Section 8 Interlocks: Managing Increasing Enforcement Challenges

Section 8 of the Clayton Act prohibits interlocking directorates and officerships in various circumstances. In recent months, the Department of Justice has said that it will ramp up efforts to investigate what it considers to be anticompetitive board overlaps in various industries. We can expect the Federal Trade Commission to follow suit in the current enforcement environment.  In light of these recent developments, we explore below some ambiguities that exist in the application of Section 8 and discuss prophylactic steps that may help avoid possible allegations of collusion that may arise from board or officer links between competitors.

By William H. Rooney, Wesley R. Powell, Jeffrey B. Korn, Agathe M. Richard, E. Claire Brunner & Colin J. Lee^[1]

I. INTRODUCTION

The U.S. antitrust enforcement agencies (the “Agencies”) continue to pursue aggressive and novel tactics across many areas of antitrust enforcement, including merger review, criminal enforcement, and administrative proceedings and rulemaking. Among these efforts, the Antitrust Division of the United States Department of Justice (“DOJ”) has stated that it will reinvigorate enforcement of Section 8 of the Clayton Act (“Section 8”), which prohibits a practice commonly known as “interlocking directorates” – i.e. the simultaneous service by a “person” as a board member or officer of two or more competing “corporations.”^[2] In an April 2022 speech addressed to antitrust regula