Interlocking Directorates Under Section 8 of The Clayton Act: Driving a 100-Year-Old Statute Past its Limits?

The U.S. Department of Justice and Federal Trade Commission have recently announced an aggressive approach to enforcing Section 8 of the Clayton Act, which (with some exceptions) absolutely prohibits director or officer interlocks between competing corporations. This article describes Section 8’s statutory text and considers the harms to competition Section 8 seeks to prevent; outlines the U.S. agencies expanded approach to enforcement; describes how the statute’s boundaries may be tested and some recurring unsettled issues; and contributes a few thoughts regarding the future of Section 8 enforcement. Although a more aggressive approach to Section 8 enforcement can bring benefits in some circumstances, it is important that the agencies respect the limits of the statute and do not overreach.

By Nana Wilberforce, Leon B. Greenfield & Álvaro Mateo Alonso^[1]

The Biden Administration’s whole-of-government approach to competition has led to increased emphasis on several types of antitrust cases that the Department of Justice Antitrust Division (“DOJ”) and Federal Trade Commission (“FTC”) had emphasized in recent decades. Those include cases under the Clayton Act Section 8’s absolute prohibition of interlocking directors or officers among competitors in certain circumstances. In a speech in April 2022, Assistant Attorney General for the Antitrust Division (“AAG”) Jonathan Kanter stated: “[W]e are committed to litigating cases using the whole legi