Sitting en banc, the Eleventh Circuit unanimously held in SmileDirectClub, LLC v. Battle, 2021 U.S. App. LEXIS 21393 (11th Cir. July 20, 2021), that an interlocutory appeal may not be taken under the collateral order doctrine from the denial of the state-action antitrust immunity conferred by Parker v. Brown, 317 U.S. 341 (1943).
The case involved an action brought against members of the Georgia Board of Dentistry by SmileDirectClub, which offers steeply discounted orthodontic treatments. A key part of its services consisted of digital scans of patients’ teeth done by a technician who is not a dentist. The Board, a state-organized entity mostly comprised of practicing dentists, amended its rules to require that a licensed dentist be physically on the premises where the SmileDirect’s scans were taking place. Otherwise, the amended rule prohibited them.
SmileDirect responded by filing a Sherman Act antitrust case against members of the Board and others. The defendants moved to dismiss the claims against them in their individual capacities on the ground that they were entitled to state action immunity under Parker. The district court denied the motion, and the movants sought an interlocutory appeal. An Eleventh Circuit panel found jurisdiction and affirmed denial of the motion to dismiss. But the full court granted rehearing en banc to consider whether the court had appellate jurisdiction.
The opinion for the full court authored by Judge Jordan first posited that an appealable “collateral order” must (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits; and (3) be effectively unreviewable on appeal from a final judgment. The court then examined and overruled its own precedent in Commuter Transportation Systems, Inc. v. Hillsborough County Aviation Authority, 801 F.2d 1286, 1289-90 (11th Cir. 1986), which had permitted an immediate appeal of the denial of a Parker dismissalmotion. The court reasoned that Commuter Transportation had incorrectly characterized Parker as creating an immunity from trial rather than a defense to liability. The court noted that the latter characterization brought the Eleventh Circuit in line with the views of the Fourth, Sixth and Ninth Circuits.
Although all judges fully joined the opinion (an infrequent en banc outcome), there were two concurrences. Chief Judge Bill Pryor’s opinion concurred fully but emphasized that overruling circuit precedent should be a “rare step” and offered an extended discussion of the doctrine of stare decisis, perhaps with an eye on the upcoming challenge in the Supreme Court to the continued viability of Roe v. Wade. Judge Tjoflat approved the result but saw the district court’s dismissal ruling as tentative, because that court indicated that it might be reconsidered after discovery. This, too, disqualified it from collateral order status, in his view.
Posted by Tom Byrne.