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​Aaron Gott Speaks at American Bar Association Program on the U.S. Supreme Court’s Antitrust Decision in NC Dental v. FTC

August 25, 2019

Bona Law's Aaron Gott spoke as a panelist for the American Bar Association's Antitrust Law Section’s committee program, NC Dental Amici: The Scope of the State Action Doctrine, on March 17, 2015. The panel focused on the practical consequences of the U.S. Supreme Court's decision in North Carolina Board of Dental Examiners v. FTC. Mr. Gott was invited by the Trade, Sports, and Professional Associations Committee of the ABA Section of Antitrust Law as an attorney involved in the case. Mr. Gott and Jarod Bona filed a brief in the case on behalf of We All Help Patients, Inc. as amicus curiae in support of the Federal Trade Commission.

Mr. Gott focused his comments on the practical effects of the decision. He argued the Court's opinion precludes state judicial review of administrative decisions as insufficient to constitute "active supervision," one of two requirements a licensing board defendant must show to escape antitrust liability under the state-action immunity.

In other words, when a state professional-licensing board run by private members of the profession acts to exclude a class of competitors, review by a state court on appeal cannot, in Mr. Gott’s view, fairly be said to be the kind of supervision necessary to adopt the conduct as the “state’s own.” Because exemptions to the federal antitrust laws are narrowly drawn and disfavored, however, the Supreme Court required those seeking the state-action immunity to show the conduct was intended by state policy. Private parties seeking the immunity must also show that disinterested state officials have actually reviewed and approved of the conduct.

Mr. Gott explained that courts commit a high level of deference to professional-licensing boards’ own interpretations of the statutes they administer. He also said the scope of judicial review in those circumstances is limited to determining whether the board’s decision was based on substantial evidence. Because a court does not decide whether the anticompetitive act “actually furthers state regulatory policies,” it does not “actively supervise” the board’s conduct and thus cannot confer immunity.

Other panelists included Daniel Baxter, a partner at Wilke Wilke, Fleury, Hoffelt, Gould & Birney, LLP; Professor Rebecca Allensworth, Vanderbilt Law School; and Timothy Sandefur, principal attorney at Pacific Legal Foundation.

Professor Allensworth noted that Mr. Gott's focus on judicial review was refreshing as a step ahead of academic commentary on practical consequences of the decision. Mr. Bona and Mr. Gott’s amicus curiae brief was the only brief to thoroughly address the question of judicial review as active supervision.

The brief highlights Bona Law’s experience in appellate advocacy and antitrust law. Please contact us to learn more about our appellate and antitrust law practice.

ABA Antitrust Law Section members can listen to the presentation here.