The state action immunity doctrine shields private actors from antitrust liability if their activities are actively supervised by a state.
But arms of the state itself generally don’t have to satisfy the actively-supervised requirement to enjoy the immunity.
What about a state agency that consists of professionals who are regulating their own profession? Is such an agency an arm of the state, or is it more like a private actor that must meet the actively-supervised requirement to enjoy antitrust immunity?
That’s the issue the Supreme Court will decide in North Carolina State Board of Dental Examiners v. Federal Trade Commission, Case No. 13-534. The Board had engaged in efforts to block non-dentists from offering tooth-whitening services. The Fourth Circuit agreed with the FTC that a North Carolina agency made up almost entirely of practicing dentists must satisfy the actively-supervised requirement for the immunity to attach. See 717 F.3d 359 (4th Cir. 2013). “[W]hen a state agency is operated by market participants who are elected by other market participants, it is a ‘private’ actor.” Id. at 370.
Although the issue of the regulation of dentists may be a narrow one, the case has broader implications for the regulation by states of many professions and industries.