Note: Licensing Liability: Responding to Judicial Expansion of Antitrust Enforcement in North Carolina Dental

By Lesley E. Roe. Full text here.

Abstract: “With the Supreme Court’s 2015 decision in North Carolina Dental v. FTC, the legal exposure of 1790 state occupational licensing boards expanded dramatically. In North Carolina Dental, the Supreme Court held that, under certain circumstances, state licensing boards are subject to the prohibitions of federal antitrust law.

Licensing boards are used by every state in the country to regulate practitioners across a wide variety of professions. Following North Carolina Dental, licensing boards have been subject to a flood of antitrust litigation, challenging the anticompetitive effects of boards’ regulatory decisions. In response, legislative efforts at both the federal and state levels have been launched to help stymie the liability now facing licensing boards. This Note explores legislative solutions to date—both proposed and enacted—and concludes by offering concrete recommendations for implementing cooperative legislation between federal and state legislatures to address the liability risk facing state occupational boards.”