On Feb. 25, 2015, the U.S. Supreme Court held in a 6-3 decision that a state board with a controlling number of decision-makers who are active market participants in the occupation the board regulates does not enjoy state action immunity from federal antitrust laws unless it is subject to active state supervision in accordance with a clearly articulated state policy. North Carolina State Bd. of Dental Examiners v. F.T.C., No. 13-534, 2015 WL 773331 (U.S. Feb. 25, 2015). (Click here for a copy of the opinion.)
Background
In Parker v. Brown, 317 U.S. 341, 350-51 (1943), the Supreme Court held that state agencies acting in their sovereign capacity are immunized from liability under federal antitrust laws. Since Parker, state action immunity (also known as Parker immunity) has been extended and granted to private actors when they 1) act pursuant to a clearly articulated state policy and 2) are subject to active state supervision when advancing that policy. See, e.g., Cal. Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 104 (1980).
In Dental Examiners, the North Carolina State Board of Dental Examiners ("the Board")the majority of whose members are licensed dentistsissued cease-and-desist letters to non-dentists and teeth-whitening product manufacturers (in some cases suggesting they committed misdemeanors) in order to eliminate the provision of all teeth-whitening services by non-dentists in North Carolina. These efforts were successful.
The Federal Trade Commission (FTC) brought an administrative action against the...
