Bona Law PC Files an Amicus Curiae Brief in the United States Supreme Court case of North Carolina Dental Examiners v. Federal Trade Commission

August 6, 2014

On August 6, 2014, Bona Law PC attorneys Jarod Bona and Aaron Gott filed an amicus brief on behalf of We All Help Patients, Inc. in the United States Supreme Court in a case involving an antitrust challenge to a state licensing board.

In the case, the Federal Trade Commission (FTC) challenged anticompetitive actions by a North Carolina State dental board made up of practicing dentists to limit the ability of non-dentists to offer teeth-whitening services. The practicing dentists, of course, had a private financial incentive to limit the ability of their competitors to compete with them for highly profitable teeth-whitening services.

The FTC prevailed during the administrative hearings and in the Fourth Circuit on appeal. The Supreme Court granted certiorari on the question whether the state-action immunity doctrine applies in the case. More specifically, the Court is reviewing the question whether a state board made up of individuals with private incentives to limit competition must satisfy both prongs of what is known as the Midcal test, or like municipalities, only the first prong.

Bona Law PC filed an amicus brief in this case supporting the FTC, on behalf of We All Help Patients, Inc., which is a non-profit coalition of healthcare providers that seeks to create a system in which complementary and alternative medicine practitioners can contribute to the health of their patients without persecution by medical boards and the medical establishment.

Our amicus brief argues that (1) an entity that consists of market participants—like the dentists in this case—must prove active state supervision (the second Midcal element) to invoke state-action immunity. That is, state-action immunity is only available if the state itself takes ownership of the anticompetitive conduct, through active state supervision.

We argue that the application of this test does not depend upon the nature of the entity in question, but on the nature of what the Supreme Court has previously described as “the independent centers of decisionmaking.” In this case, the independent centers of decisionmaking are the dentists themselves. Since they have private not public interests, they should satisfy a more difficult test to invoke state-action immunity.

We also argued that the active state supervision element requires more than limited agency or judicial review; it requires actual substantive review before the anticompetitive harm occurs.

Finally, we told our client’s story about how the medical establishment has engaged state medical boards to exclude complementary and alternative medicine practitioners for anticompetitive reasons. And that without federal antitrust scrutiny, this will continue, harming patients all over the country.

Jarod Bona is one of the nations’ leading experts on antitrust actions against state and local governments. Besides litigating the issue in multiple cases, he has published two significant law review articles on the issue, and has now filed two United States Supreme Court amicus briefs advocating for a greater role for antitrust against state and local government entities.