Alabama Dental Board Defends Itself against SmileDirectClub Lawsuit

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On October 12, 2018, SmileDirectClub (“SDC”) and Dr. D. Blaine Leeds filed a lawsuit against the Board of Dental Examiners of Alabama (the “Board”) in federal court for the Northern District of Alabama.  See D. Blaine Leeds and SmileDirectClub v. Board of Dental Examiners of Alabama et al., Case No. 2:18-cv-01679.   The lawsuit arises out of a cease-and-desist letter sent to Dr. Leeds and SDC by the Board after SDC opened its first Alabama location in or around August 2018.

The Board’s letter alleged that SDC and Dr. Leeds (who is located in Tennessee) were violating sections 34-9-5 and 34-9-20 of the Alabama Code by having intraoral procedures (digital scans) performed by unlicensed individuals not under the direct (i.e., on-premises) supervision of a licensed dentist. 
In the Complaint, SDC and Dr. Leeds claim that the Board and its members committed antitrust violations (violations of the Sherman Act, 15 U.S.C. § 1) by attempting to take action against them.  SDC and Dr. Leeds also claim that the actions of the Board and its members: (a) violate their constitutional due process and equal protection rights; (b) violate the Commerce Clause of the United States Constitution; and (c) exceed the scope of the Board’s regulatory authority under the Alabama statutes.
On November 21, the Board and its individual members filed a Motion to Dismiss SDC and Dr. Leeds’ claims against them, arguing that SDC and Dr. Leeds have failed to adequately plead claims against the Board and its members.  (A copy of the Motion to Dismiss can be viewed here.) In particular, the Motion to Dismiss argues that the Board and its members are protected from the claims asserted against them by qualified immunity.  The Motion to Dismiss also asserts that the actions of the Board and its members did not violate the Commerce Clause and/or the plaintiffs’ constitutional rights because the Board’s actions were rationally related to protection of the health, safety, and welfare of the citizens of the State of Alabama.  Finally, the Motion argues that the Board did not exceed its authority under the Alabama Dental Practice Act in promulgating the regulations at issue.
Under a scheduling order entered by the court on November 16, 2018, the matter is currently set for trial in August 2019.  The Board is being represented by outside counsel in the lawsuit (as well as by its own internal counsel).  The AAO Legal Department will continue to monitor the lawsuit.
Please note, every orthodontist (as a citizen of and licensed dental provider in his or her state) and orthodontic patient has the right to exercise their constitutional rights and contact their government about any public health and safety matter.  Should you feel compelled to do so, you can independently and individually contact your respective state dental board (who regulate the dental profession -*, elected officials, and/or attorneys general regarding your thoughts or concerns about important public health and safety matters. 

*  Reference and contact information also includes the Canadian Dental Regulatory Authorities.
Dec. 12, 2018

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