The interesting part is that the case was practically on the same issue as was decided earlier this year, in February of 2015 by the U.S. Supreme Court in North Carolina Board of Dental Examiners v FTC, where the U.S. Supreme Court not only ruled that the North Carolina Board of Dental Examiners was run by entrenched incumbents, market players protecting their monopoly and not sufficiently controlled by the state to justify their immunity from liability under federal antitrust laws, but also that teeth whitening is NOT an activity related to dentistry.
If it is not an activity related to dentistry, it should not be subject - jurisdictionally - to regulation of the dentistry commission.
Yet, the 2nd Circuit decided to defy this immediate U.S. Supreme Court precedent and produced a case, Sensational Smiles v Connecticut Dental Board, where said the following (among other things):
1) regulation of LED lights used in teeth whitening is related to public health because such lights may cause burns of the mouth during teeth whitening, and a non-dentist will not be prepared to deal with the problem.
The ONLY basis to conclude that LED lights ACTUALLY present a danger to public health when used in teeth whitening was the article cited by the Dental Board's expert indicating that burns from LED lights during teeth whitening "cannot be absolutely excluded"
- a double negation which did not say that possibility of such burns was actually confirmed.
In the view of the 2nd Circuit, a speculation without evidentiary support that LED lights MAY cause burns was enough to allow a private interest group posing as a government agency (Connecticut Dental Board) to prevent their competitors from providing cheaper services to consumers, thus preventing (1) a whole group of people from earning their livelihood, and (2) preventing a whole group of other people, consumers, from choosing cheaper and more plentiful services.
Moreover, the 2nd Circuit allowed regulation by dentists of non-dentists in the area that did not constitute dental services - just 4 months after the U.S. Supreme Court ruled that teeth whitening was not related to dentistry - and thus may not be subject to regulation as dental services, through a Dental Board of any state.
After upholding unlawful regulation by dentists over non-dentists in the area that did not constitute dental services on speculative grounds under the claim of protecting public safety, the 2nd Circuit went further and called what it just upheld on "public safety" grounds a "pure economic regulation".
The 2nd Circuit then upheld a "legitimate governmental interest" to discriminate on economic grounds - just because the government wanted to favor one group of people over the other.
The commentators in the report said that the only "silver lining" that came out of the 2nd Circuit case that they rightfully called "deplorable" is that the 2nd Circuit deepened the circuit split on the issue of whether the government has a "legitimate right" to discriminate on purely economic grounds - and "ripened" the issue for the U.S. Supreme Court review.
Yet, the U.S. Supreme Court has ALREADY reviewed the case of North Carolina Board Examiners and has ALREADY ruled that the particular kind of regulation - pursuing teeth-whiteners by dentists - is violating the Sherman Act in view of lack of control over the dentists regulating the dental profession by the state. The U.S. Supreme Court felt so strongly about the issue of dentists imposing a private monopoly under the guise of a state-regulated profession for purposes of public health and safety that it stripped the dentists of "state immunity" for antitrust actions and subjected them to liability for private actions - with treble money damages - for antitrust activity.
The 2nd Circuit simply skipped the issue by claiming that the issue of antitrust violations were not raised by the appellants - even though violation of federal laws is within the Supremacy Clause, and the 2nd Circuit has a right to review relevant Supremacy Clause issues sua sponte.
Moreover, the claim that the appellants did not raise the issue of antitrust liability was an exercise of intellectual dishonesty by the courts - because the Appellant's brief was filed on September 12, 2014, while the decision stripping members of the Dental Board of the "state immunity" for antitrust liability in North Carolina Board of Dental Examiners v FTC was made only 6 months later, in February of 2015.
Since federal court have long developed a tendency to sanction civil rights plaintiffs for raising issues that may be subject to court-created "immunities", awarding against civil rights plaintiffs and their attorneys attorney fees for the "immune" perpetrators of misconduct, it was unreasonable to require Sensational Smiles, LLC, to
- exercise clairvoyant abilities,
- predict that a case in North Carolina Board of Dental Examiners v FTC will be decided the way it was decided, by stripping the "state immunity" from the "state" Dental Board,
- raise the issue of antitrust liability in the district court below,
- be sanctioned and slapped with attorney fees for the defendants for raising an "immune" issue, then
- file an Appellant's brief in the appellate court, risking to be sanctioned more,
in order for a federal appellate court to be able to review the issue whether the speculative "public safety"/"purely economic" regulation by dentists of non-dentists on the issue that did not constitute dentistry, is antitrust activity subject to the court's review.
Moreover, the 2nd Circuit DID review applicability of the North Carolina Board of Dental Examiners, a case decided AFTER the Appellant's brief was filed, so the Appellant's brief could not possibly discuss that case - on other issues, but not on the very issue that would have led to strike the "LED" regulation on violation of antitrust law grounds.
Intellectual dishonesty at its height.
Not surprising for the 2nd Circuit though.
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