Item 3. Legal Proceedings
Item
3. Legal Proceedings.
From
time to time, we are involved in various claims and legal actions arising in the ordinary course of business.
On
June 5, 2020, we filed suit against Ortho-Tain, Inc. in the United States District Court for the District of Colorado seeking
relief from certain false, threatening, and defamatory statements to our business affiliate, Benco Dental. We believe such statements
have interfered with our business relationship and contract, causing us harm to our reputation, loss of goodwill, and unspecified
monetary damages. On February 12, 2021, we amended our complaint to add claims for false advertising and unfair business practices,
as well as additional variants of the original claims to address Ortho-Tain’s false advertising campaign against us in the
fall of 2020. We are in the process of pursuing discovery for the expanded claims. Our complaint seeks permanent injunctive
relief to prevent the defendant’s continued illegal defamatory statements and interference with our business relationships.
We further seek declaratory relief to refute the defendant’s false allegations, as well as monetary damages to compensate
us for harm caused by the defendant. Prior to filing suit, we worked collaboratively with legal counsel at Benco Dental to address
and reasonably resolve this matter. Such efforts were unsuccessful. On February 26, 2021, Ortho-Tain, Inc. filed a Motion to Dismiss
the amended complaint we filed against it in the United States District Court for the District of Colorado. While we are still
evaluating the Motion to Dismiss, we believe such arguments made by Ortho-Tain, Inc. in the Motion to Dismiss lack merit.
On
July 22, 2020 Ortho-Tain, Inc. filed a Complaint in the United States District Court for the Northern District of Illinois naming
Vivos, along with our Chief Executive Officer, R. Kirk Huntsman, Benco Dental Supply Co., Dr. Brian Kraft, Dr. Ben Miraglia, and
Dr. Mark Musso. The Ortho-Tain complaint addresses the same events as the suit we filed against Ortho-Tain, Inc. in June 2020
as described above. The Ortho-Tain complaint alleges violation of the Lanham Act and an alleged civil conspiracy among the defendants
to violate the Lanham Act by an alleged false designation of origin related to a presentation given by Dr. Brian Kraft at an event
sponsored by us and Benco Dental. Ortho-Tain also alleges that the actions of the defendants, including our company, diverted
sales from Ortho-Tain, deprived Ortho-Tain of advertising value and resulted in a loss of goodwill to Ortho-Tain. However, Ortho-Tain
does not attempt to measure any such damages or clearly articulate its losses, short of the broad allegations contained in its
complaint. Ortho-Tain also alleges two separate breach of contract actions against Dr. Brian Kraft and our Chief Executive Officer,
R. Kirk Huntsman. Ortho-Tain’s allegation of breach of contract against Mr. Huntsman, relates to a Non-Disclosure Agreement
entered into in October 2013 with Mr. Huntsman’s prior entity, Xenith Practices, LLC, which Non-Disclosure Agreement expired
pursuant to its terms in October 2016. We continue to evaluate the allegations, although we believe they lack merit and Ortho-Tain
will be unable to establish actionable damages. On September 9, 2020, we moved to dismiss the claims against us. On October 23,
2020, we filed a motion requesting, in the alternative, that if the case is not dismissed, it be transferred to the Colorado action
described above or stayed. Both motions are pending before the Court. If either motion is unsuccessful, we will defend the claims
alleged by Ortho-Tain vigorously, and we do not believe that Ortho-Tain’s claims would materially impact our operations,
nor would they amount to any material damages should Otho-Tain prevail.
There
are no other legal proceedings currently pending against us, or known to be contemplated by any governmental agency, which we
believe would have a material effect on our business, financial position or results of operations.
Item
4. Mine Safety Disclosures.
Not
applicable.
51
PART
II