Antitrust, UCL and Privacy

Competition: Fall 2015, Vol 24, No. 2

ANTITRUST TREATMENT OF STATE LICENSING BOARDS IN THE WAKE OF NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS VF.T.C.

By David Gringer1

I. INTRODUCTION

In its decision formulating the state action immunity doctrine, the Supreme Court rested its holding primarily on respect for the political processes in the states: "in a dual system of government in which . . . the states are sovereign . . . an unexpressed purpose to nullify a state’s control over its officers and agents is not to be likely attributed to Congress."2 In light of this principle, the Supreme Court held that the federal antitrust laws were not intended to, and in fact did not reach state action.3 In so doing, the Court recognized Congress’ desire to "embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under our constitution."4 A failure to recognize this principle would require the promotion of "competition at the expense of other values a State may deem fundamental" thereby "imposing] an impermissible burden on the States’ power to regulate."5

State action immunity offers its most robust protection where the actor in question is the state acting as sovereign.6 In such cases, the only showing that is required is that the challenged conduct was that of the state itself.7 As a result, the Sherman Act simply does not apply "to anticompetitive restraints imposed by the States as an act of government."8 Many cases have also held that actions pursuant to state agency regulation are entitled to the same protection.9

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