N.C. STATE BD. OF DENTAL EXAMINERS v. F.T.C.

No. 12-1172.

717 F.3d 359 (2013)

The NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. American Dental Association; American Osteopathic Association; American Veterinary Medical Association; American Academy of Pediatric Dentistry; American Academy of Periodontology; American Association of Orthodontists; American Association of Dental Boards; Federation of State Medical Boards; American Medical Association; North Carolina Medical Society; South Carolina Medical Association; Medical Society of Virginia; West Virginia State Medical Association; National Association of Boards of Pharmacy; North Carolina Board of Pharmacy; The Federation of State Boards of Physical Therapy; The Federation of Associations of Regulatory Boards; The Assocation of Social Work Boards; The American Association of Veterinary State Boards; The Federation of Chiropractic Licensing Boards; The Federation of State Massage Therapy Boards; International Conference of Funeral Service Examining Boards, Incorporated; The National Association of Long Term Care Administrator Boards; The National Board for Certification in Occupational Therapy, Amici Supporting Petitioner, American Antitrust Institute, Amicus Supporting Respondent.

United States Court of Appeals, Fourth Circuit.

Decided: May 31, 2013.


Attorney(s) appearing for the Case

ARGUED: Noel Lee Allen , Allen, Pinnix & Nichols, P.A., Raleigh, North Carolina, for Petitioner. Imad Dean Abyad , Federal Trade Commission, Washington, D.C., for Respondent. ON BRIEF: M. Jackson Nichols , Catherine E. Lee , Nathan E. Standley , Brenner A. Allen , Allen, Pinnix & Nichols, P.A., Raleigh, North Carolina, for Petitioner. Richard A. Feinstein , Director, Richard B. Dagen , William L. Lanning , Willard K. Tom , General Counsel, John F. Daly , Deputy General Counsel for Litigation, Federal Trade Commission, Washington, D.C., for Respondent. Jack R. Bierig , Dale E. Thomas , Sidley Austin LLP, Chicago, Illinois, for American Dental Association, American Osteopathic Association, American Veterinary Medical Association, American Academy of Pediatric Dentistry, American Academy of Periodontology, American Association of Orthodontists, American Association of Dental Boards, and Federation of State Medical Boards, Amici Supporting Petitioner. Leonard A. Nelson , American Medical Association, Chicago, Illinois; Stephen W. Keene , North Carolina Medical Society, Raleigh, North Carolina; J. Mitchell Armbruster , Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., Raleigh, North Carolina, for The American Medical Association and the Medical Associations for the States of North Carolina, South Carolina, Virginia, and West Virginia, Amici Supporting Petitioner. Matthew W. Sawchak , Stephen D. Feldman , Ellis & Winters LLP, Raleigh, North Carolina, for The National Association of Boards of Pharmacy and The North Carolina Board of Pharmacy, Amici Supporting Petitioner. Lee K. Van Voorhis , Jennifer A. Semko , Jeremy W. Cline , Baker & McKenzie, LLP, Washington, D.C., for The Federation of State Boards of Physical Therapy, The Federation of Associations of Regulatory Boards, The Association of Social Work Boards, The American Association of Veterinary State Boards, The Federation of Chiropractic Licensing Boards, The Federation of State Massage Therapy Boards, International Conference of Funeral Service Examining Boards, Incorporated, The National Association of Long Term Care Administrator Boards, and The National Board for Certification in Occupational Therapy, Amici Supporting Petitioner. Richard M. Brunell , Director of Legal Advocacy, American Antitrust Institute, Washington, D.C.; Peter C. Carstensen , University of Wisconsin Law School, Madison, Wisconsin; K. Craig Wildfang , Ryan W. Marth , Scott M. Kranz , Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, Minnesota, for American Antitrust Institute, Amicus Supporting Respondent.

Petition denied by published opinion. Judge SHEDD wrote the opinion, in which Judge WYNN joined. Judge KEENAN wrote a separate concurring opinion.


SHEDD, Circuit Judge:

The North Carolina State Board of Dental Examiners (the Board) petitions for review of the Federal Trade Commission (FTC) order finding that the Board violated the FTC Act, 15 U.S.C. § 45, by engaging in unfair competition in the market for teeth-whitening services in North Carolina. For the following reasons, we deny the petition.

I.

The Board is a state agency, N.C. Gen. Stat. § 90-48, created because the "practice...

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