The U.S. Supreme Court on Wednesday ruled that state professional boards regulating their competitors must be supervised by state governments to avoid federal antitrust scrutiny. Here, attorneys tell Law360 why the decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission is significant.
Richard Hernandez, McCarter & English LLP:
“State professional board members who were seeking clarity on what triggers immunity from antitrust laws will take little comfort. Here, the board’s composition and operation were fairly straightforward. It comprised market participants—presumably more knowledgeable than the state, and therefore well positioned to serve—regulating their own activities pursuant to general authorization from the state to do so. Left unanswered is precisely how much state involvement in board composition or operation triggers immunity on less clear facts. The resulting uncertainty may discourage professionals from joining state boards and, absent explicit guidance from the state, cause relative board inaction for fear of being perceived as anti-competitive.”