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Bill would protect boards from antitrust damages

Written on May 1, 2020

OSCPA staff report

Legislation introduced in Congress last week would help ensure that members of state regulatory boards are not deterred from serving because of the potential for legal damages related to their public service.

Congressman Mike Conaway, CPA, R-Texas, on July 25 introduced the “Occupational Licensing Board Antitrust Damages Relief and Reform Act” (H.R. 6515) to protect state boards – including accountancy boards – board members and staff from damage awards.

In 2015, in North Carolina State Board of Dental Examiners v. Federal Trade Commission, the U.S. Supreme Court ruled that the North Carolina Dental Board was not entitled to “state action” immunity from antitrust laws because its actions were not actively supervised by the state.

The bill would allow both government enforcers and private plaintiffs to continue to sue for injunctive relief (and potentially recover attorneys’ fees if successful). However, for a board to obtain liability relief, the bill states that certain criteria must be met:

  • For a new occupational licensing board, the board must have undergone a sunrise review,
  • For existing boards, a periodic sunset review is required unless the occupation is licensed in at least 40 states,
  • Boards must meet two compositional criteria; specifically, that all board members must be selected by an officer of the state, and the boards must have public representation.

Ohio’s Accountancy Board already meets those criteria.  The legislation also calls for a GAO study that will look at licensing reform, how states can conduct cost-benefit analyses through sunrise and sunset reviews, how states can implement greater portability, including for military veterans and spouses; and how licensing impacts low-income workers and those with criminal records.

Conaway served for seven years as a member of the Texas State Board of Public Accountancy, with five of those years as the board’s presiding officer. In addition, he served as chair of the National Association of State Boards of Accountancy from 2002 to 2003.

The National Association of State Boards of Accountancy (NASBA) and the American Institute of Certified Public Accountants (AICPA) both announced their support of the legislation.