SmileDirectClub sues Calif. dental board for harassment

2019 10 18 17 04 1697 Lawsuit 400

SmileDirectClub has filed a lawsuit against the Dental Board of California, alleging it intentionally harassed the direct-to-consumer clear-aligner company's clinics in a planned effort to hinder its growth. The litigation further fans the flames between the burgeoning industry and traditional orthodontics.

The lawsuit was filed on October 16 in the western division of the U.S. District Court for the Central District of California by SmileDirectClub and its chief clinical officer, Jeffrey Sulitzer, DMD. The complaint in the case accuses the dental board of making a concerted anticompetitive push to harass the business.

The suit is filed against Joseph Tippins, an investigator of the California dental board's enforcement unit; Karen Fischer, the board's executive director; about 15 other board officers and members; and about 10 other unnamed defendants.

SmileDirectClub alleges that the popularity of its services has taken away both patients and money away from traditional in-office dentists. It believes that dental board, its officers, and members have taken aggressive, anticompetitive actions against SmileDirectClub because they are threatened by the business. A majority of the board is in the dental industry.

"The direct-to-consumer model supported by SmileDirect represents a serious competitive threat to their ability to continue to generate such fees through their traditional delivery model in the future," the company claims in the suit.

According to SmileDirectClub, the dental board began its harassment campaign in 2017. The Tennessee-based clear-aligner company accuses Tippins and other investigators of posing as customers and conducting coordinated raids of SmileDirectClub's SmileShop brick-and-mortar stores, as well as other allegations.

The suit further alleges that the board instructed Tippins to "intentionally harass" Dr. Sulitzer's employees and consumers on one of the company's SmileBuses, which SmileDirectClub uses to provide services to individuals who aren't located near a SmileShop. The harassment occurred soon after the completion of an investigation against a dental practice affiliated with SmileDirectClub -- an investigation that was closed with no charges, the complaint noted. The company also accuses the board of doing nothing to stop Tippins after it complained.

These events and constant unwarranted information requests were "designed to intimidate, harass, and unduly burden SmileDirect," Sulitzer, and his practice, according to the suit.

No business stepping in

The company claims that the board has no authority over activities that do not constitute the practice of dentistry or dental hygiene, such as those performed by SmileDirectClub.

No clinical services are conducted at SmileDirectClub's retail stores or bus. Instead, employees at these sites transmit images of consumers' teeth and other information to Dr. Sulitzer or another treating doctor affiliated with his personal dental practice. Treating doctors review all the information and determine whether the consumer is a viable candidate for clear-aligner therapy treatment.

The board is accused of violating the Sherman Antitrust Act, the U.S. Constitution's dormant commerce and equal protection clauses, substantive due process, and California's Unfair Competition Law.

This lawsuit comes within days of California adopting its first law aimed at better protecting patients who receive orthodontic treatment from businesses, such as SmileDirectClub. The new law requires these types of businesses to review x-rays before aligning patients' teeth, a move that opponents say handicaps teledentistry and will negatively affect those who struggle to pay for these services. The ADA has endorsed California's law.

The California lawsuit also mirrors the antitrust suits SmileDirectClub has filed against dental boards in Alabama and Georgia.

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