Legal Alert - No Federal Antitrust Immunity for Actions by State Regulatory Boards Controlled by Market Participants without Active State Supervision


by Jeremy J. Stewart
Snell & Wilmer Antitrust and Competition Group

The United States has a strong tradition of professional self-regulation, particularly in the learned professions. States frequently delegate regulatory authority to state boards largely comprised of professionals actively regulating their own occupations. Such self-regulating boards generally have enjoyed immunity from Federal antitrust scrutiny under the state-immunity doctrine. However, the Supreme Court’s 2015 decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission will make it more difficult for self-regulating boards to qualify for immunity. A state board controlled by active market participants no longer can invoke state-action antitrust immunity without showing active state supervision.

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