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Amy Paul, Jane Willis, Apr 29, 2014
It is well-settled under Supreme Court precedent that antitrust immunity may apply when either (i) a state exercises its legislative authority by passing a regulation or (ii) an actor acts at the direction of the state, even if that action results in anticompetitive effects or harm to the competitive process. A threshold question for application of state action immunity is whether the actor is a state (public) or private actor because this determination drives the level of scrutiny applied to the action at issue. While it may seem simple enough in principle, it is difficult in practice to determine, based on existing case law, whether certain committees or boards, although affiliated with and sanctioned by state and local governments, are public or private actors.
On March 3, 2014, the Supreme Court granted certiorari in the case of North Carolina State Board of Dental Examiners v. Federal Trade Commission. As a result, the Supreme Court will have the opportunity to clarify the state action immunity doctrine, including whether an entity is a public or private actor, and provide guidance as to when conduct is exempt from antitrust scrutiny.