Thomas Lang in Law360: Justices to Weigh Antitrust Future of State Boards


The U.S. Supreme Court on Tuesday will consider whether state professional boards regulating their competitors must be supervised by the state to be shielded from federal antitrust scrutiny, in a Federal Trade Commission case that could affect the way states regulate health care workers, attorneys and others.

The justices are set to hear arguments in an appeal from the North Carolina State Board of Dental Examiners, which claims it should be immune from the FTC's challenge to its policy blocking nondentists from offering teeth-whitening services under the state action doctrine.

The case is the Supreme Court's second look in three years at the doctrine, which offers state and state-sanctioned conduct immunity from federal antitrust law under certain circumstances. Actions must follow a clearly articulated state policy to replace competition with regulation and, in the case of non-state actors seeking immunity, be taken under active state supervision...

"It's not just obviously about dentists; many if not most professions are regulated by boards that are made up of professionals in that field," said Haynes and Boone, LLP's Thomas Lang. "If the FTC prevails ... there certainly will be some incentives for state legislatures and state boards to either start considering antitrust law when they make decisions, or to change the makeup of the board, or to create some second state agency to review the decisions of those boards so that they can claim active supervision."

Excerpted from Law360, October 14, 2014. To view full article, click here (subscription required).

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