Emily Westridge Black and William Marsh for Texas Bar Journal: Antitrust and Business Litigation


In 2015, the U.S. Supreme Court analyzed when state regulatory boards may invoke state-action antitrust immunity. The court also denied certiorari in an important civil antitrust case that focuses on application of the Foreign Trade Antitrust Improvement Act of 1982.

An Examination of State-Action Antitrust Immunity In North Carolina State Board of Dental Examiners v. FTC, the Federal Trade Commission alleged that the North Carolina Board of Dental Examiners acted anticompetitively by sending letters to non-dentist teeth whitening companies accusing them of unlawfully practicing dentistry without the required license. The board sought dismissal, arguing that because it was created by the state to function as a regulatory agency, it enjoyed state-action immunity. Affirming the 4th Circuit, the Supreme Court rejected the board’s argument and held that because “a controlling number of the Board’s decisionmakers are active market participants in the occupation the Board regulates, the Board can invoke state-action antitrust immunity only if it was subject to active supervision by the State” that provides “realistic assurance that ... [the] anticompetitive conduct ‘promotes state policy, rather than merely [its] individual interests.’”

Excerpted from the Texas Bar Journal. To read the full article, click here.

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