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Ninth Circuit Revives Aligner Antitrust Class Actions And Clarifies Rule-Of-Reason Burden Shifting In A Refusal-To-Deal Framework
11/03/2026On October 5, 2026, a panel of the United States Court of Appeals for the Ninth Circuit reversed the district court’s grant of summary judgment in favor of defendant and remanded two consolidated antitrust class actions brought under Section 2 of the Sherman Act, 15 U.S.C. § 2. Two groups—(1) a class of direct purchaser dental practices and (2) a class of individual consumers—alleged that a leading dental-device maker engaged in anticompetitive conduct to monopolize the clear aligner and intraoral scanner markets, including by refusing to deal with a scanner rival. Simon and Simon, PC v. Align Technology, Inc., Nos. 24-1703 & 24-1783 2026 U.S. Dist. LEXIS 30361 (9th Cir. Oct. 5, 2026). The Ninth Circuit held that the district court incompletely applied the three-step, burden-shifting framework that governs Section 2 rule-of-reason refusal-to-deal claims and that genuine disputes of material fact precluded summary judgment.
Defendant manufactures a market-leading clear dental aligner, as well as a handheld intraoral scanner that dentists use to submit the digital impressions needed to order its aligner. During the relevant time period, defendant controlled roughly 90 percent of the U.S. aligner market and led the scanner market. While defendant’s scanners can technically be used to order third-party aligners, the process is costly and cumbersome, rendering defendant’s scanner and aligner together effectively a “closed system.” In December 2015, defendant entered into an agreement with its main scanner competitor to make the competitor’s dental scanner interoperable with defendant’s aligner. The competitor’s scanner was an “open system” and would work both with defendant’s aligners and those of third parties. In December 2017, defendant unilaterally terminated the interoperability agreement with its competitor and refused to deal going forward, reverting the competitor’s scanner to being non-interoperable with defendant’s aligner.
Plaintiffs’ suits followed, alleging that defendant violated Section 2 of the Sherman Act (prohibiting the anticompetitive acquisition or maintenance of monopoly power) through three categories of anticompetitive conduct: refusal to deal with a scanner rival, unlawful bundling, and exclusive dealing.
On summary judgment, defendant argued that it terminated the interoperability agreement not for anticompetitive reasons but because continuing interoperability would weaken its position in an ongoing patent litigation related to its patents. The district court granted summary judgment in favor of defendant on the ground that that “no reasonable jury could reject the notion that termination of the agreement was based ‘in part’ on legitimate business reasons.”
The Ninth Circuit reversed, holding that the district court failed to complete the burden-shifting analysis required in rule-of-reason monopolization cases under Section 2 of the Sherman Act.
The Ninth Circuit clarified the three-step framework for analyzing a refusal-to-deal claim. First, the plaintiff must establish a prima facie case of anticompetitive conduct. Second, the burden shifts to the defendant to offer a legitimate, non-pretextual, procompetitive business justification for the alleged conduct. Third, the burden shifts back to the plaintiff to rebut that justification as either not legitimately procompetitive or pretextual. If the plaintiff cannot rebut the justification, it must then show that the anticompetitive harm of the conduct outweighs its procompetitive benefit.
The Ninth Circuit found that the district court erred in granting summary judgment to defendant by failing to completely apply step three of the burden-shifting framework. Although the district court concluded that plaintiffs had established a prima facie case (Step One) and that defendant had met its burden of offering a legitimate business justification (Step Two)—that termination strengthened its position in an ongoing patent litigation against the rival—the district court had stopped there and granted summary judgment. The district court concluded that the termination was based at least “in part” on legitimate business reasons. The Ninth Circuit faulted the district court for failing to reach Step Three and assessing whether plaintiffs could rebut defendant’s justification or show whether it was outweighed by the anticompetitive effect.
The Ninth Circuit’s analysis focused heavily on the first part of Step Three: whether plaintiffs raised genuine disputes of material fact over whether defendant’s business interest promoted competition or was pretextual. On whether the interest legitimately promoted competition, the Ninth Circuit noted that plaintiffs offered unrebutted patent-expert testimony that terminating interoperability actually weakened defendant’s position in its patent litigation. Given that evidence, the Ninth Circuit reasoned that a reasonable juror could find that a justification that weakened defendant’s own patent position did not legitimately promote competition.
The Ninth Circuit also found that plaintiffs raised a genuine dispute over whether defendant’s justification was pretextual. In the Ninth Circuit’s view, if terminating interoperability did not strengthen defendant’s litigation position, a trier of fact could reasonably infer that this was not defendant’s purpose at all. This finding was bolstered by circumstantial evidence suggesting that terminating interoperability was not motivated by litigation interests. The evidence included, in part, an executive statement that “Wow. Cutting [off] [the competitor] really worked” in response to an internal email celebrating growing revenue, as well as a note from defendant’s CFO to its CEO stating “[s]top litigation, but don’t reinstate interoperability.”
For these reasons, the Ninth Circuit reversed the district court’s decision to grant summary judgment and remanded the case for further proceedings.
The Ninth Circuit additionally noted, however, that plaintiffs’ claims were not limited to the refusal to deal. Plaintiffs’ claims had also included other conduct and what the Ninth Circuit characterized as a “scheme” allegation. The Ninth Circuit explained that it need not decide whether a plaintiff may pursue a monopolization “scheme” independent of its components, but cited to the Fourth Circuit’s recent Duke Energy case as an example of a case where such “scheme” allegations survived a motion to dismiss and instructed the district court on remand to determine “how to resolve whatever additional claims it finds have been preserved.”
Antitrust Litigation