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California AG opinion – How boards can fend off immunity issues

The U.S. Supreme Court's February 2015 ruling in North Carolina State Board of Dental Examiners v. Federal Trade Commission continues to unsettle the professional licensing world, as board members and other licensing officials try to figure out how to respond to the court's warning against unsupervised market participants' making anticompetitive decisions against other licensees or potential competitors. The key question is: "What constitutes 'active state supervision' of a state licensing board for purposes of the state action immunity doctrine in antitrust actions, and what measures might be taken to guard against antitrust liability for board members? After California state senator Jerry Hill asked that question of state attorney general Kamala Harris, she outlined a comprehensive reply in a September 10, 2015 opinion.

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