JEFFREY SULITZER V. JOSEPH TIPPINS, No. 20-55735 (9th Cir. 2022)
Annotate this Case
A dentist, his professional corporation, and a teledentistry company (collectively "Plaintiffs") alleged that the Dental Board of California conspired to harass them with unfounded investigations. Plaintiffs alleged that the harassment arose after they developed an online service model for patients.
The Ninth Circuit affirmed the district court’s dismissal of the Plaintiffs’ claims under the Dormant Commerce Clause. The court reasoned that Plaintiffs sufficiently alleged Article III standing because they alleged an injury that was traceable to Defendants’ challenged conduct. Further, the court found that Plaintiffs sufficiently alleged anticompetitive concerted action. The court rejected the proposition that regulatory board members and employees cannot form an anticompetitive conspiracy.
Further, the court affirmed the district court’s dismissal of the Plaintiffs’ claim that Defendants subjected them to disparate treatment in violation of the Equal Protection Clause. The court explained that a class-of-one plaintiff must be similarly situated to the proposed comparator. Here, Plaintiffs did not meet this standard because instead of claiming they stood the same as others, they touted their differences.
The court did not review the lower court’s denial of state-action immunity.
Court Description: Antitrust. The panel filed an order amending its opinion and an amended opinion affirming in part and reversing in part the district court’s dismissal of an action brought under antitrust and constitutional law by a dentist, his professional corporation, and the teledentistry company SmileDirectClub, LLC, against members and employees of the Dental Board of California. The SmileDirect parties alleged that after they developed an online service model for patients to access certain orthodontic services, namely clear teeth aligners, defendants conspired to harass them with unfounded investigations and an intimidation campaign, with hopes of driving them out of the market. The panel held that the SmileDirect parties sufficiently pled Article III standing because they alleged an injury in fact that was fairly traceable to defendants’ challenged conduct and was judicially redressable. The panel concluded that the SmileDirect parties sufficiently alleged anticompetitive concerted action, or an agreement to restrain trade, to meet the pleading standards of Federal Rule of Civil Procedure 12(b)(6). The panel therefore partially reversed the district court’s dismissal of the SmileDirect parties’ antitrust claim under § 1 of the Sherman Act. The panel rejected the broad proposition that SMILEDIRECTCLUB, LLC V. TIPPINS 5 regulatory board members and employees cannot form an anticompetitive conspiracy when acting within their regulatory authority. As to certain other defendants, the panel affirmed dismissal because the SmileDirect parties failed to plead facts sufficient to tie them to the alleged conspiracy. The panel affirmed the district court’s dismissal of the SmileDirect parties’ claim under the Dormant Commerce Clause, which prohibits states from discriminating against interstate commerce. The panel affirmed the district court’s dismissal of the SmileDirect parties’ claim that defendants subjected them to disparate treatment in violation of the Equal Protection Clause. The panel held that to plead a class-of-one equal protection claim, plaintiffs must allege facts showing that they have been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Joining other circuits, the panel held that a class-of-one plaintiff must be similarly situated to the proposed comparator in all material respects. The SmileDirect parties fell short of this showing because, rather than claiming that they stood on the same footing as others, they instead touted their uniqueness. Defendants did not appeal, and the panel did not review, the district court’s denial of state-action immunity. 6 SMILEDIRECTCLUB, LLC V. TIPPINS
This opinion or order relates to an opinion or order originally issued on March 17, 2022.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.