State And Local Governments Grapple With Challenges Of New Limits On Antitrust State Action Immunity

State and local governments have long utilized regulatory boards comprised of practicing professionals to enact and enforce standards of professional competency and ethics. Many of these boards' activities, such as deciding who may and may not practice a particular profession, would raise antitrust questions if not undertaken with the imprimatur of the government, and it was commonly believed that these boards were immune from antitrust liability under the state-action doctrine. In North Carolina State Board of Dental Examiners v. Federal Trade Commission,¹ however, the U.S. Supreme Court held that regulatory boards and other non-sovereign actors controlled by "active market participants," enjoy antitrust immunity only when their actions are (1) "clearly articulated and affirmatively expressed as state policy;" and (2) such policy is "actively supervised by the state." The NC Dental decision has raised a number of questions about the circumstances under which a