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