross & Blue Shield Customer Litig., 164 Misc.2d 350, 622 N.Y.S.2d 843 (N.Y.Sup.Ct.1994), aff'd sub nom., Minihane v. Weissman, 226 A.D.2d 152, 640 N.Y.S.2d 102 (N.Y.App.Div.1996) (dismissing claims for breach of contract and fraud as barred by filed rate doctrine when health insurance company obtained excessive rate increases by filing inaccurate reports); Commonwealth ex rel. Chandler v. Anthem Ins. Cos., 8 S.W.3d 48 (Ky.Ct.App. Apr.30, 1999) (dismissing claims that a health insurer engaged in a scheme to fraudulently inflate premium rates based on filed rate doctrine); but see In re Managed Care Litig., 150 F.Supp.2d 1330 (S.D.Fla.2001) (declining to apply the filed rate doctrine to a claim that managed care insurers misrepresented the quality and extent of plaintiffs’ managed health care coverage). It appears to be appropriate to apply the filed rate doctrine in this context. Prudential argues that Litwack’s claims should be barred by the filed rate doctrine because (1) his premium rates (including a disclosure of the block closure) were submitted and approved by the New Jersey Department of Banking and Insurance (DOBI), the state agency authorized by New Jersey law to regulate insurance rates; and (2) his claims seek monetary relief which would impermissibly require the Court to determine what the reasonable rate would be in order to assess damages. In support of its argument, Prudential refers the Court to the New Jersey statute governing DOBI’s regulation of health insurance policies like the one at issue here. Pursuant to N.J. Stat. Ann. § 17B:26-l(a), (g), health insurance policies to be issued in the State of New Jersey must be filed with a DOBI commissioner. The form filing must include details about premium rates and classification of risks. The Commissioner may disapprove any filed policy if: (1) the benefits are unreasonable in relation to the premium charged, or (2) such form contains provisions which are unjust, unfair, inequitable, misleading, contrary to law or to the public policy of [the State of New Jersey], or (3) the policy is sold in such a manner as to mislead the insured, or (4) insurance under such policy is being solicited by means of advertising, communication, or dissemination of information which involves misleading or inadequate description of the provisions of the policy, specifying particulars. N.J. Stat. Ann. § 17B:26-l(h). Litwack counters that the filed rate doctrine does not apply because (1) his claims do not require the Court to second-guess any agency’s determination about the reasonableness of the CHIP premium rates because rather than challenge the rates he was charged, Litwack is asserting that Prudential’s misrepresentations and omissions regarding the death spiral impeded his ability to make an informed decision about whether to renew the policy or search for a different one; (2) the disclosure of the existence or non-existence of a death spiral to New Jersey consumers is not specifically regulated, so a decision in this case will not affect the regulatory agency’s procedures and rate determinations; and (3) a judicial award of monetary damages in this case will not constitute rate regulation. The Court must first determine whether the filed rate doctrine applies here by asking whether the core principles of the doctrine are implicated in the context of health insurance regulation in New Jersey. DOBI was created to “regulate and oversee the operations of the insurance industry” and the agency is endowed with the statutory “obligation to protect the interests of New Jersey’s insurance customers.” Richardson, 371 N.J.Super. at 463-64, 853 A.2d 955 (citing N.J. Stat. Ann. § 17:lC-19(a)(l)). Health insurance premium rates for policies that will be issued in the state must be submitted to DOBI for approval. The agency is empowered by statute to reject filings (1) for which the benefits are unreasonable in relation to the premium charged; (2) which contain unjust, unfair, inequitable, or misleading provisions; and (3) for policies that are sold in a misleading fashion or that inadequately describe the policy’s provisions. N.J. Stat. Ann. § 17B:26-l(h). The Court finds that DOBI’s regulation of health insurance does implicate the non-justiciability prong of the filed rate doctrine. DOBI is the regulatory agency vested with the primary authority to determine the reasonableness of health insurance premium rates. The rates that Litwack paid were approved by DOBI. Additionally, the statute requires DOBI to reject a policy for having misleading provisions or for being sold in a misleading fashion. As such, the agency procedures appear to cover the relevant conduct in this case and the Court’s intrusion in this area may tend to interfere with DOBI procedures and rate determinations. The Court will now review Litwack’s arguments. First, Litwack argues that his claims do not require the Court to second-guess any agency’s determination about the reasonableness of the CHIP premium rates because he is not challenging the rates he was charged. Rather, Litwack asserts that Prudential’s misrepresentations and omissions regarding the death spiral impeded his ability to make an informed decision about whether to renew the policy or search for a different one. In support of this argument, Litwack cites principally to two cases. Litwack first argues that there is no conflict here between DOBI’s authority and the common law causes of action he is attempting to assert. Litwack relies on Nader v. Allegheny Airlines, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976). In that case, relying on the doctrine of primary jurisdiction, the court of appeals had issued an order staying an airline passenger’s common law action pending referral to the Civil Aeronautics Board for a determination of whether an airline’s overbooking practice was “deceptive” under the Federal Aviation Act. The Supreme Court reversed the stay, finding that the Federal Aviation Act contemplated coexistence between common law tort actions and the federal statute in its saving clause. In arriving at that conclusion, the Supreme Court distinguished the case before it from a 1907 Supreme Court decision, Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907), which is considered to have been a precursor to the filed rate doctrine line of cases, which began with Keogh, 260 U.S. 156, 43 S.Ct. 47. The Supreme Court in Nader found that no irreconcilable conflict existed between the Federal Aviation Act’s statutory scheme and the passenger’s common law causes of action, so the doctrine of primary jurisdiction did not apply. Specifically, the Supreme Court found that the specific issues raised by the passenger were not regulated by the statute: The court ... is not called upon to substitute its judgment for the agency’s on the reasonableness of a rate—or, indeed, on the reasonableness of any carrier practice. There is no Board requirement that air carriers engage in overbooking or that they fail to disclose that they do so. And any impact on rates that may result from the imposition of tort liability or from practices adopted by a carrier to avoid such liability would be merely incidental. Id. at 299-300, 96 S.Ct. 1978. The Nader reasoning arose in a different context—the doctrine of primary jurisdiction rather than the filed rate doctrine—than the one currently before the Court. The two doctrines are similar in that both refer in some respect to regulatory agency determinations. However, Nader will not change the Court’s analysis because the Court has already determined that here, there is a potential for conflict between the subject matter DOBI regulates and the common law causes of actions Litwack asserts. Moreover, Nader is distinguishable because in that case, the challenged practice—overbooking on commercial flights—had no bearing on any tariff provision and the Civil Aeronautics Board had no specialized knowledge about the practice. Litwack also relies on a district court case in which putative class action plaintiffs sued a group of defendant managed care organizations (MCOs). In re Managed Care Litig., 150 F.Supp.2d 1330 (S.D.Fla.2001). The plaintiffs asserted that the insurers had violated the Raeketeer Influenced and Corrupt Organizations Act (RICO) by defrauding them about the nature of the care they would receive. They alleged that the MCOs’ representations in advertising and marketing materials that the plaintiffs’ doctors would order medically necessary treatments were false because in fact the doctors’ decisions about what was necessary were affected by a monetary incentive structure aimed at containing medical costs. The district court determined that the filed rate doctrine did not bar the plaintiffs’ claims because there was no conflict between the claims and the state regulatory structures. The Court reasoned that: [The relevant] state regulatory regimes naturally can only review rates and policies for their objective reasonableness as applied to every payer of premiums within a given jurisdiction .... the Plaintiffs charge that the Defendants withheld information concerning internal policies which would have some bearing on the Plaintiffs’ personal, subjective decision as to how much they were willing to pay and whether they would select one insurance plan over other alternatives. It was this subjective decision-making process that the Plaintiffs submit was corrupted by the Defendants’ omissions and misrepresentations. Id. at 1344. The Court also noted that: [The relevant regulations], “however, do not speak to whether the alleged unsavory specifics of the Defendants’ procedures were subjected to scrutiny. For example, in view of the Plaintiffs’ allegations, it may be that the definition of “medical necessity” acquires an Alice-in-Wonderland flavor, whereby the managed care insurance company manipulates those words so that they mean one thing within the context of regulatory review but something quite different in actual practice.” Id. at 1345. In other words, based on the information before the district court at the time, the plaintiffs were not challenging information contained in the regulatory filings; rather, the problems of which they complained were not regulated and in fact could not be, because they arose in the way the MCOs implemented the managed care and could not have been detected by regulatory agencies in filings. Id. Although the Court finds Litwack’s reasoning persuasive, the Managed Care case is distinguishable from this case in a key aspect that makes the district court’s analysis in that case potentially inapplicable here. Both cases involve a disclosure that could have affected the customers’ ability to make an informed decision about whether to select (or to continue to renew) one policy over the alternatives. However, the regulatory agency might regulate the disclosure of which Litwack complains, whereas in Managed Care, the plaintiffs did not complain about anything that could be disclosed—they were upset about the way the plan was actually administered. It is undisputed that DOBI is required to regulate the reasonableness of the rates for health insurance policies sold in New Jersey. N.J. -Stat. Ann. § 17B:26-1(h)(1). In the present matter, the violation of which Litwack complains is that Prudential failed to inform him of the death spiral in its communications to him. Litwack argues that having known about the death spiral would have caused him to choose another type of insurance. Thus, like in the Managed Care case, Litwack’s challenge is not to the rates themselves. But here, although Litwack premises his claim on a failure to disclose a practice of the insurance company, the nondisclosure is related to rate-making in a more direct way than the non-disclosure of the practice in Managed Care. The relevant decision-making on the part of the consumer that the nondisclosure impeded here was directly related to the insurance premium rate. Furthermore, Litwaek’s claimed injury here is that he paid higher premiums than he would have for an alternative policy because CHIP was in a death spiral; thus the injury is directly related to the filed rate. Moreover, Litwack is challenging another aspect of the parties’ relationship that DOBI also regulates to some extent; the manner in which the policy is sold. The same section that allows DOBI to disapprove a policy if the premium rates are unreasonable also allows DOBI to disapprove a filed policy if (2) such form contains provisions which are unjust, unfair, inequitable, misleading, contrary to law or to the public policy of [the State of New Jersey], or (3) the policy is sold in such a manner as to mislead the insured, or (4) insurance under such policy is being solicited by means of advertising, communication, or dissemination of information which involves misleading or inadequate description of the provisions of the policy, specifying particulars. N.J. Stat. Ann. § 17B:26-l(h)(2)-(4). This case is distinguishable from both Nader and Managed Care. Litwack next argues that a judicial award of monetary damages to policyholders based on fraudulent communications about the existence of a block closure would not interfere with DOBI’s regulatory authority. In support of this argument, Litwack focuses on the fact that DOBI does not regulate communications to consumers because it only reviews the actual policies. Therefore, Litwack asserts, all of his claims that are based on form letters and other representations that Prudential made to him about the reason for the premium rate increases do not implicate the doctrine’s policy goals. However, the Court is constrained by the federal common law and the New Jersey jurisprudence concerning the filed rate doctrine. The question under the filed rate doctrine is not whether DOBI specifically regulated certain communications; the question is whether a judicial award of damages would constitute rate regulation and require the Court to determine what a reasonable rate would have been. The non-justiciability strand dictates that the Court apply the filed rate doctrine. Under that strand, “any remedy requiring a refund of a portion of the filed rate is barred by application of the filed rate doctrine.” Smith, 178 N.J. at 281, 839 A.2d 850; see also Marcus, 138 F.3d at 60-61 (“[A]n award of compensatory damages would violate the non-justiciability strand of the doctrine .... [because] appellants seek damages equal to the difference between AT & T’s rate and the best alternative rate available under a competitor’s tariff’). In his prayer for damages, Litwack seeks compensatory damages and a refund of all moneys acquired by means of unlawful practices. However, Litwack cannot seek money damages that would require the Court to recalculate past rates that he paid which were consistent with the filed rate. To do so would require the Court to determine what rate would have been reasonable and thereby interfere with DOBI’s rate-making process. Therefore, his claims for compensatory damages or refund based on insurance premiums he paid in previous years are barred by the filed rate doctrine. The fact that Prudential allegedly induced Litwack to pay those higher premiums by misrepresenting the reason for the premium increases cannot change the Court’s analysis. There is no fraud exception to the filed rate doctrine. JMC Telecom, 470 F.3d at 535. The Richardson Court specifically held that the doctrine would “preclude [a] plaintiff from seeking relief, whether equitable or legal, for having been misled by unconscionable sales practices which caused plaintiff to enter into a contract consistent with the filed rate.” Richardson, 371 N.J.Super. at 470, 853 A.2d 955. Unconscionable practices employed to induce a consumer to purchase a product are not unlike unconscionable practices employed to induce a consumer to continue to use that product. Litwack’s claim that Prudential’s misrepresentations about the premium increases caused him to continue to renew the CHIP policy are barred by the filed rate doctrine because the premiums he paid were consistent with the rates that were approved by DOBI. Each of Litwack’s claims seeks damages that seek the return of some portion of his premium payments. The Court will briefly review each of Litwack’s claims for relief with more specificity. The NJCFA makes it unlawful for “any person” to use an “unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact.” The NJCFA “provides a remedy for any consumer who has suffered an ‘ascertainable loss of moneys or property, real or personal, as a result of [a violation of the NJCFA].’ ” Lee v. First Union Nat’l Bank, 199 N.J. 251, 257, 971 A.2d 1054 (2009) (quoting N.J. Stat. Ann. § 56:8-19). Ascertainable loss is a required element of a NJCFA claim, whether the plaintiff seeks injunctive relief or damages. Weinberg, 173 N.J. at 249, 801 A.2d 281. Under the filed rate doctrine’s legal fiction, Litwack cannot recover money damages—and therefore cannot show that he suffered ascertainable loss—when he paid a rate that was consistent with Prudential’s approved filed rate. See id. at 244, 801 A.2d 281. Furthermore, Litwack cannot proceed solely on his claim for injunctive relief when the Court has determined at this early stage that he has not suffered ascertainable loss. Id. (holding that when the filed rate doctrine barred a plaintiffs claims because it prevented him from showing ascertainable loss, the plaintiff could not continue with only the claim for injunctive relief and attorneys’ fees). Where Litwack frames his requested relief as damages or a “refund,” his NJCFA claim is barred by the doctrine. See Smith, 178 N.J. at 281, 839 A.2d 850 (explaining that the filed rate doctrine bars “any remedy requiring a refund of a portion of the filed rate.”) Litwack’s common law claims for fraudulent misrepresentation, fraudulent omission, and breach of the duty of good faith and fair dealing are similarly barred by the application of the doctrine. Litwack’s fraud claims would “force the courts to determine what the reasonable rate would be to assess damages.” See JMC Telecom, 470 F.3d at 535 (dismissing claim for negligent misrepresentation based on the filed rate doctrine). Enforcement of the duty of good faith and fair dealing would “impermissibly enlarge the rights as defined by the tariff.” See id. (dismissing claim for violation of the duty of good faith and fair dealing). The non-discrimination strand also works to bar Litwack’s claims. The filed rate doctrine “operates on the presumption that the plaintiff had knowledge of the filed rates and, thus, could not reasonably rely upon the regulated entity’s misrepresentations or omissions of material facts.” Richardson, 371 N.J.Super. at 461, 853 A.2d 955. This presumed knowledge applies to all the terms in the “tariff’ or regulatory filings. See Central Office, 524 U.S. at 229, 118 S.Ct. 1956 (“[The doctrine] need preempt only those suits that seek to alter the terms and conditions provided for in the tariff.”); Smith, 178 N.J. at 285, 839 A.2d 850 (reasoning that under the filed rate doctrine, it would be presumed that the plaintiff had knowledge of the “entire tariff’ filed with the regulatory agency, including a provision about the relationship between the relevant entities). Under the non-discrimination strand, Litwack is barred from proceeding on his fraudulent omission and misrepresentation theories because the disclosures to DOBI included information about the death spiral. Therefore, he is presumed to have had knowledge of the death spiral and so he cannot claim to have been deceived by Prudential’s failure to affirmatively disclose it to him Because of the harsh consequences of the filed rate doctrine, this is an unsatisfying result, but the Court feels compelled to apply it to all of Litwack’s claims for the reasons stated above. Prudential’s motion to dismiss Litwack’s claims is granted. Litwack’s claims for fraudulent misrepresentations, fraudulent omissions, breach of the duty of good faith and fair dealing, and violation of the NJCFA are dismissed without prejudice. C. Clark’s Claims for Relief Based on California’s Unfair Competition Law Count Four asserts a claim for relief on Clark’s behalf under California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code § 17200, et seq. Prudential asserts that Clark’s UCL claim should be dismissed because (1) it is barred by the relevant four-year statute of limitations; (2) Clark cannot avail herself of either of the two equitable remedies—injunction or restitution—available under the UCL; and (3) Clark failed to plead facts that establish that Prudential’s conduct was unlawful, unfair, or fraudulent within the meaning of the UCL. Additionally, Prudential asserts that Clark cannot seek treble damages for a UCL violation under California Civil Code § 3345. i. Statute of Limitations With regard to the statute of limitations issue, Prudential argues that Clark’s claim is stale because (1) Clark last renewed her policy in September 2004, more than four years before the Complaint was filed; and (2) she cannot invoke the delayed discovery rule because the Ninth Circuit has held that it does not apply to UCL claims. Clark counters that her claim is timely because (1) each monthly payment of CHIP insurance premiums that Clark made from December 2004 to September 2005 constituted a new injury and thus her UCL claim is within the four-year statute of limitations; and (2) the discovery rule is applicable to UCL claims. Section 17208 of the UCL provides, in pertinent part, that “[a]ny action to enforce any cause of action pursuant to this chapter shall be commenced within four years after the cause of action accrued.” Generally in California, where the delayed discovery rule applies, a cause of action is deemed to accrue when a reasonable person would have discovered the factual basis for a claim. See April Enterprises, Inc. v. KTTV, 147 Cal.App.3d 805, 828-29, 195 Cal.Rptr. 421 (Cal.Ct.App.1983). The Court will first address Prudential’s contention that the discovery rule does not apply to UCL claims. Prudential relies on a Ninth Circuit decision which held that under § 17208, UCL claims “are subject to a four-year statute of limitations which [begins] to run on the date the cause of action accrued, not on the date of discovery.” Karl Storz Endoscopy-America, Inc. v. Surgical Tech., Inc., 285 F.3d 848, 857 (9th Cir.2002) (emphasis added). The Court finds, for the reasons described below, that based on a subsequent decision of a California Court of Appeal issued in 2009, Broberg v. Guardian Life Ins. Co. of Am., 171 Cal.App.4th 912, 920, 90 Cal.Rptr.3d 225 (Cal.Ct.App.2009), the Ninth Circuit’s truncated reasoning in Karl Storz is not the most persuasive prediction of how the Supreme Court of California would rule on this issue today. The Ninth Circuit’s interpretation of California state law is only persuasive, _ not binding, on this Court. Furthermore, even the Ninth Circuit has held that its prediction of state law issues is only “binding in the absence of any subsequent indication from the California courts that our interpretation was incorrect.” Jones-Hamilton Co. v. Beazer Materials & Servs., 973 F.2d 688, 696 n. 4 (9th Cir.1992). When the Court sits in diversity jurisdiction, it must predict how a state’s highest court would resolve a state issue of law, Borman, 960 F.2d at 331, and decisions of state intermediate appellate courts should be accorded significant weight in the absence of an indication that the highest state court would rule otherwise. Rolick, 925 F.2d at 664. Therefore, the Court turns to the relevant precedent under California law. The Supreme Court of California has not yet decided, and the California Courts of Appeal are in disagreement as to whether the delayed discovery rule, which delays accrual of certain causes of action until the plaintiff has actual or constructive knowledge of facts giving rise to the claim, applies to claims for unfair competition. Broberg v. Guardian Life Ins. Co. of Am., 171 Cal.App.4th 912, 920, 90 Cal.Rptr.3d 225 (Cal.Ct.App.2009), review denied, 2009 Cal. LEXIS 5288; Grisham v. Philip Morris USA 40 Cal.4th 623, 635 n. 7, 54 Cal.Rptr.3d 735, 151 P.3d 1151 (Cal.2007) (assuming for purposes of deciding a question certified to it by the Court of Appeals for the Ninth Circuit that the delayed discovery rule does apply to UCL causes of action, but explicitly declining to address the disagreement); compare Snapp & Assocs. Ins. Servs., Inc. v. Robertson, 96 Cal.App.4th 884, 891, 117 Cal.Rptr.2d 331 (Cal.Ct.App.2002) (discovery rule does not apply to UCL causes of action); with Massachusetts Mut. Life Ins. Co. v. Superior Court, 97 Cal.App.4th 1282, 1295, 119 Cal.Rptr.2d 190 (Cal.Ct.App.2002) (discovery rule “probably” applies). However, the Court is persuaded by the reasoning of Broberg, a 2009 California Court of Appeal decision addressing the application of the delayed discovery rule to a UCL claim in a case with issues analogous to the ones presently before the Court. See Broberg, 171 Cal.App.4th 912, 90 Cal.Rptr.3d 225. In that case, the plaintiff asserted that marketing materials for a life insurance policy were intentionally deceptive in representing that a consumer’s premium payment obligations would “vanish” after eleven years. The model used in the marketing materials to explain the vanishing premium option was premised on the faulty assumption that investment returns would not change over time. The California Court of Appeal determined that the plaintiffs § 17200 claim based on this deceptive practice could benefit from the delayed discovery rule. It noted the conflicting California authorities and decided that At least in the context of unfair competition claims based on a defendant’s allegedly deceptive marketing material and sales practices .... and where the harm from the unfair conduct will not reasonably be discovered until a future date, we believe the better view is that the time to file a section 17200 cause of action starts to run only when a reasonable person would have discovered the factual basis for a claim. Id. at 920-21, 90 Cal.Rptr.3d 225. In support of its reasoning, the Court of Appeals quoted April Enterprises, 147 Cal.App.3d at 828, 195 Cal.Rptr. 421, for the propositions that “the nature of the right sued upon, not the form of the action ... determines the applicability of the statute of limitations.” This case is analogous to Broberg. Both this matter and Broberg involve deceptive marketing and sales practices for insurance policies. Furthermore, the injuries complained of in both cases are similar in a way that relates to the delayed discovery rule; the injuries in both instances result from unforeseen mounting future premium payments that are higher than the customer had anticipated due to a condition that is allegedly not disclosed. The Court is therefore persuaded that Broberg, as a recent decision of a California Court of Appeal addressing the rule in a context that is analogous to this case, dictates that the delayed discovery rule may apply to Clark’s cause of action. On July 16, 2010, after oral arguments on the present motion, Prudential filed a notice of supplemental authority to direct the Court’s attention to a recent decision by a California Court of Appeal, Aryeh v. Canon Business Solutions, Inc., 185 Cal.Ap