In a recent opinion, a divided panel of the U.S. Court of Appeals for the Second Circuit ruled that an economic regulation passed by a state agency solely to protect one group from competition would not violate the constitutional guarantees of due process or equal protection. The court noted that such action might still violate antitrust laws, but went no further since no antitrust claim had been raised in the case. At least in the Second Circuit, this decision raises the stakes in future cases interpreting the scope of state-action immunity under the antitrust laws.
Pure Economic Favoritism Not Unconstitutional
In Sensational Smiles LLC v. Mullen, No. 14-1381-cv (2d Cir. July 17, 2015), the Second Circuit upheld a 2011 declaratory ruling of the Connecticut State Dental Commission stating that various teeth-whitening procedures could be legally performed only by licensed dentists. Plaintiff Sensational Smiles LLC, a non-dentist teeth-whitening business, then received a letter from the state threatening legal action if it continued to provide teeth-whitening services. Sensational Smiles challenged the commission’s declaratory ruling as unconstitutional under the due process and equal protection clauses.
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