DOJ and FTC Ask Fifth Circuit To Dismiss Antitrust Appeal

Monday, September 19, 2016
By Miles O. Indest, J.D./M.B.A.; Law Clerk, The Health Law Firm

On September 14, 2016, the Department of Justice (DOJ) and Federal Trade Commission (FTC) filed a joint amicus brief before the United States Court of Appeals for the Fifth Circuit, arguing that the court lacks jurisdiction to hear a medical board’s appeal of an antitrust case.  The central issue of the Fifth Circuit’s jurisdiction is whether it can hear an immediate appeal of a lower court’s refusal to dismiss a case under the “state action” doctrine.

Texas Medical Board Requires Face-To-Face Medical Visits.

In 2015, the Texas Medical Board enacted a rule that requires face-to-face contact between a doctor and a patient before the doctor can issue a prescription. As a result, Teladoc, a company that provides medical services via telecommunication devices, filed an antitrust lawsuit against the board for improperly restricting competition and telehealth services. The majority of the medical board’s members are active doctors in Texas, the FTC said.

State Action Doctrine May Protect Medical Board from Antitrust Law.

The Texas Medical Board sought to dismiss the case, arguing that its rules were protected by the state action doctrine. Under that doctrine, federal antitrust laws do not prohibit anti-competitive conduct if it (1) promotes a clearly articulated state policy to displace competition and (2) is actively supervised by the state. The lower court rejected the board’s argument, and the board appealed to the Fifth Circuit.

First, the board argued that the conduct promoted a clearly articulated state policy, because Texas law directs it to regulate and enforce professional standards of care among physicians. Second, the board presented several reasons why the conduct was actively supervised by the state, such as the fact that the Texas Governor had the power to appoint and remove board members.  

Federal Government Argues for Immediate Dismissal of Appeal.

The federal government joined Teladoc’s side, arguing that the Fifth Circuit lacks jurisdiction to even consider the merits of the board’s appeal: “There is no final judgment resolving the underlying litigation, and an order denying a motion to dismiss an antitrust claim under the state action doctrine is not immediately appealable.”

The medical board rejected the government’s position, claiming that the antitrust appeal is valid under the “collateral order” doctrine. The collateral order doctrine allows appeals from decisions that, although not final, are important enough to warrant an immediate appeal.

There is currently a federal circuit split on this issue. The Fifth Circuit has already held that the collateral order doctrine applies to some state action orders. Nevertheless, the DOJ and FTC argue that the Fifth Circuit should not follow its own precedent because that case was “wrongly decided” and is “out of step with the Supreme Court’s recent collateral order jurisprudence.”

To read the DOJ and FTC’s amicus brief, click here.

The case is Teladoc Inc. et al. v. Texas Medical Board et al., No. 16-50017.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals.

The Health Law Firm has attorneys who practice in the area of antitrust law and trade regulation. We have defended a hospital in federal court against allegations of violations of the antitrust laws, we routinely provide advice and opinion letters on antitrust and trade regulation matters, we have represented plaintiffs in law suits alleging anticompetitive behavior and violations of state and federal antitrust laws, we have given opinions on and been involved in litigation concerning the Lanham Act and the Robinson-Patman Amendments, and we routinely undertake litigation concerning restrictive covenants.

The attorneys of The Health Law Firm provide advice and representation concerning antitrust law, trade regulation, restraint of trade issues, and regarding deceptive and unfair trade practices. We routinely provide advice and analysis of proposed business ventures that include the foregoing. We have represented both plaintiffs and defendants in state court litigation and in federal court litigation in such matters.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at

About the Author: Miles Indest, J.D./M.B.A., graduated in May 2016 from Tulane University Law School and the Freeman School of Business. He has served three years as a member of Tulane Law Review and served one year as the Writing Skills Chair of Tulane Moot Court.


Kennedy, John. “Feds Say 5th Circ. Can't Hear Texas Medical Board's Appeal.” Law360. Sep. 14, 2016. Web.

Lomax, Dionne, et al. “Texas Medical Board Seeks State Action Immunity Protection in Fifth Circuit Brief.” Mintz Levin. June 30, 2016. Web.

KeyWords: antitrust lawsuit, antitrust, Texas Medical Board, Teladoc, suppression of competition, mergers and acquisitions, defense attorneydefense lawyer, The Health Law Firm, defense lawyer, Florida defense attorney

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