As acknowledged by an opinion issued by the California Attorney General’s office, the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission caught state governments by surprise. Most states have allowed their licensing boards to operate under the assumption that industry members were protected from antitrust suits under
Triggering the Active Supervision Requirement: Harm to a Business Model
The Supreme Court’s recent decision in North Carolina Board of Dental Examiners v. Federal Trade Commission left states with a number of unanswered questions, including when a proposed regulation or discipline action would trigger a restraint of trade claim. In December 2015, the US District Court in Texas addressed that issue in Teladoc, Inc. v.
FTC’s Active Supervision Guidelines: A Regulatory Board Exercising Adjudicatory Powers
In its Active Supervision Guidelines, the Federal Trade Commission staff discusses how regulatory boards frequently act in an adjudicatory capacity by seeking to impose discipline on a licensee or by seeking to enjoin an unlicensed individual. While such actions may have an anti-competitive effect, those actions will not necessarily expose the board members to…
Active Supervision of An Industry Board: Let’s Start with What it Ain’t.
Last week we posted the Federal Trade Commission’s Active Supervision Guidelines for industry boards. The Guidelines set some substantial standards for the independent state agency or attorney general that provides supervision over an industry board. When that agency or attorney fails to satisfy the supervision requirements, the industry members are exposed to personal liability when…
State Funeral Boards and Oversight Standards: Meaningful Supervision
In this past week’s Memorial Business Journal, the NFDA’s general counsel offered insight on the FTC’s guidelines to state supervision of industry regulatory boards. In a decision that rocked state boards comprised of industry members, the United States Supreme Court affirmed a decision that had held members of the North Carolina Dental Board subject…