DOJ Signals Renewed Focus on Officer and Director Interlocks

In a speech on May 1, 2019, the Assistant Attorney General in charge of the DOJ’s Antitrust Division announced that the DOJ is currently looking into Section 8 of the Clayton Act, which imposes limits on interlocking directorates, with a specific focus on “bringing it forward to account for modern corporate structures,” including, for instance, limited liability companies. The Assistant Attorney General did not express a definitive view on the application of Section 8 to entities other than corporations, but simply noted that the DOJ was “thinking” about these issues. The full speech is available here, and the Sullivan & Cromwell memorandum on this topic is available here. This speech followed another recent speech by a senior leader in the DOJ, which stated that the DOJ was beginning to review common ownership and interlocking directorates “more closely,” especially in concentrated markets where coordination may be easier.