¹ It is not surprising that hospitals and health care professionals represent a large percentage of the parties involved in antitrust actions. The health care industry constitutes an increasingly larger part of the United States economy. The health care industry today accounts for thirteen percent of this nation's personal consumption expenditures. 1989 ECONOMIC REPORT OF THE PRESIDENT, Table B-14, at 324 (1988) (based on 1988, third quarter figures).

² Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).

³ Section 1 of the Sherman Act provides: “[E]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1 (1982). Section 2 of the Sherman Act provides: “[E]very person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States … shall be deemed guilty of a felony … .” Id. at § 2.

⁴ See, e.g., Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2 (1984). A tying arrangement is “an agreement by a party to sell one product but only on the condition that the buyer also purchase a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.” N. Pac. Ry. v. United States, 356 U.S. 1, 5-6 (1958)(footnote omitted).

⁵ See, e.g., Ariz. v. Maricopa County Med. Soc'y, 457 U.S. 332 (1982)(maximum fee agreements agreed upon by medical foundation members were per se unlawful).

⁶ See, e.g., Konik v. Champlain Valley Physicians Hosp. Med. Center, 733 F.2d 1007 (2d Cir.), cert, denied, 467 U.S. 1210 (1984)(exclusive contract between hospital and firm of anesthesiologists challenged under numerous antitrust theories).

⁷ See, e.g., Wilk v. American Med. Ass'n, 719 F.2d 207 (7th Cir. 1983), cert, denied, 467 U.S. 1210 (1984).

⁸ See, e.g., infra notes 130-31 and accompanying text.

⁹ Maricopa County, 457 U.S. at 332; Goldfarb v. Virginia State Bar, 421 U.S. 773, reh'g denied, 423 U.S. 886 (1975).

¹⁰ See supra note 3.

¹¹ State antitrust laws generally parallel the federal statute and address similar conduct on an intrastate level. See, e.g., Texas Free Enterprise & Antitrust Act, TEX. BUS. & COM. CODE ANN. §§ 15.01-.40 (Vernon 1987).

¹² See supra note 3.

l3 Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 759 (1984)(Sherman Act contains a “basic distinction between concerted and independent action“).

¹⁴ The Sherman Act does not apply to all restraints of trade. The Act challenges only those activities which have an appreciable effect on interstate commerce. This requirement is not a barrier to plaintiffs in medical practice cases, however, because patient origin and insurance payments usually provide a sufficient interstate nexus to satisfy this prong of the test. See, e.g., Feminist Women's Health Center v. Mohammad, 586 F.2d 530, 540-41 (5th Cir. 1978), cert, denied, 444 U.S. 924 (1979).

¹⁵ It is well established that unilateral action, no matter what its motivation, does not violate the Act. See, e.g., Monsanto Co. v. Sprayrite Serv. Corp., 465 U.S. 752, 761, reh'g denied, 466 U.S. 994 (1984); United States v. Colgate & Co., 250 U.S. 300, 306 (1919).

¹⁶ In Kreuzer v. American Academy of Periodontology, the court found the required “concerted activity” because various officers and members of the American Academy of Periodontology (AAP) acted in concert to enforce a “limited practice requirement, which required a member to limit his practice to periodontics exclusively.” 735 F.2d 1479, 1482 (D.C. Cir. 1984). When a periodontist failed to meet the AAP's “limited practice requirement,” he or she was ineligible for “active membership” in the AAP and could only be granted “associate membership” Id. at 1483. Associate members could not vote or hold office in the AAP and were listed in the AAP's membership directory in a manner distinguishing them from active members. Id. at 1483 n.7. Thus, associate membership effectively conferred “second-class practitioner” status on these members. Id.

¹⁷ See infra notes 18-26 and accompanying text.

¹⁸ 435 U.S. 679 (1978).

¹⁹ Id. at 683. One canon prohibited members from providing price information to potential clients which wouid allow clients to make price comparisons among various engineers.

²⁰ See FURROW, B., JOHNSON, S., JOST, T. & SCHWARTZ, R., HEALTH LAW 502 (1987).Google Scholar

²¹ Id. at 692.

²² Id. at 682-83; see also Associated Press v. United States, 326 U.S. 1, reh g denied, 326 U.S. 802 (1945) (court treated the AP's admission rules, which allowed a member to obstruct the admission of his local competitor, as a conspiratorial “boycott” decision by its members.)

In Goldfarb, the Court noted the power that a state bar association's ethical opinions on minimum-fee schedules exerted over its members:

Goldfarb v. Virginia State Bar, 421 U.S. 773, 791, n.21 (1975).

²³ Wilk v. American Med. Ass'n, 719 F.2d 207, 230 (7th Cir. 1983)(citation omitted). In Wilk, the trial court found that the fact that the AMA had never disciplined a member for violation of this ethical rule was not controlling because “[a] principle of medical ethics is inherently a forceful mandator of conduct. No honest professional wants to risk the stigma of being labeled unethical.” Wilk v. American Med. Ass'n, 671 F. Supp. 1465, 1478 (N.D. 111. 1987). Thus, the Wilk court held that “even without coercive enforcement, … members of an association promulgating guidelines sanctioning conduct in violation of Sec. 1 [may have] participated in an agreement to engage in an illegal refusal to deal.” Wilk, 719 F.2d at 230.

This also is true with regard to standards set by standard-setting organizations. Agreements by standard-setting organizations on particular safety standards are subject to antitrust scrutiny by the court. See, e.g., American Soc'y Mech. Eng'g, Inc. v. Hydrolevel Corp., 456 U.S. 556, 571, reh'g denied, 458 U.S. 1116 (1982). However, concerted efforts to enforce, rather than just agree upon private product standards spawn more rigorous antitrust scrutiny. Allied Tube & Conduit Corp. v. Indiana Head, Inc., 108 S. Ct. 1931, 1937 & n.6 (1988)(citing Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656 (1961)).

²⁴ National Soc'y Professional Eng'rs v. United States, 435 U.S. 679, 683 & n.5 (1978).

²⁵ United States v. National Soc'y Professional Eng'rs, 389 F. Supp. 1193, 1200 (D.C. 1974).

²⁶ National Soc'y Eng'rs, 435 U.S. at 684 n.5 The Court did note, however, that the funding had not been challenged as clearly erroneous.

²⁷ 719 F.2d 207 (7th Cir. 1983), cert, denied, 467 U.S. 1210 (1984).

²⁸ Wilk v. American Med. Ass'n, 671 F. Supp. 1465, 1469-70 (N.D. 111. 1987).

²⁹ 465 U.S. 752 (1984).

³⁰ Id. at 764, 768.

³¹ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 (1986). We do not mean to imply that, if petitioners had a plausible reason to conspire, ambiguous conduct could suffice to create a triable issue of conspiracy. Our decision in Monsanto … establishes that conduct that is as consistent with permissible competition as with illegal conspiracy does not, without more, support even an inference of conspiracy.

Id. at n.21, cited in Wilk v. American Med. Ass'n, 671 F. Supp. 1465, 1489 (N.D. 111. 1987).

³² Wilk, 671 F. Supp. at 1489 (citations omitted).

³³ Id. Even though it does not appear that technically ACR was a remaining defendant, the trial court discussed whether ACR participated in the conspiracy which is relevant to this discussion. Id. at 1501-02.

³⁴ In 1963, the AMA formed the Committee on Quackery whose primary goal was to contain chiropractic medicine. Id. at 1473.

³⁵ Id.

³⁶ The AMA issued an ethical standard, Principle Three, of the AMA's Principles of Medical Ethics (AMA's Principles) prohibiting doctors from associating with chiropractors. It provided: “[A] physician should practice a method of healing founded on a scientific basis; and he should not voluntarily professionally associate with anyone who violates this principle.” Id. at 1470.

³⁷ Id. “ Associating professionally” included making referrals of patients to chiropractors, accepting referrals from chiropractors, providing any diagnostic or laboratory services for chiropractors, teaching chiropractors, or practicing together in any form. Id.

³⁸ Id. at 1474. In 1973, the AMA urged the JCAH to incorporate ethical bars against “unscientific practitioners” into hospital accrediting standards and the JCAH complied. Even after chiropractic was included under Medicare, the AMA published an article telling hospitals that JCAH accreditation might be lost if hospitals dealt with chiropractors.

³⁹ Id. at 1475. The Wilk court, however, found that these rules did not reflect a real change of position by the AMA and merely were written by lawyers in order to comply with antitrust laws. Id.

⁴⁰ Id. at 1476. The new principle provided that a physician “shall be free to choose whom to serve, with whom to associate, and the environment in which to provide medical services.” Id.

⁴¹ Id.at 1498.

⁴² Id.

⁴³ Id.

⁴⁴ Id.

⁴⁵ Id. at 1502.

⁴⁶ Id. at 1499.

⁴⁷ Id. at 1502.

⁴⁸ Id. at 1499-1500.

⁴⁹ See supra note 37 and accompanying text.

⁵⁰ Wilk, 671 F. Supp. at 1501. The court discussed the effect that ACR policies had on hospitals. JCAH hospital accreditation policies required that a hospital's radiology equipment and services be controlled by a medical physician radiologist. Id. Radiologists, most of whom belonged to the ACR, influenced hospital decisions regarding chiropractors. Id. The ACR was opposed to any hospital privileges for chiropractors; thus, radiologists following the ACR policy effectively barred chiropractors from the use of hospital radiology departments or services. Id.

⁵¹ The court did not address the issue of whether individual members of the AAOS were members of the conspiracy.

⁵² A not-for-profit corporation, the JCAH sets standards and conducts health care accreditation programs in conjunction with those standards. JCAH members include the AMA and other medical professional associations. It is governed by a Board of Commissioners, with commissioners elected from member associations of which the AMA is the dominant member, having 7 of 22 commissioners. Id. at 1489-90.

⁵³ Id. at 1491.

⁵⁴ Id.

⁵⁵ Id.

⁵⁶ Id.

⁵⁷ In May 1964, the JCAH stated that the Commission viewed chiropractors as cultists and that any hospital that encouraged cultists to use its facilities would “very probably be severely criticized and lose its accreditation.” Id.

⁵⁸ Unlike the other associations found guilty of conspiring with the AMA in its boycott against chiropractors, the JCAH had a history of categorically excluding certain groups from eligiblity in accreditation. Even before 1958, JCAH standards limited hospital staffs to fully licensed physicians. Id.

⁵⁹ Id. at 1491.

⁶⁰ Id.

⁶¹ Id. The court felt this was an appropriate goal for the JCAH because patients in acute care facilities generally need treatment by fully licensed physicians. Id. While today chiropractors can be on the hospital staffs, they still are granted only limited staff privileges. Id. The court accepted the fact that JCAH itself had no economic gain by keeping out chiropractors. This is not true of its members. The judge, however, found that the members of JCAH were not legally responsible for JCAH actions. See infra notes 63-71 and accompanying text. The court also noted that JCAH standards were largely consistent with federal law. Medicare statutes provided that patients and hospitals would be reimbursed for patient care only if the patients were admitted on the recommendation of a physician. Id. at 1491. It was not until 1972 that the Medicare statute redefined “physicians” to include chiropractors. Id.

⁶² Id.

⁶³ Id. at 1491-92.

⁶⁴ Id. at 1492.

⁶⁵ Id.

⁶⁶ Id.

⁶⁷ Id. at 1491.

⁶⁸ Id.

⁶⁹ Id. Plaintiffs relied on the membership-ratification theory articulated in Phelps Dodge Refining Corp. v. F. T. C.. The Phelps court held that the circulation of a price list to members of a trade association put recipients on notice of illegal activities and provided a basis for imposing civil liability. Id.at 1492 (citing Phelps Dodge Refining Corp v. F.T.C., 139 F.2d 393, 396- 97 (2d Cir. 1943)).

⁷⁰ Id. at 1492 (citing Moore v. Boating Indus. Ass'ns., 819 F.2d 1235 (7th Cir. 1987), cert, denied, 108 S. Ct. 160 (1987)(“there must be some evidence of actual knowledge and participa tion in an illegal scheme in order to establish a violation of the antitrust laws by a particular associations’ members“); Kline v. Coldwell Banker & Co., 508 F.2d 266, 231-33 (9th Cir. 1974), cert, denied, 421 U.S. 963 (1975)(to be liable, trade association members must have “knowingly, intentionally, and actively participated in an individual capacity in the scheme“)).

The distinction between JCAH membership and AMA membership is not readily apparent. One explanation may be the type of entities which make up each organization. The AMA is composed of independent, competing entities (doctors), while JCAH is composed of entities who are not necessarily competitive. See supra note 52. It seems apparent to the Court that if an entity is made up of independent, competing entities, that combination will satisfy the joint action requirements of Section 1. See, e.g., Arizona v. Maricopa County Med. Soc'y, 457 U.S. 332 (1982).

⁷¹ Id.

⁷² Id. at 1496.

⁷³ Id. at 1494.

⁷⁴ Id.

⁷⁵ Id. at 1496.

⁷⁶ See infra note 80.

⁷⁷ See supra notes 69-70 and accompanying text.

⁷⁸ See supra notes 70-71 and accompanying text.

⁷⁹ See supra notes 13-34 and accompanying text. Competitors may collaborate in a reasonable manner, and such activity does not violate § 1. See 7 P. AREEDA, ANTITRUST LAW § 1500, at 361 (1986).

⁸⁰ Klor's Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207 (1959); Silver v. New York Stock Exch., 373 U.S. 341 (1963), rehg denied, 375 U.S. 870 (1963).

⁸¹ “There is more confusion about the scope and operation of the per se rule against a group boycott than in reference to any other aspect of the per se doctrine.” L. SULLIVAN, HANDBOOK OF THE LAW OF ANTITRUST 229-30 (1977). The U.S. Supreme Court is reluctant to indiscriminately expand the category of restraints classified as group boycotts. See Federal Trade Comm'n v. Indiana Fed. Dentists, 106 S. Ct. 2009, 2018 (1986).

⁸² Group boycotts of competing firms serve a variety of objectives. One purpose may be to eliminate or discipline troublesome competitors, or police price-fixing agreements. GELL HORN, ANTITRUST LAW AND ECONOMICS IN A NUTSHELL 212-13 (3d ed. 1986). Another purpose may be to promote economic efficiency without being aimed, in particular, at any other group's profits. Wilk v. American Med. Ass'n, 719 F.2d 207, 213 (7th Cir. 1983). Additionally, group boycotts may be designed to advance social and moral objectives totally unrelated to business or economic interests. Id.

For example, all physicians in a city might band together to form a professional association for the purpose of improving medical practices and the public image of members. The physicians could agree, under the association's sponsorship, to abstain from the use of deceptive advertising or, for that matter, from dealing with hospitals that wasted energy or discriminated against women. Failure to abide by the terms of the agreement could be sanctioned by expulsion from the association. Because this hypothetical group would be open to all doctors and the sanction might inflict no economic penalty, the association's primary aim would not be to punish non-participating members. Rather, the goal of the association would be to reform advertising and hospital practices which would promote the group's over-all economic interest.

⁸³ Federal Trade Coram ‘n, 106 S. Ct. at 2018; Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 294 (1985)(citations omitted). Per se analysis will be applied if the challenged action falls into the category of

Northern Pac. R.R. Co. v. United States, 356 U.S. 1, 5 (1958).

⁸⁴ The classic articulation of the rule of reason standard is set forth in the opinion of Justice Brandeis in Chicago Board of Trade v. United States:

246 U.S. 231, 238 (1918). In National Soc'y Professional Eng'rs, the Supreme Court referring to the language of Chicago Bd. Trade stated that “the inquiry mandated by the Rule of Reason is whether the challenged agreement is one that promotes competition or one that suppresses competition.” National Soc'y Eng'rs, 435 U.S. 679, 691 (1978). Under the rule of reason analysis, defendants are able to present countervailing procompetitive aspects of their boycott. Federal Trade Comm'n, 106 S. Ct. at 2018 (citing Broadcast Music, Inc. v. Columbia Broadcast Co., 441 U.S. 1 (1979), reh'g denied, 450 U.S. 1050 (1981)); Chicago Bd. of Trade, 246 U.S. 231 (1918)).

⁸⁵ Weiss v. York Hosp., 745 F.2d 786, 820 (3d Cir. 1984)(quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 788 & n. 17 (1975).

⁸⁶ See infra notes 87, 92-95.

⁸⁷ 745 F.2d 786 (3d Cir. 1984), cert, denied, 470 U.S. 1060 (1985).

⁸⁸ Id. at 792, 818.

⁸⁹ Id. at 820, 820 & n.6. The court concluded that the medical staff had the right to exclude any doctor based on lack of “professional competence or unprofessional conduct” because this could be viewed as a legitimate form of industry self-regulation. Id. at 820. The Weiss court, however, held that the defendants’ conduct was aperse illegal boycott because no justification was offered by defendants that their discriminatory treatment of osteopaths was premised on “public service or ethical norms.” Id. at 820-21. In fact, the court noted that it would have been difficult, if not impossible, for defendants to contend that osteopaths lacked the necessary professional competence to be granted admitting privileges. Id. at 792 n.4, 820. One commentator has concluded that the “quality of osteopaths has for a long time been comparable to that of M.D.'s.” Blackstone, The AMA and the Osteopaths: A Study of the Power of Organized Medicine, 22 ANTITRUST BULL. 405 (1977). “Osteopathic physicians, licensed in all 50 states, employ manipulative therapy, drugs, surgery, x-ray, and all other accepted therapeutic methods in the treatment of disease and injury.” BLACK's LAW DICTIONARY 992 (5th ed. 1979)

⁹⁰ 735 F.2d 1479 (D.C. Cir. 1984).

⁹¹ Id. at 1483.

⁹² “Periodontal prosthesis” is a subfield of periodontology that is concerned with “saving teeth that might otherwise be extracted due to advanced periodontal disease.” Id. The American Dental Association does not recognize periodontal prosthesis as a dental specialty; thus, if a dentist practiced periodontal prosthesis as well as periodontology, he would not meet the AAP's “limited practice requirement.” Id. 93 Id. at 1491.

⁹³ Id. at 1491.

⁹⁴ Id. at 1482.

⁹⁵ Id. at 1490-92. The appeals court, however, found that the absence of anticompetitive intent was not determinative and remanded the case for trial on the antitrust issue. In discussing the balancing approach to be used under rule of reason, the court articulated a standard which inquired into the nexus between the questioned membership rule and its patient care rational. Id. at 1494. Implicitly, the court's standard requires an inquiry into the motivation behind an asserted patient care rationale. The court must determine whether the rationale genuinely promotes the quality of patient care or is simply a pretext for promoting the economic interests of the member of the professional association. Although the appeals court remanded the case on the antitrust issue, the decision on remand is not reported.

⁹⁶ Wilk v. American Med. Ass'n, 719 F.2d 207 (7th Cir. 1983).

⁹⁷ Id. at 227.

⁹⁸ Id.

⁹⁹ wilk v. American Med. Ass'n, 671 F. Supp. 1465, 1484 (N.D. 111. 1987).

¹⁰⁰ id. at 1481.

¹⁰¹ Id.

¹⁰² Id.

¹⁰³ Id. at 1483.

¹⁰⁴ Id. at 1481-83.

¹⁰⁵ Id. at 1481.

¹⁰⁶ Id. at 1482. The new AMA principles provided that a medical physician “shall be free to choose whom to serve, with whom to associate, and the environment in which to provide medical services.” Id. at 1476.

¹⁰⁷ Id. at 1483.

¹⁰⁸ Id.

¹⁰⁹ Id.

¹¹⁰ Id.

¹¹¹ Id.

¹¹² Id.

¹¹³ Id.

¹¹⁴ Koefoot v. American College Surgeons, 652 F. Supp. 882 (N.D. 111. 1986)(Supp. memo opinion & order 1987).

¹¹⁵ See infra notes 154-61 and accompanying text.

¹¹⁶ 652 F. Supp. 882 (N.D. III. 1986)(Supp. Memo Opinion & Order 1987).

¹¹⁷ Id. at 884.

¹¹⁸ Id.

¹¹⁹ Id. at 889.

¹²⁰ Id. at 889-91.

¹²¹ Id. at 891.

¹²² Id. at 891-92.

¹²³ 513 F. Supp. 532 (E.D. La. .1981), rev'd, 686 F.2d 286 (5th Cir. 1982), rtv'd, 466 U.S. 2 (1984), on remand 764 F.2d 1139 (5th Cir. 1985).

¹²⁴ Id. at 543-44.

¹²⁵ Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2 (1984).

¹²⁶ Id. at 25 n.41 (emphasis added).

¹²⁷ 476 U.S. 447(1986).

¹²⁸ Id. at 449-50.

¹²⁹ Id. at 451.

¹³⁰ Id. at 452.

¹³¹ Id.

¹³² Id. at 464.

¹³³ Id.

¹³⁴ See, e.g., Kreuzer v. American Acad. Periodontology, 735 F.2d 1479, 1493 (D.C. Cir. 1984). It is necessary to evaluate the economic impact of group exclusionary tactics beyond the asserted intent of the boycotting group because these tactics have different purposes, and some of these purposes are not inconsistent with public policy. Whatever the intent and no matter how genuine the intent is, a boycott may nonetheless injure the victim of the boycott and therefore injure competition.

¹³⁵ 42 U.S.C. §§ 11101-11152 (1988).

¹³⁶ The Act applies only to those professional review actions commenced on or after October 14, 1989. Id. at § 11111(c)(1). States may choose to opt in before 1989, in which case the Act will apply at an earlier date. Ai at § 11111(c)(2)(A).

¹³⁷ The term “professional review action” means an action or recommendation by a professional review body based on the competence or professional conduct of an individual physician which could affect adversely membership in a professional society or the clinical privileges of a physician. Id. at § 11151(9).

¹³⁸ The term “professional review body” means a health care entity and the governing body or any committee of a health care entity which conducts professional review activity. Id. at § 11151(11). The term also includes any committee of the medical staff of such an entity that is assisting the governing body in a professional review activity. Id. For a definition of a health care entity, see infra note 141.

¹³⁹ The standards are specified in 42 U.S.C. § 11112(a) and include requirements that actions be taken upon a reasonable belief that the action is in furtherance of quality health care with adequate notice and hearing procedures afforded to the physician. Id. at § 11112(a)(1), (3).

¹⁴⁰ The following entities are immune from liability: the professional review body, any person acting as a member or staff to the body, any person under a contract or other formal agreement with the body, and any person who participates with or assists the body with respect to the action. Id. at § 11111(a)(1).

¹⁴¹ Health care entities are defined in 42 U.S.C. § 11151(4)(A). The term “health care entity” does not include a professional society that, within the previous five years, has been found by the Federal Trade Commission or any court to have engaged in anticompetitive practices which had the effect of restricting the practice of licensed health care practitioners. Id. at § 11151(4)(B). This means that health care associations, such as the AMA after the Wilk decision, do not receive immunity for possible liability after conducting peer review activities. On the other hand, it appears that because the AMA is not a health care entity, it would not fall under § 11133(a)(1)(c), which requires the reporting of such activity by professional societies.

¹⁴² Id. at § 11133(a)(1).

¹⁴³ Id. at § 11133(a)(1)(C).

¹⁴⁴ Id. at § 11151(9)(A)-(E).

¹⁴⁵ In this hypothetical, the author is assuming that the AMA has not been found guilty of engaging in anticompetitive activity within the last five years. See supra note 141.

¹⁴⁶ See supra note 137.

¹⁴⁷ U.S. CONST, amend. I.

¹⁴⁸ Black, The Bill of Rights, 35 N.Y.U. L. REV. 865, 874, 879 (1960).

¹⁴⁹ Elrod v. Burns, 427 U.S. 347, 360 (1976).

¹⁵⁰ Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n N.Y., 447 U.S. 557, 561 (1980).

¹⁵¹ See, e.g., Virginia State Bd. Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).

¹⁵² Central Hudson, 447 U.S. at 561-66. In order for commercial speech to fall under the protection of the First Amendment, it must first concern lawful activity and not be misleading. Id. Commercial speech can be regulated by time, place and manner restrictions. Virginia State Bd. Pharmacy, 425 U.S. at 770-71. In addition, the State has a strong interest in insuring that the speech is truthful and legitimate, and thus the state can regulate to attain these goals. Id.

¹⁵³ Id.

¹⁵⁴ Id.

¹⁵⁵ Id.

¹⁵⁶ Id.

¹⁵⁷ Id.at 561-62.

¹⁵⁸ Id.

¹⁵⁹ Standard Oil v. F.T.C., 340 U.S. 231, 249 (1951).

¹⁶⁰ See infra notes 161-78 and accompanying text.

¹⁶¹ See infra notes 169-70 and accompanying text.

¹⁶² Id.

¹⁶³ 365 U.S. 127 (1961), reh'g denied, 365 U.S. 875 (1961).

¹⁶⁴ Id. at 129.

¹⁶⁵ id.

¹⁶⁶ Id. at 131.

¹⁶⁷ Id. at 135.

¹⁶⁸ Id. at 140.

¹⁶⁹ Id. at 144.

¹⁷⁰ Id. at 138-39.

¹⁷¹ Id. at 144.

¹⁷² Id.

¹⁷³ 381 U.S. 657 (1965).

¹⁷⁴ Id. at 659-60.

¹⁷⁵ Id. at 660.

¹⁷⁶ Id.

¹⁷⁷ Id. at 669 (quoting Eastern R.R. Conference v. Noerr Motors, 365 U.S. 127, 138, 140 (1961)).

¹⁷⁸ Cal. Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).

¹⁷⁹ 663 F.2d 253 (D.C. Cir. 1981), cert, denied, 455 U.S. 928 (1982).

¹⁸⁰ Id. at 256.

¹⁸¹ Id. at 259-60.

¹⁸² Id. at 256.

¹⁸³ Id. at 256-57.

¹⁸⁴ Wilk, 1987-2 Trade Cas.’ (CCH) at 58,734, 58,760 (1987). The letter stated: [T]hey [the Board of ACP] would … be distressed to find that the government was considering the inclusion of this nonscientifically based form of practice under Medicare and Medicaid … The College, I am sure, would agree with the Statement of Chiropractic adopted by the American Medical Association's House of Delegates in 1966.

Id.

¹⁸⁵ id.

¹⁸⁶ Id.

¹⁸⁷ Id.

¹⁸⁸ id. at 58,761.

¹⁸⁹ Id. at 58,762.

¹⁹⁰ Id.

¹⁹¹ Id.

¹⁹² Id. at 58,763.

¹⁹³ 108 S. Ct. 1931 (1988).

¹⁹⁴ Id. at 1942.

¹⁹⁵ Id. at 1934.

¹⁹⁶ Id. at 1937.

¹⁹⁷ Id. at 1935.

¹⁹⁸ Id.

¹⁹⁹ id. at 1936.

²⁰⁰ Id. at 1938-39.

²⁰¹ Id. at 1937.

²⁰² id.

²⁰³ In Allied Tube, the defendant was motivated by a desire to lessen competition and stood to gain substantial economic benefits which would make it difficult for others to compete. Id. at 1941. The Court admitted the difficulty of drawing the line between anticompetitive political activity that is immunized despite its commercial impact, and anticompetitive commercial activity that is unprotected despite its political impact. Id. at 1941 & n.10.

²⁰⁴ This is not actually an exception to the Noerr-Pennington doctrine. Under these circumstances, the Noerr-Pennington doctrine simply is not applicable. The courts, however, refer to it as a “sham exception”. See, e.g., id. at 1941 & n.10.

²⁰⁵ See supra note 203 and accompanying text.

²⁰⁶ Justice White wrote the dissenting opinion, joined by Justice O'Connor. Allied Tube, 108 S. Ct. at 1942.

²⁰⁷ Id.

²⁰⁸ Id. at 1943.

²⁰⁹ Id.

²¹⁰ Id. at 1944.