Clayton Act Questions for D&O Questionnaires

Given the increased level of enforcement of Section 8 of the Clayton Act, we recommend that public companies include questions addressing potential Clayton Act issues in their D&O Questionnaires. Set forth below are two questions that we recommend public companies add to their 2022-2023 D&O Questionnaires to address potential Clayton Act issues.

Do you, or have you at any time on or after the beginning of the company’s most recent completed fiscal year, served as either a director or an officer of any business other than the Company, including non-public businesses, that had (a) total liabilities and stockholders’ equity (i.e., net worth as shown on its balance sheet) in excess of $41,034,000 as of the end of that business’s most recent completed fiscal year and (b) revenues of $4,103,400 or more attributable to business operations that could be viewed as competing with the Company because of the nature of the other business’s business operations and the geographical markets in which the other business operates? If so, please provide the name of the business in the space below.[1]

Yes      No

No person with whom I am affiliated, and no person affiliated with any entity with which I am affiliated, serves as an officer or director for any company that directly or indirectly competes with any company for which I serve as an officer or director.  Without limiting the scope of this question and in order to avoid uncertainty, this question includes situations in which you have a relationship with or act as a representative of an entity, and another person that also has a relationship with or acts as a representative of the same entity or person serves as an officer or director of another company.  For purposes of this question, “compete” includes situations in which products or services (1) may be considered by customers or by the relevant industry to be interchangeable or similar in terms of the market for such products or services, (2) share similar production techniques or methods and are sold in similar geographic markets or to similar customers or (3) could be subject to potential action under U.S. antitrust laws.  If your response is “no,” please briefly identify any affiliation, capacity and/or relationship below.

Yes      No

[1] Clayton Antitrust Act, 15 U.S.C. Sec. 8(a).  The FTC updates these amounts annually.  The most recent updates were effective January 24, 2022.