Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Supreme Court to hear arguments on state dental board’s right to immunity, (Oct 10, 2014)

The U.S. Supreme Court will hear oral arguments Tuesday, October 14, on whether the North Carolina State Board of Dental Examiners should be considered a “private” actor for purposes of the state action immunity doctrine, because the majority of its board members are market participants elected by other market participants. The Court will be reviewing a decision of the U.S. Court of Appeals in Richmond, Virginia (717 F.3d 359, 2013-1 Trade Cases ¶78,406), which found in favor of the FTC’s determination that the Board was not immune for excluding non-dentist providers from the market for teeth whitening services in violation of Section 5 of the FTC Act (North Carolina State Board of Dental Examiners v. FTC, Case No. 13-534).

In its petition for certiorari, the Board challenges the appellate court’s “unprecedented holding,” that the Board is a “private” actor “that must satisfy the ‘active supervision’ requirement, simply because, pursuant to state law, a majority of the Board’s members are also market participants who are elected to their official positions by other market participants.” The Supreme Court granted certiorari on March 3, 2014.

Attorneys: Glen D. Nager (Jones Day) for North Carolina Board of Dental Examiners. Donald B. Verrilli Jr., Solicitor General, for FTC. Jack R. Bierig (Sidley Austin LLP) for American Dental Association and American Medical Association.

Companies: North Carolina Board of Dental Examiners; American Dental Association; American Medical Association

News: Antitrust FederalTradeCommissionNews