Scholars have predicted that Dental Examiners will lead to a large amount of lawsuits against state boards. These predictions have come true with plaintiffs bringing antitrust suits across the United States. For example, plaintiffs have filed antitrust lawsuits, based upon Dental Examiners, against state boards in Virginia, Tennessee, Missouri, Louisiana, Connecticut, Georgia, Ohio, Pennsylvania, and North Carolina. These lawsuits can provide valuable information on how courts may enforce Dental Examiners, but as a warning it is unclear whether these lawsuits have merit or whether they will be successful.
Types of Boards Sued First, these lawsuits go beyond dental boards, and instead involve many different types of state boards. …show more content…
The lawsuits are consistent in that they are seeking both injunctive relief and damages. Injunctive relief means that the plaintiffs are seeking to change state policy using the court systems. For example, in a Tennessee lawsuit, plaintiffs are seeking for the Tennessee Council for Hearing Instrument Specialists to license more hearing instrument specialists than the Council currently does. In that same vein, many corporations have seen Dental Examiners as a way to affect state regulatory policy. In a Missouri lawsuit, Uber is using the Dental Examiners decision to challenge taxi laws in St. Louis. They are asking the court to remove restrictions that prevent their drivers from operating in the city. In North Carolina, LegalZoom.com was challenging the State Bar Association’s prohibition on Legalzoom.com providing services in the state. At the end of October, the Bar Association actually settled with LegalZoom. The Bar agreed to drop their policy prohibiting LegalZoom from performing services in their state. Therefore, these antitrust lawsuits raise both concerns over potential damages, but also potential effects on state policy.
Damages
All of the plaintiffs are also seeking damages. As previously mentioned, those damages would be treble damages, which are the plaintiff’s losses multiplied by three. For example, in the Legalzoom.com lawsuits, the plaintiff was seeking 10.5 million in damages. Most …show more content…
In Dental Examiners, the United Supreme Court stated that liability is based upon whether a “controlling number of decisionmakers are active market participants in the occupation the board regulates.” Professor Aaron Edlin and Professor Rebecca Haw Allensworth have analyzed this to mean boards where a majority of the members are active market participants. In contrast, the FTC’s guidance stated that a majority may not be required, if by tradition or policy, the market participants control decision making of a state board. For example, if a board generally defers to the market participants on the board then that board may also be subject to antitrust liability even if there is no majority. What does it mean to be a market participant? The FTC defined market participant as someone who is either licensed by the board or provides a service that is subject to regulation by the board. On that same note, we are only concerned whether there is a majority of active participants in the particular industry that the board is regulating, so while dentists may be active market participants for the dental industry, they are not active market participants in another area such as surgery.
Not Actively Supervised The final requirement is that the board is not actively supervised. If a board is actively supervised, then they meet the Midcal test and thus have immunity from antitrust suits.
Types of Boards Sued First, these lawsuits go beyond dental boards, and instead involve many different types of state boards. …show more content…
The lawsuits are consistent in that they are seeking both injunctive relief and damages. Injunctive relief means that the plaintiffs are seeking to change state policy using the court systems. For example, in a Tennessee lawsuit, plaintiffs are seeking for the Tennessee Council for Hearing Instrument Specialists to license more hearing instrument specialists than the Council currently does. In that same vein, many corporations have seen Dental Examiners as a way to affect state regulatory policy. In a Missouri lawsuit, Uber is using the Dental Examiners decision to challenge taxi laws in St. Louis. They are asking the court to remove restrictions that prevent their drivers from operating in the city. In North Carolina, LegalZoom.com was challenging the State Bar Association’s prohibition on Legalzoom.com providing services in the state. At the end of October, the Bar Association actually settled with LegalZoom. The Bar agreed to drop their policy prohibiting LegalZoom from performing services in their state. Therefore, these antitrust lawsuits raise both concerns over potential damages, but also potential effects on state policy.
Damages
All of the plaintiffs are also seeking damages. As previously mentioned, those damages would be treble damages, which are the plaintiff’s losses multiplied by three. For example, in the Legalzoom.com lawsuits, the plaintiff was seeking 10.5 million in damages. Most …show more content…
In Dental Examiners, the United Supreme Court stated that liability is based upon whether a “controlling number of decisionmakers are active market participants in the occupation the board regulates.” Professor Aaron Edlin and Professor Rebecca Haw Allensworth have analyzed this to mean boards where a majority of the members are active market participants. In contrast, the FTC’s guidance stated that a majority may not be required, if by tradition or policy, the market participants control decision making of a state board. For example, if a board generally defers to the market participants on the board then that board may also be subject to antitrust liability even if there is no majority. What does it mean to be a market participant? The FTC defined market participant as someone who is either licensed by the board or provides a service that is subject to regulation by the board. On that same note, we are only concerned whether there is a majority of active participants in the particular industry that the board is regulating, so while dentists may be active market participants for the dental industry, they are not active market participants in another area such as surgery.
Not Actively Supervised The final requirement is that the board is not actively supervised. If a board is actively supervised, then they meet the Midcal test and thus have immunity from antitrust suits.