Articles Posted in Appellate Attorney

This category includes articles from my perspective as an appellate attorney and about legal writing more generally.

Law Books

Author: Jarod Bona

So let’s say that you are general counsel of a company suing a larger competitor for Monopolization and Attempted Monopolization under Sherman Act, Section 2 based upon that competitor’s exclusive-dealing agreements. You have a great case; that much was made clear in your summary judgment briefing and the attached economist reports.

But you turn on your computer, hear the “You’ve Got Mail,” voice, and see a short email from your antitrust attorney. Attached is the trial-court opinion granting summary judgment against you. Oh no! Then the phone rings, you answer, and your lawyer methodically explains exactly how the judge got it wrong.

You are heart-broken. You really thought you’d get through this stage, and were already thinking about the trial. You are going to appeal. That is an easy decision. There is so much at stake, and it really does look like the trial court made some mistakes.

Here are three reasons why you should hire an appellate attorney, or at least add one to the team:

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Author: Robert Everett Johnson, The Institute for Justice

Robert Everett Johnson litigates cases protecting private property, economic liberty, and freedom of speech. He is also a nationally-recognized expert on civil forfeiture. Bona Law has a strong relationship with The Institute for Justice, going back to Jarod Bona’s clerkship with the group after his first year of law school. We highly recommend that you check out the wonderful work they do for freedom and liberty.

You may have heard: The First Amendment has been weaponized.

Justice Kagan said so in Janus v. State, County and Municipal Employees, where her dissent accused the majority of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Justice Breyer agreed, dissenting in NIFLA v. Becerra and complaining that (contrary to the majority opinion) “professionals” should not “have a right to use the Constitution as a weapon.” And the New York Times took up the cry, publishing a front-page Sunday article titled “How Conservatives Weaponized the First Amendment.”

All of this sounds frightening, but the truth is more reassuring. Courts are doing what they are supposed to do: As the amount of economic regulation has increased, it has inevitably restricted freedom of speech, and now courts are restoring the balance. Lawyers should embrace this newly vibrant First Amendment, and should ask themselves how it can serve the interests of their clients.

Rights Are—And Should Be—Weapons

The truth is, the First Amendment has always been a weapon. After all, that’s exactly what constitutional rights are—weapons to be used against the government. When critics say the First Amendment has been “weaponized,” all they really mean is it is being enforced.

The First Amendment has been used, time and time again, as a weapon to resist government power. When the NAACP invoked the First Amendment to protect their right to solicit clients for civil rights litigation, they used the First Amendment as a weapon. When unions invoked the First Amendment to protect the right to picket their employers, they used the First Amendment as a weapon. And when students invoked the First Amendment to protect their right to protest the Vietnam War, they also used the First Amendment as a weapon.

What is the alternative to a “weaponized” First Amendment? We could retire the First Amendment from active service and hang it on the wall like a soldier’s antique gun. We could continue to protect speech with little real-world impact—protests at funerals and animal crush videos come to mind—while exempting speech that threatens the status quo. That kind of neutered First Amendment would be a shiny object to admire, but it would not secure freedom of speech in any meaningful sense. Fortunately, the First Amendment is more than a shiny object on the wall.

Economically-Motivated Speech Is Still Speech

While the First Amendment has always been a weapon, something has changed in recent years. When people say the First Amendment has been “weaponized,” they really mean it has been applied to uphold free speech rights in the context of economic regulation. But that is as it should be: Speech does not become any less valuable because it is associated with economic activity.

There is no question that the Supreme Court is increasingly willing to uphold First Amendment claims that arise in the economic context. This Term, Janus upheld the right of employees not to contribute money to a public union, and NIFLA rejected the argument that speech receives less protection because it is uttered by a “professional.” Other recent cases have applied the First Amendment to regulations of credit card pricing schemes, as well as restrictions on the sale of drug prescription information. There is no reason to think any of that will change with the nomination of Judge Kavanaugh to the US Supreme Court, as he has previously applied the First Amendment to regulations of internet service providers.

This is a good thing. As Justice Kennedy put it, writing in 1993 in Edenfield v. Fane: “The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish.” Indeed, speech in the commercial marketplace often touches on some of the most important facets of human life: Doctors speak to patients about matters of life and death; financial professionals speak to clients about their financial security; and even your local grocer can convey information critical to your health. The importance of these subjects only makes the free flow of information all the more vital to a free society.

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Author: Aaron Gott

Last month, the U.S. Supreme Court granted a writ of certiorari to decide a circuit split on an important procedural question concerning the state-action immunity to the federal antitrust laws: whether a decision denying the state-action immunity is immediately appealable or must await a final decision just like most issues raised on a motion to dismiss.

The case, SolarCity Corporation v. Salt River Project Agricultural Improvement and Power District, is about a power company that changed its rate structure to make it less appealing for consumers to switch to solar power. Power companies are typically quasi-natural monopolies because of the way power is delivered—through a massive infrastructure of physical lines.

Update: The parties reached a settlement and filed a stipulated dismissal dated March 20, 2018. So the US Supreme Court will not hear this case.

But new technology is changing that: people can generate electricity straight from the sun by installing panels on their roofs, and soon it will be more cost effective to install batteries to hold that power for when it is needed than to continue paying the power company. In places like Southern California, where the price of peak electricity is more than four times the national average, solar power is a no-brainer.

It comes as no surprise that some power companies are using their incumbency to slow the disruption of this innovative technology. SolarCity (now Tesla, Inc.) sued an Arizona power district for attempting to maintain its monopoly over the supply of electrical power in its territory, alleging that the power district created new fees that penalize solar customers, which ultimately had its intended effect: solar retailers received 96% fewer applications for new solar systems among customers in the power district after the new rates took effect.

The power district moved to dismiss, arguing that it is immune from the federal antitrust laws under the state-action immunity. The district court denied the motion because the power district had not met its burden of showing that it acted pursuant to a clearly articulated state policy to displace competition. The power district sought an order certifying the denial for interlocutory appeal, which was also denied. Nevertheless, the power district immediately appealed to the Ninth Circuit, arguing that a denial of the state-action immunity should be immediately appealable under the collateral order doctrine.

Before we dive into the Ninth Circuit decision, let’s discuss some of these terms.

The Collateral Order Doctrine

The collateral order doctrine is an exception to the general rule that the federal courts of appeal have jurisdiction to hear only appeals of “final orders” from the district courts.  The exception is narrow and must be strictly applied.

A collateral order is appealable immediately if it meets three requirements: first, the order being appealed must be conclusive. Second, it must address a question that is separate from the merits of the case. Third, it must raise “some particular value of a high order” and evade effective review if not considered immediately.

With these requirements, there are only a few categories of decisions that meet the collateral order doctrine, and they are all “immunities”: Eleventh Amendment immunity, absolute immunity, qualified immunity, foreign and tribal sovereign immunity. Given this, it might seem that the state-action “immunity” also fits. But it isn’t quite that simple because the state-action immunity isn’t actually an immunity, but a judicially recognized exemption.

What Is An Immunity?

Read broadly, an immunity could mean many different things. It could mean immunity from suit, immunity from liability, or even just immunity from money damages.

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For the third time in recent years, the US Supreme Court decided to review an antitrust case involving state-action immunity.

Unlike the first two cases, however, the primary issue in this case is procedural: The petition requesting review fairly described the issue as “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.”

The case at issue is a Ninth Circuit case called SolarCity Corporation v. Salt River Project Agricultural Improvement and Power District. SolarCity, of course, is now a unit of Elon Musk’s Tesla.

You can read our more complete analysis of the upcoming SolarCity case here.

Update: The parties reached a settlement and jointly dismissed the case from the US Supreme Court.

The substantive case underneath the procedural issue involves a monopolization lawsuit by SolarCity against a public entity power company in Arizona, which is the only supplier in that area of traditional electrical power.

Here is what they did: SolarCity, like other solar-energy-panel companies, was having success in selling and leasing rooftop solar panels to customers, especially in sunshine places like Arizona (and Southern California, of course). Instead of viewing the move toward solar power as good for the environment and peoples’ pocketbooks, the power company—a public entity—viewed it as a threat. And, like many government entities that view private enterprise as a threat to their budgets and influence, the power district changed the rules.

That is, the power company changed the pricing structure so customers that acquire power from their own system—a solar-panel system, for example—must pay a prohibitively large penalty. The government entity’s rule change had its intended effect: SolarCity received ninety-six percent fewer applications for new solar-panel systems in that territory.

This is, of course, one of the grossest forms of government abuse and a disgrace to competition. It is also one of the reasons why Luke Wake of the NFIB Small Business Legal Center and I argued both as an amicus in Phoebe Putney and in a law review article that the Supreme Court should adopt a market-participant exception to state-action immunity. If a government entity is a commercial participant in a market, it shouldn’t be immunized from cheating in that market.

Bona Law currently has another case pending in the Ninth Circuit in which government entities that compete in the market violated antitrust laws and are using the shield of state-action immunity to try to get away with it.

The Collateral Order Doctrine

In the SolarCity case, the trial court rejected state-action immunity at the motion-to-dismiss stage. Typically, a defendant that loses a motion to dismiss cannot appeal the issues until later in the case, sometimes after trial. The plaintiff gets to take a shot at proving its case.

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I have written many briefs over the years, since graduating from Harvard Law School in 2001. I have also read many briefs, both practicing law and clerking for Judge James B. Loken on the United States Court of Appeals for the Eighth Circuit (in Minneapolis).

The quality and style of the legal briefs I have seen vary dramatically. And—not surprisingly—the approaches to writing them probably varied even more.

Judge Loken stressed to us law clerks that his job as an appellate judge is that of a professional writer. He communicates his opinions in writing and a clear articulation of that writing is necessary so attorneys, parties, and judges understand the decision that was made and its reasoning. A law clerk might submit a draft opinion that is 10-pages long and receive a revision that is only 3-pages long, but miraculously says everything that needs to be said in a clear, straightforward manner.

From that experience, I learned that every additional word has a cost and that writing sparely is more valuable than writing densely. I’ve also learned that writing less is harder than writing more. (Yes, I know this is an excessively long blog post)

Following my clerkship, I began my legal career as an appellate attorney with Gibson, Dunn & Crutcher in Washington, DC. I was fortunate to have my writing edited—heavily at times—by some incredible appellate attorneys and great writers. This period also informed my approach to brief-writing, as that was what that team did best.

Over the years, I became an antitrust attorney as much, if not more, than an appellate attorney. But both antitrust law and appellate litigation have been my primary practice areas from the beginning and remain so today.

Both antitrust and appellate require attorneys to prepare significant briefing on often complicated and unresolved issues. That is, in fact, probably why I gravitated to both of them.

This is an antitrust blog, but sometimes I write about writing and appeals.

  1. Three Reasons to Hire an Appellate Attorney.
  2. What is Great Legal Writing?
  3. Three Components of Every Effective Appellate Argument.
  4. Why You Should Consider Filing an Amicus Brief in an Appellate Case.

Today I am going to explain how I create a significant antitrust or appellate brief, from scratch. Of course, I rarely do that anymore because it isn’t efficient at my billing rate for clients to pay for me to prepare the papers from the beginning. Fortunately, our team is great at writing and puts together outstanding initial drafts.

At Bona Law, we strongly emphasize writing. As you may have seen, we are interested in adding team members, from junior to senior attorney levels. Strong writing skills are essential.

Everyone has a different approach. My way certainly isn’t the only way and it probably isn’t the best way. But it is one way and is my result of many years of brief-writing evolution.

For purposes of this example, let’s assume that we are preparing an Appellee brief in a federal appeal of an antitrust motion to dismiss in our favor (as defendants). On appeal in federal court, the losing party that appeals is the Appellant, and the responding party that won at the trial level is the Appellee.

Here is the procedural posture (and this is fictional): Plaintiffs filed an antitrust complaint against our client alleging an illegal exclusive dealing arrangement with some of our client’s retailers. We filed a motion to dismiss—perhaps pointing out that the agreements were of a short duration and amounted to no more than competing for the contract (a common argument). The federal district court judge, after allowing plaintiffs a couple opportunities to re-plead following dismissals without prejudice, finally dismissed the case with prejudice. Plaintiffs filed their Notice of Appeal and eventually their Appellant Brief.

Remember, I made that up, so don’t go looking for a case like that.

If I were the attorney assigned to write the initial draft Appellee brief for the appeal, here is what I would do:

The Reading Phase

The first step is that I would read the motion-to-dismiss briefing at the trial court level. If I was already involved in the case, I would, of course, be quite familiar with the briefing, but I’d still read it again.

I would print out a clean version on actual paper, take out a pen (black or blue) and a highlighter (yellow) and read each brief carefully. I would do my very best to look at the arguments from a fresh perspective and would think about each of them from the viewpoint of an appellate review, which in this case would be de novo (so it wouldn’t be different than the trial court’s standard of review, at least technically).

It is easy for your mind to lock into a certain perspective, which is one reason why it is sometimes good to bring in fresh attorneys on appeal.

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Supreme-Court-Building-300x200

Update: As you may have heard, the Senate confirmed Judge Neil Gorsuch to the U.S. Supreme Court. Read below for my thoughts on the confirmation process and Justice Gorsuch and antitrust.

We have entered a Supreme-Court-Justice-Nomination season. These are always interesting times for lawyers, politicians, and real people.

There are only nine Justices on the Supreme Court, so whenever there is an opening, it is a big deal. Appointments are for life, or until a Justice wants to leave, for whatever reason (or impeachment, but we haven’t had to worry about that lately). So the nomination seasons are whenever they are.

For lawyers, it is the rare time when the rest of the country cares about what they care about. Thus, news talk shows and articles are full of attorney quotes, ideas, and predictions about, first, who they think the nominee will be; and second, after the name is known, whether that person is qualified.

A Supreme Court Justice, as a job, is not an easy one. Sure, it comes with some perks like lifetime appointment, cool robes, and the right to interrupt attorneys whenever you want. But it is a lot of pressure because you are making decisions in a wide variety of legal subjects, covering constitutional, statutory, and even federal common law, each of which may create upheavals for huge groups of people.

As a Justice, you can’t afford the time to become and stay an expert in every area of law, but you (and your Justice colleagues) are making decisions that set the parameters for all legal fields, even over experts in those fields. Some may say that this is a feature not a bug. But, from the perspective of the individual Justice, it creates an enormous responsibility to think through everything you do. You can’t just take an opinion off.

Because of the impact and responsibility of a Supreme Court Justice, this isn’t a job for anyone. You have to love the law and want to contribute positively to it—in a way that might even seem a little obsessive.

So let’s talk about qualifications: At least since I’ve been following it, it is unusual to see a nominee for the US Supreme Court that isn’t qualified to work on the Court. That is, the qualifications of the men and women that Presidents of both parties have nominated over the last couple of decades have been impressive and adequate for the extremely high standards of the Court. That includes DC Circuit Judge Merrick Garland.

But, unfortunately, the word “qualifications” has become a word that every side, at one time or another, has lifted to mean “I think will do what I want on the rare controversial case that could likely go either way on the law,” or some other interest-focused meaning.

That is because most people, especially people on television, don’t like to just say, honestly, that they support or oppose a particular nominee for pure reasons of self or philosophical interest. Instead, they filter out their own biases by using the word “qualified” or “not-qualified,” or “extremist” or some other mismatched word. The reasons for this probably range from cognitive dissonance to political marketing.

President Donald Trump Nominates Judge Neil Gorsuch to the US Supreme Court

Thanks for sticking around through that long-winded introduction. I added the context I wanted to add, so I can now speak (well, write) more transparently.

Judge Gorsuch is a federal appellate judge on the Tenth Circuit Court of Appeals (which hears appeals from district courts in Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming). He has a BA from Columbia, graduated from Harvard Law in 1991 (exactly one decade before I did), and has a Doctor of Philosophy Degree in Law from Oxford. He clerked on the DC Circuit with Judge David B. Sentelle, then clerked on the United States Supreme Court with both Justices Byron White and Anthony Kennedy. He later worked with the Department of Justice and for many years at a strong law firm.

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Supreme Court amicus briefAn amicus curiae brief is filed by a non-party—usually in an appellate court like the US Supreme Court—that seeks to educate the court by offering facts, analysis, or a perspective that the party briefing doesn’t present. The term amicus curiae means “friend of the court,” and that is exactly what the parties that file these briefs are. They aren’t objective, but they are—without pay—helping out the court, like a friend might. Well, sort of.

Entities filing amicus briefs do so for a reason and that reason isn’t typically just court friendliness. In fact, as we will discuss below, there are many good reasons for someone to file an amicus brief.

Along with antitrust and commercial litigation, I’ve been an appellate litigator my entire career. I started out by clerking for Judge James B. Loken on the United States Court of Appeals for the Eighth Circuit (in Minneapolis), then moved on to Gibson Dunn’s appellate group in Washington DC. So, as you might imagine, I’ve participated in many appellate matters. And without question some of my favorite briefs to write are amicus briefs. I’ve filed many of them over the years.

Indeed, at Bona Law, we have already filed five amicus briefs (US Supreme Court, Fourth Circuit, Eighth Circuit, Tenth Circuit and the Minnesota Supreme Court).

Update: In May 2017, we filed an amicus brief to the Minnesota Supreme Court on behalf of the NFIB, supporting a challenge to the Minnesota Unclaimed Property Act. You can also read about this appellate brief on the Bona Law website.

From the attorney’s perspective what I really like about amicus briefs is that they invite opportunities for creativity. The briefs for the parties before the court include necessary but less exciting information like procedural history, standard of review, etc. Then, of course, they must address certain necessary arguments. Even still, there is room for creativity and a good appellate lawyer will take a thoughtful approach to a case in a way that the trial lawyer that knows the case too well may not.

But what is great about writing an amicus brief is that you can pick a particular angle and focus on it, while the parties slog through other necessary details. The attorney writing the amicus brief figures out—with the client’s help—the best contribution they can make and just does it, as efficiently and effectively as possible.

Because the amicus brief should not repeat the arguments from the parties, the attorney writing the brief must develop a different approach or delve deeper into an argument that won’t get the attention it deserves from the parties. This is great fun as the attorney can introduce a new perspective to the case, limited not by the arguments below, but by the broader standard of what will help the court.

This means that the law review article that the attorney saw on the subject that hasn’t developed into case law is fair game. So is the empirical study from a group of economists that may reflect on practical implications of the decision confronting the court. Or the attorney might educate a state supreme court about what other states are doing on the issue. Often an association will explain to the court how the issue affects their members.

The point is that amicus briefs present opportunities to develop issues in ways that party briefs rarely do. Indeed, that is partly why they are valuable to courts.

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LIBOR Antitrust MDLThe US Supreme Court just issued its decision in an antitrust case called Ellen Gelboim v. Bank of America Corporation. This case arises out of major multi-district litigation (an MDL) centered on allegations that major banks conspired to manipulate the London InterBank Offered Rate (which you probably know as LIBOR) to lower their interest costs on financial instruments sold to investors.

For purposes of Gelboim, the intricate details of the alleged conspiracy are not relevant, but you should know that it led to over 60 actions filed in federal court against the banks.

That sounds like a lot of cases and you might infer from the large number that the defendants must have done something wrong if so many people are suing them. But that isn’t necessarily true.

What happens is that a government agency announces an investigation (or it leaks) or someone has the idea that there is price-fixing, market-allocation, bid-rigging or some related horizontal per se antitrust violation going on.

There are plaintiff law firms all over the country that specialize in bringing these types of lawsuits and when one appears, you see many more very quickly. They follow each other and an antitrust blizzard ensues. It is, in fact, an extremely competitive market among plaintiff firms. And when a big set of cases develop, the plaintiff lawyers are often fighting each other for bigger pieces of the pie more than they battle defendants’ attorneys.

Fortunately, there is a set of procedures that deal with such a situation—Section 1407. This statute created the Judicial Panel on Multidistrict Litigation (JPML), which may transfer the many related actions “involving one or more common questions of fact” to one district court for coordinated or consolidated pretrial proceedings.

Importantly, as the Supreme Court points out, this does not mean that all of the cases are transferred forever into the one district court. They are just there for pre-trial proceedings. Of course, practically speaking, they rarely leave that court as most of these cases are either dismissed or settled. If not, the statute requires that each individual action “shall be remanded by the panel at or before the conclusion” of the pretrial proceedings to the original district court.

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Baseball Antitrust ExemptionBaseball is special. How do we know that? Is it the fact that it has been declared America’s Pastime? Or is it the feelings we have when we smell the freshly cut grass on a sunny spring day? Or is it the acoustics of a wood bat striking a leather-wrapped baseball? The answer is that  we know that baseball is special because the US Supreme Court has told us so.

Over the course of ninety-two years, the Supreme Court has consistently affirmed and re-affirmed a special exemption from the antitrust laws for the “business of providing public baseball games for profit between clubs of professional baseball.” There is a state action exemption, an insurance exemption, a labor exemption, and a  . . . baseball exemption? That’s right. A baseball exemption from the federal antitrust laws.

The Ninth Circuit—in an opinion courtesy of Judge Alex Kozinski—just applied this exemption in City of San Jose v. Office of the Commissioner of Baseball, which rejected San Jose’s antitrust lawsuit challenging Major League Baseball’s “attempt to stymie” the relocation of the Oakland Athletics to San Jose, California.

Update: On October 6, 2015, the US Supreme Court, without comment, declined to hear this case. Because the Supreme Court rejects the vast majority of petitions for cert., I wouldn’t read too much into this. Of course, if at least four Justices had wanted to revisit the historical exemption, they could have done so.

Why is There a Baseball Exemption from the Antitrust Laws?

In the 1920’s, the Supreme Court decided a case called Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, which held that the Sherman Act didn’t apply to the business of baseball because such “exhibitions” are purely state affairs. As Judge Kozinski explained, the reasoning behind the Supreme Court’s decision reflected the “era’s soon-to-be-outmoded interpretation of the Commerce Clause.” In other words, back in the day, courts didn’t assume that almost every economic activity was within federal jurisdiction.

Thirty-years later in Toolson v. New York Yankees, Inc., the Supreme Court affirmed Federal Baseball on different grounds. The Court recognized that the Commerce Clause reasoning no longer applied, but observed that despite the Federal Baseball governing law that the federal antitrust laws don’t apply to baseball, Congress hasn’t legislated to the contrary. So it left the baseball exemption.

Finally, in 1972, the Supreme Court decided the Classic Antitrust Case of Curt Flood v. Kuhn, which is the famous baseball exemption case. The Court specifically addressed baseball’s reserve clause, which essentially prohibited free agency. When a player’s contract ended, the team still retained the player’s rights. Once again, the Supreme Court upheld the baseball exemption based upon Congress’ inaction.

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NC Dental PictureThe US Supreme Court does not review many antitrust cases. So when they do, it is kind of a big deal for antitrust attorneys around the world.

On Tuesday, the Supreme Court heard oral arguments in North Carolina Board of Dental Examiners v. FTC, which addressed the scope of state-action immunity from antitrust liability. More specifically, the Court is reviewing whether a state licensing board must satisfy both prongs of what is known as the Midcal test to avoid antitrust scrutiny.

The first element, which everyone agrees applies, requires the defendant entity to show that the State “clearly articulated and affirmatively expressed” the challenged anticompetitive act as state policy. The Supreme Court is deciding whether state licensing boards are subject to the second element as well: whether the policy is “actively supervised by the State itself.” Municipalities and other local governments have a free pass from this second element, but private people and entities must satisfy the active supervision requirement.

So what is the big deal? If an entity—state or private—can show that state-action immunity doesn’t apply, it can violate the antitrust laws at will. It can grab consumer surplus for itself; it can exclude competition; it can behave under different rules than everyone else. And monopoly is quite profitable.

In NC Board of Dental Examiners v. FTC, a state-sanctioned dental board—composed of six licensed dentists, one licensed dental hygienist, and one public member—engaged in actions to exclude non-dentist teeth-whitening services. As you might recall, Bona Law filed an amicus brief in this case. You can learn about the case and our amicus brief here. Among other points, we argued that the Supreme Court should analyze the case as the Court outlined in American Needle, by reference to whether the units of competition—the independent decision-makers—are private. They are. We also advocated that the Supreme Court apply an active state supervision requirement with some teeth.

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