A victory for the FTC and teeth whiteners…will legal service providers be next?

Last week the Supreme Court issued a 6-3 opinion affirming the Fourth Circuit’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission. In the decision below, the Fourth Circuit upheld the FTC’s determination that the Board of Dental Examiners violated antitrust law in issuing cease-and-desist letters to non-dentists performing teeth whitening services, finding that the Board acted as a group of private dentists rather than as a state actor. Agreeing with the Fourth Circuit, Justice Kennedy, writing for the majority, observed: “Limits on state-action immunity are most essential when the State seeks to delegate its regulatory power to active market participants, for established ethical standards may blend with private anticompetitive motives in a way difficult for even market participants to discern. Dual allegiances are not always apparent to an actor.” The decision may have implications for state bar regulators, particularly regarding unauthorized practice of law enforcement.

For more about the potential impact of the case on the legal profession, see Ken Friedman’s Forbes article (he’s the VP of Legal and Government Affiars for LegalZoom) and commentary from PrawfsBlawg. (Disclaimer, I assisted in authoring an amicus brief on behalf of LegalZoom and others. I’m also working on a paper about antitrust enforcement and the legal profession—I hope to be posting it soon…)

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