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In brief

The US Federal Trade Commission (FTC) and the US Department of Justice Antitrust Division (DOJ) (together “Agencies“) each have recently taken enforcement actions that demonstrate renewed attention on interlocking directorates (in which individuals simultaneously serve as directors on the boards of competing companies). Interlocking directorates are prohibited under Section 8 of the Clayton Act unless one of its de minimis exceptions applies. Those exceptions are dependent upon the volume of revenues derived from products sold by the operative companies in competition with one another.

On August 16, 2023, the DOJ announced that two Pinterest directors had resigned from their positions on the Nextdoor Board of Directors in response to DOJ action.1 On the same day, the FTC announced that it had reached a consent decree related to a merger in the natural gas space (Quantum/EQT). The consent decree included a provision prohibiting an interlocking directorate.2

These actions suggest that the Agencies are increasing investigations into interlocking directorates—both as standalone investigations and as part of merger reviews. They also signal that the Agencies are willing to take an expansive view on the scope of Section 8 while simultaneously taking a restrictive view on Section 8’s de minimis exceptions. Accordingly, companies should seek counsel on any potential interlocking directorates and think carefully about whether they may continue to rely on the exceptions.

Key takeaways

  • Antitrust investigations into interlocking directorates are priorities. Both the FTC and DOJ have recently undertaken actions confirming that interlocking directorates are antitrust enforcement priorities. These actions have arisen in standalone conduct investigations by the DOJ and in a merger review by the FTC.3  
  • The Agencies will potentially apply a broad understanding of “competitive sales” when evaluating whether a de minimis exception applies. While an interlock may avoid challenge if the companies do not exceed certain de minimis “competitive sales” thresholds, the DOJ’s enforcement action against Pinterest suggests that the agency may take a broader view when analyzing whether companies sufficiently compete for purposes of Section 8 than it may take in other enforcement contexts. This follows from prior FTC guidance indicating that what constitutes “competitive sales” under Section 8 is a loosely defined term. 
  • The Agencies may view Section 8 as applying to non-corporate entities. While the text of the Clayton Act Section 8 only references “corporations (other than banks, banking associations, and trust companies),” the FTC recently took the position that Section 8 applies to interlocks involving non-corporate entities in connection with the Quantum/EQT consent decree. While not a litigated result, this decree demonstrates that the FTC believes Section 8’s application is not limited to corporations.

In depth

Section 8 legal framework

Section 8 is a civil statute that prohibits individuals from simultaneously serving as a director or officer in any two competing corporations if they are above a certain size and if none of the de minimis exceptions apply.4 Section 8 is a per se statute — accordingly, a plaintiff only needs to demonstrate that an interlock exists to establish a violation.5 

The text of Section 8 indicates that it applies to “corporations (other than banks, banking associations, and trust companies).” Federal courts have not directly addressed whether Section 8 may be applied to non-corporate entities (such as LLCs and partnerships). 

For 2023, an interlocking directorate is exempt from Section 8 when:6 

  • Either corporation has less than USD 45,257,000 in total capital, surplus, and undivided profits.
  • The competitive sales of:
    • Either corporation are less than USD 4,525,700 
    • Either corporation are less than 2% of the company’s total sales
    • Each corporation are less than 4% of the company’s total sales

The typical remedy sought and obtained in Section 8 cases brought by the federal government is injunctive relief (i.e., removing the individual from one of their positions to eliminate the interlock). While private parties are also able to pursue Section 8 claims, there has been very limited private enforcement and we are not aware of any instance where a plaintiff has successfully obtained damages for a Section 8 violation.

Recent developments

There has been a noticeable increase in Section 8 enforcement in recent years. These actions have included:

  • In June 2021, the DOJ announced that two executives of Endeavor Group Holdings had resigned from their positions on the Live Nation Board of Directors “after the Department expressed concerns that their positions on the Live Nation Board created an illegal interlocking directorate.” The DOJ noted that the two companies “compete closely in many sports and entertainment markets”.
  • In October 2022, the DOJ announced that seven directors had resigned from corporate board positions “in response to concerns by the Antitrust Division that their roles violated the Clayton Act’s prohibition on interlocking directorates”.7 
  • On August 16, 2023, the DOJ announced that two Pinterest directors had resigned from their positions on the Nextdoor Board of Directors “in response to Justice Department’s ongoing enforcement efforts against interlocking directorates.”  While few details were publicly released regarding this action, the DOJ characterized both companies as social networks. Notably, the DOJ did not disclose whether it considered or evaluated the potential applicability of any de minimis exceptions.
  • On August 16, 2023, the FTC announced that it had approved a consent order referencing Section 8 in a transaction between Quantum Energy Partners (“Quantum“) and EQT Corporation (“EQT“).9 The FTC said that the acquisition would make Quantum one of EQT’s largest shareholders and give Quantum a seat on EQT’s Board of Directors. The FTC described the two as “direct competitors” in the production and sale of natural gas in the Appalachian Basin, but released no details regarding its consideration or evaluation of any de minimis exceptions. In addition, FTC Chair Lina Khan, joined by the two other sitting commissioners, issued a statement that this enforcement action “makes clear that Section 8 applies to businesses even if they are structured as limited partnerships or limited liability corporations.” Whether federal courts will agree with the FTC’s position remains to be seen.

These actions are consistent with statements from leadership expressing the need to prioritize Section 8 enforcement, including as part of standalone investigations.10 In April 2022, DOJ Assistant Attorney General Jonathan Kanter remarked: “For too long, our Section 8 enforcement has essentially been limited to our merger review process. We are ramping up efforts to identify violations across the broader economy, and we will not hesitate to bring Section 8 cases to break up interlocking directorates.”11 The FTC articulated a similar position in its November 2022 policy statement on Section 5 of the FTC Act, in which the FTC argued it had the power to address “interlocking directors and officers of competing firms not covered by the literal language of the Clayton Act”.12

The FTC’s Section 8 enforcement against Quantum/EQT reinforces this message. Upon announcing the action, FTC Chair Lina Khan said: “Over the past year, our colleagues at the Antitrust Division have sought to reactivate Section 8 and effectively put market participants back on notice. Today’s complaint and consent order build on that effort, marking the Commission’s first formal Section 8 enforcement in nearly 40 years.”  The action, which applied Section 8 to non-corporate entities and indicated that interlocking directorates may violate Section 5 of the FTC Act, demonstrates that the FTC is seeking to expand its Section 8 enforcement.

Compliance tips

These developments highlight that the Agencies are taking a more aggressive approach to Section 8 enforcement and are looking for opportunities to evaluate situations giving rise to potential interlocks. In light of this, companies should consider taking steps to avoid Section 8 liability, such as:

  • Conduct annual analyses of directors’ and officers’ board memberships to detect any emerging Section 8 interlocks. This is especially important in industries involving organic expansion, such as technology and healthcare, where new competition may emerge quickly.
  • Expand compliance reviews to assess non-corporate entities. In light of the FTC’s recent action and the explicit statement from its Chair that Section 8 can apply to partnerships or limited liability corporations (consistent with similar public statements by DOJ leadership), broad compliance assessments should be made across business units. Assessments should include managers that serve a non-corporate entity in a capacity that could be viewed as analogous to a corporate Board of Director role. 
  • Think carefully about the scope of products and geographies when assessing “competitive sales”. For example, a 2017 FTC blog post indicated that the Agencies may take a “broad view” of competitive sales and may not require “the same market definition analysis found in other antitrust cases”.14 It is therefore important to regularly review (and potentially reevaluate) how product and service revenues are categorized and measured as part of any Section 8 compliance audit. 
  • Develop strong organizational safeguards, such as firewalls between potentially interlocked executives and procedures for directors handling competitively sensitive information. These steps are important for compliance. An actual or potential interlocking directorate—regardless of whether it violates Section 8—may facilitate, or be perceived to facilitate, a separate antitrust violation under Section 1 of the Sherman Act or Section 5 of the Federal Trade Commission Act. These safeguards should be developed and implemented even if a Section 8 exemption appears to be applicable.

1  DOJ, Two Pinterest Directors Resign from Nextdoor Board of Directors in Response to Justice Department’s Ongoing Enforcement Efforts Against Interlocking Directorates (Aug. 16, 2023).
2 FTC, FTC Acts to Prevent Interlocking Directorate Arrangement, Anticompetitive Information Exchange in EQT, Quantum Energy Deal (Aug. 16, 2023).
3 In their proposed revisions to the HSR form, it is notable that the Agencies included a requirement that parties provide details to facilitate potential Section 8 reviews. If this requirement is part of the final amendments to the HSR form, it could—and likely would—trigger more Section 8 investigations and enforcement actions.
4 15 U.S.C. § 19.
5 U.S. v. Sears, Roebuck & Co., 111 F. Supp. 614, 616 (S.D.N.Y. 1953).
6 FTC, Revised Jurisdictional Thresholds for Section 8 of the Clayton Act (Jan. 23, 2023).
7 DOJ, Directors Resign from the Boards of Five Companies in Response to Justice Department Concerns about Potentially Illegal Interlocking Directorates (Oct. 19, 2022).
8 See supra note 1.
9 See supra note 2.
10 See supra note 3.
11 DOJ, Assistant Attorney General Jonathan Kanter Delivers Opening Remarks at 2022 Spring Enforcers Summit (Apr. 4, 2022).
12 FTC, Policy Statement Regarding Section 5 Enforcement (Nov. 10, 2022).
13 Lina Khan, FTC, Statement of Chair Lina M. Khan, Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro Bedoya, In the Matter of EQT Corporation. Commission File No. 221-0212 (Aug. 16, 2023).
14 Debbie Feinstein, FTC, Have a Plan to Comply with the Bar on Horizontal Interlocks (Jan. 23, 2017).


Brian Burke is a partner in Baker McKenzie's Washington, DC office. He draws on over 20 years of experience to counsel clients on all federal antitrust issues. He assists clients in successfully navigating the merger clearance process before the US as well as international antitrust authorities. Brian also has extensive experience advising clients on civil and criminal governmental antitrust investigations, commercial antitrust litigation, antitrust compliance programs, risk assessments, and pricing and distribution policies. Brian holds multiple leadership positions in the Firm. He is a member of the Steering Committee for the Firm's North American Antitrust Practice Group, as well of the Global Antitrust and Competition Taskforces for Healthcare, Energy Mining and Infrastructure, and Consumer Goods Industries. He also serves as the co-head of the Firm's Merger-Control Task Force.


Mark H. Hamer is Global Chair of the Firm's Antitrust & Competition Practice Group, comprised of over 300 competition lawyers in over 60 offices across 43 countries. Mark has over 25 years of wide-ranging litigation experience, including first-chair roles in jury trials, bench trials and arbitrations. His primary focus is antitrust litigation. Before joining Baker McKenzie, Mark was a successful trial attorney in the Antitrust Division of the US Department of Justice. He was involved in some of the DOJ's highest-profile antitrust trials. Before joining the DOJ, Mark was a partner at another global law firm where he handled complex multidistrict antitrust class actions in courts across the nation.


Creighton Macy is the Chair of Baker McKenzie's North America Antitrust & Competition Practice Group. Creighton is recognized as a leading global antitrust practitioner.

Creighton has extensive experience representing clients in a wide variety of antitrust matters, including mergers and acquisitions, investigations by the United States Department of Justice and the Federal Trade Commission, private litigation, and counselling on issues such as antitrust compliance. Before joining the Firm, Creighton served as Chief of Staff and Senior Counsel in the DOJ Antitrust Division, working as a senior advisor to the Assistant Attorney General on civil and criminal antitrust enforcement and policy matters, as well as budget and personnel issues. During Creighton's time at the DOJ, the Antitrust Division undertook an unprecedented volume of high-profile civil and criminal matters.

Creighton began his career as a Trial Attorney in the Litigation III and Transportation, Energy, and Agriculture sections of the Antitrust Division, working on a number of notable merger and civil non-merger investigations and cases. Before rejoining the Antitrust Division as its Chief of Staff, he was a member of another global law firm's antitrust practice, where he advised clients on a wide range of US and international antitrust issues.

Creighton is consistently recognized globally for his market-leading antitrust practice with respect to high-stakes transactions, investigations, and compliance and counseling work. For example, clients have noted that Creighton “shines above the rest’ due to his first-rate cartel and merger control-related practice.’” He also regularly speaks and publishes articles relating to a variety of antitrust issues, and has been recognized many times for his contributions and thought-leadership on these issues.

Creighton is currently Co-Chair of the American Bar Association Antitrust Law Section’s Young Lawyers Task Force. In previous roles, he served as Reporter of the Presidential Transition Task Force, as well as Chair of the Trade, Sports, and Professional Associations Committee. He is highly involved in mentoring programs, including with the Antitrust Law Section, as well as Marquette University Law School, where he previously served as the DC Representative of the Alumni Board.

Creighton graduated from Marquette University, where he was an NCAA Division I Academic All-American tennis player. During his time at Marquette, he was awarded the Athletic Department’s Cura Personalis award by his peers, as well as several leadership awards. More recently, Creighton was named the Athletic Department’s Young Alumnus of the Year Award.


Dan is a senior associate in Baker McKenzie's North America Antitrust & Competition Practice Group.
Dan is an antitrust specialist whose practice focuses on merger control, civil conduct investigations, corporate counseling and compliance, and civil litigation. He advises client across a broad range of industries in matters before US and foreign competition authorities.
Dan maintains an active pro bono practice. He is also an active member of the ABA Section of Antitrust Law and is currently a Vice Chair for the Unfair Competition Committee.


Courtney DeVore is an Associate in Baker McKenzie’s Antitrust & Competition Practice Group in Washington, DC. She represents clients in a wide variety of antitrust matters. Courtney previously worked as a Summer Associate at Baker McKenzie in 2019 and 2020. She worked on antitrust and commercial litigation projects in federal and state courts across the United States. During law school, Courtney served as Editor in Chief of the Vanderbilt Journal of Transnational Law. She also worked as a research assistant for Professor Kevin Stack, focused on Election Law, and Professor J.B. Ruhl, researching environmental law. Additionally, she competed on Vanderbilt’s ABA Moot Court team.

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