A California state dental board should face antitrust claims over the agency’s investigation of dental products maker SmileDirectClub, a lawyer for the tele-dentistry company told the 9th Circuit on Monday, in a bid to revive a closely watched lawsuit.
Foley & Lardner partner James Dasso argued before a three-judge panel of the 9th US Circuit Court of Appeals that the federal judge in Los Angeles who dismissed the company’s complaint applied the wrong standard in assessing its claims that the board participated in an anticompetitive agreement to suppress its entry into the market.
“The district court required us to plead not only an agreement, and that the agreement restrain trade, but also that the agreement fell outside of the regulatory authority of the board,” Dasso argued.
SmileDirectClub allows patients to have their teeth scanned by technicians, who are not dentists, and have those scans sent to orthodontists who use them to make clear braces, without seeing the patients directly. The braces are then sent to patients by mail.
“An entire new disruptive model is coming into the marketplace, and that model is being met with resistance by the dental board,” Dasso told Circuit Judges M. Margaret McKeown and Jacqueline Nguyen, who heard arguments with US District Judge Royce Lamberth of Washington, DC, sitting by designation.
“The idea that you can do these things over the internet more cheaply and more conveniently really presents a major threat to the existing dentists and orthodontists,” Dasso said.
SmileDirectClub sued the dental board in 2019 in US District Court for the Central District of California, accusing it of pursuing an “aggressive, anticompetitive campaign of harassment and intimidation,” against it and alleging violations of the Sherman Act.
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