Remember the U.S. Supreme Court’s decision against the North Carolina Board of Dentistry last year? The court ruled that a state dentistry board composed mostly of practicing dentists may not have state-action immunity from federal antitrust law.
Now a Georgia federal court has upheld the standing of plaintiffs to maintain a treble-damage antitrust suit against the 11-member Georgia Board of Dentistry and its members, nine of whom are dentists. The board members are sued in their individual, as well as official, capacities.
The Georgia Board takes the position that teeth-whitening is dentistry and a non-dentist who engages in it is guilty of the unlicensed practice of dentistry, a felony punishable by up to five years in prison. The board didn’t take formal enforcement action or promulgate a formal rule, but it made threats of enforcement and issued letters on board letterhead demanding that whitening services not run by dentists “cease and desist.”
Although non-dentist Lisa Colindres and her whitening service, Enlightened Expressions, LLC, didn’t receive a letter, they sued the board and its members and executive director, along with the state attorney general. The complaint alleged violation of the Sherman Act and the First and Fourteenth Amendments and challenged the dental practice act as unconstitutionally overbroad and vague.
The defendants moved to dismiss on the grounds, among others, that they took their actions in their “judicial capacity” and that the plaintiffs lacked standing. They didn’t raise a state action immunity defense. The court granted the motion as to the First and Fourteenth Amendment claims and the overbreadth and vagueness claim.
But the court rejected the defense argument on antitrust standing, ruling that the plaintiffs had made allegations sufficient to establish injury under antitrust standing law because the alleged injuries are the type the antitrust laws are intended to prevent, and because the plaintiffs’ allegations sufficiently connect the injuries to actions of the defendants.
So, as to the treble-damage antitrust complaint against the defendants, Lisa Colindres and her teeth-whitening service survived the motion to dismiss, and the case can proceed.
The case is Colindres v. Battle, No. 1:15-CV-2843-SJC (N.D. Ga. 2016).
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