Case: 19-11502 Date Filed: 09/11/2019 Page: 1 of 45 

No. 19-11502

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________________

D. BLAINE LEEDS and SMILEDIRECTCLUB, LLC, 

 Plaintiffs-Appellees, 

v.

ADOLPHUS M. JACKSON; T. GERALD WALKER; DOUGLAS 

BECKHAM; STEPHEN R. STRICKLIN; MARK R. MCILWAIN; KEVIN 

M. SIMS; and SHERRY S. CAMPBELL, 

 Defendants-Appellants. 

_____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

(JUDGE R. DAVID PROCTOR) 

_____________________

BRIEF FOR THE UNITED STATES AND THE FEDERAL TRADE 

COMMISSION AS AMICI CURIAE SUPPORTING PLAINTIFFSAPPELLEES

_____________________

MAKAN DELRAHIM

Assistant Attorney General

ALDEN F. ABBOTT

General Counsel

JOEL MARCUS

Deputy General Counsel

MICHAEL F. MURRAY

Deputy Assistant Attorney General

MARK S. HEGEDUS 

 Attorney

TAYLOR M. OWINGS

Counsel to the Assistant Attorney General 

Federal Trade Commission

600 Pennsylvania Ave., NW

 Washington, D.C. 20580

ROBERT B. NICHOLSON

STEVEN J. MINTZ

Attorneys

U.S. Department of Justice

Antitrust Division

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530-0001

(202) 353-0256
ii

D. Blaine Leeds and SmileDirectClub, LLC v. Jackson, et al., No. 

19-11502

CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT

C-1 of 4 

Pursuant to Eleventh Circuit Rules 26.1-1 and 28.1, the 

undersigned certifies that the following persons and entities are known 

to him to have an interest in the outcome of this case or have 

participated as attorneys or judges in the adjudication of this case:

Abbott, Alden F., General Counsel, Federal Trade

Commission

American Association of Orthodontists, amicus curiae in the

district court

Beckham, Douglas, Appellant

Blackmon, Stanley E., attorney for Appellees

Board of Dental Examiners of Alabama, Defendant

Bradley Arant Boult Cummings LLP, counsel for Appellees

Campbell, Hillary C., attorney for Appellees

Campbell, Sherry S., Appellant

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iii

D. Blaine Leeds and SmileDirectClub, LLC v. Jackson, et al., No. 

19-11502

C-2 of 4 

Chopra, Rohit, Commissioner, Federal Trade Commission

Delrahim, Makan, Assistant Attorney General, Antitrust 

Division, U.S. Department of Justice

Franklin, Samuel H., attorney for Appellants

Hammond, Clark R., attorney for American Association of 

Orthodontists

Hegedus, Mark S., Attorney, Federal Trade Commission

Hymer, David G., attorney for Appellees

Jackson, Adolphus M., Appellant

Jackson, Michael L., attorney for the American Association 

of Orthodontists

Leeds, D. Blaine, Appellee

Lembke, Mathew H., attorney for Appellees

Lightfoot Franklin & White, LLC, counsel for Appellants

Case: 19-11502 Date Filed: 09/11/2019 Page: 3 of 45 
iv

D. Blaine Leeds and SmileDirectClub, LLC v. Jackson, et al., No. 

19-11502

C-3 of 4

Marcus, Joel, Deputy General Counsel, Federal Trade 

Commission

Matthews, Logan T., attorney for Appellants

McIlwain, Mark R., Appellant

Mintz, Steven J., Attorney, Appellate Section, Antitrust 

Division, U.S. Department of Justice

Murray, Michael F., Deputy Assistant Attorney General, 

Antitrust Division, U.S. Department of Justice

Nicholson, Robert B., Attorney, Appellate Section, Antitrust 

Division, U.S. Department of Justice

Olson, Lana, attorney for Appellants

Owings, Taylor M., Counsel, Antitrust Division, U.S. 

Department of Justice

Pate, R. Ashby, attorney for Appellants

Pennington, Michael R., attorney for Appellees

Phillips, Noah Joshua, Commissioner, Federal Trade

 Commission

Case: 19-11502 Date Filed: 09/11/2019 Page: 4 of 45 
v 

 D. Blaine Leeds and SmileDirectClub, LLC v. Jackson, 

et al., No. 19-11502

C-4 of 4

Proctor, Hon. R. David, U.S. District Judge, Northern 

District of Alabama

Robertson, J. Bradley, attorney for Appellees

Simons, Joseph J., Chairman, Federal Trade Commission

Sims, Kevin M., Appellant

Slaughter, Rebecca Kelly, Commissioner, Federal Trade

Commission

SmileDirectClub, LLC, Appellee

Stricklin, Stephen R., Appellant 

Walker, Gerald T., Appellant

Wallace Jordan Ratliff & Brandt, LLC, counsel for American 

Association of Orthodontists

Wilson, Christine S., Commissioner, Federal Trade

Commission

 /s/ Steven J. Mintz

 Steven J. Mintz

 Attorney

Case: 19-11502 Date Filed: 09/11/2019 Page: 5 of 45 
vi

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE 

DISCLOSURE STATEMENT...................................................................ii

TABLE OF CONTENTS ..........................................................................vi

TABLE OF AUTHORITIES....................................................................vii

STATEMENT OF INTEREST .................................................................. 1

STATEMENT OF ISSUES PRESENTED................................................ 2

STATEMENT ............................................................................................ 3

SUMMARY OF ARGUMENT................................................................. 14

ARGUMENT ...........................................................................................16

I. The State-Action Defense to Antitrust Liability is Limited and 

Disfavored.......................................................................................16

II. The Midcal Requirement of Active Supervision Applies to This 

Case ................................................................................................19

A. The Board is Not a Sovereign for Purposes of the State-Action 

Defense........................................................................................19

B. The Board’s Characterization as an “Arm of the State” is 

Irrelevant to the State-Action Defense ......................................23

III. The Board Members Have Not Demonstrated That the State 

Actively Supervised the Board’s Challenged Rules and 

Enforcement Actions ......................................................................26

A. The Alabama Scheme of Legislative Review, As Applied in This 

Case, Is Not Active Supervision .................................................26

B. Under the Circumstances of This Case, the Alabama Legislative 

Services Agency Did Not and Could Not Provide Active 

Supervision. ................................................................................30

CONCLUSION ........................................................................................33

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

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vii

TABLE OF AUTHORITIES 

Cases

Allibone v. Texas Medical Board, 

2017 WL 4768224 (W.D. Tex. Oct. 20, 2017).......................................29

Califronia Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 

445 U.S. 97 (1980) ............................................................................9, 18

Chamber of Commerce of the United States v. City of Seattle, 

890 F.3d 769 (9th Cir. 2018) .................................................................. 1 

City of Lafayette v. Louisiana Power & Light Co., 

435 U.S. 389 (1978) ..............................................................................16

Community Communications Co. v. City of Boulder, 

455 U.S. 40 (1982) ................................................................................12

Commuter Transportation Systems, Inc. v. Hillsborough County 

Aviation Authority, 801 F.2d 1286 (11th Cir. 1986)............................13

Crockett v. NEA-Alaska, 

367 F. Supp. 3d 996 (D. Alaska 2019)..................................................23

Diverse Power, Inc. v. City of LaGrange, 

No. 18-11014 (11th Cir. Aug. 20, 2019) ............................................... 13 

Edinboro College Park Apartments v. Edinboro University Foundation, 

850 F.3d 567 (3d Cir. 2017)............................................................18, 25

FTC v. Indiana Federation of Dentists, 

476 U.S. 447 (1986) ..............................................................................12

FTC v. Phoebe Putney Health Systems, 

568 U.S. 216 (2013) .............................................................. 2, 12, 17, 25

* FTC v. Ticor Title Insurance Co., 

504 U.S. 621 (1992) ...................................................................... passim

Case: 19-11502 Date Filed: 09/11/2019 Page: 7 of 45 
viii

Hoover v. Ronwin, 

466 U.S. 558 (1984) .................................................................. 20, 21, 22

Huron Valley Hospital, Inc. v. City of Pontiac, 

792 F.2d 563 (6th Cir. 1986) ................................................................14

In re Realcomp II Ltd., 

2007 WL 6936319 (FTC Oct. 30, 2009).................................................. 3 

* North Carolina Board of Dental Examiners v. FTC, 

135 S. Ct. 1101 (2015) .................................................................. passim

Parker v. Brown, 

317 U.S. 341 (1943) ...................................................................... passim

* Patrick v. Burget, 

486 U.S. 94 (1988) ........................................................................ passim

Pinhas v. Summit Health, 

894 F.2d 1024 (9th Cir. 1989) ..............................................................31

Prime Healthcare Services-Monroe, LLC v. Indiana University Health 

Bloomington, Inc., 2016 WL 6818956 (S.D. Ind. Sept. 30, 2016)........29

Realcomp II Ltd. v. FTC, 

635 F.3d 815 (6th Cir. 2011) .................................................................. 3 

Rosenberg v. State of Florida, 

2015 WL 13653967 (S.D. Fla. Oct. 14, 2015).......................................25

South Carolina State Board of Dentistry v. FTC, 

455 F.3d 436 (4th Cir. 2006) .................................................... 14, 25, 26

Shames v. California Travel & Tourism Commmission, 

626 F.3d 1079 (9th Cir. 2010) ..............................................................18

SolarCity Corp. v. Salt River Project Agricultural Improvement & Power 

District, 859 F.3d 720 (9th Cir. 2017)............................................13, 14

Teladoc, Inc. v. Tex. Med. Bd., 

2015 WL 8773509 (W.D. Tex. Dec. 14, 2015)......................................... 4 

Case: 19-11502 Date Filed: 09/11/2019 Page: 8 of 45 
ix

United States v. Aluminum Co. of America, 

377 U.S. 271 (1964) ................................................................................ 3 

Wilkinson v. Board of Dental Examiners of Alabama, 

102 So. 3d 368 (Ala. 2012)....................................................................24

Will v. Hallock, 

546 U.S. 345 (2006) ..............................................................................13

Yeager’s Fuel v. Pennsylvania Power & Light Co., 

22 F.3d 1260 (3d Cir. 1994)............................................................18, 19

Statutes

15 U.S.C. § 1 ..........................................................................................8, 9 

Alabama Code § 34-9-1 .............................................................................. 8 

Alabama Code § 34-9-6 .............................................................................. 8 

Alabama Code § 34-9-7(a) ......................................................................... 8 

Alabama Code § 34-9-43.2.......................................................................30

Alabama Code § 41-22-22.1......................................................... 6, 7, 8, 32

Alabama Admin. Code r. 270-X-3.06 ........................................................ 6 

Alabama Admin. Code r. 270-X-3.10 ........................................................ 6 

Rules

Fed. R. App. P. 29(a).................................................................................. 2 

Other Authorities

1A Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 227a

(4th ed. 2013)........................................................................................... 24 

U.S. Department of Justice & Federal Trade Commission, Antitrust 

Guidelines for the Licensing of Intellectual Property (2017)................... 3 

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1 

STATEMENT OF INTEREST

The United States and the Federal Trade Commission have 

primary responsibility for enforcing the federal antitrust laws and have 

a strong interest in the proper application of the state-action defense

articulated in Parker v. Brown, 317 U.S. 341 (1943). That defense

protects the deliberate policy choices of sovereign states to displace 

competition with regulation or monopoly public service. Overly broad 

application of the state-action defense, however, sacrifices the 

important benefits that antitrust laws provide consumers and 

undermines the fundamental national policy favoring robust 

competition. The federal antitrust agencies have filed amicus curiae 

briefs in appropriate cases to prevent such overly broad applications. 

E.g., Chamber of Commerce of the United States v. City of Seattle, 890 

F.3d 769 (9th Cir. 2018); Teladoc, Inc. v. Tex. Med. Bd., No. 16-50017 

(5th Cir., filed Sept. 9, 2016). In addition, the Supreme Court has 

clarified the scope and application of the state-action defense in cases 

brought by the FTC. See N.C. Bd. of Dental Examiners v. FTC, 135 S. 

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2 

Ct. 1101 (2015); FTC v. Phoebe Putney Health Sys., 568 U.S. 216 (2013); 

FTC v. Ticor Title Ins. Co., 504 U.S. 621 (1992).1

We file this brief under Federal Rule of Appellate Procedure 29(a) 

and urge the Court, if it addresses the “active supervision” component of 

the state-action defense, to affirm the district court’s holding that the 

Defendants-Appellants (hereafter the “Board members”) did not meet 

their burden at this stage of the proceeding to show that the State of 

Alabama actively supervised the challenged regulations and 

enforcement actions of the Board of Dental Examiners of Alabama. 

STATEMENT OF ISSUES PRESENTED

Whether the district court correctly determined that the active 

supervision requirement of the state-action defense applies in this case 

and that the Board members failed to meet their burden to satisfy that 

requirement at the motion to dismiss stage. 

 

1 FTC staff also has issued guidance on the application of the 

defense to state regulatory boards controlled by market participants. 

See FTC Staff Guidance on Active Supervision of State Regulatory 

Boards Controlled by Market Participants (Oct. 13, 2015), available at 

https://www.ftc.gov/system/files/attachments/competition-policyguidance/active_supervision_of_state_boards.pdf. 

Case: 19-11502 Date Filed: 09/11/2019 Page: 11 of 45 
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STATEMENT

1. Vigorous competition is a crucial factor in fueling innovation. 

See, e.g., United States v. Aluminum Co. of Am., 377 U.S. 271, 281 

(1964). Likewise, technological innovations and new business models 

often have enormous pro-competitive benefits. This reinforcing cycle of 

competition and innovation allows consumers to reap the rewards of 

new and exciting products and services, lower prices, and easier access. 

See, e.g., U.S. Dept. of Justice & Federal Trade Comm’n, Antitrust 

Guidelines for the Licensing of Intellectual Property § 1.0 (2017); see 

also In re Realcomp II Ltd., 2007 WL 6936319, at *6 (FTC Oct. 30, 2009) 

(“Because technological and organizational dynamism are powerful 

stimulants for economic progress, an especially important application of 

antitrust law is to see that incumbent service providers do not use 

improper means to suppress innovation-driven competition that 

benefits consumers.”), aff’d, Realcomp II Ltd. v. FTC, 635 F.3d 815 (6th 

Cir. 2011).

 Competition, technological innovation, and new models of health 

care delivery, such as telemedicine, may be disruptive to the traditional 

business models of doctors and dentists. Almost invariably, however, 

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that disruption brings the benefits of competition and innovation to 

consumers. See Dental Examiners, 135 S. Ct. at 1108 (non-dentists who 

offered teeth-whitening services “charged lower prices for their services 

than the dentists did”); Teladoc, Inc. v. Tex. Med. Bd., 2015 WL 8773509

(W.D. Tex. Dec. 14, 2015) (new competitor offered telehealth services by 

out-of-state doctors for a fraction of the cost of visiting a traditional 

medical office). 

2. Plaintiff-Appellee SmileDirectClub (“SmileDirect”) claims to 

have created an innovative teledentistry system for providing clear 

aligner treatment for cases of mild to moderate malocclusion of the 

teeth. One of SmileDirect’s services is SmileShops, which are physical 

locations in several states at which an employee, using a wand-like,

non-radiation-emitting device called an iTero, can take rapid 

photographs of a consumer’s mouth. Amended Complaint ¶¶ 7, 28-30. 

The photographs are stored digitally and sent to the SmileDirect lab, 

which uses them to create a 3-dimensional model of the consumer’s 

mouth. Id. ¶ 32. Then, a dentist (like Plaintiff-Appellee Dr. Leeds) or 

orthodontist, who is licensed to practice in the state but is located offsite (and may be located out-of-state), evaluates the model and 

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photographs and collects additional medical information from the 

consumer. If the dentist deems the consumer appropriate for 

SmileDirect’s clear aligners, and if the consumer elects to move forward, 

the dentist creates a treatment plan that is shared with the new patient 

through SmileDirect’s website portal. Id. ¶¶ 25, 32-33. The dentist or 

orthodontist then prescribes the aligners, which are sent directly to the 

patient. Id. Introduction, ¶ 35. The patient therefore need never visit a 

traditional dental office for teeth alignment treatment. Id. ¶¶ 23, 25.

SmileDirect claims to reduce the cost of expensive aligner 

treatment and to increase access to treatment for unreached segments of 

the population. Amended Complaint ¶¶ 25-27, 37. SmileDirect alleges

that its recent rapid growth has triggered an organized campaign of 

attacks by incumbent dentists and orthodontists who practice in 

traditional dental offices. Id. ¶¶ 19, 58, 79. SmileDirect further alleges 

that incumbent dentists and orthodontists have used their influence 

with industry-controlled state licensing boards to enact regulatory 

restraints on competition from SmileDirect, for the purpose of 

“protect[ing] the business interests of traditional dental and orthodontic 

practices.” Id. ¶ 79. 

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3. The Board of Dental Examiners of Alabama (hereafter 

“Board”) is a state agency that regulates the practice of dentistry in 

Alabama. Amended Complaint ¶ 8. SmileDirect alleges that the sevenmember Board consists of six dentists and one dental hygienist, all of 

whom are active market participants in the profession that the Board 

regulates. Id. ¶¶ 8-15, 133, 147. SmileDirect further alleges that, 

beginning in 2017, the Board revised or adopted new rules aimed at 

SmileDirect that restrict competition from teledentistry services and 

make it “virtually impossible” for SmileDirect to serve Alabama 

consumers across state lines. Id. ¶¶ 51-53, 68, 71-72. Those rules 

allow dental assistants and dental hygienists to take “digital images” of 

a patient’s mouth only when acting under the “direct supervision” of a 

licensed dentist. The rules define “direct supervision” as requiring that 

a dentist be “physically present in the dental facility and available 

during performance of the procedure, examines the patient during the 

procedure and takes full professional responsibility for the completed 

procedure.” Ala. Admin. Code rr. 270-X-3.10, 270-X-3.06.

4. Alabama’s scheme for review of state agency rules, in 

pertinent part, is Ala. Code § 41-22-22.1. The statute provides in 

Case: 19-11502 Date Filed: 09/11/2019 Page: 15 of 45 
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pertinent part that the Legislative Services Agency, Legal Division 

(“LSA”) (renamed by amendment effective September 1, 2019) must 

review each rule certified to it by a state board that regulates a 

profession “to determine whether the rule may significantly lessen 

competition and, if so, whether the rule was made pursuant to a clearly 

articulated state policy to displace competition.” Id. subpart (a). If the 

LSA finds no significant effect on competition, review apparently ends, 

and the rule takes effect. If the LSA determines that a rule may 

significantly affect competition, “it shall determine whether the rule 

was made pursuant to a clearly articulated state policy to displace 

competition, and shall certify those determinations” to a committee of 

the legislature. Id. subpart (b). The committee will collect materials 

relevant to the adoption of the rule and call a meeting to “review the 

substance of the rule, determine whether the rule may significantly 

lessen competition, and if so, whether it was made pursuant to a clearly 

articulated state policy to displace competition.” Id. The committee 

“shall approve, disapprove, disapprove with a suggested amendment, or 

allow the agency to withdraw the rule for revision.” Id. Similar review 

applies to a state board’s “previously adopted rule” and to “each 

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proposed action” submitted to the LSA by a state board. Id. subparts 

(c), (d), (e).

5. On September 20, 2018, the Board sent a cease-and-desist 

letter to SmileDirect, contending that non-dentist personnel at 

SmileDirect’s Birmingham, Alabama SmileShop were engaged in the 

unauthorized practice of dentistry. Amended Complaint ¶ 59. After 

meeting with SmileDirect, the Board directed SmileDirect immediately 

to stop taking digital images without a supervising dentist present. Id. 

¶ 62. The Board’s cease-and-desist letter and subsequent 

communications were based on provisions of the Alabama Dental 

Practice Act, Ala. Code § 34-9-1 et seq., and the Board’s rules. The Act 

defines what constitutes the practice of dentistry in Alabama, including 

using a “digital imaging machine for the purpose of making dental 

roentgenograms, radiographs, or digital images,” id. § 34-9-6, but 

exempts the “use of . . . digital images . . . under the supervision of a 

licensed dentist or physician,” id. § 34-9-7(a). The Act does not define 

the terms “digital imaging machine” or “supervision.” 

6. SmileDirect and Dr. Leeds filed suit, alleging that the Board 

rules and enforcement actions violate (among other things) Section 1 of 

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the Sherman Act, 15 U.S.C. § 1. Amended Complaint ¶¶ 123-50. 

Plaintiffs alleged that neither the Board’s challenged rules nor its 

enforcement actions against SmileDirect were adequately supervised by 

the state. Id. ¶¶ 56, 60. 

7. The Board moved to dismiss SmileDirect’s claims on several 

grounds. With respect to the antitrust claim, the Board contended that 

the state-action defense bars that claim. That defense provides that 

federal antitrust law does not reach the anticompetitive conduct of 

active market participants that is (1) in furtherance of a clearly 

articulated state policy to displace competition, and (2) actively 

supervised by the state. Cal. Retail Liquor Dealers Ass’n v. Midcal 

Aluminum, Inc., 445 U.S. 97, 106 (1980). In a Memorandum Opinion 

filed April 2, 2019, the court denied the motion with respect to the 

antitrust claim alleged against the Board members individually in their 

official capacities. With respect to the state-action defense, the court 

ruled that dismissal on the basis of that defense would be “premature.” 

The court reasoned that the Board members could be entitled to stateaction protection in two ways: 

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First, if the Alabama Dental Practice Act itself “specifies that 

using an iTero without a dentist on site constitutes the unauthorized 

practice of dentistry,” then that legislative restraint on competition is 

entitled to ipso facto protection. Mem. Op. 27-28. The court found that 

dismissal on this ground would be premature because, without 

discovery, the court “cannot determine whether the iTero is a ‘digital 

imaging machine’ (as that term is used in § 34-9-6) unless it has more 

information about the iTero.” Id. at 30. The court also ruled that the 

Board members would “have to show that the term ‘supervision’ in 

Alabama Code § 34-9-7(a) requires a dentist’s physical presence where 

the digital imaging is performed.” Id. at 30 n.8. 

Second, the court considered that even if the Alabama Dental 

Practice Act does not expressly authorize the Board’s challenged 

conduct, the Board members still may be entitled to state-action 

protection “if the state actively supervised their decision to interpret 

and enforce the Act as prohibiting the use of an iTero without a dentist 

physically present.” Mem. Op. 31. On this issue, the court considered 

itself bound on a motion to dismiss to accept SmileDirect’s factual 

allegation that any state review was “perfunctory, ministerial, and nonCase: 19-11502 Date Filed: 09/11/2019 Page: 19 of 45 
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substantive,” i.e., that “no state supervisor in fact reviewed the 

substance of the Board’s anticompetitive policy.” Id. at 32. 

In support of its argument on active supervision, the Board 

submitted a “Memo to File” showing that the LSA reviewed the 

challenged Board rules in 2018 and found that the rules would not 

affect competition. The Memo states in pertinent part:

Rule 270-X-3-.10, Duties of Allied Dental Personnel, lists the 

procedures that may be performed by dental hygienists, 

dental assistants, and dental laboratory technicians. The 

amendment adds to the list of procedures the making of 

digital images. . . . [The Rule] do[es] not significantly lessen 

competition. [It] do[es] not affect competition at all.

Doc. 33-1 at 15-16. 

The court, assuming that it could consider the Board’s extrinsic 

documents on a motion to dismiss, found those documents insufficient

to show active supervision by the state. The “memo to file spends a 

mere four sentences discussing the Board’s challenged regulation,” and 

those sentences “do not establish that the state reviewed and approved 

the substance of the Board’s anticompetitive policy in this case.” Mem. 

Op. 33. “In fact, because the LSA found the regulation would ‘not affect 

competition at all,’ the regulation apparently never reached the stage of 

Alabama’s statutory review process at which its substance would have 

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been reviewed.” Id. The court noted, however, that the Board members 

could re-assert the state-action defense on summary judgment. Id. at 

19.

8. The court did not reach the “clear articulation” requirement 

of the state-action defense. We note, however, that the Board’s general 

regulatory authority to implement a broad public interest standard, 

such as health and safety, does not mean that the legislature has 

clearly articulated a policy to displace a particular form of competition 

such as teledentistry. See Phoebe Putney, 568 U.S. at 228 (“the substate 

governmental entity must also show that it has been delegated 

authority to act or regulate anticompetitively”); Community 

Communications Co. v. City of Boulder, 455 U.S. 40, 54-55 (1982) 

(general grant of home rule authority to municipality did not articulate 

any policy to displace competition in cable television). Merely because 

anticompetitive conduct purports to protect health and safety does not 

immunize it from antitrust challenge, see FTC v. Indiana Federation of 

Dentists, 476 U.S. 447, 462-63 (1986). 

9. On April 16, 2019, the Board members took this 

interlocutory appeal of the district court’s ruling on the state-action 

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defense, based on the collateral-order doctrine. SmileDirect moved to 

dismiss this appeal for lack of jurisdiction, arguing that the district 

court’s ruling was merely tentative, and therefore did not “conclusively 

determine the disputed question” of the state-action defense, which is 

the first of the three requirements of the collateral-order doctrine. Will 

v. Hallock, 546 U.S. 345, 349 (2006). On June 11, 2019, this Court 

ordered that SmileDirect’s motion to dismiss be “carried with the case”

for decision by the merits panel. 

10. As SmileDirect’s brief sets forth (at 24), the Board members 

must satisfy all three requirements of the collateral-order doctrine. 

Although our brief addresses the state-action merits, we note our view 

that this Court’s decisions on the reviewability requirement of the 

collateral-order doctrine, see Commuter Transp. Sys., Inc. v. 

Hillsborough Cty. Aviation Auth., 801 F.2d 1286 (11th Cir. 1986); 

Diverse Power, Inc. v. City of LaGrange, No. 18-11014, slip op. at 5 n.1

(11th Cir. Aug. 20, 2019), rely on the faulty premise that the stateaction defense is an immunity from suit. See Brief of the United States 

as Amicus Curiae in SolarCity Corp. v. Salt River Project Agric. 

Improvement & Power Dist., 859 F.3d 720 (9th Cir. 2017) (No. 17-368); 

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Brief of the FTC in S.C. State Bd. of Dentistry v. FTC, 455 F.3d 436 (4th 

Cir. 2006) (No. 04-2006).2 A majority of the circuits to have addressed 

this issue hold that orders denying state-action protection may not be 

appealed under the collateral-order doctrine. SolarCity Corp.; S.C. 

State Bd. of Dentistry; Huron Valley Hosp., Inc. v. City of Pontiac, 792 

F.2d 563 (6th Cir. 1986). We agree with this majority but recognize 

that for this Court to join it would require an en banc decision.

SUMMARY OF ARGUMENT

The state-action defense is disfavored, narrowly construed, and 

the party asserting the defense (here, the Board members) bears the 

burden of showing that the requirements of the defense are satisfied. 

Applying these principles, the district court ruled correctly that the 

Board members have not shown at this stage of the proceeding that the 

 

2 SmileDirect’s arguments (Br. 25-27, 29-30) highlighting the 

district court’s unanswered factual questions demonstrate one of the 

reasons why the state-action defense should not be considered an 

immunity from suit that is appealable under the collateral-order 

doctrine. Factual development may be necessary to determine if the 

state supervisor is an “active market participant,” see Dental 

Examiners, 135 S. Ct. at 1117, or whether the supervisor actually 

engaged in substantive review and made a decision to approve the 

agency rule, because the “mere potential for state supervision is not an 

adequate substitute for a decision by the State.” Id. at 1115-16. 

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state actively supervised the Board regulations or the enforcement 

actions challenged by SmileDirect.

The court first ruled correctly that the active supervision 

requirement applies to this case. Dental Examiners “holds ... that a 

state board on which a controlling number of decisionmakers are active 

market participants in the occupation the board regulates must satisfy 

Midcal’s active supervision requirement in order to invoke state-action 

antitrust immunity.” 135 S. Ct. at 1114. SmileDirect alleges that the 

Board is controlled by active market participants—dentists and a 

dental hygienist—in the occupation that the Board regulates. The 

Board members’ attempts to avoid Dental Examiners’ straightforward 

holding are unavailing. 

Next, the court rightly determined that the Board members did 

not show active supervision at the motion to dismiss stage. They did 

not present evidence that any state official(s) equipped with authority 

to provide active supervision reviewed the Board rules at issue, or the 

Board’s enforcement actions, to determine whether they promote state 

regulatory policy rather than dentists’ private interests in excluding 

teledentistry—and its lower prices—from the Alabama market. The 

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minimal review by the LSA, which went no further than declaring 

(without apparent basis) that the rules would have no significant 

anticompetitive effect, does not satisfy the “constant requirements of 

active supervision” that the Supreme Court has identified. See Dental 

Examiners, 135 S. Ct. at 1116. The LSA did not review the substance of 

the rules, and the LSA did not have the power to veto or modify the 

rules. Nor did the LSA review the Board’s action in enforcing the rules.

ARGUMENT

I. The State-Action Defense to Antitrust Liability is Limited 

and Disfavored. 

Competition is “the fundamental principle governing commerce in 

this country.” City of Lafayette v. La. Power & Light Co., 435 U.S. 389, 

398 (1978). The Supreme Court, however, has recognized a limited 

defense to antitrust liability to accommodate principles of federalism 

and state sovereignty. In Parker v. Brown, 317 U.S. 341 (1943), the 

Court held that “because ‘nothing in the language of the Sherman Act . . 

. or in its history’ suggested that Congress intended to restrict the 

sovereign capacity of the States to regulate their economies, the Act 

should not be read to bar States from imposing market restraints ‘as an 

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act of government.’” Phoebe Putney, 568 U.S. at 224 (quoting Parker, 

317 U.S. at 350, 352). The state-action defense therefore does not apply 

“unless the actions in question are an exercise of the State’s sovereign 

power.” Dental Examiners, 135 S. Ct. at 1110. The Court has 

recognized that a state exercises sovereign power when the 

anticompetitive act in question is itself “[s]tate legislation” or when it is 

the “decision[] of a state supreme court, acting legislatively rather than 

judicially.” Id. (internal quotation marks and citation omitted). Under 

these limited circumstances, the clear articulation and active 

supervision requirements do not apply, and state legislatures and 

supreme courts are entitled to what is sometimes called ipso facto stateaction protection. Id. 

The Court repeatedly has emphasized, however, that the stateaction defense “is disfavored, much as are repeals by implication.” 

Dental Examiners, 135 S. Ct. at 1110 (quoting Phoebe Putney, 568 U.S.

at 225, and Ticor Title Ins. Co., 504 U.S. at 636). This is because it 

detracts from “the fundamental national values of free enterprise and 

economic competition that are embodied in the federal antitrust laws.” 

Id. Courts therefore interpret the state-action defense “narrowly.” 

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Shames v. Cal. Travel & Tourism Comm’n, 626 F.3d 1079, 1084 (9th 

Cir. 2010); see also Yeager’s Fuel v. Pa. Power & Light Co., 22 F.3d 

1260, 1265 (3d Cir. 1994). 

To ensure that the defense is appropriately limited, the Supreme 

Court has imposed requirements on sub-state entities and private 

parties that seek to invoke it. In Midcal, the Court held that nonsovereign actors can invoke the state-action defense only when they can 

show (1) that the alleged anticompetitive conduct was taken pursuant 

to a “clearly articulated and affirmatively expressed . . . state policy” to 

displace competition, and (2) that the conduct was “actively supervised 

by the State itself.” 445 U.S. at 105. This is “[t]he most searching level 

of scrutiny,” and the test is “rigorous.” Edinboro College Park 

Apartments v. Edinboro University Foundation, 850 F.3d 567, 573 (3d 

Cir. 2017).

In Dental Examiners the Supreme Court held that both of the 

Midcal requirements also apply to any non-sovereign state entity 

“controlled by active market participants” in the occupation that the 

entity regulates. 135 S. Ct. at 1110, 1114. State agencies controlled by 

active market participants are treated like “private trade associations 

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vested by States with regulatory authority.” Id. This holding reflects 

the recognition that, when “a State empowers a group of active market 

participants to decide who can participate in its market,” there is a 

“structural risk” that they will pursue “their own interests” instead of 

“the State’s policy goals.” Id. 

Accordingly, state boards that are controlled by active market 

participants bear the burden of satisfying both of the Midcal

requirements. See Dental Examiners, 135 S. Ct. at 1114 (board 

controlled by active market participants “must satisfy [the] active 

supervision requirement”); see also Patrick v. Burget, 486 U.S. 94, 101 

(1988) (respondents failed to show active supervision); Yeager’s Fuel, 22 

F.3d at 1266 (“Cases since Parker, however, clarify that state action 

immunity is an affirmative defense as to which [defendant] bears the 

burden of proof.”).

II. The Midcal Requirement of Active Supervision Applies to 

This Case.

A. The Board is Not a Sovereign for Purposes of the 

State-Action Defense. 

The district court correctly concluded that it should analyze the 

Board’s actions according to the test for active market participants, not 

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as if the Board were a sovereign actor. It reasoned that “[t]he powers, 

duties, and composition of Alabama’s Dental Board are nearly identical 

to those of the North Carolina Dental Board the Supreme Court 

considered in N.C. Dental.” Mem. Op. 24-25. “The similarities between 

the two Boards compel the conclusion that the Alabama Board is also a 

‘nonsovereign actor controlled by active market participants’ . . . and 

that the principles set forth in N.C. Dental therefore apply to it.” Id. at 

25 (quoting Dental Examiners, 135 S. Ct. at 1110). The court further 

determined that the Supreme Court’s earlier state-action cases, 

considering the acts of sovereigns, are inapposite because the Board is 

not one of the two types of actors that the Court has recognized as 

sovereign for these purposes. That is, the Board is not like the 

legislature when enacting legislation, nor is it like the state supreme 

court when acting legislatively rather than judicially. Id. at 26 (citing 

Hoover v. Ronwin, 466 U.S. 558, 567-68 (1984)). 

The district court was right to reject the test that applies to acts of 

a sovereign. Dental Examiners squarely “holds ... that a state board on 

which a controlling number of decisionmakers are active market 

participants in the occupation the board regulates must satisfy Midcal’s 

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active supervision requirement in order to invoke state-action antitrust 

immunity.” 135 S. Ct. at 1114. SmileDirect alleges that the Board is 

controlled by active market participants in the occupation of dentistry. 

Amended Complaint ¶¶ 8-15, 133, 147.

The Board members incorrectly analogize to Hoover in arguing

that the challenged regulation is an “act of the sovereign” because it 

“was passed by the state of Alabama under its review procedures” (Br. 

16-17). A state legislature, however, cannot impute its sovereign 

authority to an independent regulatory act through review procedures. 

State-board regulations are not statutes and do not become 

treated as such merely because the Board’s regulations were enacted 

according to state-law procedures. “State legislation” is an “undoubted 

exercise of state sovereign authority,” Dental Examiners, 135 S. Ct. at 

1110 (emphasis added). Even Hoover makes clear that “when a state

legislature adopts legislation, its actions constitute those of the State ... 

and ipso facto are exempt from the operation of the antitrust laws.” 466 

U.S. at 567-68 (emphasis added). The Supreme Court, however, has 

never described a state licensing board regulation as legislation or a 

sovereign act. 

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Although in Hoover the Supreme Court imputed the actions of an 

agent to the sovereign, the Board is not like the agent that acted 

pursuant to the sovereign’s instructions in that case. The plaintiff in 

Hoover challenged the bar committee’s standards as an unlawful

restraint of trade. The Supreme Court, however, concluded that the 

committee did not act independently but merely administered the bar 

examination and admission process for the Arizona Supreme Court, 

which retained final decision-making authority over examination 

standards and bar admissions. The Court thus held that “the conduct 

that [the plaintiff] challenges was in reality that of the Arizona 

Supreme Court.” 466 U.S. at 573. 

The Board’s conduct, by contrast, is not “in reality” that of the 

legislature. The Board allegedly did not merely administer laws 

enacted by the legislature, but exercised independent authority to 

promulgate occupational rules. (Some rules allegedly go beyond the 

express terms of the Alabama Dental Practice Act.) In addition, the 

legislature did not necessarily retain final decision-making authority 

over the Board’s rules: as the district court found, the rules were 

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competitive effect, without any review by the legislature itself. Mem. 

Op. 34.

In any event, Hoover did not address the special context of 

allegedly anticompetitive decisions by licensing boards that are 

controlled by active market participants. The Court’s more recent 

decision in Dental Examiners, which does expressly address this 

context, rather than Hoover, sets the rule for this case.3

B. The Board’s Characterization as an “Arm of the State” 

is Irrelevant to the State-Action Defense.

The Board members are also incorrect to argue that, for the 

purpose of analyzing the Board’s actions, “the relevant actor is the state 

of Alabama.” Br. 14. Their only support for that argument is that the 

 

3 Crockett v. NEA-Alaska, 367 F. Supp. 3d 996 (D. Alaska 2019), 

cited by the Board members (Br. 17), did not involve the relevant facts 

of this case and Dental Examiners—a rule enacted by a specialized state 

licensing board controlled by active market participants. The court in 

Crockett first noted that state-action protection would bar the plaintiff’s 

antitrust claim against a state statute. See id. at 1010 (“Plaintiff 

consequently cannot challenge PERA [the Public Employment Relations 

Act] itself.”). Contrary to the Board members’ contention that the 

challenged collective bargaining agreements were treated as sovereign 

acts, the court next applied Midcal’s clear articulation requirement. 

See id. (agreement is “clearly articulated and affirmatively expressed as 

state policy”). Moreover, the court concluded that the defendant school 

district was a local government not subject to Midcal’s active 

supervision requirement. Id. at 1011. 

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Board is an “arm of the state,” but that characterization is legally 

irrelevant to the state-action defense because it stems from state law, as 

the Board members acknowledge. See Br. 15-16 (“arm of the state” 

derives from Wilkinson v. Bd. of Dental Exam’rs of Ala., 102 So. 3d 368 

(Ala. 2012)). The board in Dental Examiners likewise contended that it 

was an arm of the state and not subject to active supervision, yet the 

Supreme Court specifically rejected that claim. Dental Examiners, 135 

S. Ct. at 1113-14. The state-action doctrine is an interpretation of a 

federal statute, the Sherman Act. “[F]ederal law determines which 

bodies require further supervision in order to gain Parker immunity.” 

1A Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 227a, at 

225 (4th ed. 2013). Although Alabama may classify the Board as an 

“arm of the state” for relevant state-law purposes, that designation does 

not govern the federal antitrust inquiry.

Thus, whether the Midcal requirements apply to the Board does 

not “turn[] . . on the formal designation given by States to regulators.” 

Dental Examiners, 135 S. Ct. at 1114. Dental Examiners makes clear 

that federal antitrust policy supersedes state law when a state 

delegates its regulatory power to self-interested market participants. 

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See id. at 1111 (“under Parker and the Supremacy Clause, the States’ 

greater power to attain an end does not include the lesser power to 

negate the congressional judgment embodied in the Sherman Act 

through unsupervised delegations to active market participants”); 

accord Phoebe Putney, 568 U.S. at 236 (“federalism and state 

sovereignty are poorly served by a rule of construction that would allow 

‘essential national policies’ embodied in the antitrust laws to be 

displaced by state delegations of authority ‘intended to achieve more 

limited ends.’”) (quoting Ticor, 504 U.S. at 636).4 

The Board’s “arm of the state” argument is a mistaken attempt to 

import Eleventh Amendment sovereign immunity principles into the 

state-action defense. The “doctrines are not coextensive. Even if the 

University were an arm of the state [for Eleventh Amendment 

purposes], the University is not ‘sovereign’ for purposes of Parker.” 

Edinboro College Park Apartments, 850 F.3d at 575. See also S.C. State 

 

4 For this reason, Rosenberg v. State of Florida, 2015 WL 

13653967 (S.D. Fla. Oct. 14, 2015), does not help the Board members 

(see Br. 14-15). That decision’s description of the Florida Bar as an 

“arm of the state” by virtue of Florida Supreme Court rules (i.e., state 

law) does not overcome Dental Examiners’ directive that whether the 

Midcal requirements apply does not “turn[] ... on the formal 

designation given by States to regulators.” 135 S. Ct. at 1114. 

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Bd. of Dentistry, 455 F.3d at 446-47 (distinguishing Parker defense from 

Eleventh Amendment immunity). Thus, the district court correctly 

reasoned that because the doctrines are governed by different tests, the 

Board simultaneously can be an “arm of the state” under the Eleventh 

Amendment and a non-sovereign actor for state-action purposes. Mem. 

Op. 25-27. 

III. The Board Members Have Not Demonstrated That the 

State Actively Supervised the Board’s Challenged Rules

and Enforcement Actions. 

A. The Alabama Scheme of Legislative Review, As 

Applied in This Case, Is Not Active Supervision. 

Dental Examiners identified as a “constant requirement[] of active 

supervision” that the state supervisor must “review the substance of the 

anticompetitive decision, not merely the procedures followed to produce 

it.” 135 S. Ct. at 1116. Review of the “substance” means review to 

determine whether the action at issue actually implements a clearly

articulated state policy to displace competition, instead of serving 

private competitive interests. See Patrick, 486 U.S. at 101 (referring to 

“review ... to determine whether such decisions comport with state 

regulatory policy and to correct abuses”); id. at 105 (review of the 

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27

“merits” of a decision determines “whether it accorded with state 

regulatory policy”).

Based on the Amended Complaint and the materials before the 

district court, that essential review did not occur. As the district court 

concluded, when the LSA (inexplicably) determined that the challenged 

regulations would have no significant anticompetitive effect,5 review 

ended and the regulations took effect without any further action by the 

legislature. Mem. Op. 33-34. The LSA purported to review the 

regulations only for their potential anticompetitive effects, not for 

whether they comported with state policy or served the private interests 

of Board members. Doc. 33-1 at 15-16. 

Indeed, it appears the LSA could not have conducted a substantive 

review in this case because the Alabama scheme of review provides that 

only if the LSA “determines that a rule . . . may significantly lessen 

 

5 The LSA’s finding is inexplicable because the likely effect on 

competition is plain from the fact that the Board’s rule sought to 

exclude new, innovative providers of teledentistry services for which 

there is significant consumer demand. See Amended Complaint ¶¶ 19, 

143. Dr. Leeds alleges repeatedly, in allegations that must be taken as 

true on a motion to dismiss, that enforcement of the Board’s challenged 

rules will prevent him from treating patients in Alabama through 

teledentistry. E.g., id. ¶¶ 2-3, 71-72, 83-84, 124, 129. 

Case: 19-11502 Date Filed: 09/11/2019 Page: 36 of 45 
28

competition” will it then “determine whether the rule was made 

pursuant to a clearly articulated state policy to displace competition.” 

Ala. Code § 41-22.22.1(b); see also subsections (d) and (e) (same). If the 

LSA instead initially finds no significant effect on competition, as it did 

here, then it does not review for conformity with state policy. Mem. Op. 

34. The district court therefore correctly determined that “the 

regulation apparently never reached the stage of Alabama’s statutory 

review process at which its substance would have been reviewed.” Id. 

at 33.

Contrary to the Board members’ contention, the assertion that 

“the State put in place adequate measures to actively supervise the 

Board” (Br. 27) does not show active supervision if those procedures do 

not result in an actual substantive review of the Board’s rules. Dental 

Examiners makes clear that merely having review procedures in place 

is insufficient: the “mere potential for state supervision is not an 

adequate substitute for a decision by the State.” 135 S. Ct. at 1115-16; 

Case: 19-11502 Date Filed: 09/11/2019 Page: 37 of 45 
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see also Patrick, 486 U.S. at 101 (state officials must “have and exercise

power to review particular anticompetitive acts”) (emphasis added).6

Nor is the Board correct to argue that “principles of federalism” 

require a court to defer to a state’s assertion that its supervisory 

procedures suffice as active supervision, even when no substantive 

review actually occurred. Br. 28. “Deference” plays a role in the stateaction defense only in that federal antitrust law yields to a state’s 

sovereign choices about how to regulate its economy, but only if the 

state shows “real compliance” with Midcal. See Ticor, 504 U.S. at 636; 

Parker, 317 U.S. at 350-51. 

 

6 For this reason, Prime Healthcare Services-Monroe, LLC v. 

Indiana University Health Bloomington, Inc., 2016 WL 6818956 (S.D. 

Ind. Sept. 30, 2016), see Br. 24-25, is not analogous. With respect to 

active supervision, that case held only that the plaintiff failed to avail 

itself of a state-law forum. The court did not find that the state 

supervisor, the EMS Commission, would have conducted a sufficient 

review of the exclusive contracts and other alleged exclusionary conduct 

if the plaintiff had so availed itself. See id. at *8. The Board members 

also cite Allibone v. Texas Medical Board, 2017 WL 4768224 (W.D. Tex. 

Oct. 20, 2017), Br. 27. That decision, to the extent it can be read to hold 

that merely having review procedures in place suffices to show active 

supervision, is inconsistent with Dental Examiners, Ticor (see 504 U.S. 

at 638), and Patrick (see 486 U.S. at 101), because there was no 

indication that actual substantive review of the alleged anticompetitive 

decision occurred. 

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Finally, the Board members are mistaken that Ala. Code § 34-9-

43.2 immunizes the Board from antitrust liability. Br. 26. Even if that

statute may be relevant to the “clear articulation” requirement of the 

state-action defense (which the district court did not address), because a 

state may through legislation indicate its policy to displace competition

with regulation, the statute is not relevant to the question of active 

supervision. As explained above, whether active supervision is 

required, and whether it was satisfied in a particular case, are issues of 

federal law and subject to requirements articulated by the Supreme 

Court. If a state legislature simply could give its blessing to 

anticompetitive conduct without meeting those rigorous requirements, 

it would be akin to the state “giv[ing] immunity to those who violate the 

Sherman Act by authorizing them to violate it, or by declaring that 

their action is lawful.” Parker, 317 U.S. at 351.

B. Under the Circumstances of This Case, the Alabama 

Legislative Services Agency Did Not and Could Not 

Provide Active Supervision.

The district court assumed, without deciding, that the LSA 

“qualifies as a ‘state supervisor’ under N.C. Dental.” Mem. Op. 33. The 

court correctly treated the LSA as performing the role of supervisor in 

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31

this case insofar as no other state entity even purported to review the 

Board’s regulations or its cease-and-desist letter. The legislature itself 

conducted no substantive review at all. Given the LSA’s lack of power 

to conduct a substantive review or to approve or reject a Board 

regulation or action, however, the LSA did not and could not provide the 

required active supervision under Dental Examiners. 

Dental Examiners requires that the state supervisor must not only 

review the substance of the regulation, but also must “have the power to 

veto or modify particular decisions to ensure they accord with state 

policy.” 135 S. Ct. at 1116. That is, the supervisor must possess 

authority to make an independent judgment to approve or disapprove 

the board’s decision. See Ticor, 504 U.S. at 634-35; see also Pinhas v. 

Summit Health, 894 F.2d 1024, 1030 (9th Cir. 1989) (no active 

supervision where reviewing “court may not substitute a judgment for 

that of the governing board even if it disagrees with the board’s 

decision”) (citation omitted).

Under the Alabama scheme of review, however, the LSA does not 

have that power. The statute gives a committee of the legislature, not 

the LSA, the power to “approve, disapprove, disapprove with a 

Case: 19-11502 Date Filed: 09/11/2019 Page: 40 of 45 
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suggested amendment, or allow the agency to withdraw the rule for 

revision,” Ala. Code § 41-22-22.1(b). The same is true for actions of the 

Board taken to enforce the rule. Id. subpart (e). In both cases, that 

authority is triggered only if the LSA first determines that a rule or 

action may significantly lessen competition, that the rule or action was 

made or taken pursuant to a clearly articulated state policy to displace 

competition, and the LSA certifies those determinations to the 

committee, id. subparts (b), (e), none of which happened here. 

The statute manifestly does not give the LSA itself any power to 

veto or modify any rule or Board action; instead, the LSA may only 

“determine whether the rule [or action] may significantly lessen 

competition and, if so, whether the rule [or action] was made pursuant 

to a clearly articulated state policy to displace competition.” Ala. Code § 

41-22-22.1(a), (d), (e). If the LSA answers those questions in the 

affirmative, it simply “certif[ies] those determinations to the 

[legislative] committee.” Id. subsection (b); subsections (c), (e) (same). 

The “mere presence of some state involvement or monitoring,” however,

“does not suffice.” Patrick, 486 U.S. at 101. Rather, active supervision 

“requires that state officials have and exercise power to review 

Case: 19-11502 Date Filed: 09/11/2019 Page: 41 of 45 
33

particular anticompetitive acts of private parties and disapprove those 

that fail to accord with state policy.” Id. In sum, the legislature did not 

supervise the challenged Board rules or cease-and-desist letter, and the 

only entity to review the rules could not provide active supervision. 

CONCLUSION

If the Court addresses the active supervision component of the 

Board members’ state-action defense, the Court should affirm the 

district court’s holding that the Board members did not meet their 

burden to show active state supervision. 

Respectfully submitted.

/s/ Steven J. Mintz 

 MAKAN DELRAHIM

 Assistant Attorney General

ALDEN F. ABBOTT

 General Counsel

JOEL MARCUS 

Deputy General Counsel

MARK S. HEGEDUS

Attorney 

MICHAEL F. MURRAY

Deputy Assistant Attorney 

General

TAYLOR M. OWINGS

Counsel to the Assistant Attorney

General 

Federal Trade Commission

600 Pennsylvania Ave., NW

Washington, D.C. 20580

 

 

Case: 19-11502 Date Filed: 09/11/2019 Page: 42 of 45 
34

 

 ROBERT B. NICHOLSON

 STEVEN J. MINTZ

 Attorneys

 

U.S. Department of Justice

 Antitrust Division

 950 Pennsylvania Avenue, N.W.

 Room 3224

Washington, D.C. 20530-0001

 Phone: (202) 353-0256

 Fax: (202) 514-0536

Dated: September 11, 2019 Email: Steven.Mintz@usdoj.gov

Case: 19-11502 Date Filed: 09/11/2019 Page: 43 of 45 
CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitations of Rules

32(a)(7)(B) and 29(a)(5) of the Federal Rules of Appellate Procedure 

because it contains 6,453 words, excluding the parts of the brief 

exempted by Rule 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Rule 

32(a)(5) of the Federal Rules of Appellate Procedure and the type style 

requirements of Rule 32(a)(6) because this brief has been prepared in a 

proportionally spaced typeface using Microsoft Office Word 2007 with 

14-point New Century Schoolbook font.

September 11, 2019 /s/ Steven J. Mintz

Attorney 

Case: 19-11502 Date Filed: 09/11/2019 Page: 44 of 45 
CERTIFICATE OF SERVICE

I hereby certify that on September 11, 2019, I electronically filed 

the foregoing Brief of the United States of America and Federal Trade 

Commission as Amici Curiae Supporting Plaintiffs-Appellees with the 

Clerk of the Court of the United States Court of Appeals for the 

Eleventh Circuit using the CM/ECF system. I also sent 7 copies to the 

Clerk of the Court by FedEx next day delivery.

I certify that all participants in the case are registered CM/ECF 

users that that service will be accomplished by the CM/ECF system.

/s/ Steven J. Mintz

Attorney

Case: 19-11502 Date Filed: 09/11/2019 Page: 45 of 45