Global Competition Review Quotes Corey Roush on FTC Guidance re: State Action Immunity

Akin Gump litigation partner Corey Roush was quoted by Global Competition Review for its article “FTC issues state action immunity guidance” on the Federal Trade Commission’s advice on how to qualify for state action immunity in the wake of the U.S. Supreme Court decision in North Carolina Board of Dental Examiners v. FTC.

In that case, the Court held 6-3 that “Because a controlling number of the Board’s decisionmakers are active market participants in the occupation the Board regulates, the Board can invoke state action antitrust immunity only if it was subject to active supervision by the State, and here that requirement is not met.”

Roush said that the FTC’s guidance does not create a safe harbor, because it leaves room for the staff to assert that, in a fact-specific analysis, the action is still a violation of antitrust law even if all recommended steps are taken.

He also said that the guidance goes beyond restating what the courts have said, citing the call for a written decision from a state official approving the board’s action, “In my reading of North Carolina Dental, I don’t see anything that says it has to be a written determination.” He added that he also saw nothing requiring the board to solicit expert opinions or hold public hearing prior to enactment of a regulation.

Roush noted that the guidance recommends to state legislatures that they restrict competition only to avoid credible risks of harm to consumers, which, he added, contradicts case law allowing states’ restriction of competition for other reasons. He said, “I think the FTC staff has a hard time with the concept of laws designed to purposely allow anticompetitive behavior. That goes against the nature of a regulator fighting anticompetitive behavior.”

He also characterized the de minimis effect on competition from suspending as “an interesting carveout,” noting that it has nothing to do with meeting the active supervision standard.

Corey Roush joined Akin Gump in September 2015. Learn more about his arrival here.