U.S. Supreme Court to Decide When Professional Licensing Bodies Have Antitrust Immunity


The state action immunity doctrine shields private actors from antitrust liability if their activities are actively teeth whiteningsupervised by a state.

But arms of the state itself generally don’t have to satisfy the actively-supervised requirement to enjoy the immunity.

What about a state agency that consists of professionals who are regulating their own profession?  Is such an agency an arm of the state, or is it more like a private actor that must meet the actively-supervised requirement to enjoy antitrust immunity?

That’s the issue the Supreme Court will decide in North Carolina State Board of Dental Examiners v. Federal Trade Commission, Case No. 13-534.   The Board had engaged in efforts to block non-dentists from offering tooth-whitening services.  The Fourth Circuit agreed with the FTC that a North Carolina agency made up almost entirely of practicing dentists must satisfy the actively-supervised requirement for the immunity to attach.  See 717 F.3d 359 (4th Cir. 2013).   “[W]hen a state agency is operated by market participants who are elected by other market participants, it is a ‘private’ actor.”  Id. at 370.

Although the issue of the regulation of dentists may be a narrow one, the case has broader implications for the regulation by states of many professions and industries.

* teeth whitening (Photo credit: torbakhopper)

[View source.]

Topics:  Antitrust Litigation, FTC, Immunity, SCOTUS

Published In: Antitrust & Trade Regulation Updates, General Business Updates, Health Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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