The U.S. Department of Justice has again signaled its willingness to hold corporate boards accountable for breaking the law.
On Wednesday, it announced that seven directors at five companies resigned after the DOJ raised concerns about antitrust violations. The directors in question were in potential violation of Section 8 of the Clayton Act, an obscure century-old law that bans executives from serving on the boards of competing companies.
“Competitors sharing officers or directors further concentrates power and creates the opportunity to exchange competitively sensitive information and facilitate coordination—all to the detriment of the economy and the American public,” Jonathan Kanter, assistant attorney general of the Justice Department’s Antitrust Division, said in a statement on Wednesday.
The 10 companies found to have problematic interlocked board members included Maxar Technologies and its competitor Redwire, Skillsoft and Udemy, and Solarwinds and Dynatrace.
Senator Elizabeth Warren applauded the DOJ’s report, writing on Facebook, “Corporate executives shouldn’t advise competing companies while having access to their sensitive information, which over time can result in higher prices.”
Susan Divers, a lawyer and former compliance officer, who is now the director of thought leadership at LRN consulting, sees the DOJ’s announcement as part of a larger pattern that boards can’t afford to ignore.
Divers points out that Deputy Attorney General Lisa Monaco also recently vowed that the DOJ would “impose financial sanctions on employees, executives, or directors whose direct or supervisory actions or omissions contributed to criminal conduct.” At the time, Monaco was referring to a federal crackdown on compensation packages awarded to wrongdoers—but the point is that directors are on the DOJ’s radar. “There hasn’t been a major case holding directors personally liable for corporate criminal behavior,” says Divers, “and I think this DOJ would like to be the first DOJ team to bring a specific prosecution against specific directors for malfeasance.”
Enforcing the Section 8 law is unlikely to produce that kind of a splashy case. The antitrust complaint might lead to bad press, but board members who are flagged for their potential conflicts usually voluntarily resign, as the directors did this week, before they’re forced to step down and the company is fined. However, Divers thinks the Section 8 push will have a chilling effect on questionable board relationships, which she says are not uncommon.
Notably, the companies named in this week’s news were all tech players, and several directors who resigned were from investment firms. (Venture capitalists and private equity firms are also prohibited from having board representation at a company when it invests in a rival organization.) “There’s clearly intentionality there on the part of the DOJ to say, ‘We want you to clean things up,’” says Divers. Kanter has already indicated he has private equity companies and their roll-up practices in his crosshairs.
“From a prosecutor’s point of view, the nice thing about Section 8 is you don’t have to prove anything actually happened,” Divers adds. The rule is known as a strict liability provision, which means “the mere fact that if you’ve got two people on a board and one comes from a competitor or represents a VC that invests in competitors, you’re guilty.”
Lila MacLellan
lila.maclellan@fortune.com
@lilamaclellan
Word of Advice
“The lesson for all is to converge before evolving. You have to become part of a team before you can start to change it, whatever your mandate [is]. In the best case, you will have some supporters and some detractors, with the majority watching to see what you do. Jumping straight in before you fit in is always risky.”
—George Bradt, consultant and Forbes contributor, on the fall of British Prime Minister Liz Truss.
On the Agenda
👓 Read: Running afoul of antitrust laws isn’t the only reason it’s a bad idea to sit on multiple boards.
🎧 Listen: Erika James, dean of the Wharton School and an organizational psychologist, explains how to tell if you’re a “prepared leader” and what that means in Fortune’s Leadership Next podcast.
📖 Bookmark: McKinsey’s annual Women in the Workplace report spotlights burnout, so-called broken rungs, and the various reasons women leaders are exiting jobs at record rates.
Onboard/Offboard
ShakeShack named Lori George Billingsley, former global chief diversity, equity, and inclusion officer for Coca-Cola, to its board of directors. Sonder’s CFO Sanjay Banker is stepping down from his executive position and will join the short-term housing firm’s corporate board on Jan. 1. Moody’s appointed Jose Minaya, CEO of asset manager Nuveen, a TIAA Company, to its board. Loretta Reynolds, a retired 3-star lieutenant general in the U.S. Marines Corps, became a director for U.S. Bancorp. Sanjay Gupta, chief marketing officer and chief digital officer at mortgage lender Guaranteed Rate, joined the Steelcase board. Cameron Winklevoss, one-half of the Winklevoss twins and cofounder of the cryptocurrency exchange Gemini, resigned as a director of the company’s European board amid other changes. Just don’t call his resignation “news.”
In Brief
- In a first, the U.S. surgeon general warned that a toxic workplace is bad for your health.
- Office occupancy rates hit a post-pandemic high across the U.S., including in New York.
- Elon Musk reportedly plans to slash Twitter's workforce by 75%.
- Hyundai is investigating claims about child labor at a metal stamping plant it controls in Alabama.
Editor’s pick
Bloomberg’s review of John Mack’s memoir, Up Close and All, is a trip. Cherry-picking the snappiest quotes and most memorable scenes from the book, writer Max Abelson brings the Wall Street legend’s imperfect legacy and now unfashionable leadership style to life. He also calls out Mack’s selective memory. The memoir “has little time for morality or even politics,” Abelson writes.
Here’s a snippet:
“Mack sees himself as ‘an incorrigible prankster,’ which means pouring sand into desk drawers up to the rim, screwing salmon sushi into a phone’s mouthpiece for a few days, sneaking car transmissions into neutral from the passenger seat, and getting into a colleague’s bed at night while he’s in the bathroom.
But his behavior elsewhere does not give the sense of lightheartedness. He spots a worker wearing denim shorts to the office on a Friday and follows him to his desk so he can report him to his boss, and tells a low-level employee who calls Mack over Memorial Day weekend that he’ll fire her if it’s not worthwhile. At Credit Suisse, where he works between his Morgan Stanley stints, the cost-cutter known as Mack the Knife helps fire 10,000 people to trim expenses. Inside his Morgan Stanley office, he keeps a sculpture of a head with a spike between the eyes: ‘I like to throw people off-balance.’ He does apologize, though, for screaming at a colleague who missed work to dress up as Santa Claus for kids.”
Read more about Mack’s history here, and have a nice weekend.
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