The Daily Record Reports Braces Maker Ends Dispute With Doctors

Published: April 13, 2011

By Alyson E. Raletz


More than 22,000 dentists and orthodontists claiming the makers of Invisalign braces were unclear about their quotas for prescribers will see up to $44 million in injunctive relief, per the terms of a recent class action settlement.

Lawyers at the Kansas City-based firm of Stueve Siegel Hanson handled the settlement, which a federal judge in California approved April 8.

The settlement also provides for a $7.8 million cash settlement fund, the firm announced this week. Court records indicate Stueve Siegel Hanson attorneys will receive nearly $2 million in fees.

The suit against California-based Align Technology Inc., manufacturers of nearly transparent orthodontic products, challenged the company’s physician quota requirements, which recently were rescinded, according to the firm.

In order to prescribe Invisalign products, doctors had to pay $1,995 for a one-day certification class in 2008. The following year, Align required physicians to prescribe the product at least 10 times per year to keep the certification and decertified those who didn’t comply, the plaintiff class claimed in court documents.

In order to regain their certification, the dentists and orthodontists had to attend another training course and pay another $1,995.

The lawsuit claimed physicians never agreed to prescribe a minimum number of Invisalign products to patients when they underwent certification. The class alleged the quota was a violation of the California Unfair Competition Law, according to a lawsuit it filed in May 2010 in U.S. District Court for the Northern District of California, located in San Francisco.

Defense attorneys Dale Bish and Ronald Strickland Jr., both of Wilson Sonsini Goodrich & Rosati in Palo Alto, Calif., didn’t immediately return phone calls seeking comment on the allegations and settlement terms. Reached by phone, Align spokeswoman Yin Cantor declined to immediately comment.

The company in July outlined its position in a motion to dismiss the case.

“There is nothing fraudulent or unfair about the proficiency requirements Plaintiffs failed to satisfy,” Strickland wrote.

The company required the training in 2004 and 2008 to ensure that participating physicians were qualified, Align claimed. In June 2009, Align announced a product proficiency program that laid out minimum requirements for doctors who wished to continue prescribing Invisalign.

The program was ‘to help ensure that Invisalign-trained doctors have the experience and confidence necessary to achieve high quality treatment outcomes for Invisalign patients,’” according to court documents.

The company claims it later modified the program and extended deadlines to Dec. 31, 2009, so that the only doctors who were suspended were physicians who had not prescribed Invisalign to any patients since the initial training.

The settlement allows every class member to regain certification at no additional cost via the $44 million in injunctive relief when they complete a free online refresher course.

Some of the class members who elected to receive a payment instead of recertification will be able to draw from the cash settlement fund, ranging from $2,000 to $350 per doctor, according to Stueve Siegel Hanson.

About $3 million was claimed, and an additional $2 million went to attorney fees. Most of the remaining money will revert to Invisalign.

“This case illustrates the benefit of the class action remedy,” plaintiff’s attorney Patrick Stueve said. “Before we filed this, none of the trade associations or members were going after Invisalign. Obviously the cost of doing that on an individual basis would be too high.”

Stueve said the American Dental Association and the Academy of General Dentistry fully endorsed the settlement terms.

The case is Christopher Leiszler v. Align Technology Inc., 3:10-cv-2010.

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