PRIA, Government Policy, Made Personal

Summary

It stops a person from serving at the same time as a director or officer of two competing corporations (not including banks, banking associations, or trust companies) that do business in commerce if each company has more than $10,000,000 in capital, surplus, and undivided profits (that amount is adjusted each year). The rule does not apply if the sales that compete between the two companies are under $1,000,000 (adjusted), or if the competing sales are less than 2% of one company’s total sales, or if the competing sales are less than 4% of each company’s total sales. "Competitive sales" means gross revenue last year from products or services sold in competition with the other company; "total sales" means gross revenue for the company’s last complete year. Whether a person is covered is measured by each company’s capital, surplus, and undivided profits at the end of its last fiscal year, excluding dividends declared but not paid. An "officer" is one chosen by the board of directors. Since October 1, 1990, the $10,000,000 and $1,000,000 amounts are changed each October 1 based on how the gross national product has moved since the year ending September 30, 1989, and the Federal Trade Commission must publish the new amounts by January 31 each year. If someone was allowed to serve when elected or chosen, a later change in the company’s finances does 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;

if each of the corporations has capital, surplus, and undivided profits aggregating more than $10,000,000 as adjusted pursuant to paragraph (5) of this subsection.

(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.

For purposes of this paragraph, “competitive sales” means the gross revenues for all products and services sold by one corporation in competition with the other, determined on the basis of annual gross revenues for such products and services in that corporation’s last completed fiscal year. For the purposes of this paragraph, “total sales” means the gross revenues for all products and services sold by one corporation over that corporation’s last completed fiscal year.

(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