TheCorporateCounsel.net

We’ve blogged a few times about the DOJ’s enforcement sweep for problematic director interlocks under the Clayton Act. In August, the agency announced that it had secured a couple of more director resignations pursuant to this initiative. Once again, the press release casts a wide net for tips, which makes it pretty clear that the DOJ is actively looking for more violations:

Anyone with information about potential interlocking directorates or any other potential violations of the antitrust laws is encouraged to contact the Antitrust Division’s Citizen Complaint Center at 1-888-647-3258 or antitrust.complaints@usdoj.gov.

As John noted in a recent DealLawyers.com blog, the DOJ’s interlocks initiative has now led to 15 interlocking director resignations from 11 boards. Moreover, a recent FTC settlement clarifies that non-corporate entities are also in the cross-hairs.

As we look ahead to proxy season, this is a reminder to revisit this topic in your annual D&O questionnaires (or any time a new director is joining the board). Our “D&O Questionnaire Handbook” has a couple of sample questions. And if you find yourself with a director who may be considered as also serving on the board of a competitor, this WilmerHale memo from last year gives a good primer on Clayton Act exceptions and consequences.

– Liz Dunshee