The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISON
MISTY SNOW, individually and on behalf Case No. 3:21-cv-03269-VC
of all others similarly situated,
[PROPOSED] ORDER GRANTING
Plaintiffs, JOINT STIPULATED REQUEST FOR
ORDER ENTERING PARTIAL FINAL
v. JUDGMENT PURSUANT TO RULE
54(B)
ALIGN TECHNOLOGY, INC.,
Defendant.
On February 21, 2024, the Court entered an order granting summary judgment (ECF No.
548) for Align on Plaintiffs’ claim under Section 2 of the Sherman Act and related state law
claims (hereafter the “Section 2 claim”).1 The Court’s order on Plaintiffs’ Section 2 claim did not
affect Plaintiffs’ separate claim under Section 1 of the Sherman Act (hereafter the “Section 1
claim”), which remains before the Court.
Plaintiffs’ Section 2 claim—as part of which Plaintiffs allege that Align monopolized the
market for in-office clear aligners—and Section 1 claim—as part of which Plaintiffs allege that
Align conspired to allocate the market for direct-to-consumer clear aligners with co-conspirator
SmileDirectClub—are based on separate allegations, discovery, and facts. Plaintiffs’ Section 2
claim—by which Plaintiffs seek relief on behalf of a class of indirect purchasers of Invisalign—
and Section 1 claim—by which Plaintiffs seek relief on behalf of a purported class of direct
purchasers of SmileDirectClub treatment—seek separate relief on behalf of separate classes, and
are the subject of wholly separate expert analysis, class certification briefing, and summary
judgment briefing. Plaintiffs’ Section 1 claim is proceeding on a separate schedule from their
Section 2 claim, and includes separate briefing and trial dates.
Under Federal Rule of Civil Procedure 54(b), “[w]hen an action presents more than one
claim for relief ... or when multiple parties are involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.” The Court’s summary judgment order (ECF
No. 548) constitutes an “ultimate disposition” of Plaintiffs’ Section 2 claim, and therefore a
1 Specifically, Plaintiffs bring a claim for injunctive relief under Section 2 of the Sherman
Act on behalf of a nationwide class (Count I); Plaintiffs bring related state law claims for
damages under the laws of Arizona, California, Maryland, Massachusetts, Michigan, Minnesota,
Nebraska, Nevada, North Carolina, and Oregon on behalf of classes from those states (Counts
IV, V, VII, VIII, IX, X, XI, XII, XIII, XIV).
“final judgment” on that claim within the meaning of Rule 54(b). See Wood v. GCC Bend, LLC,
422 F.3d 873, 878 (9th Cir. 2005). There is no risk that entry of final judgment on Plaintiffs’
Section 2 claim would result in unnecessary appellate review. Plaintiffs’ Section 2 claim is
separate, distinct, and independent from Plaintiffs’ Section 1 claim. Appellate review of
Plaintiffs’ Section 2 claim would not be mooted by any further developments related to
Plaintiffs’ Section 1 claim. The nature of Plaintiffs’ Section 2 claim is such that no appellate
court would have to decide the same issues more than once were there a subsequent appeal
related to Plaintiffs’ Section 1 claim. See Belyea v. GreenSky, Inc., No. 20-CV-01693-JSC, 2022
WL 20656597, at *1 (N.D. Cal. Apr. 20, 2022) (citing Morrison-Knudsen Co. v. Archer, 655
F.2d 962, 965 (9th Cir. 1981)); see also Jewel v. Nat’l Sec. Agency, 810 F.3d 622, 628 (9th Cir.
2015).
Entry of final judgment on Plaintiffs’ Section 2 claim would also conserve judicial
resources and “streamline the ensuing litigation” by allowing Plaintiffs to pursue an appeal of the
Court’s summary judgment order on the same schedule as the plaintiffs in Simon and Simon, PC
v. Align Technology, Inc., 3:20-cv-03754-VC (N.D. Cal.), whose claim under Section 2 of the
Sherman Act was resolved by an identical summary judgment order in that action (Simon ECF
No. 4322). See Jewel, 810 F.3d at 828 (quoting Noel v. Hall, 568 F.3d 743, 747 (9th Cir. 2009)
(citation omitted)).
2 The Simon plaintiffs filed a notice of appeal on March 19, 2024 (Simon ECF No. 441).
Plaintiffs in Simon are direct purchasers of Invisalign—generally dentists and orthodontists.
Plaintiffs here are indirect purchasers of Invisalign treatment—individual consumers who
purchased Invisalign treatment from their dentist or orthodontist. The Simon plaintiffs do not
bring a comparable claim under Section 1 of the Sherman Act and have no other claims
remaining before the Court.
There is therefore no just reason for delay in entering in entering final judgement on
Plaintiffs’ claim under Section 2 of the Sherman Act and related state law claims.
Good cause appearing, IT IS HEREBY ORDERED THAT final judgment is entered on
Plaintiffs’ claim under Section 2 of the Sherman Act and related state law claims.
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