1 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Ortho-Tain, Inc., 

Plaintiff,

v. 

Colorado Vivos Therapeutics, Inc., Vivos 

Therapeutics, Inc., Kirk Huntsman, Ben 

Miraglia, Brian Kraft, Mark Musso, and 

Benco Dental Supply Co., 

Defendants. 

Case No. 20 C 4301 

Hon. LaShonda A. Hunt 

MEMORANDUM OPINION AND ORDER

Plaintiff Ortho-Tain, Inc. sued Defendants Colorado Vivos Therapeutics, Inc., Vivos 

Therapeutics, Inc.,

1 Dr. Ben Miraglia, Dr. Mark Musso, Kirk Huntsman, Dr. Brian Kraft, and 

Benco Dental Supply Co., for violations of the Lanham Act, civil conspiracy, and breach of 

contract. Ortho-Tain alleges that Defendants conspired to sell orthodontic appliance products by 

falsely taking credit for favorable results achieved by Ortho-Tain’s products. In connection with 

that conspiracy, Ortho-Tain claims that Dr. Kraft breached a non-compete clause and Huntsman 

breached a non-disclosure agreement. The Vivos Defendants and Benco each seek dismissal of 

Ortho-Tain’s complaint under Rule 12(b)(6). In addition, Dr. Musso seeks dismissal for lack of 

jurisdiction and improper venue under Rules 12(b)(2) and (b)(3), respectively. For the reasons 

discussed below, Benco’s motion [78] is granted, and the Vivos Defendants’ motion [79] is granted 

in part and denied in part. 

1

 The Complaint uses the name “Vivos” to collectively refer to Defendants Colorado Vivos Therapeutics, 

Inc. and Vivos Therapeutics, Inc. (Dkt. 1 at ¶ 9). To avoid confusion, the Court will do the same. Furthermore, the 

Vivos entities, together with Defendants Miraglia, Musso and Huntsman, are collectively referred to as the “Vivos 

Defendants.” (Vivos Mot. at 1, Dkt. 79).

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BACKGROUND

Ortho-Tain and Vivos are competitors in the business of manufacturing and selling 

orthodontic appliance products used to treat various conditions such as sleep disordered breathing. 

(Compl. ¶¶ 2, 6-8, 10, Dkt. 1). Huntsman is Vivos’ founder and CEO. (Id. ¶¶ 9, 93). Benco is a 

dental supply and equipment distributor and dental consulting and equipment services provider. 

(Id. ¶¶ 14-15). Drs. Miraglia, Kraft, and Musso are dentists. (Id. ¶¶ 11-13). 

In 2013, several years before Huntsman formed Vivos, he signed a non-disclosure 

agreement (“NDA”) with Ortho-Tain to explore the marketing viability of certain new orthodontic 

appliance products.

2

 (Id. ¶¶ 7-8, 20-24 & Ex. B (NDA), Dkt. 1-2). The NDA provided that OrthoTain would disclose confidential and propriety information, including plans for the marketing, sale 

and distribution of orthodontic appliances, research data, product exemplars, and patient case 

records, and that the recipients of the confidential and proprietary information were prohibited 

from disclosing such information for at most three years following its initial disclosure. (Compl. 

¶¶ 20-24 & NDA art. 3).

As part of its business, Ortho-Tain hires dentists to give presentations and lectures about 

its products to other medical professionals. For example, in October 2014, Ortho-Tain engaged 

Dr. Miraglia to be a paid presenter for a course in which he showcased case studies of several 

pediatric patients who had achieved favorable results using Ortho-Tain’s orthodontic appliances. 

2 There are a number of factual discrepancies between the parties’ characterizations of the NDA and the NDA 

itself. First, Ortho-Tain alleges that the parties entered into the NDA in June 2014, but the agreement itself states that 

it is entered into as of October 23, 2013. (Compare Compl. ¶ 20 with Compl., Ex. B at 1). Second, Ortho-Tain and 

Huntsman dispute whether Huntsman is bound by the NDA. The NDA lists the parties as “Leslie Stevens, Ortho-Tain, 

Inc. a Puerto Rico Corporation” and “Xenith Practices, LLC, a Texas Limited Liability Company, R. Kirk Huntsman, 

Doug Woodward, its principals, and employees.” (NDA at 1). The NDA then refers to “Ortho-Tain”, “Recipient”, and 

“Recipients”, but the latter two terms were never defined. (See, e.g., id., art. 2, 3). The signature block lists “Leslie 

Stevens ORTHO-TAIN, INC.”, “R. Kirk Huntsman Xenith Practices, LLC”, and “Doug Woodard [sic] Xenith 

Practices, LLC” as signatories and includes signatures on the “By” line for all three. (Id. at 3). Under the signatures, 

the spaces for “Name” and “Title” were left blank. (Id.) 

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(Compl. ¶¶ 102, 108, 117). Several years later, in April 2018, Ortho-Tain entered into a “Speaking 

Agreement” with Dr. Kraft. (Id. ¶ 18-19 & Ex. A (Speaking Agreement), Dkt. 1-1). The Speaking 

Agreement provided that Dr. Kraft would give presentations about Ortho-Tain’s products to other 

medical professionals and would not compete with Ortho-Tain for at least two years after 

termination of the contract. (Compl. ¶ 19 & Speaking Agreement §§ 4, 9). Dr. Kraft eventually 

terminated the Speaking Agreement on April 10, 2020. (Compl. ¶ 79). Although it is unclear if 

Ortho-Tain’s relationship with Dr. Musso was the same as with Drs. Miraglia and Kraft, it appears 

that Dr. Musso may have presented for Ortho-Tain because he had information on several case 

studies of pediatric patients who had achieved favorable results using its products. (Id. ¶¶ 71-75).

Through Huntsman’s work with Ortho-Tain, he was connected with Drs. Miraglia, Kraft, and 

Musso. (Id. ¶ 25).

Huntsman formed Vivos in 2016 and 2017. (Id. ¶¶ 7-10). Like Ortho-Tain, Vivos sells

orthodontic appliances that treat patients with conditions such as sleep disordered breathing. (Id.) 

As part of its business, Vivos put on a series of events in early 2020 (the “Vivos System course”) 

featuring dentists referred to as “Clinical Advisors” who spoke about treatments for sleep apnea 

using Vivos’ products. (Id. ¶ 26-34). Benco sponsored the events, Dr. Kraft spoke during an event

in St. Louis, Missouri, on February 7, 2020, and Dr. Miraglia spoke during an online event on 

March 26, 2020 (the “2020 Wellness Summit”). (Id. ¶¶ 26-34, 35-36, 91). During these events, 

Drs. Kraft and Miraglia discussed and presented slides containing information about pediatric case 

studies—the same exact case studies that had previously been showcased in connection with 

Ortho-Tain’s presentations and lectures about patients who had achieved favorable results using 

Ortho-Tain’s orthodontic appliances. (Id. ¶¶ 37-44, 95-125). The slides containing the information 

about the case studies also displayed the name “Vivos” and the presenters attributed the favorable 

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results to Vivos’ products, not Ortho-Tain. (Id. ¶¶ 38-43, 64-65, 71-74, 95-101, 139-40, 152, 158-

162). Similarly, Vivos created and disseminated a “parent webinar” that showcased the pediatric 

case studies as examples of favorable results obtained by Vivos’ products without giving credit to 

Ortho-Tain. (Id. ¶¶ 153-54). Although it is unclear whether Dr. Musso ever presented for Vivos, 

he provided Vivos with information on the pediatric case studies. (Id. ¶¶ 70-71).

According to Ortho-Tain, Defendants all conspired to use the case studies of pediatric 

patients who achieved favorable results by using Ortho-Tain’s products and to give Vivos credit 

for the results. (Id. ¶¶ 59-75, 134-65). Vivos, Benco, and Huntsman benefited by selling products, 

and Drs. Miraglia, Kraft, and Musso benefited by receiving compensation for being Clinical 

Advisors. (Id.)

Based on these events, Ortho-Tain filed an eleven-count complaint on July 22, 2020, 

asserting claims under section 1125(a) of the Lanham Act (Counts I and VI), for civil conspiracy

(II-IV and VII-X), and for breach of contract (Counts V and XI). Only Dr. Kraft answered. (Kraft 

Am. Ans., Dkt. 22). All other defendants filed motions to dismiss, (Mots., Dkts. 8, 13). The district 

judge previously assigned to this case3 stayed the matter pending resolution of a related lawsuit 

filed in Colorado by Vivos against Ortho-Tain approximately two months earlier.

4 (Order dated 

May 14, 2021, Dkt. 37). As a result, the original motions to dismiss were denied without prejudice. 

(Id.) Approximately two years later, the stay was lifted when the Colorado District Court Action 

3 This case was reassigned to the calendar of Judge LaShonda A. Hunt on June 2, 2023. (Reassignment Order, 

Dkt. 69).

4 On June 5, 2020, Vivos sued Ortho-Tain. See Vivos Therapeutics Inc. v. Ortho-Tain, Inc., No. 20 C 1634 

(D. Colo.) (the “Colorado District Court Action”). The operative complaint includes claims for false advertising, 

consumer protection violations, libel and slander, contractual interference, and a declaratory judgment that Vivos did 

not violate the Lanham Act. Id., Dkt. 40. Orders denying motions to dismiss in that action have been appealed twice, 

see Vivos Therapeutics Inc. v. Ortho-Tain, Inc., No. 21-1309 & No. 24-1061 (10th Cir.), with the second appeal still 

pending.

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appeared to be closed. (Minute Order dated March 2, 2023, Dkt. 57). Defendants then renewed 

their dismissal motions, (Benco Mot., Dkt. 78; Vivos Mot., Dkt. 79), which are now fully briefed 

and ready for ruling. 

LEGAL STANDARD

Rule 12(b)(6) permits a party to move for dismissal based on a pleading’s “failure to state 

a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In determining whether a 

complaint states a claim under Rule 12(b)(6), courts must accept all non-conclusory factual 

allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, legal conclusions and 

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 

In addition, the Court must construe the complaint in the light most favorable to the plaintiff and 

draw all reasonable inferences in the plaintiff’s favor. Levy v. W. Coast Life Ins. Co., 44 F.4th 621, 

626 (7th Cir. 2022). While ruling on a motion to dismiss for failure to state a claim, a court may 

generally consider only the plaintiff’s complaint, exhibits to the complaint, matters central to the 

plaintiff’s claim and incorporated into the complaint by reference, and items subject to judicial 

notice. Geinosky v. City of Chi., 675 F.3d 743, 745 n.1 (7th Cir. 2012). 

Applying these principles, a complaint will survive a motion to dismiss if it “states a 

plausible claim for relief.” Ashcroft, 556 U.S. at 679 (2009) (citing Twombly, 550 U.S. at 556). To 

state a plausible claim for relief, a complaint must “permit the court to infer more than the mere 

possibility of misconduct[.]” Id. at 679. “In alleging fraud or mistake, a party must state with 

particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9. Generally, this 

means that the plaintiff must spell out the “who, what, when, where, and how” of the alleged fraud. 

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Rocha v. Rudd, 826 F.3d 905, 911 (7th Cir. 2016). The movant has the ultimate burden to show 

that dismissal is warranted. Marcure v. Lynn, 992 F.3d 625, 631 (7th Cir. 2021). 

DISCUSSION

Benco and the Vivos Defendants generally contend that Ortho-Tain’s Lanham Act claims 

are precluded by Supreme Court precedent and the civil conspiracy claims are not alleged with the 

requisite degree of particularity. Dr. Musso specifically contests both personal jurisdiction and 

venue, and Huntsman specifically disputes whether he was bound by the NDA and any alleged 

disclosures were made within the non-disclosure period. Separately, Benco argues that the 

allegations of its involvement in the conspiracy are insufficient to state a claim, The Court will 

address each issue in turn. 

I. Lanham Act Claims

In Counts I and VI of the Complaint, Ortho-Tain asserts claims against Vivos under section

43(a) of the Lanham Act, 15 U.S.C. § 1125(a), based on the use of Ortho-Tain’s case studies in 

the Vivos System course and 2020 Wellness Summit, respectively. The relevant section of the 

Lanham Act, provides as follows: 

(1) Any person who, on or in connection with any goods or services, 

or any container for goods, uses in commerce any word, term, name, 

symbol, or device, or any combination thereof, or any false 

designation of origin, false or misleading description of fact, or false 

or misleading representation of fact, which--

(A) is likely to cause confusion, or to cause mistake, or to 

deceive as to the affiliation, connection, or association of 

such person with another person, or as to the origin, 

sponsorship, or approval of his or her goods, services, or 

commercial activities by another person, or 

(B) in commercial advertising or promotion, misrepresents 

the nature, characteristics, qualities, or geographic origin of 

his or her or another person's goods, services, or commercial 

activities,

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shall be liable in a civil action by any person who believes that he 

or she is or is likely to be damaged by such act.

15 U.S.C. § 1125. “Section 1125(a) thus creates two distinct bases of liability: false association[/

designation of origin], § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).” Lexmark Int’l, 

Inc. v. Static Control Components, Inc., 572 U.S. 118, 122 (2014); see also Kennedy v. Nat’l 

Juvenile Det. Ass’n, 187 F.3d 690, 695-96 (7th Cir. 1999) (reciting elements for false 

association/designation of origin); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 819 (7th Cir. 

1999) (reciting elements for false advertising). Lanham Act claims are subject to the heightened

pleadings standard of Rule 9(b) if they are based on allegations of fraud. See VitalGo, Inc. v. Kreg 

Therapeutics, Inc., Case No. 16 C 5577, 2017 WL 6569633, at *6-10 (N.D. Ill. Dec. 21, 2017).

The Vivos Defendants first argue that Ortho-Tain has failed to state a claim under 

§ 1125(a)(1)(A) because it has not alleged that Vivos either sold Vivos’ products under OrthoTain’s name (passing off) or sold Ortho-Tain’s products under Vivos’ name (reverse passing off). 

Rather, the Vivos Defendants assert that Ortho-Tain’s claim relates to the intangible idea that 

Vivos’ products cause certain treatment results, which is inactionable under Supreme Court 

precedent.

To state a claim for false association/designation of origin of goods under § 1125(a)(1)(A), 

the goods that are the subject of the claim must be tangible. Dastar Corp. v. Twentieth Century 

Fox Film Corp., 539 U.S. 23, 37 (2003). In Dastar, the defendant obtained a copy of a television 

series previously made by the plaintiff; condensed, modified, and retitled the series; and then 

marketed the revised series as its own without giving credit to the plaintiff. Id. at 25-27. There, the

Supreme Court held that the “the phrase ‘origin of goods’ is in [its] view incapable of connoting 

the person or entity that originated the ideas or communications that ‘goods’ embody or contain.” 

Id. at 32. Summarizing its holding, Dastar states that “reading the phrase ‘origin of goods’ in the 

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Lanham Act in accordance with the Act’s common-law foundations (which were not designed to 

protect originality or creativity), and in light of the copyright and patent laws (which were), we 

conclude that the phrase refers to the producer of the tangible goods that are offered for sale, and 

not to the author of any idea, concept, or communication embodied in those goods.” Id. at 37

(emphasis in original).

In the Complaint, Ortho-Tain appears to attempt to assert a claim based on a form of reverse 

passing off. Its theory is that Vivos used case studies about favorable results achieved by OrthoTain’s products to sell Vivos’ products. The goods at issue in this case are orthodontic appliances, 

but Ortho-Tain does not allege that Vivos is either selling Ortho-Tain’s appliances as its own or 

selling its appliances under Ortho-Tain’s name. Rather, Ortho-Tain’s claim relates to what is 

essentially advertising material—the case studies about favorable results achieved by Ortho-Tain’s 

appliances—and the use of that material to falsely communicate that such results were achieved 

by Vivos’ appliances. Such a claim fails under Dastar because the connection between the 

favorable results and appliancesis an intangible idea or concept. Because the focus of Ortho-Tain’s 

claim is the idea or concept communicated by the advertising material, not the source of the actual 

orthodontic appliances, it cannot state a claim under § 1125(a)(1)(A) based on the facts alleged. 

See Phoenix Ent. Partners v. Rumsey, 829 F.3d 817, 827 (7th Cir. 2016) (“what Dastar makes 

clear is that a consumer’s confusion must be confusion as to the source of the tangible good sold 

in the marketplace.”).

But the analysis does not end there—the Court must also consider whether Ortho-Tain has 

stated a claim for false advertising under 15 U.S.C. § 1125(a)(1)(B).5 To ultimately prevail on a 

5 As the Vivos Defendants note, Ortho-Tain’s Complaint quotes an outdated version of the statute that did 

not distinguish between false association/designation and advertising claims. (Vivos Reply at 5 n.2, Dkt. 88) 

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false advertising claim under the Lanham Act, “a plaintiff must establish that: (1) the defendant 

made a material false statement of fact in a commercial advertisement; (2) the false statement 

actually deceived or had the tendency to deceive a substantial segment of its audience; and (3) the 

plaintiff has been or is likely to be injured as a result of the false statement.” Eli Lilly & Co. v. Arla 

Foods, Inc., 893 F.3d 375, 382 (7th Cir. 2018) (citing Hot Wax, 191 F.3d at 819). The Seventh 

Circuit has “recognized two types of actionable statements under the Lanham Act: those that are 

literally false and those that are literally true but misleading.” Eli Lilly, 893 F.3d at 382. Statements 

that are literally false “will necessarily deceive consumers,” so “[t]he inquiry asks whether the 

defendant made an explicit representation of fact that on its face conflicts with reality.” Id. For 

statements that are literally true but misleading, actual consumer confusion is ordinarily required 

and typically shown through consumer surveys—early on in the case, however, allegations are 

sufficient, evidence is not required. See id. Rule 9(b)’s heightened pleading standard generally 

applies to false advertising claims under the Lanham Act. Vertical Web Media, L.L.C. v. 

Etailinsights, Inc., No. 14 C 3220, 2014 WL 2868789, at *3 (N.D. Ill. June 24, 2014).

The Vivos Defendants argue that the Vivos System course and 2020 Wellness Summit 

were not “commercial advertising or promotion” as the phrase is used in § 1125(a)(1)(B), the false 

statements alleged by Ortho-Tain are not actionable, and Ortho-Tain’s allegations generally do not 

satisfy the heightened pleading standard of Rule 9(b).

(comparing Compl. ¶¶ 49, 90 (citing 1988 version of Lanham Act), with 15 U.S.C. § 1125(a)(1)(A) & (B) (2020)). 

Adding to the confusion, while the language of the Complaint appears to invoke the false designation provision, 

§ 1125(a)(1)(A), (see Compl. ¶¶ 58, 62, 137, 158, 160) (referring to false designation of source or origin), OrthoTain’s response includes arguments relating to both provisions, §§ 1125(a)(1)(A) and (B), (see Resp. at 9-10, 13, Dkt. 

81) (referring to both types of claims but shifting focus of argument to elements of false advertising). While OrthoTain’s failure to clearly articulate the exact legal theory on which the Lanham Act claims are based is certainly 

unhelpful, it is not necessarily grounds for dismissal. See Johnson v. Shelby, 574 U.S. 10, 11 (2014) (“Federal pleading 

rules . . . do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim 

asserted.”).

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First, the Court disagrees with their contention that Vivos’ events did not constitute 

“commercial advertising or promotion” because the events were described in the Complaint as

“seminars” and “continuing education courses.” As “commercial advertising or promotion” is used 

in § 1125(a)(1)(B), the Seventh Circuit has held that the phase is not as broad as commercial speech 

under the First Amendment; and instead that advertising “is a form of promotion to anonymous 

recipients, as distinguished from face-to-face communication.” First Health Grp. Corp. v. BCE 

Emergis Corp., 269 F.3d 800, 803 (7th Cir. 2001). Thus, rather than treating ‘“commercial 

advertising or promotion’ as synonymous with all commercial speech, [the district court should] 

conduct the inquiry necessary to determine whether [the alleged wrongful conduct] entailed 

promotional material disseminated to anonymous recipients.” Id. at 804. Examples of statements 

that are not commercial advertising or promotions for purposes of a Lanham Act false advertising 

claim include communications made by business executives and lawyers during contract 

negotiations over a conference table, id. at 804, letters sent directly to customers by a company, 

ISI Int’l, Inc. v. Borden Ladner Gervais L.L.P., 316 F.3d 731, 733 (7th Cir. 2003), and personal 

communications made by a preexisting athletics equipment supplier to educational institutions, 

McDavid Knee Guard, Inc. v. Nike USA, Inc., No. 08 C 6584, 2010 WL 3000178, at *5 (N.D. Ill. 

July 28, 2010). 

As an initial matter, the Court notes that Ortho-Tain’s use of “seminar” and “continuing 

education course,” appears to come from Vivos’ own publications, as that is the context in which 

they are first used. (Compl. ¶¶ 29, 33 & Ex. C). In any event, those words are only titles and do 

not mean that Vivos’ events did not include commercial advertising or promotion. Ortho-Tain 

alleges that the Vivos System course was presented via online broadcast and live to in-person 

attendees on at least 26 occasions, the 2020 Wellness Summit was a multi-date online recorded 

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presentation that thousands of medical professionals registered for, and the parent webinar was 

made available online. (Id. ¶¶ 29, 33-34, 91-92, 153-54)). At the pleadings stage, these allegations 

are sufficient to give rise to the inference that Vivos’ presentations were not solely “face-to-face,”

did not involve the type of direct and personal communications courts have held fall outside the 

meaning of “commercial advertising or promotion,” and may have included an “anonymous” 

online audience. The determination of whether Vivos’ presentations were made to “anonymous 

recipients, as distinguished from face-to-face communication,” requires a factual inquiry that is 

simply inappropriate for a Rule 12(b)(6) dismissal motion. See First Health, 269 F.3d at 803-04.

The Court also disagrees with the Vivos Defendants’ argument that Ortho-Tain has not 

sufficiently alleged false or misleading statements of fact to satisfy Rule 9(b). Ortho-Tain alleges 

that: Drs. Kraft and Miraglia presented at the Vivos System course and 2020 Wellness Summit

(which are examples of several other presentations in the series); the slides used during their 

presentations were labeled with Vivos’ name/logo; the slides contained information about cases 

studies in which patients obtained favorable results using Ortho-Tain’s products; no credit was 

given to Ortho-Tain; instead, the slides were shown while the presenters explained the use of 

Vivos’ products to obtains the results achieved through the case studies. To the extent that these 

allegations do not collectively describe statements that are literally false (which they likely do), 

they certainly are misleading. If not explicit, the clear inference to be drawn by attendees was that

the case studies showed results achieved by Vivos’ products. The Complaint identifies the 

speakers, provides the dates and locations of the presentations, quotes the speakers, and attaches 

photographic evidence of the events and information presented. This is sufficient particularity to 

meet the requirements of Rule 9(b).

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Furthermore, the statements made in Vivos’ publications about creating “revolutionary 

technology” and the “first-ever hope for a lasting solution to the problem of sleep apnea” are not 

“mere puffery” as the Vivo Defendants contend. The products at issue here are orthodontic 

appliances used by medical professionals to treat specific conditions. In the context of a scientific 

field made of up highly educated individuals, it is reasonable to infer at the pleading stage that 

“revolutionary” and “first-ever” carry specific meanings as to the novel nature or method of the 

appliance being described. Put another way, when the terms “revolutionary” and “first-ever” are 

used with dentists to describe an orthodontic appliance, they contain factual content that represents 

the nature, characteristics, and qualities of the products on which the dentists would rely. Cf.

Martin v. Wendy’s Int’l, Inc., 183 F. Supp. 3d 925, 934 (N.D. Ill. 2016) (use of the term “recordbreaking” to describe footbag (aka Hacky Sack) sold by Wendy’s and Guiness with kid’s meals 

constituted non-actionable puffery because it conveyed no factual content on which consumers 

would rely). 

In sum, although the Court agrees that the Complaint does not adequately plead a claim for 

false designation of origin, Ortho-Tain has stated a claim for false advertising. Accordingly,

Counts I and VI of the Complaint may proceed as to false advertising under the Lanham Act, 15 

U.S.C. § 1125(a)(1)(B). 

II. Civil Conspiracy Claims

In Counts II-IV and VII-X, Ortho-Tain asserts civil conspiracy claims against Vivos, 

Benco, Drs. Musso and Miraglia, and Huntsman based on the alleged conduct supporting the 

Lanham Act claims. To state a claim for civil conspiracy under Illinois law, a plaintiff must allege:

“(1) a combination of two or more persons, (2) for the purpose of accomplishing by some concerted 

action either an unlawful purpose or a lawful purpose by unlawful means, (3) in the furtherance of 

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which one of the conspirators committed an overt tortious or unlawful act.” Fritz v. Johnston, 209 

Ill. 2d 302, 317 (2004) (citing Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 62-63 (1994)); see also

Turner v. Hirschbach Motor Lines, 854 F.3d 926, 930 (7th Cir. 2017) (combining the first two 

elements as “an agreement between two or more persons for the purpose of accomplishing either 

an unlawful purpose or a lawful purpose by unlawful means”) (citing Borsellino v. Goldman Sachs 

Grp., Inc., 477 F.3d 502, 509 (7th Cir. 2007)).

To survive dismissal, “the complaint must contain more than the conclusion that there was 

a conspiracy, it must allege specific facts from which the existence of a conspiracy may properly 

be inferred.” Fritz, 209 Ill. 2d at 318. Because there is almost never direct proof of a conspiracy,

plaintiffs usually rely on “circumstantial evidence and inferences drawn from evidence, coupled 

with common-sense knowledge of the behavior of persons in similar circumstances.” McClure v. 

Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 134 (1999) (quoting Adcock, 164 Ill. 2d at 66).

“A defendant who understands the general objectives of the conspiratorial scheme, accepts them, 

and agrees, either explicitly or implicitly to do its part to further those objectives . . . is liable as a 

conspirator[,] but “[a] defendant who innocently performs an act which happens to fortuitously 

further the tortious purpose of another is not liable under the theory of civil conspiracy.” Adcock,

164 Ill.2d at 54, 64. The final element—commission of an overt tortuous or unlawful act—is 

generally dependent on the plaintiff’s ability to sufficiently allege the existence of an underlying 

wrong. See Platinumtel Commc’ns, LLC v. Zefcom, LLC, No. 08 C 1062, 2008 WL 5423606, at 

*8 (N.D. Ill. Dec. 30, 2008) (“Where the plaintiff has failed to sufficiently allege that an underlying 

wrong existed, courts will dismiss the corresponding conspiracy claims.”). Claims for civil 

conspiracy based on underlying fraudulent conduct must be plead with particularity under Rule 

9(b). Id.

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Ortho-Tain’s conspiracy claims are premised on the existence of an agreement between the 

Vivos Defendants and Benco to use the case studies of favorable results achieved by Ortho-Tain’s 

products to sell Vivos’ products. The Lanham Act violations serve as the underlying tortuous or 

wrongful conduct committed by one of the conspirators. As to Benco, the Court agrees that the 

allegations of an agreement to conspire are insufficient. Simply put, there are no allegations that

directly connect Benco to the alleged Lanham Act violations. Ortho-Tain points to the agreement 

between Benco and Vivos to sponsor and promote the Vivos System course and 2020 Wellness 

Summit, but there are no allegations from which the Court could plausibly conclude that those 

agreements were not innocent supplier/manufacturer promotional contracts or that Benco 

understood the objects of the purported conspiratorial scheme. Absent such allegations, the Court 

cannot say that Benco is not “[a] defendant who innocently performs an act which happens to 

fortuitously further the tortious purpose of another is not liable under the theory of civil 

conspiracy.” Adcock, 164 Ill.2d at 64.

As to the Vivos Defendants, however, the allegations are sufficient to state a claim for civil 

conspiracy. Although Ortho-Tain did not allege direct evidence of a conspiracy, that is neither 

unusual nor required. It is enough that Ortho-Tain has alleged that Huntsman and Drs. Musso and 

Miraglia all had prior access to the Ortho-Tain case studies and later worked together through 

Vivos to use those studies in the Vivos System course and 2020 Wellness Summit presentations. 

Taking those well-pleaded factual allegations and drawing reasonable inference from them, the 

Court has no trouble concluding that it is plausible that those parties combined for the purpose of 

profiting directly or indirectly by using the Ortho-Tain case studies to sell Vivos’ products. As 

discussed above, the allegations are sufficient to state claims for false advertising under the 

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Lanham Act, so the requirement that the conspiracy be in furtherance of an overt tortuous or 

unlawful act is satisfied.

To summarize, the allegations are sufficient to state claims for civil conspiracy against 

Vivos, Drs. Musso and Miraglia, and Huntsman but not Benco. Accordingly, Counts III and VIII

are dismissed without prejudice and Counts II, VII, IX, and X may proceed.6

III. Claim Against Dr. Musso 

Setting aside the sufficiency of the civil conspiracy claim in Count IV, Dr. Musso seeks 

dismissal on the basis that the Court lacks personal jurisdiction over him and venue in the Northern 

District of Illinois is improper. In support of these arguments, Dr. Musso submitted a declaration

stating, among other things, that he has never set foot in Illinois, has no contacts with Illinois, has 

never owned or operated a business or advertised in Illinois, does not have any registered agents, 

professional licenses, or employees in Illinois, and has never participated in litigation of any kind 

in Illinois. (See Vivos Mot., Ex. A, Dkt. 79-2).

Rule 12(b)(2) permits a defendant to move for dismissal based on lack of personal 

jurisdiction. Fed. R. Civ. P. 12(b)(2). A federal district court may exercise personal jurisdiction 

over a nonresident defendant only if the defendant has “certain minimum contacts” with the 

jurisdiction such that litigating there “does not offend traditional notions of fair play and 

substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). There are two types 

of personal jurisdiction: general and specific. uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 425 

(7th Cir. 2010). Because Ortho-Tain does not assert that there is general jurisdiction over Dr. 

Musso, the Court need only consider whether there is specific personal jurisdiction. “To decide 

whether specific personal jurisdiction may be exercised, a court must engage in three distinct steps 

6 As discussed infra, the civil conspiracy claim against Dr. Musso (Count IV) is dismissed for other reasons.

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in the following order: (1) identify the contacts the defendant has with the forum; (2) analyze 

whether these contacts meet constitutional minimums and whether exercising jurisdiction on the 

basis of these minimum contacts sufficiently comports with fairness and justice; (3) determine 

whether the sufficient minimum contacts, if any, arise out of or are related to the causes of action 

involved in the suit.” Cent. States, Se. & Sw. Areas Pension Fund v. Reimer Express World Corp., 

230 F.3d 934, 944 (7th Cir. 2000). If the second step is not satisfied, the court need not proceed to 

the third. Id. “The plaintiff bears the burden of demonstrating personal jurisdiction.” Id. at 939.

Ortho-Tain argues that the Court should decline to dismiss the claim against Dr. Musso for 

lack of personal jurisdiction for a plethora of reasons: he was a “Clinical Advisor” for Vivos; he 

supplied Vivos with the Ortho-Tain case study information; Vivos’ courses, seminars, and other 

materials were made available to consumers in every state, including Illinois; at least one of the 

4,300 dentists who registered for a Vivos event was from Illinois; Benco’s sales territory included 

Chicagoland; Ortho-Tain’s contract with Dr. Kraft contains an Illinois forum-selection clause; and 

Dr. Kraft used the case studies from Dr. Musso in the February 7, 2020 presentation in St. Louis;

it is reasonable to infer that dentists who attended the St. Louis presentation were either from 

Illinois or served Illinois patients; “defendants directed their marketing and sales activities at 

customers in Illinois[;] and that the claims arise out of or relate to those activities.” (Resp. to Vivos 

Mot. at 14-15, Dkt. 82). In addition, Ortho-Tain suggests that additional discovery might show 

that “Dr. Musso’s agreement and provision of marketing materials was merely an intermediate 

step in a more substantial relationship with Illinois.” (Id. at 14).

A fundamental flaw persists throughout the reasons offered by Ortho-Tain—none involve 

direct contacts with Illinois that Dr. Musso himself created. See Walden v. Fiore, 571 U.S. 277, 

284 (2014) (“the relationship [with the forum state] must arise out of contacts that the ‘defendant 

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himself ‘ creates with the forum State.”) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 

475 (1985) (emphasis in original). Each contact with Illinois is at least one or two steps removed

from Dr. Musso and does not involve any action that Dr. Musso directed towards the State. 

Furthermore, many of the proffered reasons require the Court to speculate (not infer) about facts 

that are not alleged in the Complaint (e.g., the residency of attendee dentists or their patients and 

Dr. Musso’s knowledge of those facts). Thus, Ortho-Tain has neither pointed to allegations in the 

Complaint nor supplied additional evidentiary material that allows the Court to assert personal 

jurisdiction over Dr. Musso. The bottom line is that Ortho-Tain’s theory of specific personal 

jurisdiction over Dr. Musso is simply too attenuated to pass constitutional muster. For these 

reasons, Count IV is dismissed without prejudice. Because lack of personal jurisdiction provides 

an independent basis for dismissal of the claim against Dr. Musso, the Court need not consider 

whether venue is proper. 

IV. Breach of Contract Claim Against Huntsman

In Count XI of the Complaint, Ortho-Tain asserts a claim for breach of contract against 

Huntsman based on his alleged violation of the NDA. To state a claim for breach of contract under 

Illinois law, a plaintiff must allege “the existence of a valid and enforceable contract, performance 

by the plaintiff, breach of the contract by the defendant, and resultant damages or injury to the 

plaintiff.” Mission Measurement Corp. v. Blackbaud, Inc., 287 F. Supp. 3d 691, 715 (N.D. Ill. 

2017). 

Huntsman’s argument for dismissal of Ortho-Tain’s claim for breach of the NDA is twofold. First, Huntsman asserts that he signed the agreement as an authorized representative for 

Xenith, so it cannot allege the existence of a valid and enforceable contract against him. The Court 

summarily rejects this argument because of the discrepancies noted above, supra 2 n.2, with 

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respect to who was a party to the contract. Because the contract itself is ambiguous as to who was 

a party, there are factual issued that preclude dismissal based on that contention. Second, 

Huntsman argues that the contract’s confidentiality provisions expired long before any allegations 

of improper disclosure. The NDA required confidentiality for three years following initial 

disclosure, (NDA art. 3), and Ortho-Tain alleges that it first provided confidential information in 

June 2014, (Compl. ¶ 22). Thus, the duty of confidentiality would have expired in June 2017, and 

there are no allegations of improper disclosure before that time in the Complaint. (See Compl. 

¶¶ 151, 158) (generally alleging unlawful dissemination of confidential information without 

specifying timeframe). The only other allegations of improper disclosure relate to the Vivos’ 

System course and 2020 Wellness Summit, both of which took place in 2020. Because Ortho-Tain 

did not specifically respond to this argument, the opportunity to oppose it has effectively been 

forfeited or waived. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011). In any event, 

the Court agrees with Huntsman that the allegations of the Complaint are insufficient because there 

is no allegation that he disclosed confidential information within the relevant timeframe. As such, 

Count XI is dismissed without prejudice. 

CONCLUSION

For the reasons stated above, Defendants’ motions to dismiss are granted in part and denied 

in part: (1) Counts I and VI are dismissed as to false designation of origin only; (2) Counts III,

VIII, and XI are dismissed for failure to state a claim; and (3) Count IV is dismissed for lack of 

personal jurisdiction. All other claims may proceed.

The Court notes that the instant case and the Colorado District Court Action were both 

filed in 2020 and after four years have not yet emerged from the pleading stage. While some of 

the delay is certainly attributable to the time it has taken courts to issue rulings on contested 

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motions, the parties’ litigation strategies have also played a role. Perhaps it is time for all affected 

parties to seriously consider whether attempting to reach a global settlement is a better use of their 

time and money and the scarce resources of the judiciary. Until that happens, this litigation will go 

forward. Defendants are ordered to file their answers to the surviving claims by 9/13/24. All parties 

are directed to meet and confer for a Rule 26(f) scheduling conference and file a proposed 

discovery plan by 9/27/24. 

DATED: August 23, 2024 ENTERED:

LASHONDA A. HUNT

United States District Judge

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