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Beyond Section 8 - Addressing Director Interlock Issues

Michael Wise, Charles Malaise, Sebastian Landry Fain, and Vishal Mehta

Since 2022, the DOJ and FTC have expressed heightened concern about potential coordination between companies that can result from one entity appointing directors for two competing companies or one person simultaneously serving on boards of two potential competitors.  While Section 8 of the Clayton Act is one tool that the agencies have used to address this concern, the antitrust issues can be more complex than the text of this particular statute, which focuses exclusively on eliminating problematic interlocks.  So far, most of the agency focus has been on enforcement actions that have required various directors to resign their positions, but financial exposure has been limited.  Nevertheless, concerns about influence and information exchange at the board level have persisted, and we can expect that there are more developments in this area on the horizon. 

With all of this in mind, this panel explores the broader scope potential antitrust considerations that come into play when considering board appointment rights, potential benefits and pitfalls of appointing directors, and practical steps companies can take to avoid risks when making new investments.  Our panelists share their experiences working as an outside antitrust counsel, an in-house counsel, and corporate transactional advisor, navigating these important issues.