Ninth Circuit Revives Invisalign Antitrust Claims: When Can a Business Refuse to Deal With a Competitor?

Align manufactures Invisalign clear aligners and the iTero intraoral scanner. During the period addressed by the litigation, the Ninth Circuit stated that Align controlled approximately 90% of the U.S. aligner market and was also a leading participant in the intraoral-scanner market. Market share alone, however, does not establish a § 2 violation.

In December 2015, Align entered into an interoperability agreement with 3Shape, a competing scanner manufacturer. The agreement allowed dental professionals using 3Shape's TRIOS scanner to submit digital scans directly for Invisalign treatment. TRIOS was designed as an open system capable of working with multiple aligner manufacturers.

The agreement permitted termination, but the relationship proved profitable for Align. In December 2017, with roughly one year remaining on the agreement, Align announced that it would terminate TRIOS interoperability in the United States. According to the Ninth Circuit, TRIOS had become a growing non-iTero channel through which Invisalign orders were placed.

Plaintiffs alleged that terminating this interoperability was part of an unlawful effort to protect Align's position in the aligner and scanner markets. Those remain allegations.

Antitrust law generally allows businesses to decide with whom they will deal, including whether to cooperate with competitors. The Supreme Court has described refusal-to-deal liability as a narrow exception to that rule, noting in Verizon v. Trinko that Aspen Skiing sits at or near the outer boundary of § 2 liability.

In Aspen Skiing Co. v. Aspen Highlands Skiing Corp., the Supreme Court found potential antitrust liability after a monopolist terminated a previously voluntary and profitable cooperative relationship with a smaller competitor. The Ninth Circuit applied that framework to Align's conduct.

At the first step, the Ninth Circuit concluded that the plaintiffs had established a prima facie refusal-to-deal claim. The court treated the circumstances identified in Aspen Skiing as especially probative—not as a rigid checklist—and found each present:

That conclusion did not establish liability. It moved the analysis to Align's explanation for the termination.

Align argued that terminating interoperability strengthened its position in patent litigation involving 3Shape. The Ninth Circuit held that this explanation satisfied Align's intermediate burden of identifying a potentially procompetitive, nonpretextual business justification.

Under the court's framework, the burden then shifted back to the plaintiffs to show that the justification was not legitimately procompetitive or was pretextual. The plaintiffs pointed to circumstantial evidence surrounding the timing and reasons for the termination, which the court found could reasonably support competing interpretations.

Genuine disputes of material fact therefore remained over whether Align's patent-litigation justification was legitimately procompetitive and whether it was instead pretextual. Those disputes could not be resolved against the plaintiffs on summary judgment, so the court reversed and remanded. It left the plaintiffs' broader alleged-scheme theory for the district court to address in the first instance.

The Ninth Circuit did not determine that Align's explanation was false or that Align violated the Sherman Act. A factfinder must resolve the disputed evidence.

Align and 3Shape's agreement allowed termination. But a contractual right to terminate and the antitrust consequences of exercising it are separate legal questions.

In ordinary commercial relationships, businesses generally remain free to terminate agreements according to their terms. Antitrust scrutiny becomes relevant only in unusual circumstances involving market power and allegedly exclusionary conduct.

The decision should not be read as requiring companies to continue integrations, APIs, licensing arrangements, distribution relationships, or other dealings with competitors. Refusal-to-deal liability remains exceptional.

Judge Eric Miller concurred only in the judgment. He agreed that the plaintiffs produced enough evidence to create a factual dispute over whether Align's justification was pretextual, and therefore that summary judgment should be reversed.

But he disagreed with the per curiam opinion's broader framework—particularly its potential balancing of anticompetitive harm against procompetitive benefit even where a legitimate justification exists—which he called a significant and unwarranted expansion of refusal-to-deal liability. The opinion responded that it merely clarified the existing framework. The broader implications may remain contested.

Interoperability and platform-access disputes arise in software and APIs, technology platforms, medical devices, marketplaces, fintech, licensing, distribution networks, and vertically integrated businesses. These are potential analogies, not holdings of the case.

The practical lesson is not that companies must keep doing business with competitors. It is that companies with substantial market power should recognize that terminating an established, profitable competitive relationship can receive greater scrutiny in unusual circumstances.

Contemporaneous documentation may also matter. If a significant competitive decision rests on intellectual-property concerns, security, product quality, economics, regulatory risk, or another legitimate consideration, documenting the actual rationale when the decision is made can become important later. Those issues can also be addressed when structuring interoperability and licensing agreements in the first place.

The Align decision is published Ninth Circuit precedent and therefore carries particular significance for businesses operating in California and elsewhere in the Ninth Circuit.

Mahrouyan Law, P.C. represents businesses, founders, vendors, and other commercial parties in contract and business disputes, including business litigation in Irvine, and advises startups concerning commercial agreements and risk allocation. The firm is not a dedicated antitrust boutique, but competition-law issues can intersect with commercial disputes involving licensing, distribution, exclusivity, integrations, and termination rights.