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Bruce Sokler, Helen Kim, Apr 27, 2015
The Supreme Court’s recent decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission potentially exposes hundreds of state regulatory and licensing entities nationwide to liability for alleged anticompetitive practices. As was the case with the North Carolina Dental Board, dozens of state boards in dozens of states are made up of market participants and regulate the markets in which their members participate, including entities overseeing professionals such as doctors, dentists, chiropractors, nurses, pharmacists, auctioneers, optometrists, veterinarians, lawyers, architects, funeral directors, accountants, plumbers, general engineers, technical professionals, real estate brokers, social workers, and appraisers.
By granting certain state agencies the same status as private parties for the purpose of state action immunity, the Court’s decision opens up the decision-making of these boards—past and future—to further scrutiny. This article explores the impact of the North Carolina State Board of Dental Examiners decision on the antitrust status of state agencies and boards with a significant number of active market participants, and discusses how states can authorize their executive agencies and bodies to take actions that limit competition.
