Ruling on state-action immunity is sufficiently similar to one on qualified immunity to be the subject of interlocutory appeal as a collateral order. (This is a "binding alternative holding.")
Pro forma acceptance of Dental Board's rulemaking by the state's executive is insufficient active supervision by the government to shield the Board from antitrust claims under the state action doctrine; similarly, such acceptance of the rulemaking does not make the change an act of the sovereign, which would be shielded from suit ipso facto.
Concur / Joined in full:
Denial of state action immunity is a question of the interpretation of the Sherman Act, not one of constitutional right, and can be addressed after final judgment, especially in cases involving private parties. Circuit split flagged.
Dissent:
As the lower court reserved judgment on the state action immunity claim for summary judgment, when the record would be more fully developed, the denial is insufficiently final, and the order risks contradiction by subsequent development of the record prior to summary judgment.