by that state agency is a private actor subject to Midcal’s active supervision prong. Instead, our holding that the Board is a private actor for purposes of the state action doctrine turns on the fact that the members of the Board, who are market participants, are elected by other private participants in the market. See op. at 370 (“[Wjhen a state agency is operated by market participants who are elected by other market participants, it is a ‘private’ actor.”). If the Board members here had been appointed or elected by state government officials pursuant to state statute, a much stronger case would have existed to remove the Board from the reach of Mid-cal’s active supervision prong. See FTC v. Phoebe Putney Health System, Inc., — U.S. -, 133 S.Ct. 1003, 1010, 185 L.Ed.2d 43 (2013) (<HOLDING>). I further observe that subjecting the Board
holding that notice statute applies to both municipal entities and employees of municipal entities acting within the scope of their employment holding that whistleblower act waives the states governmental immunity from suit from liability of state and local government entities holding that municipal and certain substate entities of government receive immunity from antitrust scrutiny when they act pursuant to clearly articulated and affirmatively expressed state policy to displace competition without regard to whether their activities are actively supervised by the state holding that an acceleration clause is not subject to antitrust scrutiny where plaintiffs conceded that they could be procompetitive in some circumstances but noting that noag clauses are subject to antitrust scrutiny recognizing that the state enjoys sovereign immunity in regard to tort actions unless the legislature waived immunity pursuant to a specific statute