__ U.S. __ (2015), 13-534, North Carolina State Bd. of Dental Exam'rs v. Federal Trade Commission

Docket Nº:13-534
Citation:__ U.S. __, 135 S.Ct. 1101, 191 L.Ed.2d 35, 83 U.S.L.W. 4110, 25 Fla.L.Weekly Fed. S 85
Attorney:Hashim M. Mooppan argued the cause for petitioner. Malcolm L. Stewart argued the cause for respondent.
Judge Panel:KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
Case Date:February 25, 2015
Court:United States Supreme Court

North Carolina’s Dental Practice Act does not specify that teeth whitening is “the practice of dentistry.” After dentists complained, the Board of Dental Examiners issued cease-and-desist letters to nondentist teeth whitening service providers and product manufacturers, warning that the unlicensed practice of dentistry is a crime. The FTC filed an administrative complaint, alleging that the Board’... (see full summary)


Page __

__ U.S. __ (2015)

135 S.Ct. 1101, 191 L.Ed.2d 35, 83 U.S.L.W. 4110, 25 Fla.L.Weekly Fed. S 85




No. 13-534

United States Supreme Court

February 25, 2015

[135 S.Ct. 1103] Argued October 14, 2014.

This preliminary Lexis version is unedited and subject to revision.


717 F.3d 359, affirmed.


[135 S.Ct. 1104] [191 L.Ed.2d 41] North Carolina's Dental Practice Act (Act) provides that the North Carolina State Board of Dental Examiners (Board) is " the agency of the State for the regulation of the practice of dentistry." The Board's principal duty is to create, administer, and enforce a licensing system for dentists; and six of its eight members must be licensed, practicing dentists.

The Act does not specify that teeth whitening is " the practice of dentistry." Nonetheless, after dentists complained to the Board that nondentists were charging lower prices for such services than dentists did, the Board issued at least 47 official cease-and-desist letters to nondentist teeth whitening service providers and product manufacturers, often warning that the unlicensed practice of dentistry is a crime. This and other related Board actions led nondentists to cease offering teeth whitening services in North Carolina.

The Federal Trade Commission (FTC) filed an administrative complaint, alleging that the Board's concerted action to exclude nondentists from the market for teeth whitening services in North Carolina constituted an anticompetitive and unfair method of competition under the Federal Trade Commission Act. An Administrative Law Judge (ALJ) denied the Board's motion to dismiss on the ground of state-action immunity. The FTC sustained that ruling, reasoning that even if the Board had acted pursuant to a clearly articulated state policy to displace competition, the Board must be actively supervised by the State to claim immunity, which it was not. After a hearing on the merits, [191 L.Ed.2d 42] the ALJ determined that the Board had unreasonably restrained trade in violation of antitrust law. The FTC again sustained the ALJ, and the Fourth Circuit affirmed the FTC in all respects.

Held : Because a controlling number of the Board's decisionmakers are active market participants in the occupation the Board regulates, the Board can invoke state-action antitrust immunity only if it was subject to active supervision by the State, and here that requirement is not met. Pp. 5-18.

(a) Federal antitrust law is a central safeguard for the Nation's free market structures. However, requiring States to conform to the mandates of the Sherman Act at the expense of other values a State may deem fundamental would impose an impermissible burden on the States' power to regulate. Therefore, beginning with Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, this Court interpreted the antitrust laws to confer immunity on the anticompetitive conduct of States acting in their sovereign capacity. Pp. 5-6.

(b) The Board's actions are not cloaked with Parker immunity. A nonsovereign actor controlled by active market participants -- such as the Board -- enjoys Parker immunity only if " 'the challenged restraint . . . [is] clearly articulated and [135 S.Ct. 1105] affirmatively expressed as state policy,' and . . . 'the policy . . . [is] actively supervised by the State.'" FTC v. Phoebe Putney Health System, Inc., 568 U.S. ___, ___, 133 S.Ct. 1003, 1010, 185 L.Ed.2d 43, 53 (quoting California Retail Liquor Dealers Assn. v . Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 63 L.Ed.2d 233). Here, the Board did not receive active supervision of its anticompetitive conduct. Pp. 6-17.

(1) An entity may not invoke Parker immunity unless its actions are an exercise of the State's sovereign power. See Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 374, 111 S.Ct. 1344, 113 L.Ed.2d 382. Thus, where a State delegates control over a market to a nonsovereign actor the Sherman Act confers immunity only if the State accepts political accountability for the anticompetitive conduct it permits and controls. Limits on state-action immunity are most essential when a State seeks to delegate its regulatory power to active market participants, for dual allegiances are not always apparent to an actor and prohibitions against anticompetitive self-regulation by active market participants are an axiom of federal antitrust policy. Accordingly, Parker immunity requires that the anticompetitive conduct of nonsovereign actors, especially those authorized by the State to regulate their own profession, result from procedures that suffice to make it the State's own. Midcal 's two-part test provides a proper analytical framework to resolve the ultimate question whether an anticompetitive policy is indeed the policy of a State. The first requirement -- clear articulation -- rarely will achieve that goal by itself, for entities purporting to act under state authority might diverge from the State's considered definition of the public good and engage in private self-dealing. The second Midcal requirement -- active supervision -- seeks to avoid this harm by requiring the State to review and approve interstitial policies made [191 L.Ed.2d 43] by the entity claiming immunity. Pp. 6-10.

(2) There are instances in which an actor can be excused from Midcal 's active supervision requirement. Municipalities, which are electorally accountable, have general regulatory powers, and have no private price-fixing agenda, are subject exclusively to the clear articulation requirement. See Hallie v. Eau Claire, 471 U.S. 34, 35, 105 S.Ct. 1713, 85 L.Ed.2d 24. That Hallie excused municipalities from Midcal 's supervision rule for these reasons, however, all but confirms the rule's applicability to actors controlled by active market participants. Further, in light of Omni 's holding that an otherwise immune entity will not lose immunity based on ad hoc and ex post questioning of its motives for making particular decisions, 499 U.S. at 374, 111 S.Ct. 1344, 113 L.Ed.2d 382, it is all the more necessary to ensure the conditions for granting immunity are met in the first place, see FTC v. Ticor Title Ins. Co., 504 U.S. 621, 633, 112 S.Ct. 2169, 119 L.Ed.2d 410, and Phoebe Putney, supra, at ___, 133 S.Ct. 1003, 185 L.Ed.2d 43. The clear lesson of precedent is that Midcal 's active supervision test is an essential prerequisite of Parker immunity for any nonsovereign entity--public or private -- controlled by active market participants. Pp. 10-12.

(3) The Board's argument that entities designated by the States as agencies are exempt from Midcal 's second requirement cannot be reconciled with the Court's repeated conclusion that the need for supervision turns not on the formal designation given by States to regulators but on the risk that active market participants will pursue private interests in restraining trade. State agencies controlled by active market participants pose the very risk of self-dealing Midcal 's supervision [135 S.Ct. 1106] requirement was created to address. See Goldfarb v. Virginia State Bar, 421 U.S. 773, 791, 95 S.Ct. 2004, 44 L.Ed.2d 572. This conclusion does not question the good faith of state officers but rather is an assessment of the structural risk of market participants' confusing their own interests with the State's policy goals. While Hallie stated " it is likely that active state supervision would also not be required" for agencies, 471 U.S. at 46, n. 10, 105 S.Ct. 1713, 85 L.Ed.2d 24, the entity there was more like prototypical state agencies, not specialized boards dominated by active market participants. The latter are similar to private trade associations vested by States with regulatory authority, which must satisfy Midcal 's active supervision standard. 445 U.S. at 105-106, 100 S.Ct. 937, 63 L.Ed.2d 233. The similarities between agencies controlled by active market participants and such associations are not eliminated simply because the former are given a formal designation by the State, vested with a measure of government power, and required to follow some procedural rules. See Hallie, supra, at 39, 105 S.Ct. 1713, 85 L.Ed.2d 24. When a State empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. Thus, the Court holds today that a state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates must satisfy Midcal 's active supervision requirement in order to invoke state-action antitrust [191 L.Ed.2d 44] immunity. Pp. 12-14.

(4) The State argues that allowing this FTC order to stand will discourage dedicated citizens from serving on state agencies that regulate their own occupation. But this holding is not inconsistent with the idea that those who pursue a calling must embrace ethical standards that derive from a duty separate from the dictates of the State. Further, this case does not offer occasion to address the question whether agency officials, including board members, may, under some circumstances, enjoy immunity from damages liability. Of course, States may provide for the defense and indemnification of agency members in the event of litigation, and they can also ensure Parker immunity is available by adopting clear policies to displace competition and providing active supervision. Arguments against the wisdom of applying the antitrust laws to professional regulation absent compliance with the prerequisites for invoking Parker immunity must be rejected, see Patrick v. Burget, 486 U.S. 94, 105-106, 108 S.Ct. 1658, 100 L.Ed.2d 83, particularly in light of the risks licensing boards dominated by market participants may pose to the free market. Pp...

To continue reading