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DOJ Assistant Attorney General Weighs in on "Common Ownership" Debate

In remarks on the application of the antitrust laws to the financial sector at Fordham University School of Law, DOJ Assistant Attorney General Makan Delrahim stated that any theories concerning the common ownership debate and institutional investors must be "rooted in theories of harm" so as to be proven in court. As previously covered, the debate concerns the possible anticompetitive implications of institutional investors holding noncontrolling equity interests in competing firms.

Specifically, Mr. Delrahim advised participants in this debate to remember that:

  • theories that would inadvertently harm capital markets should be avoided; and

  • any concerns with common ownership must be supported by the law because the Antitrust Division will bring only cases that demonstrate anti-competition.

Mr. Delrahim also noted that the Antitrust Division is assessing interlocking directorates regulations and whether they should be amended to include modern corporate structures. Specifically, Clayton Act Section 8 prohibits an individual from serving as an officer or director of competing corporations simultaneously, excluding certain de minimis exceptions. Mr. Delrahim stated that the statute's use of "corporation" does not specify whether it applies to non-incorporated entities (e.g., limited liability companies). According to Mr. Delrahim, the legislative history does not confirm one way or the other whether Section 8 applies solely to corporations. However, he noted, whether a corporate entity or a limited liability company is involved, the competition analysis is the same.

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