North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

The Root Canal of Antitrust Immunity: North Carolina State Board of Dental Examiners v. FTC

July 31, 2015

94 N.C. L. Rev. Addendum 1 (2015)

 

Esse quam videri. North Carolina adopted this Latin phrase, which means "to be rather than to seem," as its motto in 1893. The Supreme Court of the United States has now held the state to that standard in its recent decision, North Carolina State Board of Dental Examiners v. FTC. In Dental Examiners, a case questioning whether a professional dental board is liable for engaging in anticompetitive action when it sent cease-and-desist letters to non-dentists performing teeth whitening, the Court held that a professional dental board lacking active state supervision is not immune from lawsuits challenging its anticompetitive behavior. In order to receive "state action immunity" from antitrust litigation, known commonly as "Parker immunity," a licensing board must be a state agency acting for the state rather than merely seeming to be a state agency while acting in pursuit of its own, competitive interests. The state must be actively supervising the board, rather than allowing the board to seem to be acting as the state. 

 

Professional licensing boards are groups charged with the licensing and regulating of a particular practice by state statute. For instance, the state bar regulates the practice of lawyers, while the medical board of a state might regulate doctors, physicians' assistants, and nurse practitioners . Most state boards are statutorily required to be staffed by a majority of "active market participants," individuals that actually practice the profession. This kind of self-regulation has its benefits-those who know the profession can regulate it with understanding and insight. However, self-regulation may lead to self- dealing, where arbitrary restrictions or terms of competition unfairly exclude unlicensed persons. Thus, whether the board is serving the state or serving itself under the guise of a state seal is of utmost concern when the board claims immunity from antitrust litigation.

 

This Recent Development endeavors to outline the newly crafted Supreme Court test for whether a state-sanctioned professional board is entitled to state-action immunity and suggests that this test will prove to be untenable in practice. This piece ultimately argues that boards and states must take action to protect or alter professional licensing boards and that the Supreme Court's test will frustrate the lower courts in determining whether professional licensing boards deserve Parker immunity.

 

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