FTC weighs in on Teladoc's side in ongoing antitrust case

By Jonah Comstock
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Teladoc's antitrust lawsuit against the Texas Medical Board (TMB) is still a long way from over, but an amicus curie brief filed this morning in the Fifth Circuit Court shows that the telemedicine company has friends in high places: namely, the US Federal Trade Commission.

A quick refresher: Teladoc sued the TMB in state court way back in April 2015, alleging that because the board was made up of practicing doctors with a financial interest in squelching telemedicine, the board's passing of anti-telemedicine legislation constituted a violation of antitrust laws. But the medical board filed a motion asking for the suit to be dismissed on the grounds that there is, in fact, state supervision of the medical board which would make it a state agency under law and therefore immune to suit. The judge denied the motion, the medical board appealed, and now the Fifth Circuit will rule not on the case itself, but on whether to dismiss it.

Last week a number of friend-of-the-court briefs were filed with the Fifth Circuit, the most notable being a 44-page brief from the United States and the Federal Trade Commission in support of Teladoc. In the brief, the FTC argues that, first and foremost, the appeal was inappropriate and the circuit court doesn't have jurisdiction over the ruling. But the brief goes further.

"If this Court does find that it has jurisdiction, however, it should hold that the state action doctrine does not shield the TMB’s rules from federal antitrust scrutiny because the TMB did not carry its burden to show active supervision," the seven federally-employed lawyers who signed the brief wrote. "There is no evidence that any disinterested state official reviewed the TMB rules at issue to determine whether they promote state regulatory policy rather than TMB doctors’ private interests in excluding telehealth—and its lower prices—from the Texas market."

The FTC's position on this is not entirely surprising. The FTC is the group responsible for filing a lot of antitrust cases -- including the Supreme Court case involving the North Carolina Dental Board that has served as a major precedent in this case. 

Other parties that filed briefs in support of Teladoc include competitor MDLive, a group of Texas professors specializing in health law and health policy, Teladoc customer TD Industries, Teladoc partner New Benefits, and the ERISA Industry Committee, a trade group for employee benefit companies. So far no friend-of-the-court briefs have been filed in support of TMB.