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

Background

This order addressed related antitrust actions against Align Technology, Inc.: Simon and Simon, PC v. Align Technology, Inc., No. 20-cv-03754-VC, and Misty Snow, et al. v. Align Technology, Inc., No. 21-cv-03269-VC. The plaintiffs alleged that Align’s termination of interoperability (the “TOI”) and several alleged exclusive-dealing agreements violated Section 2 of the Sherman Act. The court had previously allowed two related liability theories to proceed: a TOI-only theory and a combined theory involving the TOI and the alleged exclusive-dealing agreements.

Expert evidence and class-wide proof

Align argued that the plaintiffs’ expert models improperly included the alleged exclusive-dealing agreements, contained methodological flaws, and could not distinguish lawful from unlawful conduct. The court rejected those arguments at the class-certification stage. It held that the experts’ models matched the liability theories previously allowed in the cases because the alleged agreements could be considered as part of the broader alleged antitrust scheme if they had anticompetitive effects, even though the court had not held that the agreements independently violated Section 2.

In the direct-purchaser case, Dr. Singer used regression models. His TOI-only model estimated that aligner prices would have been 7.1 percent lower without the TOI. His combined model estimated that prices would have been 10 percent lower without the TOI and certain alleged exclusionary agreements. In the indirect-purchaser case, Dr. Vogt used a benchmark analysis comparing the aligner market with the dental-implant market and a passthrough analysis addressing how price increases allegedly moved from direct purchasers to consumers.

After reviewing the reports, considering the parties’ arguments, and holding a two-day evidentiary hearing at which Dr. Singer and Dr. Vogt testified, the court found both experts’ opinions sufficiently reliable and capable of providing class-wide answers. The court emphasized that class certification required determining whether the evidence could resolve common questions for the class, not deciding whether the plaintiffs would ultimately prove their claims at trial. Align could challenge the experts’ conclusions before the jury, and could raise certain legal arguments at summary judgment, but those issues did not require denying certification at this stage. The court separately denied the motions to exclude Dr. Singer and Dr. Vogt.

Scanner-purchaser class

The court denied certification of the scanner-purchaser class because neither named direct-purchaser plaintiff bought a scanner during the class period. The court found that aligner and scanner purchasers alleged different injuries and would need to prove different things. Evidence that the experts had analyzed both products did not make the named plaintiffs representative of scanner purchasers.

At the hearing, the court asked whether the scanner-class denial should allow the plaintiffs to seek certification again after adding a named scanner purchaser. Plaintiffs’ counsel stated that, if doing so would substantially delay trial of the aligner class, the denial should be without leave to refile. The court accepted that position and stated that there would not be class certification for scanner purchasers in this action, while noting that a future lawsuit by scanner purchasers was not prevented.

Other representative issues

The court rejected Align’s remaining arguments concerning the named plaintiffs’ typicality and adequacy. “Typicality” concerns whether the representatives’ claims are sufficiently similar to the class members’ claims, and “adequacy” concerns whether the representatives can fairly protect the class’s interests. The court found that the identified differences among the named plaintiffs and potential class members were not material to the claims. It also concluded that plaintiff Vo could represent the nationwide indirect-purchaser class seeking injunctive relief and that the record still supported her standing to seek that relief.

Certified classes and disposition

The court certified these classes:

The motion for class certification was granted in part and denied in part. The motions to exclude Dr. Singer and Dr. Vogt were denied. The order certified no scanner-purchaser class in this action and did not decide ultimate liability or damages.