Boston Dental Group, LLC (see more info at the end) and Affordable Care, LLC (Affordable Dentures and Implants) seem to be in a heated lawsuit in Nevada’s Federal Court. I’ve not looked at the initial Complaint, (case no. 2:15-cv-01636) but I have read (link below) BDG’s Reply in Support of Partial Summary Judgement. Appears BDG sued (for what I’m not sure) then Affordable Care filed a counter-suit., that seems to sound a whole lot like a SLAPP suit (boy, I’ve been there…lol). But at this point in the story, I’m not even sure who is cheating who, as the song goes.
Link to Plaintiff’s Reply in Support of Partial Summary Judgement (24 pages) filed August 25, 2017 in United States District Court, District of Nevada.
Anywho…I’ve pulled out some interesting items in this pleading and posted below. More interesting, much of the this pleading is redacted and all the exhibits are filed “Under Seal”.
Enjoy!
Page 3, Line 3
“The question of the legality of Affordable Care’s management agreements with dentists
goes straight to the heart of whether Affordable Care has enforceable trademark rights. All of
Affordable Care’s claimed rights in its “dental services” trademarks are purportedly through
“oral licenses” it has with independent dental offices around the country. If the financial
arrangements with those dental offices are illegal, this illegal activity cannot form the basis of
any trademark rights, and Affordable Care’s has trademarks are unenforceable.”
Page 3, Line 12
The illegality of Affordable Care’s management agreement was an issue throughout this case and multiple discovery requests by BDG sought information concerning this illegal arrangement.
Despite the numerous discovery requests, Affordable Care refused to identify any
witnesses or produce any financial documents on this issue. Regardless, Defendant did produce
its 2007 Management Services Agreement which is illegal on its face (prior to this case being
filed Affordable Care produced an unsigned copy of this document which began the
conversation on the illegal nature of its arrangement with its dentists).
Now for the first time, Affordable Care decides to bring forth a witnesses and a handful
of select documents to claim that the 2007 illegal management agreement was just a copy-andpaste template and the fact that both it and the Nevada dental office signed the agreement was meaningless. Such a claim is simply unbelievable.
Page 4, Line 12
“Moreover, the specific allegations that Affordable Care’s trademark is unenforceable and
that it has unclean hands due to a violation of Nevada law has been in issue throughout this case,
including in the pleadings and throughout discovery.
In BDG’s Answer to Defendant’s Counterclaim, BDG states the following affirmative
defenses, among others:
Defendant’s counterclaims are barred by unclean hands.
Defendant’s trademarks are invalid and/or unenforceable.
See BDG’s Answer to Counterclaim, Doc. 10, p. 5, lines 24-25. (Filed under Seal)
In addition to the pleadings, both before and after this lawsuit was filed, counsel for
BDG repeatedly informed Affordable Care that its management agreement with its Nevada
dentist was illegal under Nevada law. This is apparently what prompted Affordable Care to
amend its management agreement with its Nevada dentist and back-date it to January 1, 2016.”
Page 5, Line 15
“Affordable Care’s actions constitute the illegal practice of dentistry in Nevada and cannot form
the basis of any claimed trademark rights for dental services.”
Page 5, Line 19
“As set out in more detail in BDG’s Motion to Strike, Affordable Care failed to name Mr.
Steelman as witnesses and failed to produce the financial information it now claims address
BDG’s arguments concerning trademark priority and the unenforceability of Defendant’s
trademarks. This declaration and these documents should be stricken and not considered by this
court.”
Page 5, Line 24
“Not only was this witness not identified during discovery and these documents not
produced, BDG requested this information and Defendant Affordable Care refused to produce
it. Specifically, BDG requested an identification of all witnesses and documents related to
financial information of the Las Vegas affiliated practice, including:
REQUEST FOR PRODUCTION NO. 9:
Please produce documents sufficient to show for Nevada and California
Affordable Care’s and any Nevada or California Licensee’s monthly and annual
net profit from goods for services sold under Affordable Care Marks from 2007 to
the present.
RESPONSE: In addition to the foregoing General Objections, Affordable
Care objects to this request as irrelevant to this action and not reasonably
calculated to lead to the discovery of admissible evidence. Neither Plaintiff’s
action for declaratory relief of non-infringement nor Affordable Care’s
counterclaims for trademark infringement, false designation of origin, and unfair
competition involves evidence of profit from goods or services sold under
Affordable Care Marks. See Doc. 32-7 as Exhibit 7, p. 3. (Filed under Seal)
INTERROGATORY NO. 11:
Please state in detail the factual basis, including, but not limited to,
identification of all documents and persons, all sums and amounts received by
you from your affiliated practices located in California and Nevada.
ANSWER: In addition to the foregoing General Objections, Affordable
Care objects to this Interrogatory because the revenue that Affordable Care has
received from its affiliated practices in Nevada and California is not relevant to
Plaintiff’s claims and defenses, or Affordable Care’s counterclaims, which all
relate to the use of the AFFORDABLE DENTURES Marks. Affordable Care
further objects to this Interrogatory because the information sought in this
Interrogatory is not proportional to the needs of the case.INTERROGATORY NO. 13:
Please state in detail the factual basis, including, but not limited to,
identification of all documents and persons, of all reimbursements, including, but
not limited to, fee-for-service methods of reimbursements paid to you and/or paid
by you to your affiliated dental practices located in California and Nevada.
ANSWER: In addition to the foregoing General Objections, Affordable
Care objects to this Interrogatory because Affordable Care’s financial relationship
with its affiliated practices in Nevada and California is not relevant to Plaintiff’s
claims and defenses, or Affordable Care’s counterclaims, which all relate to the
use of the AFFORDABLE DENTURES Marks. Affordable Care further objects
to this Interrogatory because the information sought in this Interrogatory is not
proportional to the needs of the case. See Doc. 32-5 as Exhibit 2, p. 9-10. (Filed under Seal)
Affordable Care cannot refuse to produce this information or identify witnesses during
discovery and then attempt to get into evidence a new witness and select documents because it
now suits them.”
Page 7, Line 17
“C. Defendant’s Arrangement with its Nevada Dentist is Illegal Under Nevada
Law1. The Evidence of Record in this Case Demonstrates that Affordable Care
Operated Illegally in Nevada.
Page 9, Line 9
“In addition to the fact that Affordable Care’s surprise declaration and exhibits were
never produced and should not be considered, this untimely evidence contradicts the evidence
that is properly of record in this case, including the sworn testimony of Affordable Care’s only
witness, Adam Siegal who testified (redacted) See Exhibit 5, Adam Siegal Deposition, p. 28 lines 17-24”This was echoed by Dr. Cher Y. Chang who owns the Nevada dental practice. She
testified as follows: (redacted) See Exhibit 6, Cher Y. Chang, DMD Deposition, p. 12, line 16 - p. 13, line 19. (Filed under Seal)As set out in detail in BDG’s Motion, this is a clear violation of Nevada law. See NRS
631.395 (“A person is guilty of the illegal practice of dentistry or dental hygiene who . . . 10.
Except as otherwise provided in NRS 631.385, owns or controls a dental practice, shares in the
fees received by a dentist or controls or attempts to control the services offered by a dentist if
the person is not himself or herself licensed pursuant to this chapter.”) emphasis added; See also
NRS 631.215(2)(h)(1) (stating that a person who provides goods or services to a dental practice
may not, “[p]rovide such goods or services in exchange for payments based on a percentage or
share of revenues or profits of the dental practice, office or clinic.”)”
Page 9, Line 24
“Even if this Court were to consider the declaration of Mr. Steelman and the undisclosed
Vegas Financial Statements and Vegas Fee Statements, the arrangement between Affordable
Care and its Nevada dental office appears to be illegal under Nevada law.”
Page 9, Line 28
“This is abundantly clear from the Vegas Financial Statements and the Vegas Fee Statements. (redacted) (See 2016 Management Services Contract, Doc. 54-1 as Exhibit A-4, p. 21 AFCA 0009190). (Filed under Seal)
Page 11, Line 6
“Mr. Steelman’s claim that the amounts paid by the Nevada dental practice are
contractually “fixed” simply does not hold up to scrutiny.
”Page 11, Line 15
“Affordable Care’s sham “fixed” fee simply does not stand up to scrutiny and is illegal under Nevada law.
Moreover, Affordable Care has not identified a single state where this type of arrangement
would be legal. Affordable Care’s business practices appear to violate the laws of every, or
nearly every, state it operates in.”
”Page 11, Line 20
“Illegal Activity Cannot Form the Basis of Any Trademark Rights
Affordable Care’s arrangement with the Nevada dental office is illegal under Nevada
law and cannot form the basis of any trademark rights. CreAgri, Inc. v. USANA Health Scis.,
Inc., 474 F.3d 626, 630 (9th Cir. 2007).” (Filed under Seal)“In this case, BDG, a company owned by a licensed Nevada dentist, is merely seeking a
declaratory judgment that Affordable Care’s trademarks for dental services are invalid and
should be cancelled. Affordable Care (not BDG) filed a counterclaim for trademark
infringement. Thus, while Affordable Care’s priority date in this case is when it first obtained
enforceable trademark rights in order to bring its counterclaim, the relevant priority date for
BDG is when it first began using its allegedly infringing mark, namely when it opened its first
dental office in January 2008.”“As detailed above, Affordable Care’s illegal practice of dentistry in Nevada was not
lawful commercial use and cannot form the basis of any trademark rights which pre-date BDG’s
use of its Affordable Dental mark. Plaintiff Boston Dental Group’s trademark rights in its
Affordable Dental mark, which began at least as early as January 2008, therefore have priority
over Affordable Care’s illegal activity.s
Boston Dental Group, LLC
Registered Agent and Managing Member:
David Tawei Ting, DMD
6960 Westcliff Dr., Ste 200
Las Vegas,NV 89145Ting has as least 36 companies where he is the registered agent according to a search of the Nevada Secretary of State’s website.
Some of the more interesting ones are:
Affordable Dental At Laughlin, LLC
Affordable Dental at Westcliff, LLC
BDG Coaching, LLC (what exactly is being coached?)
Boston Dental Group at Anthem, LLC
Boston Dental Management, LLC
C and T Dental Laboratory, LLC
Cambridge Dental Consulting Group
Cambridge Dental Technology, Inc
Dapha Dental Technology, Inc.
Dentisting, LLC (huh?)
Friendly Ting, PC
Haider, Ting and Chung, LLC
Handpiece Club, LLC
Looting, LLC (WHAT! I could run with this like Forrest Gump)
Vita Smile, LLC
