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Judge Rules That SmileDirectClub Can Retry Antitrust Claims Against Alabama Board of Dental Examiners

SmileDirect Can Lodge Ala. Antitrust Fight In State Court

By Anne Cullen

Law360 (April 18, 2019, 6:56 PM EDT) — An Alabama federal judge has cleared the way for SmileDirectClub to retry its antitrust claims against the state’s dental examiners board in state court.

U.S. District Judge R. David Proctor on Wednesday agreed with SmileDirectClub LLC that he was wrong to dismiss with prejudice its state and federal allegations that the board is illegally trying to shut down the company, which partners with an out-of-state dentist to make teeth aligners.

Judge Proctor found that the court can’t permanently discard claims that it doesn’t have jurisdiction over. He had previously ruled the court lacks jurisdiction because the dental examiner’s board is an arm of the state, rendering it immune from SmileDirectClub’s state and federal antitrust claims under the state action doctrine.

The revised ruling means SmileDirectClub gets another chance to make its state claims stick against both the board and its individual members in state court. The web-based business also is still pursuing its federal allegations against the six dentists and one dental hygienist that sit on the board in Alabama federal court, as Judge Proctor upheld those claims in his original April 2 ruling.

“SmileDirectClub will continue to pursue its claims in federal court in Alabama that the dental board members violated federal antitrust laws,” the company said in an emailed statement Thursday. “SmileDirectClub is pleased that yesterday’s ruling also establishes that it is not foreclosed from pursuing other claims against the dental board and its members in state court.”

“We will not give up the fight to democratize access to affordable, convenient and safe oral care solutions for millions of Americans,” it added.

Counsel and representatives for the board did not immediately respond to requests for comment on Thursday, but the board members told the court earlier this month they’re planning to appeal the ruling that kept them on the hook in SmileDirectClub’s federal case.

The company and an affiliated dentist filed the lawsuit in October after the board sent the company a cease-and-desist letter asserting the company’s method of taking digital photos of prospective patients’ teeth and gums in order to make aligners constituted an unauthorized practice of dentistry.

The board alleges that this practice — in which a SmileDirectClub employee uses a special camera to take the photos — constitutes a dental procedure, which requires a licensed dentist be on site.

SmileDirectClub met with the board to show it the ins and outs of the procedure in an attempt to prove the procedure doesn’t require a licensed dentist, but the board wasn’t convinced and stood by its cease-and-desist push. The teledentistry then sued, arguing the board is only trying to shut it down to keep innovators like itself off the market.

SmileDirectClub is represented by Matthew H. Lembke, David G. Hymer, Michael R. Pennington, J. Bradley Robertson and Hillary C. Campbell of Bradley Arant Boult Cummings LLP.

Alabama’s dental examiners board is represented by Samuel H. Franklin, R. Ashby Pate and Logan T. Matthews of Lightfoot Franklin & White LLC.

The case is Leeds DDS v. Board of Dental Examiners of Alabama et al., case number 2:18-cv-01679-RDP, in the U.S. District Court for the Northern District of Alabama.

–Additional reporting by Byran Koenig and Matt Bernardini. Editing by Michael Watanabe.

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