The Department of Justice (DOJ) recently took the uncommon step of submitting an amicus brief to weigh in on a motion to dismiss. TIKD Services, LLC v. The Florida Bar, No. 1:17-cv-24103 (S.D. Fla. filed Nov. 8, 2017), Dkt. 115. Specifically, the DOJ intervened to clarify whether the analysis set forth in the Supreme Court’s decision in North Carolina State Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), about which we wrote here and here, applied to the Florida Bar’s attempts to regulate a new technology that simplifies contesting a traffic ticket in Florida.

In TIKD Services, the plaintiff TIKD developed a cellphone app for drivers who receive a traffic ticket. The app allows the user to upload the ticket, pay a fixed fee and contest the ticket without having to appear in court. Although the app developer is not an attorney, the user’s case is assigned to one of a network of independent attorneys licensed in Florida, and the user and the attorney enter into a separate representation agreement.

TIKD’s complaint alleges that after TIKD launched its app, the Florida Bar, The Ticket Clinic (a network of 300 attorneys that specializes in traffic defense) and lawyers affiliated with The Ticket Clinic violated Section 1 of the Sherman Act by conspiring to restrain competition from TIKD. According to the complaint, lawyers affiliated with The Ticket Clinic lodged, and the Florida Bar entertained and investigated, several baseless complaints alleging that TIKD and its attorneys were engaged in the unauthorized practice of law. Also, the Florida Bar issued a Bar Staff Opinion that a hypothetical business model similar to TIKD’s “raises ethical concerns regarding fee splitting with a nonlawyer, solicitation, indirect attorney client relationships, the unauthorized practice of law and financial assistance to nonlawyers.” TIKD Compl., Dkt. 1 at 18. TIKD further alleges that the Florida Bar has refused to correct misinformation spread by The Ticket Clinic lawyers, and refused to cooperate with TIKD’s attempts to show that it is not engaged in the unauthorized practice of law.

The Florida Bar moved to dismiss TIKD’s complaint. The Florida Bar argued that it “is an agency of the State of Florida, an arm of the Florida Supreme Court, specifically authorized to conduct investigations of the unlicensed practice of law.” Dkt. 17 at 1. Thus, the Florida Bar is a sovereign entity entitled to antitrust immunity under the state action doctrine recognized in the Supreme Court’s decision Parker v. Brown, 317 U.S. 341 (1943), and not a non-sovereign entity subject to the requirements set forth in Dental Examiners. Dkt. 17 at 4-9.

The DOJ disagreed and, because the United States is “principally responsible for enforcing the federal antitrust laws,” filed an amicus brief to protect its “strong interest in their correct application.” See Dkt. 115 at 1. The DOJ noted that Parker’s state action doctrine applies only when a state legislature or state supreme court acts under the state’s sovereign power. But states often delegate authority to regulate professions, such as law or medicine, to non-sovereign actors controlled by members of the profession. That delegation does not convey state action immunity for all the non-sovereign’s anticompetitive acts. Rather, as confirmed in Dental Examiners, the non-sovereign entity’s acts are immune from antitrust liability only if those acts satisfy the Midcal requirements: 1) the agency’s acts are taken as part of a clearly articulated state policy intended to restrict competition acts, and 2) the agency’s acts are actively supervised by politically accountable state officials. Dental Examiners, 135 S.C.t at 1114 (incorporating the so-called Midcal requirements from Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980)).

TIKD’s complaint plainly alleged that the Florida Bar is controlled by market participants, not legislators or members of the Florida Supreme Court. Thus, the DOJ argued that the Florida Bar must be analyzed as a non-sovereign actor subject to the requirements set forth in Dental Examiners. The 11th Circuit case primarily relied on by the Florida Bar addressed an action directed at the Florida Supreme Court – an actual sovereign entity not subject to Dental Examiners – not the Florida Bar, and is therefore distinguishable.

To support its argument, the DOJ cited the amicus brief submitted by the Florida Bar itself in Dental Examiners. The Florida Bar, joined by three other state bars, warned the Supreme Court that if it held that the North Carolina Board of Dental Examiners was not a sovereign entity, then state bars would similarly lack antitrust immunity and “will have to defend expensive antitrust suits.” Dkt. 115 at 7. Of course, the Supreme Court did find the North Carolina Board of Dental Examiners to be a non-sovereign entity, so the Florida Bar’s own amicus brief effectively concedes that the Florida Bar is a non-sovereign entity subject to Dental Examiners.

Ultimately, the DOJ took no position on whether the Florida Bar satisfied the requirements from Dental Examiners. But the DOJ’s participation in the TIKD Services motion to dismiss suggests that the DOJ is taking an active interest in courts applying Dental Examiners rather than simply rubber-stamping actions by non-sovereign actors.