State action?
The U.S. Supreme Court ruled today that a North Carolina board's ban on cheap teeth-whitening by non-dentists may expose the board's members to a federal antitrust claim despite the board's status as a creature of the state. N. Carolina State Board of Dental Examiners v. FTC, No. 13-534 (U.S. Feb. 25, 2015).
The 6-3 Court stressed that the
A "substate" governmental entity that engages in conduct that would usually violate the Sherman Act may escape liablity under the state-action doctrine if the "state" directs "substate" to do the anticompetitive deeds. But the state must "'clearly articulate[] and affirmatively express[]' state policy to displace competition." Fed'l Trade Comm'n v. Phoebe Putney Health Sys., Inc., No. 11-1160, slip
Today the Second Circuit upheld a judgment against cigarette makers who claimed that two New York statutes violated section 1 of the Sherman Act and the commerce clause of the U.S. Constitution. Freedom Holdings, Inc. v. Cuomo, No. 09-0547-cv (2d Cir. Oct. 18, 2010).
The Empire State passed the laws — which the court