FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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 

No. 20-55735

D.C. No.

2:19-cv-08902-

GW-MAA

OPINION
2 SMILEDIRECTCLUB, LLC V. TIPPINS

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 
SMILEDIRECTCLUB, LLC V. TIPPINS 3

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.

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted July 26, 2021

San Francisco, California

Filed March 17, 2022

Before: M. Margaret McKeown and Jacqueline H. 

Nguyen, Circuit Judges, and Royce C. Lamberth,*

District Judge.

Opinion by Judge McKeown

* The Honorable Royce C. Lamberth, United States District Judge 

for the District of Columbia, sitting by designation.
4 SMILEDIRECTCLUB, LLC V. TIPPINS

SUMMARY**

Antitrust

The panel affirmed in part and reversed in part the 

district court’s dismissal of an action brought under antitrust 

and constitutional law by a dentist, his professional 

corporation, and the teledentistry company 

SmileDirectClub, LLC, against members and employees of 

the Dental Board of California.

The SmileDirect parties alleged that after they developed 

on online service model for patients to access certain 

orthodontic services, namely clear teeth aligners, defendants 

conspired to harass them with unfounded investigations and 

an intimidation campaign, with hopes of driving them out of 

the market.

The panel held that the SmileDirect parties sufficiently 

pled Article III standing because they alleged an injury in 

fact that was fairly traceable to defendants’ challenged 

conduct and was judicially redressable.

The panel concluded that the SmileDirect parties 

sufficiently alleged anticompetitive concerted action, or an 

agreement to restrain trade, to meet the pleading standards 

of Federal Rule of Civil Procedure 12(b)(6). The panel 

therefore partially reversed the district court’s dismissal of 

the SmileDirect parties’ antitrust claim under § 1 of the 

Sherman Act. The panel rejected the broad proposition that 

regulatory board members and employees cannot form an 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SMILEDIRECTCLUB, LLC V. TIPPINS 5

anticompetitive conspiracy when acting within their 

regulatory authority. As to certain other defendants, the 

panel affirmed dismissal because the SmileDirect parties 

failed to plead facts sufficient to tie them to the alleged 

conspiracy.

The panel affirmed the district court’s dismissal of the 

SmileDirect parties’ claim under the Dormant Commerce 

Clause, which prohibits states from discriminating against 

interstate commerce.

The panel affirmed the district court’s dismissal of the 

SmileDirect parties’ claim that defendants subjected them to 

disparate treatment in violation of the Equal Protection 

Clause. The panel held that to plead a class-of-one equal 

protection claim, plaintiffs must allege facts showing that 

they have been intentionally treated differently from others 

similarly situated and that there is no rational basis for the 

difference in treatment. Joining other circuits, the panel held 

that a class-of-one plaintiff must be similarly situated to the 

proposed comparator in all material respects. The 

SmileDirect parties fell short of this showing because, rather 

than claiming that they stood on the same footing as others, 

they instead touted their uniqueness.

COUNSEL

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; 
6 SMILEDIRECTCLUB, LLC V. TIPPINS

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.

OPINION

McKEOWN, Circuit Judge:

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, the consumer had to purchase 

eyeglasses from the prescribing doctor. Now doctors must 

provide a copy of the prescription, so consumers can get 

their eyeglasses at Costco, Warby Parker, or a host of online 

suppliers. Hearing aids represent another consumer 

advance. Once approved by the Food and Drug 

Administration, certain over-the-counter hearing aids can be 

purchased without seeing a healthcare professional. In the 

dental field, hygienists in some states can sometimes provide 

services without the supervision of a dentist. In each case, 
SMILEDIRECTCLUB, LLC V. TIPPINS 7

entrenched interests fought to preserve the status quo and to 

stifle the innovators’ entry into the market.

In a similar vein, this appeal involves a company that 

developed an online service model that, according to the 

company, makes it cheaper, easier, and more convenient for 

patients to access certain orthodontic services, namely clear 

teeth aligners. The company alleges that incumbents in the 

dental and orthodontia markets have illegally conspired to 

shut down its disruptive business model. What distinguishes 

this case from most run-of-the-mill antitrust lawsuits is that 

it involves not only business competitors, but competitors 

who sit on a regulatory board that oversees the practice of 

dentistry.

A dentist, his professional corporation, and the 

teledentistry company SmileDirectClub, LLC (together, the 

“SmileDirect parties”) are the newcomers. Members and 

employees of the Dental Board of California—largely made 

up of traditional dentists and orthodontists who have a 

financial motive to view the newcomers as competition—

allegedly conspired to harass the SmileDirect parties with 

unfounded investigations and an intimidation campaign, 

with hopes of driving them out of the market.

We conclude that the SmileDirect parties sufficiently 

alleged anticompetitive concerted action to meet the 

pleading standards of Federal Rule of Civil Procedure 

12(b)(6). We thus partially reverse the district court’s 

dismissal of the Sherman Act claim and reject the broad 

proposition—offered up by the board members and the 

district court—that regulatory board members and 

employees cannot form an anticompetitive conspiracy when 

acting within their regulatory authority. As to certain other 

defendants, we affirm dismissal—not because of their 

regulatory authority—but because the SmileDirect parties 
8 SMILEDIRECTCLUB, LLC V. TIPPINS

failed to plead facts sufficient to tie them to the alleged 

conspiracy. We also affirm dismissal of the Equal Protection 

Clause and Dormant Commerce Clause claims.

BACKGROUND1

Instead of traditional wire-and-bracket braces, some 

orthodontic patients choose clear teeth aligners, which are 

supposedly more cosmetically appealing. SmileDirectClub, 

LLC (“SmileDirect”) sells these clear aligners through a 

proprietary direct-to-consumer online platform. Their 

telemedicine model allows SmileDirect-affiliated dentists to 

treat out-of-state patients, subject to state licensure 

requirements.

Dr. Jeffrey Sulitzer is one such dentist. He lives in 

Washington State but is licensed in California and often 

treats California-based patients. Through his professional 

corporation, Sulitzer P.C., he owns the only SmileDirectaffiliated dental practice in California. Sulitzer has several 

brick-and-mortar “SMILESHOP stores” where technicians 

gather images of patients’ teeth and gums. He also operates 

a “SmileBus” with technicians onboard who do the same sort 

of imaging. As a third option, patients can go online, order 

an impression kit from SmileDirect’s website, receive the kit 

from a lab in Tennessee, then make the impressions at home. 

When the patient returns the impressions to the lab, a dentist 

1 This background draws from the First Amended Complaint, which 

we refer to as the Complaint for ease of reference. Because the district 

court dismissed the Equal Protection Claim before the SmileDirect 

parties amended the complaint, we also recount factual allegations from 

the original complaint, as supplemented by the SmileDirect parties’ 

Offer of Proof.
SMILEDIRECTCLUB, LLC V. TIPPINS 9

reviews the treatment plan, the aligners are manufactured, 

and then SmileDirect mails the aligners to the patient. 

This appeal arises out of a dispute between the 

SmileDirect parties and the Dental Board of California (the 

“Board”). By statute, the Board regulates the practice of 

dentistry in California. See Cal. Bus. & Prof. Code 

§§ 1600–1621. It enforces dental regulations, administers 

licensing exams, and issues dental licenses and permits. Id. 

§ 1611. The Board is made up of fifteen members: “eight 

practicing dentists, one registered dental hygienist, one 

registered dental assistant, and five public members.” Id. 

§ 1601.1(a). Since many of its members compete in the 

market for teeth-straightening services, they allegedly view 

SmileDirect as a “competitive threat.” The Complaint 

alleges that certain members of the Board, motivated by their 

private desires to stifle competition, mounted an aggressive, 

anti-competitive campaign of harassment and intimidation 

designed to drive the SmileDirect parties out of the market.

Complicating matters a bit, the SmileDirect parties have 

not sued the Board itself; the Complaint instead names 

sixteen individuals, plus ten unnamed “Doe” defendants, 

who were at some point affiliated with the Board (together, 

the “Board Actors”). Most are current or former board 

members; one (Joseph Tippins) is an investigator employed 

by the Board; and one (Karen M. Fischer) is the Board’s 

Executive Director. Many of the board members maintain 

“traditional dental and orthodontic practices” in California. 

Several have shops within blocks of SMILESHOP stores. 

And some belong to the American Dental Association and 

the California Dental Association, trade associations that 

have allegedly “opposed [SmileDirect’s] business model.”

The Complaint alleges that the Board Actors “have 

agreed, combined and conspired to pursue an aggressive, 
10 SMILEDIRECTCLUB, LLC V. TIPPINS

anti-competitive campaign of harassment and intimidation 

against” the SmileDirect parties. It alleges that “[t]he 

campaign includes, among other things, coordinated 

statewide raids; false statements; misconduct in front of 

consumers; and a retaliatory accusation filed in response to 

[this] lawsuit.” The Complaint contends that these actions 

violated the Sherman Antitrust Act; the Dormant Commerce 

Clause; the Equal Protection Clause; the Due Process 

Clause;2 and California’s Unfair Competition Law.

The district court dismissed the federal claims and 

declined to exercise supplemental jurisdiction over the state 

law claim. With respect to the Sherman Act claim, the 

district court first rejected the Board Actors’ argument that 

they were entitled to state-action antitrust immunity under 

Parker v. Brown, 317 U.S. 341 (1943). After a second round 

of briefing, the district court nonetheless dismissed the 

Sherman Act claim, holding that the Complaint only pled 

“an agreement consistent with the Dental Board’s regulatory 

purpose,” and that the alleged investigation “is to be 

expected of a regulatory body given the authority to 

investigate those regulated.”

We disagree. In rejecting the allegations as insufficient, 

the district court went astray on two important principles. 

First, it indirectly imported a summary judgment standard at 

the motion to dismiss stage. And second, it absolved the 

Board Actors because they acted “consistent with the Dental 

Board’s regulatory purpose,” effectively granting them 

antitrust immunity without holding them to the strictures of 

the state-action immunity doctrine. See N.C. State Bd. of 

Dental Exam’rs v. FTC, 574 U.S. 494, 504–05 (2015). We 

2 The SmileDirect parties do not seek to resuscitate their Due 

Process claim on appeal.
SMILEDIRECTCLUB, LLC V. TIPPINS 11

conclude that with respect to certain defendants, the 

Complaint plausibly alleged anticompetitive concerted 

action under the Sherman Act.

I. Standing

As a threshold matter, we reject the Board Actors’ 

argument that the SmileDirect parties lack standing to sue. 

To adequately allege Article III standing, the SmileDirect 

parties must plead that they “have (1) suffered an injury in 

fact, (2) that is fairly traceable to the challenged conduct of 

the defendant, and (3) that is likely to be redressed by a 

favorable judicial decision.” Spokeo, Inc. v. Robins, 578 

U.S. 330, 338 (2016). The SmileDirect parties allege that 

the Board’s campaign of harassment and intimidation 

injured their “business, revenue, goodwill, employee 

relations, and reputation in the marketplace.” The intrusive 

raids allegedly interrupted business operations and 

intimidated customers visiting SmileDirect stores. These 

injuries are fairly traceable to the Board Actors, who 

allegedly authorized the campaign. And the Board Actors 

do not dispute that this harm is judicially redressable through 

an injunction or other appropriate remedy. The net result—

the Board Actors have sufficiently pled standing.

II. Sherman Act Claim

We review de novo the district court’s dismissal for 

failure to state a claim, accepting as true all nonconclusory 

allegations in the Complaint. In re Musical Instruments & 

Equip. Antitrust Litig., 798 F.3d 1186, 1191 (9th Cir. 2015).

Section 1 of the Sherman Act prohibits “[e]very contract, 

combination in the form of trust or otherwise, or conspiracy, 

in restraint of trade or commerce.” 15 U.S.C. § 1. To state 

a claim under § 1, plaintiffs must plead “(1) ‘a contract, 
12 SMILEDIRECTCLUB, LLC V. TIPPINS

combination or conspiracy among two or more persons or 

distinct business entities’; (2) which is intended to restrain 

or harm trade; (3) ‘which actually injures competition’; and 

(4) harm to the plaintiff from the anticompetitive conduct.” 

Name.Space, Inc. v. Internet Corp. for Assigned Names & 

Nos., 795 F.3d 1124, 1129 (9th Cir. 2015) (quoting Brantley 

v. NBC Universal, Inc., 675 F.3d 1192, 1197 (9th Cir. 

2012)). In the district court, the Board Actors moved to 

dismiss the Sherman Act claim on just the first two elements. 

Though they argue the other elements on appeal, we only 

consider whether the Complaint plausibly pled (1) an 

agreement (2) to restrain trade. See G & G Prods. LLC v. 

Rusic, 902 F.3d 940, 950 (9th Cir. 2018) (issues not raised 

before the district court are forfeited on appeal).

On the first element, we hold that the SmileDirect parties 

plausibly pled concerted action, but we affirm dismissal as 

to those defendants with insufficient allegations tying them 

to the alleged conspiracy. On the second element, consistent 

with the Supreme Court’s observation that the Sherman Act 

prohibits “anticompetitive self-regulation by active market 

participants,” N.C. State, 574 U.S. at 505, we hold that 

agreements are not always lawful simply because they are 

“consistent with” the purpose of a regulatory Board 

dominated by market participants.

By requiring the SmileDirect parties to plead facts 

inconsistent with the Board’s regulatory purpose, the district 

court applied a standard more appropriate at the summary 

judgment stage, where § 1 plaintiffs must offer “evidence 

that tends to exclude the possibility” of lawful independent 

conduct. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 

752, 764 (1984). Rule 12(b)(6) does not require this 

heightened showing. See Erie Cnty. v. Morton Salt, Inc., 702 

F.3d 860, 869 (6th. Cir. 2012) (explaining that, at the motion 
SMILEDIRECTCLUB, LLC V. TIPPINS 13

to dismiss stage, a § 1 “plaintiff need not allege a fact pattern 

that ‘tends to exclude the possibility’ of lawful, independent 

conduct”). We apply the standard that applies to all § 1 

complaints: a plaintiff must plausibly allege an agreement 

that is unreasonable “per se” or under the “rule of reason.” 

Ohio v. Am. Express Co., 138 S. Ct. 2274, 2283–84 (2018). 

Analyzing the allegations within that framework, we hold 

that the Complaint plausibly pleads that the agreement was 

anticompetitive. We note, however, that we make no 

judgment on the merits of the claims and whether those 

claims will withstand scrutiny in the next phase of the 

litigation.

A. Contract, Combination, or Conspiracy

The SmileDirect parties allege they suffered a series of 

anticompetitive acts committed by the Board members and 

various agents. The Complaint does not, however, name the 

Board as a defendant. Instead, the Complaint names various 

Board members and employees.3 None of these 

defendants—apart from Tippins—are alleged to have 

directly caused harm to the SmileDirect parties. Rather, the 

Board Actors purportedly acted together to use the Board to 

inflict anticompetitive injury on their behalf. That 

circumstance distinguishes this case from those where 

conspiracy may be inferred from the parallel conduct of 

several ostensibly independent actors. See, e.g., In re Citric 

Acid Litig., 191 F.3d 1090, 1102 (9th Cir. 1999) (firms 

following similar pricing strategies). Here conspiracy must 

3 The Board Actors do not argue, and we therefore do not consider,

whether they are a single entity incapable of conspiring within the 

meaning of § 1. See, e.g., N.C. State Bd. of Dental Exam’rs v. FTC, 717 

F.3d 359, 371–72 (4th Cir. 2013), aff’d on other grounds, 574 U.S. 494 

(2015); Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 191–

92 (2010).
14 SMILEDIRECTCLUB, LLC V. TIPPINS

be inferred, if at all, as stemming from the actions of one 

entity (the Board) and thereafter imputed to its members.

Our review of the Complaint reveals the SmileDirect 

parties have adequately alleged the active participation of 

many—but not all—of the Board Actors in the conspiracy. 

The Complaint plausibly alleges that certain Board Actors 

agreed to launch a “campaign . . . to protect the economic 

interests of the traditional orthodontia market,” primarily 

because of alleged private economic motives. As the 

Supreme Court has remarked in denying blanket antitrust 

immunity to state regulatory boards, allowing “active market 

participants . . . to regulate their own markets free from 

antitrust accountability” poses a significant risk that those 

entities might engage in “self-dealing” to promote their 

private interests. N.C. State, 574 U.S. at 505, 510. The 

Board members who are dentists fall squarely within this 

realm. Their governance role is sufficient, when coupled 

with the congruence between the Board’s actions and their 

own self-interest, to allow a plausible inference of active 

participation. See Osborn v. Visa Inc., 797 F.3d 1057, 1067 

(D.C. Cir. 2015) (holding plaintiffs did “more than allege 

‘mere membership’” where complaint alleged defendants 

used their governance role to force association to take 

anticompetitive actions that served their economic interests); 

cf. SmileDirectClub, LLC v. Ga. Bd. of Dentistry, 1:18-CV02328-WMR, 2019 WL 3557892, at *4 (N.D. Ga. May 8, 

2019) (denying a motion to dismiss Sherman Act claims 

against state dental board members, because the allegations 

“are sufficient to plausibly allege concerted action”), aff’d 

on other grounds sub nom. SmileDirectClub, LLC v. Battle, 

969 F.3d 1134 (11th Cir. 2020), on reh’g en banc, 4 F.4th 

1274 (11th Cir. 2021).
SMILEDIRECTCLUB, LLC V. TIPPINS 15

Our conclusions draw from the circuit’s caselaw 

regarding anticompetitive conduct by membership 

organizations, which provide a close analog in this 

circumstance. We recognize that membership is not enough, 

standing alone, to allow a plausible inference that an 

organization’s members are engaged in an antitrust 

conspiracy. Kline v. Coldwell, Banker & Co., 508 F.2d 226, 

232 (9th Cir. 1974); see also Kendall v. Visa U.S.A., Inc., 

518 F.3d 1042, 1048 (9th Cir. 2008) (“[M]embership in an 

association does not render an association’s members 

automatically liable for antitrust violations committed by the 

association.”). And “[e]ven participation on the 

association’s board of directors is not enough by itself.” 

Kendall, 518 F.3d at 1048.

Ultimately, we require some showing—direct or 

circumstantial—that the defendants “actively participated in 

an individual capacity in the scheme.” Kline, 508 F.2d at 

232 (quoting N. Cal. Pharmaceutical Ass’n v. United States, 

306 F.2d 379, 388–89 (9th Cir. 1962)). But the allegations 

only go so far. In referring to the defendants collectively, 

the Complaint alleges that the SmileDirect parties’ business 

model poses a competitive threat to the dentist Board 

members’ “dental practices;” that several Board members 

belong to powerful trade groups; and that they collectively 

have “an economic incentive” to drive SmileDirect out of the 

market. These allegations logically apply only to the dentists 

and orthodontists who allegedly view SmileDirect as 

competition. We therefore affirm dismissal as to defendants 

Chappell-Ingram, McKenzie, Medina, Pacheco, and Olague. 

The Complaint pleads nothing (besides their presence on the 

Board) to implicate these defendants in the alleged 

conspiracy. See Kendall, 518 F.3d at 1048.
16 SMILEDIRECTCLUB, LLC V. TIPPINS

Although defendants Tippins, Fischer, and Burton are 

not dentists or dental professionals, at this stage their alleged 

involvement in the conspiracy withstands the motion to 

dismiss. Tippins is the investigator who allegedly executed 

the raids and sent document requests. Fischer is the 

Executive Director who allegedly attended Enforcement 

Committee meetings and dispatched Tippins to the 

SmileBus. Burton is a member of the Enforcement 

Committee, which, according to the Complaint, has some 

authority over investigators and their enforcement activities. 

Given these defendants’ close involvement in the alleged 

anticompetitive acts, the Complaint plausibly alleges their 

active participation, thus satisfying the concerted action 

element.

B. Unreasonable Restraint of Trade

Concerted action is not enough to sustain a § 1 violation. 

The agreement or conspiracy must be “intended to restrain 

or harm trade.” Name.Space, 795 F.3d at 1129. Because the 

Supreme Court has interpreted § 1 “to outlaw only 

unreasonable restraints” on trade, courts must consider 

whether a restraint falls into the “small group of restraints 

[that] are unreasonable per se” or is otherwise unreasonable 

under a “fact-specific assessment” known as the “rule of 

reason.” Ohio, 138 S. Ct. at 2283–84 (internal citations and 

quotations omitted). No per se violation is alleged here, so 

we ask whether the alleged “restraint’s harm to competition 

outweighs its procompetitive effects.” Tanaka v. Univ. of S. 

Cal., 252 F.3d 1059, 1063 (9th Cir. 2001).

Noting that the Board Actors could not demonstrate 

active state supervision, the district court rejected their 

argument that they were home free under Parker v. Brown’s 

state-action immunity doctrine. See 317 U.S. at 352 (holding 

that restraints imposed by the state “as an act of government” 
SMILEDIRECTCLUB, LLC V. TIPPINS 17

are immune from antitrust liability). However, in the same 

breath, the district court appeared to hold that conduct within 

the Board’s regulatory authority cannot be anticompetitive. 

In their motion to dismiss, the Board Actors argued that the 

actions of a state regulatory board could not be unreasonable 

if the board was “functioning in” its “ordinary regulatory 

capacity.” The district court took this rationale one step 

further and held that an agreement “consistent with the 

Dental Board’s regulatory purpose” cannot be unreasonable. 

But rejecting Parker immunity—then turning around and 

blessing the same conduct because it falls within the Board’s 

authority—effectively grants the Board Actors a free pass 

under the Sherman Act. That analysis is at odds with the 

Supreme Court’s view, our precedent, and that of our sister 

circuits. We hold that the Board Actors’ concerted action 

can be unreasonable under the Sherman Act—even if they 

seek to achieve their anticompetitive aims through the 

exercise of valid regulatory authority.

Like professional trade associations, members of a 

regulatory agency “act[] unlawfully” when their actions “are 

unduly anticompetitive and without adequate redeeming 

virtues.” Phillip E. Areeda & Herbert Hovenkamp, 4 

Antitrust Law ¶ 1477 (4th & 5th eds. 2011). As the Supreme 

Court has stressed, “[t]he similarities between agencies 

controlled by active market participants and private trade 

associations are not eliminated simply because the former 

are given a formal designation by the State, vested with a 

measure of government power, and required to follow some 

procedural rules.” N.C. State, 574 U.S. at 511.

The district court viewed the allegations in the 

Complaint as nothing more than an ordinary investigation 

that “is to be expected of a regulatory body.” As alleged, 

this was no standard or ordinary investigation; it was an 
18 SMILEDIRECTCLUB, LLC V. TIPPINS

abusive, aggressive, retaliatory, and targeted campaign 

designed to intimidate the SmileDirect parties and to drive 

them out of the market. Cf. N.C. State Bd. of Dental Exam’rs 

v. FTC, 717 F.3d 359, 373 (4th Cir. 2013), aff’d on other 

grounds, 574 U.S. 494 (2015) (“[T]he lengthy consistent 

campaign of sending letters and cease-and-desist orders is 

suggestive of coordinated action.”).

According to the SmileDirect parties, a letter from a 

trade association prompted the investigation, not a 

dissatisfied consumer or patient who had been harmed. 

Indeed, patient safety is not a focus of the proceedings here. 

The Complaint alleges that the trade association has 

advocated against SmileDirect’s business model, and that 

Board representatives communicated with the association 

about the supposedly confidential investigation behind the 

scenes. Once the investigation was underway, the Board’s 

investigators conducted aggressive and unreasonable “raids” 

that were “designed to maximize . . . interference, 

disruption, and public spectacle.” And they allege that, in 

response to this lawsuit, the Board Actors began a 

“retaliatory” administrative proceeding to possibly revoke 

Sulitzer’s dental license.

Although each of those actions may independently fall 

within the Board’s authority—which the Complaint does not 

concede—they could still be illegal if their anticompetitive 

effects outweighed their legitimate regulatory justifications. 

See Aya Healthcare Servs., Inc. v. AMN Healthcare, Inc., 

9 F.4th 1102, 1108 (9th Cir. 2021). It may well be, as the 

Board Actors argue, that the investigation was conducted 

“dutifully” and “by the book,” based on legitimate 

complaints, or that the Board was screened off from ongoing 

investigations, thus defeating any claim of a conspiracy. But 

because we do not consider the Board Actors’ competing 
SMILEDIRECTCLUB, LLC V. TIPPINS 19

facts at the pleadings stage, and because Rule 12 does not 

require the Complaint to exclude the possibility of lawful 

conduct, see SD3, LLC v. Black & Decker (U.S.) Inc., 801 

F.3d 412, 425–26 (4th Cir. 2015), we hold that the 

Complaint plausibly alleges a conspiracy to restrain trade.

The Fourth Circuit’s analysis in a similar case is 

instructive. N.C. Dental, 717 F.3d 359. In that case, the 

Federal Trade Commission found that the state dental board, 

largely comprised of practicing dentists, worked to “shut 

down” non-dentist teeth whitening services. Id. at 365. In 

furtherance of that conspiracy, the Board issued several 

cease-and-desist letters threatening that the non-dentists 

were committing a misdemeanor by offering teethwhitening services. Id. That intimidation campaign 

“successfully expelled non-dentist providers from the North 

Carolina teeth-whitening market.” Id. After making clear 

that the state dental board was capable of conspiring under 

the Sherman Act, id. at 371–73, the Fourth Circuit proceeded 

to ask whether the FTC properly found that the board’s 

actions “amounted to an unreasonable restraint of trade,” id. 

at 373. Applying the rule of reason and the related “quick 

look doctrine,” the court affirmed the FTC’s factual finding 

of unreasonableness. Id. at 373–75.

We do not share the district court’s concern that 

permitting the case to go forward at this stage will expose 

state regulatory board members to a lawsuit “every single 

time such an investigation commences.” Nor do we suggest

that every investigation suggests the existence of a 

conspiracy. But neither can we say that members of 

regulatory bodies who conspire against competition are 

automatically immune from antitrust allegations even when 

the body does not meet the requirements for state-action 
20 SMILEDIRECTCLUB, LLC V. TIPPINS

immunity. The SmileDirect parties have sufficiently alleged 

anticompetitive concerted action for a § 1 claim.

III. Dormant Commerce Clause Claim 

We affirm the district court’s dismissal of the 

SmileDirect parties’ Dormant Commerce Clause claim. The 

Commerce Clause empowers Congress to “regulate 

Commerce. . . . among the several States.” U.S. Const. art. 

I, § 8, cl. 3. “Courts have long read a negative implication 

into the clause, termed the ‘dormant Commerce Clause,’ that 

prohibits states from discriminating against interstate 

commerce.” Yakima Valley Mem’l Hosp. v. Wash. State 

Dep’t of Health, 731 F.3d 843, 846 (9th Cir. 2013). In other 

words, the Dormant Commerce Clause “prohibits economic 

protectionism—that is, regulatory measures designed to 

benefit in-state economic interests by burdening out-of-state 

competitors.” New Energy Co. of Ind. v. Limbach, 486 U.S. 

269, 273 (1988).

The SmileDirect parties have not pled a per se violation 

of the Dormant Commerce Clause, because the regulations 

governing the Board do not “facially discriminate against 

out-of-state interests.” Yakima Valley, 731 F.3d at 846; see

Cal. Bus. & Prof. Code §§ 1600–1621. Nor does the 

investigation itself establish a per se violation: the 

Complaint only alleges an investigation of one company’s 

entirely in-state conduct.

The Complaint also falls short of pleading a Dormant 

Commerce Clause violation through the investigation’s 

“‘incidental’ impacts on interstate trade.” Yakima Valley, 

731 F.3d at 846 (quoting Hughes v. Oklahoma, 441 U.S. 322, 

336 (1979)). As the Supreme Court has stated: “Where the 

statute regulates even-handedly to effectuate a legitimate 

local public interest, and its effects on interstate commerce 
SMILEDIRECTCLUB, LLC V. TIPPINS 21

are only incidental, it will be upheld unless the burden 

imposed on such commerce is clearly excessive in relation 

to the putative local benefits.” Id. at 846 (quoting Pike v. 

Bruce Church, Inc., 397 U.S. 137, 142 (1970)). The Board 

has a legitimate interest in regulating and investigating 

California-licensed dentists, and the Board’s conduct 

targeted only a handful of California stores and a SmileBus 

parked in California. See Great Atl. & Pac. Tea Co. v. 

Cottrell, 424 U.S. 366, 371 (1976).

IV. Equal Protection Claim

The SmileDirect parties allege that the Board Actors 

subjected them to disparate treatment in violation of the 

Equal Protection Clause of the Fourteenth Amendment. 

They claim that Sulitzer is like every other Californialicensed dentist who can prescribe clear aligner therapy and 

who is subject to the Board’s regulatory authority. But they 

say that the Board Actors have not subjected any other 

California dentists or dental corporations to similar 

investigations, and have singled out Sulitzer and the other 

SmileDirect parties on the basis of “economic protectionism 

and animus.”

As the Supreme Court has recognized, “an equal 

protection claim can in some circumstances be sustained 

even if the plaintiff has not alleged class-based 

discrimination, but instead claims that she has been 

irrationally singled out as a so-called ‘class of one.’” 

Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008). 

To plead a class-of-one equal protection claim, the 

SmileDirect parties must allege facts showing that they have 

been “[1] intentionally [2] treated differently from others 

similarly situated and that [3] there is no rational basis for 

the difference in treatment.” Village of Willowbrook v. 

Olech, 528 U.S. 562, 564 (2000) (per curiam).
22 SMILEDIRECTCLUB, LLC V. TIPPINS

We have not had occasion to determine what degree of 

similarity makes a plaintiff “similarly situated” to others in 

the class-of-one context, and the Supreme Court has offered 

little guidance on that front. In Olech, a homeowner alleged 

that the village demanded a 33-foot easement to connect her 

property to the municipal water line, but only required a 15-

foot easement from other property owners in the same 

position. Id. at 565. We have interpreted Olech to permit a 

class-of-one claim by a property owner alleging that a 

county arbitrarily denied her a permit for a road approach but 

allowed other property owners to build road approaches 

without incident. Gerhart v. Lake County, 637 F.3d 1013, 

1022 (9th Cir. 2011). Neither case required extended 

reflection on what made the plaintiffs “similarly situated” 

with the comparator class: same neighborhood block; same 

type of property; same city water line (Olech); same type of 

road approach (Gerhart)—but different treatment by 

government officials.

Our sister circuits, in defining what it means to be 

“similarly situated,” have largely determined that a class-ofone plaintiff should be similar to the proposed comparator in 

all “relevant” or “material” respects. For example, in 

assessing a claim by a land developer who alleged 

differential treatment, the Second Circuit explained that 

“class-of-one plaintiffs must show an extremely high degree 

of similarity between themselves and the persons to whom 

they compare themselves.” Clubside, Inc. v. Valentin, 468 

F.3d 144, 159 (2d Cir. 2006). Likewise, the Seventh Circuit 

has held that class-of-one plaintiffs must be “directly 

comparable . . . in all material respects” to the comparator. 

Reget v. City of La Crosse, 595 F.3d 691, 695 (7th Cir. 

2010); accord. PBT Real Est., LLC v. Town of Palm Beach, 

988 F.3d 1274, 1285 (11th Cir. 2021) (“The entities being 

compared must be prima facie identical in all relevant 
SMILEDIRECTCLUB, LLC V. TIPPINS 23

respects.” (internal quotation marks, alterations, and citation 

omitted)); Superior Commc’ns v. City of Riverview, 881 F.3d 

432, 446 (6th Cir. 2018) (adopting the “all material respects” 

formulation); Gianfrancesco v. Town of Wrentham, 712 F.3d 

634, 640 (1st Cir. 2013) (“[A] class-of-one plaintiff bears the 

burden of showing that his comparators are similarly situated 

in all respects relevant to the challenged government 

action.”).

We join our sister circuits in holding that a class-of-one 

plaintiff must be similarly situated to the proposed 

comparator in all material respects. The SmileDirect parties 

fall far short of this showing. Rather than claiming that they 

stand on the same footing as others, they instead tout their 

uniqueness, hailing their platform as “revolutionary,” 

“unique,” “cutting-edge,” and “more convenient and 

affordable” than traditional orthodontia models. Because 

they operate a materially different business model, at a 

significantly different price point, using new and different 

technology, the SmileDirect parties cannot establish that 

they are “similarly situated” to all other licensed dentists and 

orthodontists in California. The district court properly 

dismissed their equal protection claims without leave to 

amend because it was “clear that the complaint could not be 

saved by amendment.” Cooper v. Ramos, 704 F.3d 772, 783 

(9th Cir. 2012).

AFFIRMED IN PART; REVERSED and 

REMANDED IN PART.

The parties shall each pay their own costs on appeal.