At-Home Dental Appliance Company Sues Website For Having Opinions About Its Products

from the feeling-ways-about-stuff,-huh?-I'm-calling-my-lawyer! dept

An at-home dental appliance company has a problem with the website Lifehacker. It's the sort of problem it thinks can only be solved by filing a baseless defamation suit. SmileDirectClub -- maker of DIY teeth-straightening equipment -- is taking the site to court for an article originally titled "You Could Fuck Up Your Mouth With SmileDirectClub." The title has since been changed to suggest any "at-home orthodontics" could fuck up your mouth, but the wording of the article remains unchanged.

The gist of the article is that straightening teeth requires direct oversight by qualified professionals -- something that seems unlikely to happen with at-home orthodontics. The author of post -- citing dental professionals and a few online forums -- notes that without proper, direct care, in-home dental appliances actually can cause worse alignment or result in the loss of teeth.

I’m halfway through an unusually long two-year program of Invisalign, the most popular brand of aligner. (The company behind Invisalign also makes SmileDirectClub’s aligners.) Every ten weeks I see my orthodontist for a checkup, new aligners, and advice. On a recent visit, I admitted that I’d started leaving my aligners out for longer periods (at parties or picnics), and was making up for it by leaving them in an extra day each.

My orthodontist gently explained that while my aligners are still pushing my teeth into place, my teeth want to shift back, and they’ll take every opportunity to do so. In effect, I’ve been very slowly wiggling my teeth. And wiggling teeth makes them fall out.

I no longer leave my aligners out for long periods.

So, given the average human's desire to take shortcuts or do whatever's most comfortable, rather than what's most necessary, at-home dental work, although cheaper, could cause serious problems down the road. Hence the need for professional care, rather than made-to-order appliances and online checkups based on photos of your mouth.

SmileDirectClub is pissed off. Never litigate angry. It only makes your arguments stupider. The complaint [PDF] opens with claims of things that never happened before devolving into general complaints about internet business models and website lineage. (h/t First Amendment warrior/lawyer Daniel Horwitz)

On April 6, 2018, Gizmodo through its weblog called Lifehacker, which is located at www.lifehacker.com, published an article written by Douglas entitled “You Could Fuck Up Your Mouth With SmileDirectClub” (the “Untruthful Article”).

Through this outrageous, misleading and vulgar title, Gizmodo intended to lure the 24 million readers of Lifehacker to an article filled with unsubstantiated false statements and innuendo that attacks Plaintiff’s products and services.

Although Douglas readily admits in the Untruthful Article that he never used or even tried Plaintiff’s products and services, he proceeds with a hatchet job based upon a comparison to a failed company that is not comparable for purposes of his statements; citation to a message board that does not support his statements; and conclusions that Plaintiff’s products and services are “bad” and “cheap.”

Actually, the article doesn't make either of those claims. It merely suggests using an at-home version will possibly result in tooth problems.

Obviously that’s because I’m lucky enough to afford the more expensive option. If you can’t, it can be very hard to hear that your only available option is a bad one. And maybe you’ll end up just fine with the cheap version—by all appearances, thousands of people have. But if you go remote, please be careful. Research as much as you can, and follow the instructions carefully. Don’t wiggle your teeth until they fall out.

Even with the original title, the article is not defamatory. The key word in the headline is "could." On top of that, the assertions made are supported by statements from dental professionals and users of these at-home products. The headline change shifts the focus from SmileDirectClub, but does not change anything about the assertions and opinions that compose the body of the post.

From that terrible start, the lawsuit goes off the rails. Apparently, SmileDirectClub believes "clickbait" and "part of the Gawker network" are pretty much all that's needed to successfully state defamation claims.

Even when confronted with the falsity of their article and admitting that one of the citations does not support the statements in the article, Defendants refuse to remove the Untruthful Article.

They refuse to do so because it is how they make their money.

Douglas and Gizmodo made such statements and used the outrageous “You Could Fuck Up Your Mouth With SmileDirectClub” title to bait consumers into viewing the article so that they could obtain revenues from banner advertising.

This continues a pattern over a decade of defamatory shock-style “journalism” by Gawker Media and its progeny (such as Lifehacker), whose weblogs were bought out of bankruptcy and now are held by Gizmodo.

Douglas, as a former reporter for Gawker, also has ties to the now defunct Gawker Media.

Defendants willfully, intentionally, and maliciously created a false story to drive “clicks.”

There's more later in the lawsuit, where -- for no apparent reason -- SmileDirectClub decides to regale the court with tales of Gawker's fall from grace at the hand of Peter Thiel-backed lawyers who had every intention of destroying the company, rather than simply seeking to have a grievance redressed.

SmileDirectClub also apparently believes -- incorrectly -- that statements of opinion must come with a disclaimer clearly designating them as opinions.

The Untruthful Article does not contain a disclaimer that it constitutes opinion only or that the statements therein do not reflect the views of Gizmodo or Lifehacker.

And it deliberately misreads the paragraph quoted above to portray it as an unsubstantiated statement of fact.

Finally, Douglas makes the unsubstantiated statement that, if one cannot afford a traditional orthodontist, SmileDirectClub is a “bad” option.

He further refers to SmileDirectClub’s products as “cheap” in connection with his allegation that the products are “bad.”

Douglas’s conclusion is not based on any factual evidence and is unsupportable.

It's his opinion about at-home products based on his personal experience and the not-unreasonable assumption that many people won't take the best care of their own teeth if the only person overseeing them is a Skyped-in dental professional viewing a tooth-filled selfie. And it's followed by statements the lawsuit chooses to omit, which says many people have had success straightening their teeth using in-home products like those offered by SmileDirect.

The other supposed damning evidence presented by SmileDirect is the site's attempt to fix the problems noted by the company.

On April 8, 2018, counsel for Plaintiff emailed a letter to Gizmodo, Lifehacker, Douglas, and Kirsch in which Plaintiff demanded that Gizmodo and Douglas immediately remove the Untruthful Article. A true and correct copy of the April 8, 2018, letter is attached hereto as Exhibit 6.

On April 9, 2018, counsel for Plaintiff caused the letter to be hand delivered upon Gizmodo. Gizmodo acknowledged receipt as shown in the email from Gizmodo’s General Counsel. A true and correct copy of the email is attached hereto as Exhibit 7.

On April 10, 2018, counsel for Plaintiff received an email from Gizmodo in response to Plaintiff’s April 8, 2018 email and April 9, 2018 letter. A true and correct copy of the response email is attached hereto as Exhibit 8.

Gizmodo asserts in its email that “Mr. Douglas meant to link to an additional discussion forum about aligners, and he will update the article to do so.”

Thus, Gizmodo admits that the Untruthful Article’s link to www.bracesforum.net is misleading but refuses to take the Untruthful Article down.

Gizmodo doesn't actually admit what SmileDirect says it admits. And even if the link was misleading, another link was provided and the post's title changed. None of this needed to be done. The article wasn't defamatory to begin with, even if the title was somewhat of a cheap shot in its original form.

Then it's time for more of this padding, which does little more than suggest SmileDirect's legal representation thinks courts run on emotion, rather than legal interpretations of existing laws.

Lifehacker, through its villainous lineage and Gawker Media parentage, continues the bad conduct of Gawker Media.

At best, Lifehacker’s Untruthful Article shows a reckless indifference for the truth, which is consistent with Gizmodo’s pattern of conduct going back to its origins with Gawker Media.

To sum up: "Gawker was once sued successfully for defamation. I rest my case." Perhaps the plaintiff believes the court has some v. Gawker judgment boilerplate laying around just in case any of its now-bastardized children have roused the rabble again.

Speaking of competent representation, it appears SmileDirect is hoping Gizmodo, et al will be held libel for slandering without proper disclaimers or whatever.

If you can't see or read the picture, the heading/subheading reads:

COUNT II

TRADE LIABLE/PRODUCT DISPARAGEMENT

Finally, the lawsuit ends with a plea for the article to be removed and anyone associated with the site from ever reposting it in any form. You know, a little prior restraint to go along with everything else that's wrong this lawsuit. SmileDirect wants this to happen before the judge even receives a response from Gizmodo or weighs the merits of the dental company's arguments.

It's a stupid lawsuit but it's still going to be a legitimate pain in the ass. Tennessee has a relatively worthless anti-SLAPP law and courts there have allowed incredibly dubious defamation lawsuits to proceed past motions to dismiss. This could be an easy win for Gizmodo or a protracted battle that gives the plaintiff's arguments far too much credit. Either way, it's something a good anti-SLAPP law would keep this from being a boon for legal representation and a drag on protected speech.


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  • icon
    Ninja (profile), 16 Apr 2018 @ 11:45am

    Just smile and sue... Erm, wave.

    Problems will magically solve themselves via litigation.

    reply to this | link to this | view in chronology ]

  • icon
    Snodoubt (profile), 16 Apr 2018 @ 12:10pm

    Suing Yelp for fun and profit

    That's disappointing. That lifehacker article was what introduced me to their product and made me go checkout their site. My insurance doesn't cover at home products but it is still cheaper than invisalign through my dentist. I choose not to do business with companies who handle things this way so I guess I'll hold off for now.

    reply to this | link to this | view in chronology ]

    • identicon
      SirWired, 17 Apr 2018 @ 6:03am

      Re: Suing Yelp for fun and profit

      Your teeth will thank you. Treatment planning via some selfies and a set of DIY impressions is a horrible idea, and "supervision" via phone calls is even worse. (Real planning involves specialty x-rays, and specialized photos it would be difficult to take on your own.)

      It's a great way to screw up your roots, recede your gums, grind away at your TMJ, and just generally end up with a poor and unstable result.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Apr 2018 @ 12:37pm

    I'm starting to notice a possible pattern. The same kind of deranged person that religiously believes Thiel and Bollea were righteous solely because their victim was Gawker (company name starts with G) seem to be the same kind who believes, also erroneously, that Oracle was justified in its greed-motivated frivolous lawsuit against Google solely because they pretend that Google (company name also starts with G) must automatically always be in the wrong.

    I wonder if there are any additional companies starting their names with the letter G that peleople have an irrational hatred toward.

    reply to this | link to this | view in chronology ]

  • identicon
    SirWired, 16 Apr 2018 @ 1:12pm

    Their "successes" aren't great

    Somebody in the comments section for that article proudly posted her "success". Gah! Looks like they line up the "Social Six" and slam patients right into retention. That looks nice enough, but if you don't get the molars lined up correctly, the long-term prognosis ain't great.

    And I'm having trouble conceiving of how this "remote supervision" could possibly work. Any orthodontist worth their salt (especially on adults) will take cephalograms and a Panorex to check for root quality, TMJ complications, and get a sense of what the jawbones can accommodate for movement. None of that is going to come with photos. (And speaking of photos, a proper set of diagnostic photos is more involved than just taking selfies... it requires a mirror you stick in your mouth, and some fixtures to stretch your lips and teeth out of the way for a better view.)

    reply to this | link to this | view in chronology ]

  • icon
    Vidiot (profile), 16 Apr 2018 @ 1:29pm

    This lawsuit has no teeth.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Apr 2018 @ 3:57pm

    Someone's obviously been watching WAY too many courtroom drama movies.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 16 Apr 2018 @ 7:56pm

    It is a pity that somehow these stupid companies keep finding the stupid lawyers who promise them butthurt is an actual tort & they can make billions & save their name.

    They never notice the outcome of these cases...
    well paid lawyers slinking away
    even more damage to the brand, all self inflicted
    and their butts still hurt.

    reply to this | link to this | view in chronology ]

  • icon
    Narcissus (profile), 17 Apr 2018 @ 1:04am

    People do this?

    To be honest I couldn't focus too much on the article since finding out that apparently people are taking a DIY approach to aligning their teeth! The wonders never cease. Next we'll have a home appendectomy kit.

    I think that people that are thinking about this should take the fact that you could, and probably will, fuck up your mouth as a given. I'm amazed that it's not obligated for the SmileDirectClub to plaster that exact warning all over their website.

    If your teeth need straightening please seek professional help! Yes, it will most likely cost thousands of dollars but it's the only way.

    (I'm not an orthodontist by the way, although I had plenty of work done in my youth, to full satisfaction)

    reply to this | link to this | view in chronology ]

  • icon
    Jeffrey Nonken (profile), 17 Apr 2018 @ 8:15am

    "...it appears SmileDirect is hoping Gizmodo, et al will be held libel for slandering without proper disclaimers or whatever."

    Hah hah, cute.

    I believe the word you want there is "liable".

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 17 Apr 2018 @ 10:04am

    I say proceed with a lawsuit

    I say to proceed with a lawsuit since the first thing Gizmodo will do is file a motion that their article is truthful. And how do that do that? By subpoena-ing every customer of SmileDirectClub to see how many of them wound up with screwed-up teeth.
    Is this really something SmileDirectClub wants revealed in a public record? I'd bet they also run the risk of having a judge smack them down and require a warning that their product may or may not do what it claims to do.

    reply to this | link to this | view in chronology ]


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