Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 1 of 21 PageID #: 1

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1 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 1 of 21 PageID #: 1 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION CRAIG D. COOPER, D.D.S., and ) AMERICAN ACADEMY OF ) IMPLANT DENTISTRY ) ) Plaintiffs, ) ) v. ) No. 1:17-cv ) CINDY A. VAUGHT ) MARK R. STETZEL, D.D.S., ) JENNIFER K. BARTEK, M.S., ) RICHARD R. NOWAKOWSKI, D.D.S., ) ROBERT FINDLEY, D.D.S., ) JEFFREY SNODDY, D.D.S., ) MARA CATEY-WILLIAMS, D.M.S., ) TED REESE, D.D.S., ) ANNETTE J. WILLIAMSON, D.D.S., ) ROGER D. SHELINE, D.D.S., ) GREGORY A. BERGER, D.D.S., ) KELLY MERRITT, R.N., ) DEBORAH FRYE, and ) INDIANA STATE BOARD ) OF DENTISTRY, ) ) Defendants. ) ) COMPLAINT FOR INJUNCTIVE RELIEF Plaintiffs, Craig D. Cooper, D.D.S. ( Dr. Cooper ) and American Academy of Implant Dentistry ( AAID ) (collectively, Plaintiffs ), by and through undersigned counsel, allege as follows: I. PRELIMINARY STATEMENT - NATURE OF ACTION 1. This lawsuit challenges, both on its face and as applied to Plaintiffs and the individual members of the associational plaintiff, the constitutionality of a restrictive advertising regulation

2 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 2 of 21 PageID #: 2 together with any necessarily linked advertising regulations promulgated and enforced by the Indiana State Board of Dentistry ( State Dental Board or Dental Board ). The key challenged regulation is codified as Section (f) of Title 828 of the Indiana Administrative Code ( Rule (f) ). 1 Rule (f) prohibits licensed Indiana dentists from advertising that they are specialists in dental implantology based on the credentials conferred by the AAID and its certifying board, the American Board of Oral Implantology/Implant Dentistry ("ABOI/ID"). Instead, Rule (f) limits Indiana dentists to advertising as specialists only in practice areas that a private trade association, the American Dental Association ("ADA"), has chosen to recognize. In establishing this rule, the State Dental Board has delegated regulatory authority over a major aspect of advertising by Indiana dentists to the private ADA without establishing any government standards for the ADA s exercise of power. 2. Rule (f) s specialty advertising restriction directly and immediately impairs the rights of Dr. Cooper, the AAID, and AAID s Indiana members in the following ways: a. Rule (f) violates Plaintiffs' rights, and the rights of the associational plaintiff s Indiana members, to free speech, guaranteed by the First Amendment to the United States Constitution through the Due Process Clause of the Fourteenth Amendment, by banning truthful, non-misleading commercial speech. The regulation has a chilling effect on Plaintiffs' lawful exercise of their right to engage in truthful, non-misleading commercial speech, in violation of the First Amendment to the United States Constitution. b. Rule (f) violates the Plaintiffs rights (including AAID s Indiana 1 All references to the Dental Board s rules are to those codified in Title 828 of the Indiana Administrative Code. 2

3 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 3 of 21 PageID #: 3 members) to due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States. Plaintiffs have protected property and liberty interests in their licenses to practice dentistry in Indiana and be rewarded for their industry, including reaping the benefits of earning a bona fide professional credential in the specialized field of dental implantology. Under the specialty advertising restriction, Plaintiffs are deprived of any neutral, statesponsored mechanism to determine dental specialties and evaluate the credentials earned in the special field of dental implantology, which the ADA refuses to recognize as a specialty. They are also deprived of any mechanism for appealing the ADA s denial of recognition of the ABOI/ID, which issues bona fide credentials allowing Plaintiffs to publicly and accurately declare themselves specialists in dental implantology or implant dentistry. Further, Plaintiffs are deprived of any right to a neutral and impartial fact-finder about specialization, leaving Plaintiffs subject to arbitrary and capricious decisions in violation of their due process rights. Plaintiffs have no recourse to challenge any ADA designation of specialty, or any ADA refusal to recognize the Plaintiffs area of practice in dental implantology as a specialty area of practice. Defendants have unlawfully delegated Plaintiffs past, current, and prospective rights to commercial free speech to a private trade association. Defendants issue only one dental license in Indiana and all licensees are permitted to practice any aspect of dentistry, including dental implantology. c. Rule (f) violates the Plaintiffs' right to equal protection under the laws guaranteed by the Fourteenth Amendment to the United States Constitution. 3

4 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 4 of 21 PageID #: 4 Similarly situated persons are equal before the law. In evaluating claims of statutory discrimination, a regulation is inherently suspect and subject to heightened judicial scrutiny if it impinges on fundamental constitutional rights. Defendants issue only one type of dental license in Indiana. Yet, Dr. Cooper and AAID s Indiana members, on the one hand, and those permitted by the challenged regulation to advertise themselves as specialists, on the other, have the same license. The specialty advertising restriction impinges on Plaintiffs' fundamental constitutional rights and is, therefore, suspect and subject to, and unable to survive, heightened judicial scrutiny. 3. Rule (f) also violates Section 1 of the Sherman Act, 15 U.S.C. 1, because it constitutes an illegal restraint of trade the commercial practice of dentistry in Indiana through an agreement between the Indiana State Board of Dentistry and the American Dental Association and the dental organizations representing the ADA dental specialties, specifically Oral Surgery, Periodontics, and Prosthodontics. This agreement is designed to be, and is, anticompetitive by allowing a select group of professional dentists in favored specialty areas of dental practice to exercise control over the American Dental Association and the Indiana State Board of Dentistry in formulating the rules for professional advertising of dental specialties. By limiting authorized specialty advertising in the dental profession in Indiana only to those with ADA-approved specialties, the Indiana State Board of Dentistry, acting in concert with the ADA, has instituted an anticompetitive regime of professional advertising regulation that harms the competitive, commercial interests of Plaintiffs and Indiana members of the associational plaintiff as well as increase the cost of dental implant services. As further support for the anticompetitive regime of 4

5 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 5 of 21 PageID #: 5 advertising, the ADA-recognized specialties of Oral and Maxillofacial Surgery, Periodontics, and Prosthodontics include the practice of implant dentistry in their ADArecognized specialties and often advertise as specialists in implant dentistry to the public in Indiana without risk of disciplinary action by the Defendants. II. JURISDICTION AND VENUE 4. This Court has original jurisdiction pursuant to 15 U.S.C. 25, 28 U.S.C. 1331, 1337(a), and 1343(a). Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C and 2202, 15 U.S.C. 26, and 42 U.S.C and This matter arises under: 15 U.S.C. 1 and 26; and the First and Fourteenth Amendments to the United States Constitution, the latter of which is asserted through 42 U.S.C Venue is proper in this Court pursuant to 15 U.S.C. 15, 28 U.S.C. 94(b)(1), and 1391(b). Defendants have their official place of government business in Indianapolis, Indiana. The Indiana State Board of Dentistry originally implemented, and continues to implement and enforce, its anticompetitive actions, harming Plaintiffs competitive interests, in Indianapolis, Indiana. III. PARTIES Plaintiffs 6. Dr. Cooper resides in Marion County, Indiana. He is licensed to practice dentistry in Indiana and conducts his dental practice in Indianapolis, Indiana. He is a credentialed member, as a Fellow, of the AAID. He also is a Diplomate of the ABOI/ID, the certifying board sponsored by the AAID. Dr. Cooper wishes to be recognized as a specialist and to advertise as a specialist in implant dentistry. He brings this action to protect his constitutional rights and to increase the provision of truthful, non-misleading information to consumers about his own specialization in the 5

6 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 6 of 21 PageID #: 6 area of implant dentistry. 7. AAID is a national dental organization whose member dentists, upon satisfying certain experiential, educational, and testing requirements, may earn credentials issued by AAID and its certifying board, the ABOI/ID, in the field of implant dentistry. AAID acts both on its own behalf and in a representative capacity on behalf of its dentist members who are engaged in the practice of dentistry in Indiana and are adversely affected by Rule (f). Defendants 8. Defendants Mark R. Stetzel, Jennifer K. Bartek, Richard R. Nowakowski, Robert Findley, Jeffrey Snoddy, Mara Catey-Williams, Ted Reese, Annette J. Williamson, Roger D. Sheline, Gregory A. Berger, and Kelley Merritt are members of the Indiana State Board of Dentistry, which is a state agency of Indiana under the umbrella of the Indiana Professional Licensing Agency. Defendant Cindy A. Vaught is the Board Director. All Dental Board member and director Defendants are sued only in their official capacities. Collectively, they are responsible for implementing, administering, and enforcing Indiana statutes regulating the practice of dentistry and the various provisions of the Indiana Administrative Code, including Rule (f). They are defendants as to Counts 1-3, 37-38, 39-42, and Deborah Frye is the Executive Director of the Indiana Professional Licensing Agency ( IPLA ), an umbrella organization under which the Indiana State Board of Dentistry functions. She is sued only in her official capacity. The IPLA is an administrative agency and has no policy-making functions with respect to the practice of dentistry in Indiana. Ind. Code (b), (b). IPLA s Executive Director, however, is authorized to play a role with respect to enforcement matters related to Indiana dental 6

7 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 7 of 21 PageID #: 7 licenses. Ind. Code She is a defendant as to Counts 1-3, 37-38, 39-42, and The Indiana State Board of Dentistry is charged by the State of Indiana with regulating the professional practice of dentistry in the state. As part of its duties and authorities, it promulgated advertising rules governing licensed Indiana dentists, including Rule (f). It is a person within the meaning of 15 U.S.C. 7 and is a defendant as to Count 4, 48-50, only. IV. FACTUAL BACKGROUND 11. Rule (f) provides as follows: (f) A dentist may advertise as being a specialist in, or limiting practice to, a particular field of dentistry in: (1) dental public health; (2) endodontics; (3) oral and maxillofacial pathology; (4) oral and maxillofacial radiology; (5) oral and maxillofacial surgery; (6) orthodontics and dentofacial orthopedics; (7) pediatric dentistry; (8) periodontics; or (9) prosthodontics; provided the dentist has graduated from an accredited advanced dental educational program. 12. The nine specialties cleared for specialty advertising by Rule (f) match precisely the nine dental specialties recognized by the ADA. No other dental specialty, including implantology, is on the approved advertising list, regardless of the degree and quality of the training, accreditation, and certification processes and programs required to attain recognition in such non-ada-approved specialties. 7

8 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 8 of 21 PageID #: Immediately following Rule (f) is Dental Board Rule (g), which lists the programs that the Dental Board deems accredited advanced dental educational programs for purposes of Rule (f). The only accredited programs recognized in the rule are those of the Commission on Dental Accreditation ( CODA ), a private adjunct of the ADA. No non-ada accreditation programs for any other areas of dental practice, including implantology, are accorded recognition by the Dental Board. 14. That Rule (f) is directed only at restricting professional speech is made clear by other provisions of the State Dental Board s rules. Subsection (h) of Rule restricts the term specialist in the rule only to its use in advertising. Subsection (i) of Rule (i) specifies that nothing in Rule precludes or otherwise limits any Indiana dentist from offering and performing any treatment to any patient, consistent with the provisions in Indiana Code Under Rule (k), a dentist not considered a specialist for advertising purposes nonetheless may publicly announce that the dentist provides services such as implantology, a specialty not recognized by the ADA, as long as there is no implication it is being provided as a specialty and the dentist announcing such non- ADA specialty also announces that the service is being provided by a general dentist. 15. There are approximately 4,500 dentists licensed to practice in Indiana. All licensed Indiana dentists are lawfully permitted to perform dental services in all areas of dental practice, in both ADA-recognized specialty areas and areas of dentistry not recognized as specialty areas by the ADA, such as dental implantology. 16. AAID numbers among its membership include sixty-three dentists licensed to practice in Indiana, at least nine of whom are credentialed as Fellows of AAID and hold Diplomate status from the ABOI/ID. Some or all of these credentialed Indiana members wish 8

9 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 9 of 21 PageID #: 9 to be recognized as specialists and to advertise as specialists in implant dentistry, and the AAID seeks to further their interests in this regard. Providing such information to the public is truthful, non-misleading and objectively verifiable information that would both benefit the public and increase market competition. 17. AAID has supported the field of implant dentistry for over sixty years. Implant dentistry is a multidisciplinary field, which includes dental surgery, prosthetics, periodontics, occlusion, pain management, anatomy, physiology, pathology, and dental facial aesthetics. AAID's primary purpose is the enhancement of its members' knowledge, skill, and expertise in the field of implant dentistry. To these ends, members of the organization may earn credentials in the field of implant dentistry the "Associate Fellow AAID," "Fellow AAID," and "Diplomate ABOI/ID" designations by successfully completing numerous educational, experiential, and examination requirements. The requirements for attaining the level of expertise required to earn credentials from the AAID and the ABOI/ID are both objective and verifiable. 18. To become an Associate Fellow AAID, a dentist must: (a) complete 300 hours of continuing education in implant dentistry, including 150 hours of clinical implant education; (b) pass a written examination; and (c) successfully complete an oral/clinical treatment case examination. To become a Fellow AAID, a dentist must: (a) have 5 years of experience in implant dentistry; (b) complete 100 hours of continuing education in implant dentistry (above and beyond the 300 hours required for the associate fellow credentials); (c) provide dental implant treatment in fifty cases; (d) pass an oral examination; and (e) satisfactorily present ten cases to the AAID's admissions and credential board. The AAID 9

10 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 10 of 21 PageID #: 10 currently has, nationally, approximately 4,600 members, and only about 550 have earned the Associate Fellow or Fellow status. 19. AAID also sponsors a certifying board, the ABOI/ID, which issues the "Diplomate" or "Board-certified" credential. Dentists may earn this credential by passing ABOI/ID's certification examination and by fulfilling certain educational, experiential, and examination requirements. Since ABOI/ID began issuing these credentials in 1989, only about 450 dentists throughout the United States (including Plaintiff Dr. Cooper) have successfully completed the requirements and received this designation. 20. Dr. Cooper is a member of the AAID and has earned credentials from it. He has invested many thousands of dollars in expenses and professional time to earn these credentials and acquire expertise in the field of implant dentistry. Rule (f) deprives him of the opportunity to recoup his investment and be rewarded in his industry by earning these credentials and publicly declaring himself to be a specialist in implantology. The rule also denies the public the opportunity to be informed of the specialized expertise of Dr. Cooper and others Indiana dentists, including AAID s Indiana members, who specially educated, trained, and tested in the field of dental implants. 21. Despite the objectively verifiable education, training, and experience required to obtain credentials from the AAID and AAID s certifying board, ABOI/ID, Dr. Cooper and AAID s Indiana members who are licensed dentists and credentialed members/board certified in the field of dental implants are not allowed to either publicly declare themselves specialists or advertise their area of expertise in dental implantology as a specialty area of dental practice. The ADA refuses to recognize implant dentistry as a specialty area of practice. Through the operation of Rule (f), such refusal by a private professional organization constitutes a 10

11 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 11 of 21 PageID #: 11 legal prohibition, barring many licensed Indiana dentists, including Dr. Cooper and AAID s Indiana credentialed members, from holding themselves out as specialists in their fields. 22. Further exacerbating Rule (f) s infringement on Plaintiffs rights to commercial free speech is subsection (k) of Rule It mandates that, if licensed dentists advertise that they provide implant services and also limit their practice to the field of implantology (as they are permitted to do), they are compelled by the Dental Board to affirmatively mislead the public by stating that they are practicing as general dentists even when they are not. This advertising restriction thus puts them to a Hobson s choice: either change their practice so that it is no longer limited to the field of implantology; or publish misleading advertising that they are general dentists. 23. The Board lacks statutory authority to license dentists as specialists, nor does it have specific statutory authority with regard to dental advertising. Under Ind. Code (a), however, the State Dental Board is required to adopt rules establishing standards for the competent practice of dentistry. The Dental Board promulgated Rule in reliance on the latter statutory authority. 24. Under Ind. Code (a)(3) and (a), the Dental Board is authorized to punish licensed Indiana dentists for violating its rules. The Board has available to it, largely in the exercise of its discretion, a range of punishment options, up to and including loss of a dentist s state license to practice. 25. As a consequence of the existence of the challenged Dental Board rules and the Dental Board s authority to enforce them through sanctions, Dr. Cooper and other similarlysituated dentists who are members of the AAID, board certified in the practice of dental implantology or planning or desiring to seek such board certification, face the palpable threat of 11

12 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 12 of 21 PageID #: 12 sanctions if they seek to exercise their constitutional rights, as asserted in this lawsuit. They wish to be able to inform the public of their implantology specialization. But they face the risk of irreparable injury by having to forego providing such public information if they wish to avoid sanctions by the State Dental Board unless this Court declares the specialty advertising regulation unconstitutional and grants Plaintiffs the injunctive relief sought. 26. Through Rule (f), the Dental Board has delegated authority to the ADA to determine which areas of dental practice are to be accorded specialty recognition sufficient to allow Indiana dentists to advertise as specialists in those areas of dental practice. Neither through the Board s advertising regulations nor through any other Board regulations or state statute are Plaintiffs afforded a mechanism for evaluating the accrediting organization or its credentials or for contesting the decisions of the ADA denying specialty recognition. 27. The ADA is neither a neutral nor an impartial fact-finder concerning dental accrediting organizations in areas of dental specialization, particularly including dental implants. On the contrary, credentialed AAID members compete with ADA members who are either board-certified in ADA-recognized specialties or are dentists who engage in the areas of practice represented by Plaintiffs, but who have not earned any bona fide and industry recognized and available credentials in those fields. 28. Advertising of credentials or specialization in the areas of dental practice represented by Plaintiffs presents a direct economic threat to ADA members who also are allowed to decide which specialty areas of practice will be recognized, thereby precluding an impartial determination of specialties and specialty areas of practice. The determination of whether an area of dentistry will be deemed a specialty area of dentistry recognized by the 12

13 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 13 of 21 PageID #: 13 ADA is made by its House of Delegates, composed of almost 500 dentists from the 50 stateaffiliated associations, such as the Indiana Dental Association. 29. Under Rule (f), the State of Indiana has no active, continuing, or meaningful supervision over the unfettered delegation of government regulatory authority, which the challenged rule confers upon the ADA, giving it the authority to determine for Indiana dentists which areas of practice and which dental credentials they may advertises as specialties. 30. Federal constitutional restraints do not allow the State Dental Board to delegate unguided, uncontrolled, and unreviewable authority to a private organization/trade association to establish rules determining the lawfulness or unlawfulness of commercial speech. Yet, this is precisely what Defendants have done in promulgating Rule (f) and enforcing or holding out the threat of enforcing it. 31. The regulatory scheme i m p r o p e r l y g r a n t s what essentially amounts to the ADA having the power to regulate t h e right to free speech of the Plaintiffs by not allowing credentialed members in the AAID to advertise as specialists even though they are highly qualified to do so. The specialty advertising regulation has a chilling effect on Plaintiffs' lawful exercise of their right to engage in truthful, non-misleading commercial speech because, if they were to advertise to the public as specialists, their licenses would be at risk, and they would be subject to penalties imposed by the State Dental Board. 32. The Dental Board s restrictive advertising regulation is made even more restrictive, and thus even more clearly in violation of constitutional rules, by its rigidity. Even the ADA has recognized that its specialty recognition process is flawed and has taken at least one step to partially address the flaws. In October 2016, through Resolution No. 65, the ADA amended Section 5.H of its Principles of Ethics and Code of Professional Conduct ( ADA Code of Conduct ). (Attached 13

14 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 14 of 21 PageID #: 14 to this Complaint as Exhibit A) As amended, the ADA Code of Conduct now allows an ADA member to advertise as a specialist in an area of dentistry not specifically recognized by the ADA if the state where the dentist is licensed and practices recognizes that specialty. 33. For Plaintiffs, however, this modest step forward by the ADA offers no solace because Indiana s Dental Board has no power to recognize specialties and its advertising restriction concerning them is specifically limited to only those specialties explicitly recognized by the ADA. 34. Moreover, the specialty regulation s prohibitions exist in the absence of any substantive determination by the State Dental Board whether a dental organization is bona fide, how credentialing is obtained, and whether advertising, as a specialist in the field would be deceptive or misleading to the public. The regulation imposes arbitrary conditions precedent to advertising without regard to the nature, validity, or truthfulness of the information provided to the public, all in direct violation of Plaintiffs rights. 35. The regulation also violates procedural due process. The ADA is given the authority, final and unchecked, to determine the limits of lawful dental advertising and is free from procedures consistent with due process. There is no right for an Indiana licensed dentist to request recognition of his or her field as a specialty. The ADA does not have to give a dentist notice or an opportunity to be heard as it determines de facto the legality of dental advertising in Indiana. There is no right to appeal any decisions made by the ADA. By outsourcing the determination as to which areas of dentistry will be recognized and may lawfully be advertised as specialties, the challenged regulation denies interested persons the pre- and post-deprivation remedies which due process commands. The challenged regulation deprives interested parties of an opportunity to be heard, and while the failure to provide pre-deprivation notice and hearing may be cured by postdeprivation remedies, the challenged regulation offers no such remedy. A refusal by the ADA to 14

15 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 15 of 21 PageID #: 15 recognize specific organizations or areas of dentistry as specialty areas of practice, such as dental implantology, is final and not reviewable. This violates the due process guarantees of the Fourteenth Amendment to the Constitution of the United States. 36. Furthermore, the regulation violates substantive due process, which protects fundamental rights from arbitrary and unwarranted encroachment by the government. When a regulation encroaches on fundamental constitutional rights, it must be narrowly tailored to achieve a state's purpose. The specialty regulation in question encroaches on the fundamental rights of Plaintiffs. Their rights to be rewarded for their industry and unrestrained communication regarding their credentials, expertise, and right to declare themselves trained specialists in the area of dental implants have been denied. The specialty advertising regulation does not satisfy basic constitutional standards and is not narrowly tailored. It creates false impressions regarding the legitimate credentialing organizations of which Dr. Cooper and AAID s Indiana members are members and signals a State-approved stamp of unworthiness of specialty status. The specialty advertising regulation implies that the ADA has evaluated the authenticity of the AAID and determined that it is unfit for inclusion as a specialty board and its specialty field is unworthy of advertising as a specialty area of practice. As such, Rule (f) violates constitutional guarantees of due process. 37. The Dental Board s promulgation, enforcement, and continuing threat of enforcement of Rule (f) constitute a restraint of trade. The Board s actions are designed to, and do, operate to provide an unfair and improper competitive advantage to those engaged in the commercial practice of dentistry in Indiana who are certified as specialists in fields of dentistry favored by the Dental Board and the ADA. This favor is demonstrated by the restricted field of dental specialties that are recognized and allowed to be advertised to the consuming public. 15

16 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 16 of 21 PageID #: Advertising is a vital element of the commercial practice of dentistry. By preventing Plaintiffs from advertising in their field of dental specialty dental implants Rule (f) harms them financially while it simultaneously provides unfair and improper financial benefits to those who are allowed to advertise their specialties, the ones the ADA has blessed. This advertising regulation regime therefore has, and is designed to have, an anticompetitive effect on Plaintiffs, who specialize in a dental field the ADA and State Dental Board refuse to acknowledge and refuse to allow the public to be made aware of through advertising. 39. The advertising policy reflected in the Dental Board s Rule (f) is not one clearly articulated and affirmatively expressed in state policy separate from the rule itself. There is articulated, affirmatively expressed state policy in Indiana indicating that the Dental Board is authorized to regulate dental advertising or to determine and approve specialties within the dental field. Furthermore, the Dental Board s rulemaking concerning dental advertising is not actively supervised by the State of Indiana. The Dental Board is acting on behalf of Indiana dentists certified as specialists in ADA-recognized specialties and advancing their economic interests to the competitive disadvantage of those in Plaintiffs situation, who are certified as specialists in fields the ADA refuses to recognize. Consequently, the Dental Board may not avail itself of stateaction immunity from federal antitrust law. V. CAUSES OF ACTION Count 1 - Violation of Plaintiffs Freedom of Speech Rights (through 42 U.S.C. 1983) 40. Paragraphs 1 through 39 are incorporated herein with the same force and effect as if fully set forth. 41. Dr. Cooper wishes to advertise as a specialist in the practice of dental implantology, advertising which would not be false or misleading. AAID seeks to further its organizational 16

17 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 17 of 21 PageID #: 17 interests and purposes to assure that its Indiana members likewise be able to engage in such advertising. Dr. Cooper s right and the rights of AAID s Indiana members, to advertise truthfully concerning the practice of their profession, are protected by the First Amendment to the Constitution of the United States, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. 42. Rule (f) encroaches on this right, both facially and as applied, as to Dr. Cooper, AAID, and AAID s Indiana members. 43. Plaintiffs constitutional rights are being deprived by Defendants, who are acting under color of state law. This violation of Plaintiffs constitutional rights by Defendants is actionable under 42 U.S.C. 1983, through which this claim is asserted. 44. As a result of Defendants actions, Plaintiffs have suffered and continue to suffer injury and damages as to all Counts. Count 2: Violation of Plaintiffs Substantive And Procedural Due Process (through 42 U.S.C. 1983) 45. Paragraphs 1 through 44 are incorporated herein with the same force and effect as if fully set forth. 46. Dr. Cooper, AAID, and AAID s Indiana members have protected property and liberty interests in their licenses to practice dentistry in Indiana and have a right to engage in truthful commercial speech. 47. Rule (f) deprives Plaintiffs of a State of Indiana mechanism to evaluate the professional dental credentials earned by dentists in the field of implant dentistry, which the ADA has arbitrarily refused to recognize as a dental specialty. 48. The rule further denies Dr. Cooper and AAID s Indiana members a mechanism for appealing the State Dental Board s refusal to recognize any credentialing organization other than 17

18 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 18 of 21 PageID #: 18 one recognized as a sponsoring organization for an ADA recognized specialty, and any field of dental practice, including dental implantology, which the ADA has refused to declare a specialty area of practice. 49. Both facially and as applied, Rule (f) deprives Plaintiffs of the right to a neutral and impartial fact finder, resulting in arbitrary and capricious decisions, in violation of Plaintiffs' due process rights, guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. 50. Plaintiffs constitutional rights are being deprived by Defendants, who are acting under color of state law. This violation of Plaintiffs constitutional rights by Defendants is actionable under 42 U.S.C. 1983, through which this claim is asserted. 51. As a result of Defendants actions, Plaintiffs have suffered and continue to suffer injury and damages as to all Counts. Count 3: Violation of Plaintiffs Equal Protection Rights (through 42 U.S.C. 1983) 52. Paragraphs 1 through 51 are incorporated herein with the same force and effect as if fully set forth. 53. Rule (f) creates discriminatory classifications between dentists who have obtained designations as ADA-recognized specialists and those who have obtained professional dental credentials in the area of implant dentistry, which is not recognized as a specialty by the ADA. The statute authorizing Rule (f) s promulgation makes no such distinction relative to dental licensure in Indiana. 54. The specialty regulation creates irrational and discriminatory classifications between licensed dentists who can hold themselves out to be specialists, and those such as Plaintiffs who cannot so advertise. 18

19 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 19 of 21 PageID #: Rule (f) confers rights on dentists who have obtained designations as ADA recognized specialists, while impinging on the fundamental rights of dentists who have obtained professional dental credentials in an area of dentistry not recognized by the private trade association as a specialty. Those fundamental rights are guaranteed by the United States Constitution. 56. Rule (f) is suspect and subject to heightened judicial scrutiny if it impinges too greatly on fundamental rights. Both facially and as applied, it denies equal protection of the laws to Plaintiffs. 57. Plaintiffs constitutional rights are being deprived by Defendants, who are acting under color of state law. This violation of Plaintiffs constitutional rights by Defendants is actionable under 42 U.S.C. 1983, through which this claim is asserted. 58. As a result of Defendants actions, Plaintiffs have suffered and continue to suffer injury and damages as to all Counts. Count 4: Violation of the Sherman Act (15 U.S.C. 1, through 15 U.S.C. 26) 59. Paragraphs 1 through 58 are incorporated herein with the same force and effect as if fully set forth. 60. The State Dental Board s promulgation, enforcement, and continuing threatened enforcement of Rule (f) are a restraint of trade in the commercial practice of dentistry in Indiana. The rule is anticompetitive and works a distinct economic and financial harm to Dr. Cooper, the AAID, and the AAID s Indiana members. The rule thereby violates Section 1 of the Sherman Act, 15 U.S.C Under Section 16 of the Clayton Act, 15 U.S.C. 26, Plaintiffs seek an injunction against Rule (f) s enforcement. 19

20 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 20 of 21 PageID #: 20 VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, by counsel and based upon the foregoing matters, respectfully request that this Court grant them the following relief: 1. Assume jurisdiction over this action; 2. Declare State Dental Board Rule (f), as well as any Dental Board rule (such as Rule (k)) inextricably linked with it, unconstitutional, both on its face and as applied to Plaintiffs, including AAID s Indiana members; 3. Issue a permanent injunction prohibiting Defendants, their officers, agents, employees, attorneys, successors in office, and all persons in active concert or participation with them from further maintenance, implementation, or enforcement of the provisions of State Dental Board Rule (f), as well as any Dental Board rule (such as Rule (k)) inextricably linked with it; 4. Under 15 U.S.C. 26, 28 U.S.C. 1920, 42 U.S.C. 1988(b), and Fed.R.Civ.Proc. 54(d), award Plaintiffs their reasonable attorney fees, litigation expenses, and costs incurred in bringing and prosecuting this action; and 5. Grant Plaintiffs such other and further relief as may be necessary, appropriate, and equitable. 20

21 Case 1:17-cv WTL-MPB Document 1 Filed 04/07/17 Page 21 of 21 PageID #: 21 Date: April 7, 2017 Respectfully submitted, /s/ Kristopher N. Kazmierczak Kristopher N. Kazmierczak, No William J. Brinkerhoff, Atty. No KATZ & KORIN, PC 334 North Senate Avenue Indianapolis, Indiana Telephone: ; Facsimile: kkaz@katzkorin.com bbrinkerhoff@katzkorin.com Frank R. Recker [Pro Hac Vice application pending] FRANK R. RECKER & ASSOCIATES, CO, LPA 4 th and Vine Tower One W. 4 th Street, Suite 2606 Cincinnati, Ohio Telephone: Recker@ddslaw.com Attorneys for Plaintiffs, Craig D. Cooper, D.D.S. and American Academy of Implant Dentistry 21