§19 — Title 15 Commerce and Trade | U.S. Code

Summary

A person may not serve at the same time as a director or officer of two companies if both do business in commerce and are competitors in ways that would make an agreement between them illegal under the antitrust laws. It is allowed, however, if the competing sales of either company are less than $1,000,000 (adjusted as explained below), or if the competing sales are less than 2 percent of that company’s total sales, or if the competing sales of each company are less than 4 percent of each company’s total sales. Whether someone is eligible is based on each company’s capital, surplus, and undivided profits (not counting declared but unpaid dividends) at the end of its last fiscal year. For this rule, an “officer” means someone chosen by the board of directors. The $10,000,000 and $1,000,000 dollar amounts are adjusted up or down each October 1 for changes in gross national product starting after September 30, 1990, and the Federal Trade Commission will publish the new amounts by January 31 each year. If a person was allowed to serve as a director or officer when they were elected or chosen, a later change in the company’s finances or affairs will not make them ineligible until one year after the event that would cause ineligibility.

Title 15, §19

Commerce and Trade — Source: USLM XML via OLRC

(a)(1)No person shall, at the same time, serve as a director or officer in any two corporations (other than banks, banking associations, and trust companies) that are—

(A)engaged in whole or in part in commerce; and

(B)by virtue of their business and location of operation, competitors, so that the elimination of competition by agreement between them would constitute a violation of any of the antitrust laws;

(2)Notwithstanding the provisions of paragraph (1), simultaneous service as a director or officer in any two corporations shall not be prohibited by this section if—

(A)the competitive sales of either corporation are less than $1,000,000, as adjusted pursuant to paragraph (5) of this subsection;

(B)the competitive sales of either corporation are less than 2 per centum of that corporation’s total sales; or

(C)the competitive sales of each corporation are less than 4 per centum of that corporation’s total sales.

(3)The eligibility of a director or officer under the provisions of paragraph (1) shall be determined by the capital, surplus and undivided profits, exclusive of dividends declared but not paid to stockholders, of each corporation at the end of that corporation’s last completed fiscal year.

(4)For purposes of this section, the term “officer” means an officer elected or chosen by the Board of Directors.

(5)For each fiscal year commencing after September 30, 1990, the $10,000,000 and $1,000,000 thresholds in this subsection shall be increased (or decreased) as of October 1 each year by an amount equal to the percentage increase (or decrease) in the gross national product, as determined by the Department of Commerce or its successor, for the year then ended over the level so established for the year ending September 30, 1989. As soon as practicable, but not later than January 31 of each year, the Federal Trade Commission shall publish the adjusted amounts required by this paragraph.

(b)When any person elected or chosen as a director or officer of any corporation subject to the provisions hereof is eligible at the time of his election or selection to act for such corporation in such capacity, his eligibility to act in such capacity shall not be affected by any of the provisions hereof by reason of any change in the capital, surplus and undivided profits, or affairs of such corporation from whatever cause, until the expiration of one year from the date on which the event causing ineligibility occurred.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The antitrust laws, referred to in subsec. (a)(1)(B), are defined in section 12 of this title.

Amendments

1993—Subsec. (a)(5). Pub. L. 103–203 substituted “January 31” for “October 30”. 1990—Pub. L. 101–588 amended section generally, completely revising it in form by substituting text divided into a subsec. (a) consisting of five numbered paragraphs and a subsec. (b) consisting of a single unnumbered paragraph for former provisions which had consisted of a series of five undesignated paragraphs, and in substance by increasing the jurisdictional threshold for application of the section to corporations from $1,000,000 in net worth to $10,000,000 in net worth, creating three “de minimis” exceptions to applications of the section in cases of insignificant competitive overlaps, and expanding the section to cover officers elected or chosen by the Board of Directors. 1935—Act Aug. 23, 1935, amended section generally. 1929—Act Mar. 2, 1929, amended second par. 1928—Act Mar. 9, 1928, amended second par.

§19 Interlocking directorates and officers