SUPREME COURT NOTEBOOK

Dentists unfair to limit those offering teeth-bleaching By Mark Sherman Associated Press WASHINGTON (AP) - The Supreme Court ruled Wednesday that a state regulatory board made up mostly of dentists violated federal law against unfair competition when it tried to prevent lower-cost competitors in other fields from offering teeth-whitening services. By a 6-3 vote, the justices rejected arguments from the North Carolina State Board of Dental Examiners that it was acting in the best interests of consumers when it pressured nondentists to get out of the lucrative trade in teeth-whitening services. Justice Anthony Kennedy said in his majority opinion that the Federal Trade Commission was right to conclude that the state regulators also had a financial interest in the market for teeth-whitening. In dissent, Justice Samuel Alito warned that the decision "is likely to have far-reaching effects on the states' regulation of professions" because many boards are made up of practitioners. The court long has accepted that some actions that otherwise would raise antitrust concerns are permitted if they are done by states. The court had to decide whether the dental board was acting mainly in the interests of dentists or the public. If it was the latter, that would protect the board's decisions from complaints about unfair competition. "The Supreme Court's opinion confirms that the antitrust laws place important limits on what collusive actions private actors can take to advance their own businesses under the cloak of government action," said Jane Willis, an expert on antitrust law in Boston. Bobby White, the dental board's chief operations officer, said the court's decision would force broad changes in how regulatory boards operate. "And since all of those changes will take time (and often legislative activity), the opinion threatens to massively disrupt professional regulation," White said in a statement. In 2006, the dental board warned operators of teeth-whitening kiosks in malls and tanning salons that they were practicing dentistry without a license. The board also sent cease-and-desist letters to malls where the kiosks operated. "These actions had the intended result," Kennedy wrote. "Nondentists ceased offering teeth-whitening services in North Carolina." Customers instead had to go to higher-priced dentists who generally charged $300 to $700 for over-the-counter kits. Courts across the country have been asked to rule on similar issues. In early October, a judge in Alabama rejected a complaint against that state's dental board and upheld restrictions on teeth-whitening services as "reasonably designed to protect the health of Alabama citizens." Fisherman is off the hook for grouper-tossing By Sam Hananel Associated Press WASHINGTON (AP) - A Florida fisherman convicted of tossing undersized grouper off his boat is off the hook after a divided Supreme Court ruled Wednesday that he should not have been ensnared by a law targeting accounting fraud. In a 5-4 decision the justices threw out the conviction of commercial fishing boat captain John Yates, who was prosecuted under a law passed in the wake of the Enron scandal. Yates was convicted of getting rid of fish he had caught that were under the minimum legal size permitted in the Gulf of Mexico. A Florida fish and wildlife officer said Yates illegally dumped the smaller fish overboard to avoid prosecution. The law's anti-shredding provision prohibits destruction of "any tangible object" during a federal investigation. But Yates argued that the law was aimed at the destruction of financial documents - not fish. Explaining the decision, Justice Ruth Bader Ginsburg said that given the context and purpose of the law, it covers only objects used to record or preserve information and "does not include any and every object found on land or in the sea." "Fish one may fry, but may one falsify, or make a false entry in the sea dwelling creatures?" Ginsburg said as she read a summary of her opinion from the bench. In an unusual lineup of justices, Ginsburg was joined by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor. Justice Samuel Alito wrote a separate opinion agreeing with the result. In dissent, Justice Elena Kagan said Congress intended the law to have a wide scope to ban destruction of any physical evidence that could thwart law enforcement. "A fisherman like John Yates, who dumps undersized fish to avoid a fine is no less blameworthy than one who shreds his vessel's catch log for the same reason," she said. Kagan's dissent was joined by Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. The case began in 2007 when a Florida fish and wildlife officer discovered 72 grouper on Yates' boat that appeared to be smaller than the 20 inches permitted by law. The officer told Yates the fish would be seized once he returned to port. Once Yates returned, however, the officer found only 69 fish and many seemed longer than those he originally inspected. A crewmember later testified that Yates had ordered the undersized fish to be thrown overboard and replaced with larger fish. Yates was charged under the Sarbanes-Oxley Act of 2002, which prohibits knowingly altering or destroying "any record, document, or tangible object" with the intent to obstruct an investigation. Congress passed the law after the Enron scandal, when scores of documents were shredded to conceal wrongdoing. A federal jury convicted Yates and he was sentenced to 30 days in jail. The 11th U.S. Circuit Court of Appeals based in Atlanta upheld the conviction. In going after missing fish, critics said the government was using the law on a scale that Congress never intended. Yates argued that the phrase "tangible object" in the context of the law was limited to computers, servers or other storage devices used to preserve information. But the Obama administration said the plain language of the law included fish. It has been used in other cases where defendants destroyed a wide array of physical evidence, including human bodies, guns, drugs, cash and cars. Yates' attorney, federal defender John Badalamenti, said his client was pleased with the court's decision, though his days as a fisherman are over. "He's no longer able to fish because no boat owner will hire him since his arrest in this case," Badalamenti said. "He lost his living." Yates now earns his living finishing furniture in Holmes Beach, Florida. Published: Fri, Feb 27, 2015