All A-Board? Not so Fast: Private Equity and Family Offices Should Take Note of New Thresholds for Clayton Act Prohibition on Interlocking Directorates

In this short insight piece, authors Rebecca A. D. Nelson, David B. Schwartz, Paul A. Barrs & Darren E. Ray (BCLP) look at the Federal Trade Commission’s revised 2026 thresholds for interlocking directorates under Section 8 of the Clayton Act. They explain that Section 8 broadly prohibits a person from serving as an officer or director of competing companies, applies a near–strict liability standard, and is adjusted annually based on changes in gross national product.

The authors note that enforcement agencies have significantly expanded their interpretation of Section 8 in recent years. These expansions include treating “persons” as encompassing firms and investors, extending coverage to board observers without voting rights, and applying the rule to non-corporate entities such as LLCs. As of January 16, 2026, Section 8 applies only where each competing entity exceeds an updated jurisdictional threshold of approximately $54.4 million in capital, surplus, and undivided profits.

The authors further outline the statute’s de minimis exceptions, which exclude situations where competitive overlap is minimal based on specific sales thresholds. Given heightened enforcement—particularly against private equity and investment firms—the BCLP Team stress the importance of proactive compliance, including regular reviews of board and officer roles, and careful legal analysis when pursuing industry-focused investment strategies…

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