[Editor’s Note: Last year, we wrote two articles (here and here) about SmileDirectClub (SDC) and how a federal lawsuit in the U.S. District Court for the Northern District of Georgia is likely to impact dental boards, their members, and dental practices across the United States. This article follows up on the most recent happenings.]


By J. Kathleen Marcus, J.D.

SmileDirectClub, LLC

The United States Court of Appeals for the Eleventh Circuit recently issued a ruling on SmileDirectClub, LLC, v. Battle [“Georgia Board”], which upholds the lower court ruling finding that Georgia Dental Board members can be held liable as individuals under antitrust law for certain actions performed in their capacity as board members.

Citing extensively from the United States Supreme Court in N.C. State Bd. of Dental Exam’rs v. FTC, the Eleventh Circuit found that being a state agency or appointee does not alone grant immunity from liability or prosecution. The state agency or appointee must also show that it is not an active participant in the market being regulated and that the state is directly supervising the actions of the board.

When a State empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest.

N.C. State Bd. of Dental Exam’rs v. FTC.

The Eleventh Circuit applied this holding to the Georgia Dental Board, which argued the necessity of the governor’s signature was “active participation” by the state.

Our decision does definitively reject two legal arguments asserted by the Board members: First, their argument that they are entitled to ipso facto immunity merely because the Governor approved the Board’s rule under Georgia’s statutory framework that vests in the Governor the power, authority, and duty to substantively review, approve, modify, or veto the rule….

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At issue in the Georgia Board case is whether the state dental board, consisting primarily of active participants in the dentistry services market, can be held liable under antitrust law for the passage of an “Expanded Duties of Dental Assistants” regulation, which limits the business practices of SmileDirectClub by requiring the presence of dentists when dental assistants perform “[d]igital scans for fabrication [of] orthodontic appliances and models.”

While the Georgia Board may appeal this decision to the United States Supreme Court, the case will ultimately return to state courts to assess the evidence presented concerning the economic harm to SmileDirectClub of the Board action in passing this regulation.

This ruling also further opens the door for antitrust lawsuits against all state dental boards when creating regulations that either further the economic interests of dentists or injures the economic interest of another entering the market of dentistry. The result is that dental board members can, as primarily active members of the market of dentistry, be held personally liable for action that impacts that market.


Author: Kathleen Marcus, J.D., is DOCS Education's Regulatory Counsel. Uniquely qualified to advise and advocate for sedation dentistry, she draws on a healthcare law background that started from her first big court case right out of law school, over three decades ago. A 1988 graduate of Temple University School of Law, she was Research Editor of the Temple Law Review; she previously attended Bennington College, and has a B.A. in Philosophy. Kate is Pennsylvania licensed, with extensive experience in civil and criminal litigation at the state and federal levels. Her specialties include compliance, healthcare law, contract negotiation, contract drafting, commercial litigation, small business, health insurance and regulation, and URAC; she has demonstrated excellence in persuasive writing and editing, public speaking, and compliance (EEOC, HIPAA, HITECH, Title IX).

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