Smile Direct Club Suit Against Dental Board of California, Alleging Antitrust Activity, Dismissed and Appealed to the Ninth Circuit

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By Jonathan Greenbergs

Jeffrey Sulitzer, D.M.D, et al. v. Joseph Tippins, et al., Case No. 2:19CV08902 (C.D. Cal.). Jeffrey Sultizer, owner of Smile Direct Club, a direct-to-consumer teledentistry company that provides teeth aligners to customers, brought legal action against the Dental Board of California (DBC) in October 2019, alleging that the Board was participating in behavior to illegally protect the dental industry from the competitive prices of Smile Direct Club. [25:2 CRLR 3–5]. On April 22, 2020, the initial complaint was dismissed with leave to amend due to numerous deficiencies in the allegations made against defendants. On May 22, 2020, Smile Direct Club filed a first amended complaint. DBC then filed a second motion to dismiss the claims. On July 16, 2020, the Court dismissed all claims of Smile Direct Club without leave to amend. The lower court agreed with DBC’s argument that it was legitimate for the Board, responding to a third-party complaint about the possible unlicensed practice of dentistry by Smile Direct or its agents, to have investigators visit Smile Direct’s retail locations in California, and to gather evidence about the possible unlicensed practice of dentistry. Although the plaintiffs did not like the way the investigation was carried out, the court found their claims did not rise to the level of federal antitrust activity found in the North Carolina case, see below.

As alleged in the complaint, DBC, through one of its investigators in the Board’s Enforcement Unit, investigated Smile Direct Club. This investigation culminated in a May 31, 2018 raid, which was the impetus of the lawsuit. The raid of the Smile Direct Club store allegedly frightened and intimidated Smile Direct Club employees and customers, which in turn harmed its business. Smile Direct Club’s plea for relief included treble damages of an unspecified amount, and a jury trial rather than a bench trial.

This lawsuit’s claims are based, in part, on the Sherman Antitrust Act and North Carolina Board of Dental Examiners v. Federal Trade Commission, 574 U.S. 494 (2015). In North Carolina, the Supreme Court of the United States held that a state regulatory board controlled by market-participants that took action without oversight by the state was in violation of antitrust law. Federal antitrust laws are an essential component to the free market, and state regulatory boards are immune from antitrust litigation only if they are subject to active supervision by the state. The North Carolina case stands for the proposition that “when a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest.” The implications of this case are still unclear for the Dental Board, which is made up of thirteen board members, ten of whom are market-participants.

On July 17, 2020, Smile Direct Club filed its Notice of Appeal in the Ninth Circuit Court of Appeal.

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