By Dimitri Davis

On October 21, 2022, SmileDirect argued that the court should not delay its litigation with DBC in the case of Jeffrey Sulitzer, D.M.D, et al. v. Joseph Tippins et al., Case No. 2:19-CV-08902 GW (MAAX) (C.D. Cal.); Docket No. 20-55735 (9th Cir.). On March 17, 2022, the Ninth Circuit revived part of SmileDirect’s suit against DBC, mostly affirming the lower court’s dismissal, including affirming the dismissal of SmileDirect’s dormant Commerce Clause and Equal Protection claims. [27:2 CRLR 8]  However, the Ninth Circuit reversed part of the lower court’s dismissal of SmileDirect’s claim under the Sherman Act. It rejected the notion that regulatory board members cannot form an anticompetitive conspiracy when acting within their regulatory authority. Some defendants’ dismissals were affirmed because the Ninth Circuit did not find that SmileDirect plead facts to tie the defendants to an anticompetitive conspiracy. The other defendants’ dismissals were remanded back to the lower court to revisit SmileDirect’s claims under the Sherman Act.

In response to continued litigation, the defendants (the Dental Board of California (DBC) and its members) hired new attorneys to join their team from Shartsis Friese, LLP. The Board asked the court to delay the trial, contending that their attorneys have four weeks of trial scheduled before the end of the year and a two-week jury trial slated to start May 1, 2023, a day before the trial currently scheduled in the SmileDirect case. Without a continuance of the current deadlines, the defendants claimed, they would not have enough time to conduct discovery, file motions, and prepare for trial.

SmileDirect responded by saying that the trial schedule was posted long before the attorneys took the case, so if there was a conflicting schedule, they should not have taken the case.

The Court ultimately decided to delay litigation.  The trial was originally set for May 2, 2023 but is now delayed until August 21, 2023.