DOJ Ramps Enforcement Towards Board Members Serving on Opponents’ Board

WHAT HAPPENED

Seven administrators resigned from company boards following guarantees of enforcement of Clayton Act Part 8 (15 U.S.C. § 19) by the US Division of Justice (DOJ), Antitrust Division (the Division), the Division announced Wednesday.
The administrators served on the boards of companies that the DOJ asserted competed in quite a lot of sectors, together with data know-how, software program, and manufacturing.

WHAT’S THE LEGAL CONCERN

Part 8 prohibits “interlocking directorates” (per se violation), which happen when the identical particular person serves concurrently as an officer or director of two competing corporations (direct interlocks) or when completely different people on boards of competing corporations act on behalf of and on the route of a single agency (oblique interlocks by deputization). In its press launch, the DOJ famous that among the interlocks arose as a result of a non-public fairness agency appointed completely different personnel to the boards of competing corporations.
The purpose of Part 8 and the DOJ motion is to lower potential alternatives for the change of delicate data between opponents and the danger of anticompetitive conduct extra typically.
Exemptions would possibly apply. There are de minimis exemptions if a) the competing gross sales are lower than $4.1 million (threshold up to date yearly); b) the competing gross sales of both company signify lower than 2% of its whole gross sales; or c) the competing gross sales of every company are lower than 4% of its whole gross sales. A cautious evaluation (much like that performed in merger evaluation) is critical to find out whether or not an exemption would possibly apply.
Not simply companies? Whereas the plain language of Part 8 refers to interlocks involving “companies,” the DOJ has acknowledged its view that Part 8 additionally covers interlocks between non-corporate entities, corresponding to LLCs (that is an open space of regulation).
Not simply the identical individual? Whereas the plain language of Part 8 states that it applies when the identical “individual” sits on the board or acts as an officer of two opponents, the DOJ interprets Part 8 broadly to imply that two completely different people appointed by a typical entity can not serve on boards of opponents as a result of the entity is a “individual” and is serving on the boards by its designees.

WHAT ARE THE RISKS

Interlocks can create important antitrust threat. Whereas the DOJ’s considerations with interlocks appear to be assuaged with the short elimination of the Company Director recognized, interlocks have served because the factual underpinning for antitrust conspiracy claims. Due to this fact, corporations needs to be proactive in eliminating problematic interlocks, because the interlock mixed with parallel motion by opponents in an trade may function the factual foundation for lengthy and expensive conspiracy investigations or litigation and will help criticism allegations to defeat a Twombly-based movement to dismiss.

ANTICIPATE CONTINUED ENFORCEMENT

Whereas the resignations are not novel, they signify a significant amplification of company responses to what Assistant Lawyer Normal Jonathan Kanter has described as “an in depth assessment of interlocking directorates throughout your entire financial system” and a promise by the Division to “implement the regulation.”
The Federal Commerce Fee (FTC) acknowledged in 2017 that it typically depends on “self-policing” with regard to figuring out interlocks; the latest messaging and motion by the DOJ marks a transparent departure within the enforcement of a traditionally quiet space of the regulation.
Enforcement on this space is anticipated to proceed. We perceive the DOJ has tasked its paralegals with reviewing HSR filings and public statements by corporations to “join the dots” to search out and examine probably problematic interlocks. The Division signaled in its press launch that it’ll proceed aggressively pursuing Part 8 claims: “Corporations, officers, and board members ought to count on that enforcement of Part 8 will proceed to be a precedence for the Antitrust Division.”
Personal fairness and enterprise capitalists, specifically, ought to stay vigilant for potential oblique or deputization interlocks in the event that they appoint administrators at competing corporations, whether or not publicly traded or privately held, which may create legal responsibility beneath a deputization principle of hurt.