Thomas Lang in Inside Counsel: FTC Case Against Dental Board in North Carolina Could Set Precedent for State Antitrust Immunity


The case of North Carolina Board of Dental Examiners v. FTC is being watched closely by those in the medical community for its potential far-reaching ramifications on state boards and agencies, as well as regulators who practice in the fields in which they are tasked to regulate. The basis of the case is in the Federal Trade Commission’s allegation that the North Carolina Board of Dental Examiners acted in its own financial self-interest when it sent letters to teeth whiteners who were not dentists accusing them of practicing dentistry without the required license. Many of these teeth whiteners thusly shut down their businesses...

The Supreme Court heard arguments on October 14, and justices have admitted the difficulty of the case. While the FTC argues that the Board is likely to make decisions in its own self-interest — anticompetitive ones, in this case — and should not receive antitrust immunity under the “state action” doctrine unless its decisions are actively supervised by the state, the FTC could lose its argument. Thomas Lang, a partner in Haynes and Boone, LLP’s Antitrust and Competition Practice Group says that Board’s sought-after reversal of the Fourth Circuit’s decision is supported by “the Attorneys General of North Carolina and 22 other states as well as the American Dental Association, the American Medical Association and the national professional associations for orthodontists, veterinarians and many other professions regulated at the state level.” Many in favor of the reversal say that the burdens placed on states — should the FTC win — will deter professionals from serving on the state boards that regulate their fields, despite their qualifications...

In the same vein, the FTC faces serious obstacles to its operation should it lose. Lang says that the agency would be “dealt a serious setback in its efforts to apply the antitrust laws to actions of state boards or agencies that are not actively supervised by the state.” 

The Supreme Court certainly has its work cut out for itself regarding this case. It will be one to watch for both those in the medical industry and both state and federal regulators.

Excerpted from Inside Counsel, October 21, 2014. To view full article, click here.

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