Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Washington Bar suspends issuance of ethics decisions based on antitrust concerns, (Dec 30, 2015)

By John W. Arden, J.D., LL.M.

The Washington State Bar Association (WSBA) has “temporarily suspended” the issuance of decisions by its Committee on Professional Ethics, based on antitrust concerns following the U.S. Supreme Court’s decision in North Carolina State Board of Dental Examiners v. FTC.

In that decision, the High Court limited the state action immunity doctrine as it applies to state professional boards “controlled by active market participants.” Specifically, the Supreme Court ruled that the North Carolina State Board of Dental Examiners was not immune from antitrust liability for excluding non-dentist providers from the market for teeth marketing services, allegedly in violation of Section 5 of the FTC Act, because the board’s conduct was not actively supervised by the state. Active supervision does not require the state to be involved in a board’s day-to-day operation, but state review mechanisms must “provide ‘realistic assurance’ that a nonsovereign actor’s anticompetitive conduct ‘promotes state policy, rather than merely the party’s individual interests,’” the Court explained.

“We recognize the importance and value of the ethics advisory opinions for WSBA members,” WSBA Chief Communications Officer Debra Carnes wrote in an email to Antitrust Law Daily. “That is why this is a temporary suspension on the CPE as we proceed very deliberately in the wake of the Dental Examiners decision. We are currently engaged with outside counsel on an extensive review of our work.”

News: Antitrust WashingtonNews