Last week the Supreme Court granted the North Carolina Board of Dental Examiners' cert petition asking review of the 4th Circuit's conclusion that the Board didn't qualify for immunity from the FTC's prosecution of the Board's efforts to block nondentists from offering teeth-whitening services. The case is North Carolina Board of Dental Examiners v. Federal Trade Commission. An amicus brief filed by the North Carolina State Bar, the North Carolina Board of Law Examiners, the West Virginia State Bar, and The Florida Bar explains the connection to state bar associations:
The Fourth Circuit holds that "when a state agency is operated by market participants who are elected by other market participants, it is a 'private' actor," and therefore must be actively supervised by other state officials to receive state action immunity (while also stating that its "opinion should not be read as precluding" an otherwise undefined category of "more quintessential state agencies," not "composed entirely of private market participants," from "arguing that they need not satisfy the active supervision requirement"). Absent such supervision, no action of a state body run by elected professionals would appear to be reliably protected by state action immunity, even if the conduct is authorized by state statute or a state's constitution. That holding is extraordinarily broad, reaching far beyond the specific facts presented.
