Jonathan M. Anderson a Phone 303-295-8566 HOLLAND SAHARTM April 11, 2017 Division of Corporations, Business and Professional Licensing Investigations Section Attn: Director Janey Hovenden 550 West 7th Avenue, Suite 1500 Anchorage, AK 99501-3567 Alaska Board of Dental Examiners Attn: Chairman Thomas Wells, DDS 333 Willoughby Ave., 9th Floor Juneau, AK 99801-1770 Re: Unauthorized Practice of Dentistry by a Foreign Corporation Dear Director Hovenden and Dr. Wells: This Complaint is ?led with the Alaska Division of Corporations, Businesses Professional Licensing and the Alaska Board of Dental Examiners based on facts demonstrating that an out-of-state corporation is actively engaging in the unauthorized practice of dentistry in the state of Alaska. As set forth below, these practices are in direct violation of Alaska law and create a direct risk to the safety of Alaska consumers. This Complaint is ?led on behalf of the American Association of Orthodontists the world?s oldest and largest dental specialty organization. Founded in 1900, AAO currently represents over 18,000 orthodontist members, including approximately 31 members in the state of Alaska. AAO and its members are dedicated to improving the health of the public by promoting quality orthodontic care, the importance of overall oral healthcare, and advocating for the public interest. The facts and evidence set forth in this Complaint demonstrate clear violations of Alaska?s unauthorized practice of dentistry laws. A Tennessee corporation operating under the name SmileDirectClub is currently prescribing, ?tting, selling, and delivering dental appliances to Alaska consumers based on at?home snapshots taken by the consumer. At $99 per dental appliance it is cheap, but it is also illegal and creates medical risks for Alaska patients. As recognized by Alaska statutes and regulatory rules, moving teeth without a medical evaluation can cause permanent dental problems, and prescribing and placing a dental appliance without assessing the health of the teeth and gums can result in serious medical issues. As demonstrated below, SmileDirectClub is engaged in multiple per se violations of Alaska law. Even if SmileDirectClub has limited contracts with several Alaska-licensed dentists to remotely sign off on dental appliances, it would not address or cure SmileDirectClub?s Holland 8: Hart LLP Phone [303] 295-8000 Fax [303] 295?8261 555 17th Street Suite 3200 Denver, CO 80202 Mailing Address 8749 Denver, CO 80201-8749 Aspen Boulder Carson City Colorado Springs Denver DenverTech Center Billings Boise Cheyenne Jackson Hole LasVegas Reno SaltLake City Santa Fe Washington,D.C. Page 2 State of Alaska HOLLAND a Apmmon primary compliance violations. Under SmileDirectClub?s own description of services, the company is actively providing dental services to Alaska consumers in direct violation of state law. This Complaint provides the facts and evidence demonstrating each violation, and requests that the Alaska Division of Corporations, Businesses Professional Licensing (?Division?) and the Alaska Board of Dental Examiners (?Board?) initiate enforcement actions in accordance with Alaska Stat. Ann. 0836.315, Alaska Stat. Ann. 0836.317, and Alaska Stat. Ann. 08.36.340. I. SmileDirectClub?s Business Model SmileDirectClub is a Tennessee corporation engaged in prescribing, ?tting, selling, and delivering orthodontic appliances in the state of Alaska.1 SmileDirectClub is not a licensed provider, and it allows dental appliances, made from at-home impression kits, to be provided to patients without dentists even doing in-person examinations of the Alaska patients. It is one of the most ?agrant acts of the unauthorized practice of dentistry the AAO has witnessed, and it is expressly prohibited by Alaska law. SmileDirectClub?s website (smiledirectclub.com) details a business model that, even if accepted as a complete and true description of their business, is in direct con?ict with multiple provisions of Alaska law. The website describes a process in which patients Can take photographs of their teeth and send them to the company?s headquarters in Tennessee; the photographs are purportedly forwarded to a dentist licensed in the state of the patient?s residence to examine the photographs; and the dentist makes a treatment assessment based on these simple photographs. Patients who are approved for treatment are sent an ?impression kit,? which allows the patient to create an impression of their teeth at home and send the completed impression back to Tennessee. The corporation then sends dental appliances to the patient in Alaska. (See SmileDirectClub?s materials describing services expressly prohibited by Alaska law, attached as Exhibit A.) II. SmileDirectClub?s Activities Qualify as the Practice of Dentistry Under Alaska law, SmileDirectClub?s activities qualify as the practice of dentistry. Alaska statute de?nes, in pertinent part, a person engaged in the practice of dentistry who: [D]iagnoses, treats, operates on, corrects, attempts to correct, or malocclusion or malposition of the human teeth. . .. [E]xercises control over professional dental matters. [E]valuates, diagnoses, treats, or performs preventive procedures related to diseases, disorders, or conditions of the oral SmileDirectClub has acknowledged that it is providing dental services remotely into all US. states except one: ?The good news is SmileDirectClub is currently available in all US. states except North Carolina. The better news is that in most cases you won?t need to be seen in-of?ce at all, which is why we?re able to offer invisible aligners for up to 70 percent less than other brands.? (See locations/ (last visited Apr. 3, 2017)). State of Alaska HOLLAND a Apri111.2017 Page 3 Alaska Stat. Ann. 08.36.360. SmileDirectClub?s services are explicitly regulated as the practice of dentistry in Alaska. The following sections of this Complaint demonstrate that SmileDirectClub, and state-licensed dentists purportedly contracting with SmileDirectClub, are in direct violation of multiple provisions of Alaska law. State Violations A. Corporate Practice of Dentistry: Alaska Stat. Ann. 08.36.365 and Alaska Stat. Ann. 0836.367 Only a person who holds a valid license issued by the Board may own, operate, or maintain a dental practice. Alaska Stat. Ann. 0836.3 67 (none of Section 08.36.367?5 exceptions apply to SmileDirectClub). SmileDirectClub and any licensed Alaska dentist working on behalf of SmileDirectClub are operating in direct violation of this provision: 1. SmileDirectClub is a Tennessee corporation performing unlicensed dental practices in association with Alaska licensed dentists in the state of Alaska, and the corporation is not composed entirely of dentists in violation of Alaska Stat. Ann. 08.3 6.367 and (See SmileDirectClub?s articles of organization, attached as Exhibit B). 2. SmileDirectClub is practicing dentistry in the state of Alaska without a valid license in direct violation of Alaska Stat. Ann. 0836.367 and 08.36.100. The corporate practice of dental activities conducted by SmileDirectClub and any licensed dentists facilitating SmileDirectClub?s Alaska dental practices are per se violations of Alaska state law. B. Control Over Professional Dental Matters: Alaska Stat. Ann. 08.36.360(7) Alaska law prohibits an unlicensed entity from exercising control over professional dental matters. Alaska Stat. Ann. Alaska regulations further de?ne ?exercise[ing] control over professional dental matters? to include instances where there is the determination, interpretation, limitation, prescription or regulation by policy or other arrangement of dental equipment or material for the provision of dental treatment. Alaska Admin. Code Tit. 12, 28.730. SmileDirectClub and any licensed Alaska dentist working on behalf of SmileDirectClub, are operating in direct violation of these provisions: 1. SmileDirectClub determines, interprets, and limits the type of dental treatment that an Alaska-licensed dentist may provide to Alaska patients by requiring a dentist to either prescribe the SmileDirectClub course of treatment or disqualify the patient from treatment. Alaska Stat. Ann. (See SmileDirectClub?s documents describing the course of treatment and an FAQ describing the process for a patient that was not eligible for treatment, attached as Exhibit C). State of Alaska a Page 4 The manner in which SmileDirectClub clearly exercises control over professional dental matters without holding a valid license, is a per se violation of state law. IV. Division and Board Enforcement The Division is responsible for enforcing violations of the state?s statutes regulating dentistry. Alaska Stat. Ann. 08.01 .050(19). The Board is given the power to revoke or suspend licenses or to impose penalties. Alaska Stat. Ann. 08.36.315; Alaska Stat. Ann. ?08.36.317; and Alaska Stat. Ann. ?08.36.340. Penalties for the unlicensed practice of dentistry in the state of Alaska include: A. Board Disciplinary Action State statute grants the Board with broad authority for disciplinary actions, including suspension of a license, reprimand or censure for any violation of statute or Board Rule. Alaska Stat. Ann. 0836315. B. Civil Fine Authority a disciplinary action, the [B]oard may impose a civil ?ne not to exceed $25,000 for each violation of this chapter or of a regulation adopted under this chapter.? Alaska Stat. Ann. 0836.317 C. Statutory Penalties State statute provides broad authority for penalties of any violation of the statutes regulating dentists or Board Rules where speci?c penalties are not otherwise de?ned. Such penalties are class misdemeanors. Alaska Stat. Ann. 0836.340. D. Attorney General Action Finally, the Alaska Attorney General is responsible for enforcing laws to protect Alaska consumers from illegal acts as described in this Complaint, including under the Duties and Powers of the Attorney General, Alaska Stat. Ann. 4423.020 et seq. and the Alaska Consumer Protection Act. Alaska Stat. Ann. 45.50.471 Alaska Stat. Ann. 45.50.561. As such, this Complaint has also been submitted to the Attorney General. V. Conclusion The information contained in this Complaint demonstrates that SmileDirectClub?s activities qualify as the ?practice of dentistry? under Alaska law, and SmileDirectClub is actively engaged in activities expressly prohibited by Alaska state law. Moreover, additional violations may be discovered. This Complaint formally requests the state of Alaska to immediately address these legal violations in order to protect Alaska citizens? health, safety and well-being. State of Alaska HOLLAND SLHARTW 5 April 11,2017 Page 5 If you have any questions or concerns, please contact me directly or I can put you in touch with local counsel related to this matter. Thank you in advance for your attention to this important matter. Sincerely, 01 than Anderson Counsel, AAO cc: Attorney General ahna Lindemuth State of Alaska 1031 W. 4th Avenue, Suite 200 Anchorage, AK 99501-1994 Encl: Attachments A-C Exhibits A-C Exhibit A: SmileDirectClub Business Practices Described (- - we I noun lull lulu." "In? turn ?ush! How It Works i 1 . Take Your Impressions Got Allgne Smiles Are Forever Ill' um l- .: I- n- l'Secure smile What if I'm not in a scanning market or can't or don't want to go to a SmileShop? That's no problem at all We also offer an easy-to-use. at-home evaluation kit that includes an onllne photo assessment and dental impressions. (- 0 Secure smile LOGIN onoen IMPRESSIONS AM I A How does the shipment program work? Once a month. in order to help you keep your treatment plan on schedule. we witl ship you the allgners you need for the month. Each package will be marked and numbered so that you can quickly know the proper sequence In which to wear these. And for patients in a payment program, the shipments will occur near the time their payments are processed. . I smlle LOGIN ORDER IMPRESSIONS AM i A .lm SEARCH OUR BLOG Are you looking for a list of SmileDirectClub locations to find out if our invisible aligners are available in your state? The good news is RECENT NEWS SmileDirectClub is currently available In all U.S. states except North Friday, March 17' 2017 Carolina. The better news is that in most cases you won i need to be seen Recipe: St. Patrick's Day Smile CUpcakes in?oftice at all. which is why We?re able to offer invisible aligneis for up to Wednesday. March 15. 2017 Meet Your Dentist: SmlleDlrectCIub 70 percent less than other brands So you don?t need to find a SniileDirectClub location to use our product with Dr. Sulltzer Friday. March 10. 2017 0 FIND A 0P NEAR Y0 Howto Friday. March 10 2017 3 TV Shows that Make Us Smile bracestpression?ki t- and 0 help log in sign up lru?l shop lHIle'ilI". near Anchorage all deals beauty I'asliirin gadgels home jewelry learning wellness coupons Invisible Braces Impression Kit and Treatment Plan Smile Direct Club $95 Inwzible Braces Evaluation Kit and Treatment F?Ian Includes Orthodontic xii 549 99 Evaluation, In Home impression KIL 3D Treatment Plan, and Teeth Whitening Treatment Quantity 1 This is a gift 0 m- B) C?lcl ng Eloy How! lagleetuLhe T?rms 3rd ?Dn Iron: and the Priuai} Pol Jul-.1 .. in.? min-in iI coon DEAL GUARANTEE I. ll . Buyth?s Dealwithtm?dence because ll' rscweredbymemngSociIlGoodDeel Gumanlae uplochoucherExpia?m la: .5 All Date ?n Sue Db?jli) Exhibit B: SmileDirectClub?s Articles of Organization ARTICLES 0F ORGANIZATION OF SMILECARECLUB, LLC The undersigned; acting as theerganizer of a limited liability. company (the ?Company") under the Tennessee: Revised Limited Liability COmpany Act, Tennessee Cede Annotated 48-24931'01, et seq, hereby.'ad0pts the following Articles of Organization-for the company: i, The name (if the Company is? SmileCareClub, LLC. . "The street-address and zip code 'of' the initial registered office-of the Company shall be 521 Eighth Avenue Suite307, Nashville; Davidson- Cou'nty; Tennessee 37219,; and thearegis'tered agent at such 'office shall he Douglas: Hudsori. 3. The street address and zip code of the principal executive office of the Company shall be 5:21 Eighth Avenue, Suite; 307, Nashville, Davidsen County? Tennessee 37219. 4. TlieIComjiany will be member. managed; S. The Company will not have mere than six. members at the date of ?ling. of these Articles-? of; O_iigani2atien.- 6. The existence at" the Company is to begin on the date upon Which" these Articles bf OrganiZetiOn are ?led by the Tennessee Secretary of State. IN WITNESS the undersigned organizer has executed these. Articles of Organization on this .1 5th day of July, 2014, Donald R. Moody, Organizer 1201?! full E9822 11/10 "65:80:01: 'Jeqeiaes eaessuue; ?q PSAEBDEH :1 .ea?ml?I $11243 3c: FIRST AMENDMENT TO THE ARTICLES 0F ORGANIZATION OF SMILECA-RECLUB, LLC To the Secretary of the S'tate-Of'Tenn'BSSee: . Pursuant to 1113 of the. Tennessea Revised Limitvzd Liability Cqmpany Act Eihe LLC (the. organized 'an? cxistinggunder and by virtue of the prbvi?ons of the Act and .z'all amendme?ts thereto, dines hereby submit this: Amendment to it's Articles of- Organizatiml: 1. The name of't'he limited liability company is LLC. .2, Artiglc. 1 of the Articles of- Otganization jg hereby amengied to read as follows: ?The name; of the. Company shall be 'SmileDirectClub, LLC (the ?Campany?j?.? 3. This amendment was adopted by the sole Member of the-Company. effective as of June 2-2, 20.16; 4- This- Amendment, which will (constitute an amendmentlo the Articles of Organization, is to be effective when ?led with the Secretaxy off'State?. IN WHEREOF, the? undersigned thass Articles of Amandment this 2an day of lube-1,2016; II. BY: ?it? g. I I Its: twill-pang 48 1%63791-99213 7&22?7?705 aae??EH EJL 34348.;9 512483533 aassauus? Aq NV EBLS-FVZEE 04864321 Tennessee Limited Liability Company Annual Report Orm AR Filing 94354321 File 'oniine at: 19* 2915 105%? ?a . Due oniBefore:04i01_f2015g ReportingY'ear: 2014 - . This Annua'i Report has been su'oees'stilly'.? Annual 399?? ang FEB Due. . paid'fonand ?led. -Please=keep--this report-for $300 minlmum plus. $50 for each member over 6 to a maximum of $3000 your records. $20 additional if changes are made in block 3 to the registered a?gentiof?oe cc Payment Ref #1 1 51320555 503 Control Number: 764705 Limited Liability Comp?ahy? Domestic Date Formed: 0771 6:20.14. F'Ormati'oh Locale: TENNESSEE (1) Name and Mailing Address: (2) Principal Office Address: smileC'ereCIUb. LLC 27725 RY ewe 27's 27MB STANSBURY BLVD 2.?5 FARMINGTON HILLS. Mi 48334-3307 FARMINGTON HILLS. Mi 48334?3807 (3)2 Registered Agent and Registered Of?ce (RD) Address; Agent Changed -: Yes DOUGLAS HUDSON AgentjCounty: DAVIDSON COUNTY 4290 CHESTNUT ST NASHVILLE. TN 372034301 (41 This LLC is {change if incorrect): Director Managed, Manager Managed, Member Maneg'ed. Board Managed (appropriate if formed prior to 1r1f2006?on1y). if beard. director. 'or rrianager? managed. provide the names and bbsiness-addresSes. inoludingzip codes, of the governors. direCtors. or (managers (or-their equivalent}. Ii governed by the ore-2006 LLC act and board manageri. list board members and managers? Name Business Address City. State..Zip (5) Provide the names and buSine?ss addresSes, inoludi'ng 'zip codes, of any Of?cers {if governed by the Revised orilheir I. ame Business Address State. ?I'm?1r? (6)fN'umber of members on the date the ahhual report is executed: This LLC is prohibited from doing business in Tennessee {check if applicable) Signature: Electronic (3) Data: 0311912015 (9) TypeiPrin't Name: Nicholas Pyiett Title; CF03 enables ex; $1919 eesseuues ?e paereoes we 69:6: 83-4253 Page 1 of1 Tennessee Limited Liability Company AnnUal Report Form. AR Filing #305352455 File online at: Apr . 3. .31Reporting Year: 2015 - . l'tihis'Annuai Report has been sUcoessfotly Rer-t 1:1]an Fee Due. . paid forand tiled. Please?keepftbisrepon [or $300 minimum plus $50 for each member over etc a maximum of $30.00 your records. $20 additional if changes-are made in block 3 tome registered agentiof?os card Statepaymen: Centerv- CG 3668950608 305 Control Number: 764105 . Limited Liability Company- Domestic Date Formed: BTU-21 61?201'4 Formation Locale; (1) Maine and Mailing Address: (-2) Principal Office. Address: S?mileCareClUb. LLG STE 132 STE 132 701 BROADWAY 701 BROADWAY NASHVILLE..- TN 13720343978 NASHVILLE, TN 37203-3973. Registered Agent (RM-and Registered Office (Rd) Address: Agent Changed: Yes . DOUGLAS HUDSON Agent County: DAVIDSON COUNTY STE- 132 rot BROADWAY NASHVILLE, TN 37203.397'8 This LLG is :(as currently registered in Tennessee-): Director Managed 5 Managi?r Managed, Me'mbeFManaged. Board Managed (appropriate it formed prior- to 1i1120061only). If hoard, director, or'manager managed. provide the names and business addreSSe?S. including zip codes,;of the governors, directorsgsolt managers {or their eqyitralent-l. If governed by the preozu?? LLC act and board managed. list board members and managers. Name Business Address City. State, Zipm (5) Provide the names and business addresses, including zip codes, of any LLC Of?cers (if. governed by?th'e? Revised LLC Act). or their Name Business Add'r?s's City. State-Zip Douglas Hudson 2304 VALLEY BROOK DR NASHVILLE. TN 31215 David Katzman 1005 GRAND ISLE TERRACE PALM BEACH GARDENS, FL 33418 Nichoias Pyett 20861 DUNDEE on now; MI .43er (6) Number of members on the ,date the annual report is executed: 1 This LLC is prohibited from doing" business in Tennessee (check if applicable) (D'Si'gnatgre; Electronic (8) Date; 04ltiW20'16 Name: Harrison Whitehead (_10thtte: Controller. 55-4253 Page 1 oft RDA167B las?lsn s1; 319:5 go ?xeseiass easseecam sq we :9 .S .. II II osqssors Tennessee Limited Liability Company ?Annual Report Form AR Filing It: 05493023 File online at: FILED: Dec 21' 2016 Due onlBefolre104I?O-fi {2017 Reporting Year: 2016 Annual Report has been successfully ang Due. . . . . paid for and filed PIease keep this report for- minimum plus $50 for each member. over 6 to a maximum of $3000 your records $20 additional if changes are made in block. 3 to. the registered agenifo'f?oe Paymenbcredit Card:- State payment Center- 3691093823 SOS Controi Number: 7?64705 Liniited Liabillty Company - Domestic Date Formed: DZI16I2014 Formation Locale; TENNESSEE (1), Name and Mailing Address: (2-) Principal Office Address: SmileDirectCIub, LLC .8 FL 8 414 UNION ST 414 UNION ST NASHVILLE TN NASHVILLE, TN 37219-125? (3) Registered _Agerit (RA) and Registered Of?ce (R0) Address: Agent Changed: DOUGLAS HuosoN Agent County: DAVIDSON COUNTY FL 8 41'4 UNION ST NASHVILLE TN 31219.1?57 14) This Is (as Currently registered" In Tennessee): WDirect?o'r Managed managed, Member Managed __Board Managed {appropriate if formed prior to ii1i2005 only). If_ board director or manager managed, provide the. name's and business addresses including zip codes of the governor's, directors. ?or managers {or their equivalmni) If governed by the pre 2006 LLG act and board managed list board members and managers Name Business Address City. State, (5) Providetihe names and business addresses, inci'adin?gzip codes, of any LLG?iOf?cers (if governed by the Revised LLB Act], ?rtheir equivalent. Name Business Address City, State, Zip Douglas-Hudson 2304 BROOK DR NASHVILLE. TN 3m 5 David Ka'tzman 10,05 GRAND ISLE TERRACE PALM BEACH GARDENSI FL 33418.: Nicholas Pyett 20861 DUNDEE DR NOVI. Mi 48375. (6-) Number of, members on the date the annual report is exe'cftted: i __Thi's LLG I?s prohibited from doing business' In Tennessee (check if applicable) (TI Signature: .Eieotronio (8) Date: 1272-1120115 (QITypeIPrint Name: L. Douglas Hodsort Title: CEO 88-4253 Page Di 1 RDA 5e sensesas we eo=0I 1. 1.1.: 161383 eesseuue All? I"l' ?le?er BIL eases go Exhibit C: SmileDirectClub Treatment Plan Eli? [Bell (InnSecure I smile noun vans Inuul "In" lull-inc: "um" Direct Savings We bnlluve you shouldn't have lo pay a small lamina for a smile you?ll love We work directly customers, avoid costly ol??ce visils. an? snalth Io you SmihDh'ochlub Ol'hon ALIGHEII $1100 $6000 Hw'l 1mm lou? i?lfou' SmIIeCarr.? costs ?.100 vs 55.000 to 57.000 and we have a man that lets you pay only 599 a monlh . smlle new IT won: Insunucs (800)340-1555 AM I A I Secure Is there a money back guarantee? Yes If II is delermlned tha'l allgner therapy Isn't approprlale for your case. we will gladly refund your evaluatlon purchase price our Confluent Smile Guarantee If during allgner treatment you are not sallslied lor any reason, you can return any unused aligners and we will refund the proraled amount from the lotal purchase price You can more about relurns ln our Relur Policy i Secure l/smiledirectclub com/laq/ i? I smlle hum-r :1 main "runny, ?wrung uunh Loelu (sun) BAG-7IEE ORDER IMPREssruus AMI A I wasn't eligible for treatment when I purchased my evaluation. I've since addressed the concerns (cavities. wisdom teeth, etc). Can I use SmileDirectCIub now? Yes! II you ve irxecl Ihe eligiblliiy concerns addressed in your evaluation then you can restart your case To get started you will need lo submit annlher i ii 1 by seleclrr?rg lhc- "Am I A Cand-Uale?? butmrr at llre lop of the screen