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

Align’s records show that you purchased Invisalign Aligners directly from Align during the period beginning January 1, 2019, through March 31, 2022. The Notice explains that the Court allowed, or “certified,” a class action lawsuit that may affect you. You have legal rights and options that you may exercise before the Court holds a trial to decide whether the legal claims about Invisalign Aligners being made against Align are correct. Judge Chhabria of the United States District Court for The Northern District of California is overseeing this class action. The lawsuit is known as Simon and Simon, PC et al. v. Align Technology, Inc., Case No. 3:20-CV-03754-VC.

In a class action, people or businesses called Class Representatives (here, Simon and Simon, PC d/b/a City Smiles and VIP Dental Spas) sue not only for themselves but also on behalf of other people or businesses with similar legal claims and interests. Together all people or businesses with similar legal claims and interests form a specifically defined class and are Class Members. The dental practices that sued—on behalf of all Class Members—are called the Plaintiffs. The company they sued (Align) is called the Defendant. One court resolves the issue for all Class Members, except for those people who choose to exclude themselves from the Class.

The Court decided that this lawsuit can be a class action and move towards trial, because:

• Certain questions of law and facts that are common to the Class predominate;
• Simon and Simon, PC and VIP Dental Spas’ legal claims about Invisalign Aligners are typical of the legal claims of the rest of the Class.

More information about why this Court is allowing this lawsuit to be a class action is in the Court’s Order Certifying the Class, which is available here.

Generally, Plaintiffs allege that Align engaged in anticompetitive conduct in violation of the Sherman Antitrust Act, 15 U.S.C. § 2. Plaintiffs allege that Align has monopoly power in the market for Aligners (custom-manufactured, transparent, removable dental Aligners made from clear plastic) and further allege that Align monopolized the market for Aligners (“Aligner Market”) through two mutually-reinforcing types of anticompetitive conduct: (1) an unlawful refusal to deal involving the unilateral termination of interoperability between Invisalign and the Trios Scanner, sold by Align’s rival, 3Shape Trios A/S; and (2) exclusionary contractual provisions and bundled rebate programs that lock in customers and foreclose rival sellers of Aligners. Plaintiffs also allege that, as a result of this alleged conduct, Align charged higher prices for its Invisalign Aligners than it would have charged without this allegedly anticompetitive conduct. You can read the Plaintiffs’ Amended Class Action Complaint here.

Align denies that it has done anything wrong. Align asserts that the challenged conduct is lawful. Align also asserts that it does not have monopoly power in the Aligner Market. Further, Align asserts that it competes vigorously for sales and charges competitive prices for its products. Align’s Answer to the Amended Class Action Complaint is also available here.

The Court has not decided who will prevail on the legal claims in this case. By certifying the Class and approving the issuance of this Notice, the Court is not suggesting that Plaintiffs will win or lose. The Plaintiffs must prove their legal claims about Align’s conduct relating to Invisalign Aligners at a trial, which is set to start on May 13, 2024. (see FAQ 15).

The Plaintiffs are seeking money to compensate for paying allegedly inflated prices for Invisalign Aligners. The Plaintiffs also seek to put an end to the alleged anticompetitive conduct.

Money is not available now because the Court has not found that Align has done anything wrong, and Plaintiffs and Align have not agreed to settle the lawsuit. There is no guarantee that money will be obtained. If Plaintiffs obtain money on behalf of themselves and the Class, and you remain in the Class, you will be notified of how to obtain your share.

Judge Chhabria decided that all persons or entities in the United States that purchased Invisalign Aligners directly from Align during the period beginning January 1, 2019, through March 31, 2022, are Class Members. Judge Chhabria also decided that Align, its subsidiaries, affiliate entities, and employees, and all federal or state government entities or agencies are not Class Members.

If you are not sure whether you are a Class Member, contact the Class Administrator through one of the following means:

Toll-free telephone number: 1-888-803-3968

United States mail:

Align Direct Purchaser Antitrust
c/o Class Administrator
P.O. Box 2418
Portland, OR 97208-2418

You do not have to do anything now if you want to stay in the Class and participate in the class action. By doing nothing, you are staying in the Class. If the Plaintiffs obtain money, either because of the trial or a settlement, you will be notified of how to obtain a share. Keep in mind that if you do nothing now, regardless of whether Plaintiffs win or lose the trial, you will not be able to sue or continue to sue Align—as part of any other lawsuit—over the same legal claims that are the subject of this lawsuit. You will also be bound by all the orders the Court issues and the judgments the Court makes in this class action. If the case proceeds to trial and the Class does not prevail, you will be bound any judgment.

If you already have your own lawsuit against Align challenging the same allegedly anticompetitive conduct as in this lawsuit and want to continue with it, you must ask to be excluded from the Class.

If you exclude yourself from the Class—also called “opting out” of the Class—you will not be able to share in any money obtained from this lawsuit, even if the Plaintiffs obtain them either at trial or through a settlement.

If you want to file your own lawsuit against Align after you exclude yourself or if you have a pending lawsuit, speak to your lawyer immediately. You will have to hire and pay for your own lawyer.

The Court will exclude from the Class any member who requests exclusion. To ask to be excluded from the Class, you must send a written “Request for Exclusion” to the Class Administrator. To be valid, your Request for Exclusion must be postmarked by March 15, 2024, and mailed to:

Align Direct Purchaser Antitrust Exclusion Request
c/o Class Administrator
P.O. Box 2418
Portland, OR 97208-2418

Your Request for Exclusion must: (i) be in writing (you cannot exclude yourself by telephone or email); (ii) include your signature; (iii) state the full name, address, and telephone number of the Class Member; and (iv) state that “I/we hereby request I/we be excluded from the Class in Simon and Simon, PC et al. v. Align Technology, Inc., Case No. 3:20-CV-03754-VC.”

The Court has approved as lawyers for the Class (“Class Counsel”) the following:

More information about these law firms, their practices, and their lawyers’ experience are available at www.bergermontague.com and www.radicelawfirm.com.

You do not have to hire your own lawyer because Class Counsel are working on your behalf. But if you want your own lawyer, you will have to pay that lawyer.

If Class Counsel get money or benefits for the Class, they will ask the Court to award attorneys’ fees and costs and expenses. You will not have to pay for the fees, costs, and expenses.

If the lawsuit is not resolved by Align’s Motion for Summary Judgment, a settlement or otherwise, Class Counsel will have to prove the Plaintiffs’ legal claims about Align’s conduct relating to Invisalign Aligners at trial. The trial is currently scheduled to start on May 13, 2024, in the United States District Court for The Northern District of California, Phillip Burton Federal Building & United States Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102 in Courtroom 4. During the trial, a jury will hear the evidence to help reach a decision about the legal claims in this lawsuit. There is no guarantee that the Plaintiffs will win or that they will get any money for the Class.

Note: The date of the trial may change without further notice to the Class. You should check this website or the Court’s Public Access to Court Electronic Records (PACER) system to confirm the date of the trial has not changed. Instructions on how to access the Court’s PACER site are included in FAQ 18.

You do not need to attend the trial. Class Counsel will present the lawsuit for the Plaintiffs. You and/or your own lawyer are welcome to attend the trial at your own expense.

If the Plaintiffs obtain money because of the trial or settlement, you will be notified about how to obtain any share to which you are entitled. We do not know how long the process to obtain money for the Class will take.

More details are available for your review here, including the Court’s Order Certifying the Class, Plaintiffs’ Complaint, Defendant’s Answer to the Complaint, as well as other documents relating to the lawsuit. You may also call toll-free 1-888-803-3968 or write the Class Administrator at: Align Direct Purchaser Antitrust, c/o Class Administrator, P.O. Box 2418, Portland, OR 97208-2418.

You may also obtain additional information regarding this lawsuit by accessing the Court docket in this case, for a fee, through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for The Northern District of California, Phillip Burton Federal Building & United States Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays.

Please do not attempt to contact Judge Chhabria or the Clerk of Court with any questions.