The state action immunity doctrine shields private actors from antitrust liability if their activities are "actively supervised" by a state. However, arms of the state itself generally do not have to satisfy the "actively supervised" requirement to enjoy the immunity. On March 3, 2014, the U.S. Supreme Court accepted for review North Carolina State Board of Dental Examiners v. Federal Trade Commission, Case No. 13-534, where it will decide whether a state agency that consists of professionals who regulate their own profession qualifies as an arm of the state, or whether it is more akin to a private actor that must meet the "actively supervised" requirement to enjoy antitrust immunity.

The North Carolina Board of Dental Examiners had engaged in efforts to block non-dentists from offering tooth-whitening services. The 4th U.S. Circuit Court of Appeals agreed with the FTC that a North Carolina agency made up almost entirely of practicing dentists must satisfy the actively supervised requirement for the immunity to attach. See 717 F.3d 359 (4th Cir. 2013). "[W]hen a state agency is operated by market participants who are elected by other market participants, it is a 'private' actor." Id. at 370. The Supreme Court will now review that determination. Although the issue of the regulation of dentists may be a narrow one, the case has broader implications for the regulation by states and state boards of many other professions and industries.

Last year, the Supreme Court decided FTC v. Phoebe Putney Health System, Inc., 133 S. Ct. 1003 (2013), another immunity case, where the Court further defined another requirement of the state action immunity doctrine—that the state policy authorizing anticompetitive activity must be "clearly articulated."

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