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94 N.C. L. Rev. Addendum 1 (2015-2016)

handle is hein.journals/addendum94 and id is 1 raw text is: 94 N.C. L. REV. ADDENDUM 1 (2015) The Root Canal of Antitrust Immunity: North Carolina State Board of Dental Examiners v. FTC* INTRODUCTION Esse quam videri.' North Carolina adopted this Latin phrase, which means to be rather than to seem, as its motto in 1893.2 The Supreme Court of the United States has now held the state to that standard in its recent decision, North Carolina State Board of Dental Examiners v. FTC.' In Dental Examiners, a case questioning whether a professional dental board is liable for engaging in anticompetitive action when it sent cease-and-desist letters to non-dentists performing teeth whitening, the Court held that a professional dental board lacking active state supervision is not immune from lawsuits challenging its anticompetitive behavior.' In order to receive state action immunity5 from antitrust litigation, known commonly as Parker immunity, a licensing board must be a state agency acting for the state rather than merely seeming to be a state agency while acting in pursuit of its own, competitive interests. The state must be actively supervising the board, rather than allowing the board to seem to be acting as the state.6 Professional licensing boards are groups charged with the licensing and regulating of a particular practice by state statute.7 For instance, the state bar regulates the practice of lawyers, while the * © 2015 Kate Ortbahn. 1. Jessica Lee Thompson, Esse Quam Videri, N.C. HIST. PROJECT, http://www .northcarolinahistory.org/encyclopedia/402/entry [http://perma.cc/JM6C-PNBJ]. 2. Id. The motto originates from a sentence in Cicero's On Friendship. It reads: Virtute enim ipsa non tam multi praediti esse quam videri volunt, which translates to not nearly so many people want actually to be possessed of virtue as want to appear to be possessed of it. Id. 3. 135 S. Ct. 1101 (2015). 4. Id. at 1117. 5. The immunity comes from Parker v. Brown, 317 U.S. 341 (1943). See infra Part I. 6. See generally Dental Examiners, 135 S. Ct. 1101 (2015). 7. Rebecca Haw Allensworth & Aaron Edlin, Letting Dentists Feel the Bite of Competition, WALL ST. J. (Mar. 8, 2015, 6:54 PM), http://www.wsj.com/articles/rebecca- haw-allensworth-and-aaron-edin-letting-dentists-fee-the-bite-f-cmpetitin-1425855260 [http://perma.cc/U4TC-GB2F (dark archive)]; see, e.g., N.C. GEN. STAT. § 55B-2 (2013) (defining licensing board); Dental Examiners, 135 S. Ct. at 1107 (citing N.C. GEN. STAT. §§ 90-29 to 90-41 (2013)) (The Board's principal duty is to create, administer, and enforce a licensing system for dentists.).