Full Court dismisses appeal of antitrust immunity decision

Session in bench, the Eleventh Circuit was held unanimously in SmileDirectClub, LLC vs. Battle, 2021 US App. LEXIS 21393 (11th Cir. July 20, 2021), that an interlocutory appeal cannot be brought under the doctrine of collateral order against the denial of antitrust immunity from state action conferred by Parker vs. Brown, 317 US 341 (1943).

The case concerned an action brought against members of the Georgia Board of Dentistry by SmileDirectClub, which offers orthodontic treatment at very low prices. A key part of its services consisted of digital scans of patients’ teeth performed by a technician who is not a dentist. The Council, a state-organized body made up mostly of practicing dentists, changed its rules to require a licensed dentist to be physically present in premises where SmileDirect scans take place. Otherwise, the amended rule prohibited them.

SmileDirect responded by filing a Sherman antitrust case against board members and others. The defendants requested that the claims against them individually be dismissed on the grounds that they were entitled to immunity from state action under Parker. The district court dismissed the petition and the petitioners requested an interlocutory appeal. A panel of the Eleventh Circuit found jurisdiction and upheld the dismissal of the motion for dismissal. But the full court granted a new hearing in bench to examine whether the court had jurisdiction over appeals.

The full court opinion drafted by Jordan JA first postulated that an appealable “collateral order” must (1) conclusively determine the impugned issue; (2) resolve an important issue that is completely separate from the merits; and (3) be effectively non-reviewable on appeal from a final judgment. The tribunal then reviewed and set aside its own precedent by Commuter Transportation Systems, Inc. v. Hillsborough County Aviation Authority, 801 F.2d 1286, 1289-90 (11th Cir. 1986), which allowed an immediate appeal of the refusal of a Parker referral motion. The court found that Commuter transport had poorly characterized Parker as creating immunity from trial rather than a defense of liability. The court noted that this latter qualification brought the Eleventh Circuit into line with the views of the Fourth, Sixth and Ninth Circuits.

Although all the judges fully subscribed to the opinion (a in bench result), there were two contests. Chief Justice Bill Pryor’s opinion was in full agreement, but stressed that rescinding the circuit precedent should be a “rare step” and offered an in-depth discussion of the doctrine of watch decisis, perhaps in view of the upcoming challenge to the Supreme Court of the continued viability of Roe vs. Wade. Judge Tjoflat approved the result but ruled that the district court’s dismissal decision was provisional, as the court said it could be reconsidered after the discovery. This, too, disqualified him from collateral order status, in his opinion.