On November 5 2013 the US Senate unanimously passed a bill aimed at preventing retaliation against whistleblowers who report criminal antitrust violations. The bill creates a civil remedy – the right to file a complaint with the US Department of Labour regarding any suspected retaliation – to those who cooperate in Department of Justice investigations relating to their employer's criminal price-fixing or bid-rigging activity. The bill was reported out of committee on October 31 2013, just five days earlier.

The Leahy-Grassley Criminal Antitrust Anti-Retaliation Act of 2013 amends the Antitrust Criminal Penalty Enhancement and Reform Act of 2004(1) by adding civil whistleblower protections for covered individuals(2) who provide the federal government information regarding or otherwise assist an investigation or a proceeding relating to:

  • any violation of or any act or omission the covered individual reasonably believes to be a violation of the antitrust laws; or
  • any violation of or any act or omission the covered individual reasonably believes to be a violation of another criminal law committed in conjunction with a potential violation of the antitrust laws or in conjunction with an investigation by the Department of Justice of a potential violation of the antitrust laws.(3)

Unsurprisingly, the bill limits its protection by excluding anyone who plans, initiates or attempts a violation of the antitrust laws or another criminal law in conjunction with the antitrust laws, or who obstructs or attempts to obstruct the Department of Justice.(4)

Whistleblower protection was originally recommended in a July 2011 Government Accountability Office report that studied the effect of the Antitrust Criminal Penalty Enhancement and Reform Act.(5) The report specifically noted that those who report criminal antitrust violations lack a civil remedy should they experience retaliation and suggested that such retaliation had been occurring.(6) The report also noted consensus among key stakeholders interviewed by the GAO, mainly antitrust plaintiffs and defence attorneys, who widely supported adding whistleblower protection.(7) At the time of the report, senior Department of Justice Antitrust Division officials stated that they neither supported nor opposed the addition.(8)

The bill, if it becomes law, will merely protect those not personally involved in the alleged illegal conduct from retaliation should they come forward. Although a valuable protection in many circumstances, the bill does little to incentivise the reporting itself. Other measures, including the introduction of qui tam litigation or the payment of bounties, have also been floated in the decade following the passage of the Antitrust Criminal Penalty Enhancement and Reform Act. Many believe that the addition of one of these financial incentives would also be necessary to have a meaningful impact on individual reporting of cartel activity. Neither measure is included in the bill that passed on November 5.

The bill now heads to the House of Representatives.

For further information on this topic please contact Megan Dixon at Hogan Lovells US LLP's San Francisco office by telephone (+1 415 374 2300), fax (+1 415 374 2499) or email (megan.dixon@hoganlovells.com). Alternatively, contact Daniel E Shulak at Hogan Lovells US LLP's New York office by telephone (+1 212 918 3000), fax (+1 212 918 3100) or email (daniel.shulak@hoganlovells.com). The Hogan Lovells website can be accessed at www.hoganlovells.com.

Endnotes

(1) Pub L 108-237, 118 Stat 661, 665-69.

(2) The bill defines 'covered individuals' as employees, contractors, subcontractor or agents of an employer. Criminal Antitrust Anti-Retaliation Act of 2013, S 42 113th Cong (2013), at 4.

(3) Id at 2-3.

(4) Id at 3-4.

(5) Highlights, Criminal Cartel Enforcement: Stakeholder Views on Impact of 2004 Antitrust Reform Are Mixed, but Support Whistleblower Protection. (25 July 2011), available here.

(6) Id.

(7) Id.

(8) Id.