U.S. Supreme Court Decision Could Cause State Bars to Lose Antitrust ImmunityYesterday, the U.S. Supreme Court handed down its decision in North Carolina Board of Dental Examiners v. Federal Trade Commission, ruling that a regulatory body of a self-regulated profession (dentists in this case, but the law would apply as well) are only immune from antitrust liability if they are actively supervised by state governmental authorities.

As Avvo GC Josh King wrote yesterday on his Socially Awkward blog: Boom.

The case concerned alleged violations of the Sherman Antitrust Act for unfair competition when the NC Board of Dental Examiners sent cease-and-desist letters to non-dentist teeth-whitening entities throughout the state, claiming they were engaging in the unauthorized practice of dentistry. The FTC stepped in to halt the anticompetitive behavior, and the SCOTUS decision yesterday upheld the FTC’s ruling that the NC dental group had violated the Sherman Antitrust Act.

The high court agreed with the FTC’s claim that state exemptions from federal antitrust laws do not apply when a self-regulating board is not actively supervised by the state, especially when it is made up of self-interested private businesses.

Following the decision, LegalZoom immediately issued a press release with the headline, “Supreme Court Sides With LegalZoom in North Carolina Dental Board Antitrust Decision.” LegalZoom is currently in litigation with the NC State Bar, which has sent cease-and-desist letters to non-lawyer service providers in that state, and filed an amicus brief supporting the FTC in this case.

What interests me most is the effect this decision will have on state bar advertising review committees, especially those in Florida and Nevada that have been particularly hardheaded and backwards when it comes to attorney marketing.

As Josh noted in his post yesterday, he believes this decision is the end of those committees since the Supreme Court imposed the “active supervision” mandate that requires, “The supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it.”

He tends to believe — and I am hopeful — that the states don’t really want to be in the business of actively supervising state bar committee decisions.

There are some states whose bars are run by the judiciary that this decision would not impact. The states without unified bars include IL, OH, PA, NJ and NY.


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