In December of 2015, federal Judge Robert L. Pitman declined to dismiss Teladoc’s antitrust suit, holding that the TMB was not immune (as it had argued) from such claims. The decision pointed to the February 2015 Supreme Court decision, North Carolina State Board of Dental Examiners v. Federal Trade Commission, which denied sovereign immunity to the North Carolina Board of Dental Examiners. Judge Pitman found that, in the Teladoc case, the TMB could not claim sovereign immunity because the TMB was not actively supervised by the state. The TMB then appealed the ruling to the Fifth Circuit. In June 2016, two amicus briefs were filed in support of the TMB’s position—a joint brief filed by the American Medical Association and the Texas Medical Association as well as one brief filed by the Federation of State Medical Boards. The groups argued that allowing Teladoc’s antitrust suit to proceed would be detrimental to state medical boards nationwide.

Teladoc was working its own channels for amicus support. In September 2016, the Federal Trade Commission and the U.S. Department of Justice filed joint amicus briefs in support of Teladoc. The FTC and the DOJ argued that the Fifth Circuit lacked jurisdiction over the appeal because an order denying a motion to dismiss an antitrust claim under the state-action doctrine cannot be immediately appealed as there is no final judgment in the underlying claim. In a surprise move (detailed in a blog entry posted last year on this topic), the TMB voluntarily dismissed its appeal in October without giving a reason. Just two weeks later, the parties jointly requested that Judge Pitman put the litigation on hold, presumably in an effort to pursue settlement negotiations.

Click here for Judge Pitman’s full opinion.