SMILEDIRECTCLUB, LLC v. TIPPINS

No. 20-55735.

29 F.4th 513 (2022)

SMILEDIRECTCLUB, LLC, a Tennessee limited liability company; Jeffrey Sulitzer, D.M.D., an individual and a California Professional Corporation, Plaintiffs-Appellants, v. Joseph TIPPINS, individually; Karen M. Fischer, M.P.A., individually; Fran Burton, M.S.W., individually; Steven Morrow, DDS, MS individually; Steven Chan, DDS; Yvette Chappell Ingram, M.P.A., individually; Ross Lai, DDS; Abigail Medina, individually, in her official capacity as a Member of the Dental Board of California; Rosalinda Olague, RDA, B.A., individually, and in her official capacity as a Member of the Dental Board of California; Joanne Pacheco, RDH, M.A.O.B., individually and in her official capacity as a Member of the Dental Board of California; Thomas Stewart, DDS, individually and in his official capacity as a Member of the Dental Board of California; Bruce Whitcher, DDS, individually and in his official capacity as a Member of the Dental Board of California; James Yu, DDS, M.S., individually and in his official capacity as a Member of the Dental Board of California; Does, 1-10; Meredith McKenzie, individually and in her official capacity as a Member of the Dental Board of California; Joseph Tippins, in his official capacity as an Investigator in the Enforcement Unit of the Dental Board of California; Karen M. Fischer, M.P.A., in her official capacity as Executive Director for the Dental Board of California; Fran Burton, M.S.W., in her official capacity as a Member of the Dental Board of California; Steven Morrow, DDS, MS, in their official capacities as Officers and or Members of the Dental Board of California; Steven Chan, DDS, in their official capacities as Officers and/or Members of the Dental Board of California; Yvette Chappell-Ingram, MPA, in their official capacities as Officers and/or Members of the Dental Board of California; Ross Lai; Lilian Larin, DDS, individually and in their official capacities as Officers and/or Members of the Dental Board of California; Huong Le, DDS, M.A, individually and M.A., and in his official capacity as a Member of the Dental Board of California, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed March 17, 2022.


Attorney(s) appearing for the Case

James D. Dasso (argued), Foley & Lardner LLP, Chicago, Illinois; Byron J. McLain , Foley & Lardner LLP, Los Angeles, California; for Plaintiffs-Appellants.

Sharon L. O'Grady (argued), Deputy Attorney General; Mark R. Beckington , Supervising Deputy Attorney General; Thomas S. Patterson , Senior Assistant Attorney General; Rob Bonta , Attorney General of California; Office of the California Attorney General, San Francisco, California; for Defendants-Appellees.

Andrew N. DeLaney (argued), Daniel E. Haar , and Nickolai G. Levin , Attorneys; Makan Delrahim , Assistant Attorney General; Michael F. Murray , Acting Principal Deputy Assistant Attorney General; Daniel S. Guarnera , Counsel to the Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Amicus Curiae United States of America.

Joshua Polk and Anastasia Boden , Pacific Legal Foundation, Sacramento, California, for Amicus Curiae Pacific Legal Foundation.

Before: M. Margaret McKeown and Jacqueline H. Nguyen, Circuit Judges, and Royce C. Lamberth, District Judge.


OPINION

It is easy to recall examples of consumer-oriented business models in the medical field that were once resisted by incumbents but ultimately—through litigation, regulation, and legislation—resulted in cheaper and more accessible services. Take, for example, eyeglass prescriptions. At one time...

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