Simon and Simon, PC v. Align Technology, Inc.

Related Action

The opinion addresses the Simon and Simon direct-purchaser action and the related Snow indirect-purchaser action. The court ruled on motions for class certification and motions to exclude the plaintiffs’ experts, Dr. Singer and Dr. Vogt.

Theories of Liability and Expert Models

The plaintiffs proceeded under two Section 2 theories under the Sherman Act. The first alleged that Align’s termination of interoperability, or “TOI,” was an unlawful refusal to deal. The second alleged that the TOI, combined with certain alleged exclusionary agreements—including the Fusion program, Advantage program, and Dental Services Organization contracts—formed a broader unlawful scheme.

The court held that the experts properly included the alleged exclusionary agreements in their models because the earlier ruling allowed those agreements to be considered as part of the broader Section 2 theory, even though the agreements did not state a separate Section 2 claim by themselves. The court emphasized that it was using “exclusionary agreements” for convenience and was not deciding whether those agreements were actually exclusionary.

Dr. Singer offered models for the direct purchasers. One model estimated that aligner prices would have been 7.1 percent lower without the TOI. Another estimated that prices would have been 10 percent lower without the TOI and certain exclusionary agreements. Dr. Vogt offered models for the indirect purchasers. His benchmark analysis compared the aligner market with the dental-implant market, and his passthrough analysis addressed whether price increases paid by direct purchasers were passed on to consumers.

Class-Certification Analysis

The court concluded that the models matched the plaintiffs’ theories of liability and could provide class-wide answers about antitrust injury and damages. The court rejected Align’s argument under Comcast Corp. v. Behrend that the models could not distinguish lawful from unlawful conduct. The court explained that, under the plaintiffs’ permitted theory, the alleged agreements could be considered together with the TOI if they had anticompetitive effects.

The court also found the expert opinions sufficiently reliable for class certification. Challenges to the one-year timing assumption in Dr. Singer’s regression, the variables included in his model, the dental-implant benchmark used by Dr. Vogt, and Dr. Vogt’s passthrough analysis were matters the jury could consider when weighing the evidence. They did not show that the models were incapable of resolving common questions for the classes.

The court denied certification of a scanner-purchaser class. Neither direct-purchaser plaintiff had purchased a scanner during the class period. The court found that aligner purchasers and scanner purchasers suffered different alleged injuries and would have to prove different facts, so aligner purchasers were not sufficiently typical representatives of scanner purchasers. The court stated that future scanner purchasers could bring a separate lawsuit in which class certification might be appropriate.

The court rejected Align’s other arguments concerning the named plaintiffs’ differences from potential class members. It found those differences immaterial to typicality and adequacy, including differences among dental practices, individual indirect purchasers, and plaintiff Vo’s effort to represent insurers in the nationwide injunctive-relief class. The court also found that the named plaintiffs were sufficiently familiar with and involved in the litigation.

Certified Classes

The court certified the following classes:

- Direct Purchasers Class: Persons or entities in the United States that purchased Invisalign Aligners directly from Align between January 1, 2019, and March 31, 2023, subject to the stated exclusions. - Nationwide Injunctive Relief Indirect Purchaser Class: Persons or entities in the United States that purchase, pay for, or reimburse some or all of the price of Invisalign aligners acquired for personal use, until the alleged anticompetitive conduct ceases, subject to the stated exclusions. - State Indirect Purchaser Classes: Persons who purchased, paid for, or reimbursed some or all of the price of specified Invisalign treatments for personal use while residing in Arizona, California, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, North Carolina, or Oregon. The period begins July 1, 2018, and continues until the alleged anticompetitive conduct ceases, subject to the stated exclusions.

Disposition

The court granted in part and denied in part the motions for class certification. It denied the motions to exclude Dr. Singer and Dr. Vogt. The court did not decide whether Align violated antitrust law, whether the alleged conduct caused the claimed injuries, or whether the plaintiffs will prevail at trial.