The Ninth Circuit Revives Antitrust Claims in Simon and Simon, PC v. Align Technology, Inc.
The Ninth Circuit’s October 5, 2026 decision in Simon and Simon, PC v. Align Technology, Inc., Nos. 24-1703 and 24-1783, revives antitrust claims over Align’s decision to stop accepting scans from a competing dental scanner. The court held that a genuine business justification does not necessarily defeat a refusal-to-deal claim. Once plaintiffs make the required initial showing, they may establish that the harm to competition outweighs the procompetitive benefit. The decision addresses a problem that extends beyond dental technology: control over compatibility can determine which competing products customers can realistically use.[1]
Align’s position in two related markets made that control valuable. It sold Invisalign clear aligners and the iTero scanners used to take digital impressions of patients’ teeth. During the period at issue, Align controlled approximately 90 percent of the U.S. aligner market. Dentists could use iTero to order other manufacturers’ aligners. The court described that process as costly and cumbersome. Invisalign and iTero consequently operated as an effectively closed system.[2]
3Shape offered a different arrangement. Its TRIOS scanner supported an open system through which dentists could order different manufacturers’ aligners. Align agreed in December 2015 to accept TRIOS scans for Invisalign orders. During the relationship, Align repeatedly proposed making TRIOS compatible exclusively with Invisalign. 3Shape refused. In December 2017, Align ended interoperability in the United States while continuing the relationship abroad and maintaining connections with other scanner manufacturers.[3]
Dental practices that purchased directly from Align and consumers who bought Invisalign through their dentists challenged the cutoff under Section 2 of the Sherman Act. Their theory connects the decision to the approaching expiration of key Invisalign patents. An open scanner could help competing aligners reach dentists. Restricting its usefulness for ordering Invisalign could make dentists less willing to choose that scanner, reducing an avenue through which competing aligners could gain business. On that theory, the scanner restriction could help preserve Align’s position in aligners as its patent protection weakened.[4]
Align maintained that it terminated interoperability to protect its position in patent litigation. Shortly before the cutoff, it sued 3Shape in six proceedings involving patents on intraoral scanning technology. These were different from the Invisalign patents approaching expiration. Align argued that continuing the relationship could strengthen 3Shape’s equitable defenses. The district court accepted that termination rested at least partly on a legitimate business reason and entered summary judgment for Align.[5]
The appeal tested whether that explanation was enough to defeat the antitrust claims. Section 2 of the Sherman Act generally leaves firms free to select their trading partners. Aspen Skiing recognizes a limited exception for an exclusionary refusal to deal. There, the Supreme Court sustained a verdict against a monopolist that abandoned an established joint-ticket arrangement and rejected transactions that would have produced immediate sales. Trinko emphasized the exception’s narrow scope and the dangers of requiring courts to supervise cooperation between rivals. Those limits protect a company’s incentive to develop a product that others may wish to use.[6]
The Ninth Circuit required plaintiffs to establish a prima facie case of anticompetitive conduct before demanding a justification. The Aspen Skiing factors guide that inquiry. The majority required at least one factor to be present while rejecting a rigid checklist. It found all three satisfied here. Align terminated voluntary and profitable dealing, gave up sales at prevailing retail prices, and refused access through 3Shape while continuing to sell the same product through other scanners. The court treated interoperability as a means of selling Invisalign, identifying aligners as the relevant market.[7]
Those facts supply concrete evidence for evaluating a restriction. Prior profitable dealing shows that cooperation was commercially workable. Continued dealing with other scanner companies makes comparison possible. The inquiry has an evidentiary basis that would be harder to establish for a demand to create an entirely new relationship.
After the initial showing, the defendant must offer a procompetitive justification. The majority’s framework permits two forms of rebuttal. Plaintiffs may show that the asserted justification does not legitimately promote competition or that it is pretextual. If the justification survives those challenges, plaintiffs may still establish that the harm to competition outweighs the procompetitive benefit. A firm’s genuine reason for acting and the competitive consequences of its action remain distinct questions. The majority held that both belong in refusal-to-deal analysis.[8]
Align’s explanation presented a factual dispute under the narrower rebuttal inquiry. The plaintiffs’ patent expert testified that ending interoperability would strengthen 3Shape’s equitable defenses and weaken Align’s litigation position. A jury could credit that testimony and conclude that the cutoff did not serve the asserted competitive purpose. The record also included communications linking higher revenue to cutting off 3Shape and a later suggestion that Align end the patent litigation without restoring interoperability. Together with the timing and rejected exclusivity proposals, that evidence could support a finding of pretext. The panel agreed that the evidence warranted a trial. It did not decide liability or weigh competitive harm against benefit.[9]
The ability to test that explanation also depended on access to evidence. Align relied on its chief executive’s understanding of the patent consequences while blocking inquiry into the basis for that understanding. The court held that this reliance waived attorney-client privilege. If Align continues to advance that account, the district court should reopen discovery within the waiver’s scope. Having relied on that account, Align could not withhold information the court deemed vital to testing it.[10]
Judge Eric Miller agreed that pretext presented a trial issue. Concurring only in the judgment, he read the precedents to allow liability when a business justification is invalid or pretextual. He objected to allowing a jury to override a genuine procompetitive justification through balancing. His concern was institutional: courts could become responsible for deciding when one business must continue helping another, despite the risk that erroneous decisions will discourage investment or compel inefficient cooperation.[11]
That objection identifies a real constraint on the doctrine. Product compatibility can require continuing investment and expose firms to obligations that an antitrust court is poorly placed to administer. A rule triggered merely by a rival’s desire for access would reach too far. The majority preserved the requirement of qualifying anticompetitive conduct and the other elements of monopolization. Its application here rested on an established profitable relationship and selective withdrawal of access.[12]
The remaining disagreement is consequential even after those limits are observed. If any unrebutted procompetitive justification were conclusive, a modest competitive benefit could protect conduct imposing much greater harm on competition. The magnitude of that harm would cease to matter once the justification survived the initial challenge. The majority’s approach avoids that result. It leaves plaintiffs with the burden of proving the imbalance while allowing the court to assess the restriction’s full competitive effect.
This matters particularly when a firm competes in the market affected by its compatibility decision. Align’s control over access to Invisalign could influence the attractiveness of a scanner that supported competing aligners. The company therefore had a commercial interest in whether dentists chose an open system. That effect on dentists’ ability to choose competing aligners explains why Align’s business purpose cannot alone settle the competitive question.
The patent-expiration context gives that inquiry particular significance. As protection over a core product recedes, restrictions on complementary products can become more important to preserving the incumbent’s position. Courts should examine whether those restrictions prevent emerging alternatives from becoming practical choices for customers. The Ninth Circuit’s decision preserves a route for proving that competitive harm even when a firm offers a genuine procompetitive explanation. Whether Align’s conduct warrants liability remains for further proceedings. The standard should be demanding enough to protect legitimate cooperation decisions and capable of reaching exclusion accomplished through control over an established connection.
[1] Simon and Simon, PC v. Align Tech., Inc., Nos. 24-1703 & 24-1783, slip op. at 6–7, 14–23 (9th Cir. Oct. 5, 2026) (per curiam) (reversing summary judgment and applying a framework that permits competitive harm to outweigh an unrebutted procompetitive justification), https://cdn.ca9.uscourts.gov/datastore/opinions/2026/10/05/24-1703.pdf.
[2] Id. at 7–8 (describing Align’s products, integration, and market share during the relevant period).
[3] Id. at 8–9 (describing the open scanner, exclusivity proposals, and selective termination of interoperability).
[4] Id. at 7–10, 22 n.4, 30–31 (identifying the purchaser plaintiffs and describing evidence supporting the alleged threat to Align’s position in aligners).
[5] Id. at 9–11 (describing the scanning-patent litigation and the district court’s reliance on a legitimate business justification).
[6] Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 593–94, 600–05, 608–11 (1985) (upholding a monopolization verdict based on established dealing, rejected sales, and evidence undermining asserted business justifications), https://www.govinfo.gov/content/pkg/USREPORTS-472/pdf/USREPORTS-472-585.pdf. Verizon Commc’ns Inc. v. Law Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 407–10 (2004) (explaining the general freedom to select trading partners and the limits of refusal-to-deal liability), https://www.govinfo.gov/content/pkg/USREPORTS-540/pdf/USREPORTS-540-398.pdf.
[7] Simon and Simon, slip op. at 14–15, 23–26 (requiring an initial showing, identifying the aligner market, and finding all three factors satisfied).
[8] Id. at 15–23 (recognizing separate rebuttal grounds and permitting balancing when a procompetitive justification survives rebuttal).
[9] Id. at 26–31 (finding triable disputes concerning competitive legitimacy and pretext without conducting balancing). Id. at 41–42 (Miller, J., concurring in the judgment) (agreeing that the pretext evidence required trial).
[10] Id. at 31–33 (majority opinion) (finding an implied privilege waiver and directing further discovery if Align maintains its reliance on the chief executive’s account).
[11] Id. at 35–42 (Miller, J., concurring in the judgment) (rejecting balancing and emphasizing the risks of compelled cooperation and erroneous liability).
[12] Id. at 22 n.4, 24 n.5, 24–26 (majority opinion) (preserving the elements of monopolization and relying on the relationship between markets and the prior course of dealing).