June 23, 2015
On February 25, 2015, the U.S. Supreme Court narrowed the scope of antitrust immunity for state regulatory boards whose members are active market participants in the occupation regulated by the boards. In North Carolina State Board of Dental Examiners v. Federal Trade Commission, the Court held that “if a State wants to rely on active market participants as regulators, it must provide active supervision if state-action immunity . . . is to be invoked.” Active supervision, according to the decision, requires that the state review the substance of the board’s decision (not just the procedure) and have the opportunity to veto decisions that do not accord with state policy.

The result of the North Carolina State Board of Dental Examiners decision has been a number of lawsuits challenging the actions of state regulatory boards on antitrust grounds. For analysis of these cases and what providers need to know about this changing area of law, please click here.