The Criminal Antitrust Anti-Retaliation Act: A First Step in the Right Direction
Congress has become active in revitalizing antitrust enforcement in recent months, from repealing antitrust immunity for health and dental insurers to considering legislation to beef up antitrust enforcement.
This renewed interest in antitrust enforcement led Congress on December 8, 2020, to pass the Criminal Antitrust Anti-Retaliation Act of 2019 (the “Act”), which is the first federal statute to afford whistleblower protections to employees in the private sector who report criminal antitrust violations or assist in related federal investigations or prosecutions. With former President Trump’s signing of the legislation on December 23, 2020, it became law.
The Act prohibits employers from retaliating against whistleblowers who report criminal antitrust violations internally or to the federal government. Specifically, the Act provides that “[n]o employer may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against a covered individual” if he or she “provide[s] or causes to be provided to the Federal Government or a person with supervisory authority over the covered individual…information relating to any violation of, or any act or omission the covered individual reasonably believes to be a violation of the antitrust laws…” The Act’s definition of “covered individual” is quite broad and includes employees, contractors, subcontractors, or agents of an employer.
If an employer violates the Act, individuals who are retaliated against for reporting criminal antitrust violations are given 180 days to file administrative complaints with the U.S. Department of Labor (“DOL”). If the DOL does not issue a final decision within 180 days of the filing of the complaint, the whistleblower can file a civil action in federal court. The potential remedies for an individual who succeeds in his or her action either with the DOL or in federal court include (i) reinstatement, (ii) back pay, and (iii) special damages, including litigation costs, expert witness fees and reasonable attorney fees. The DOL recently announced that its Occupational Safety and Health Administration will oversee worker retaliation complaints filed under the Act.
In welcoming the passage of the Act, former Assistant Attorney General Makan Delrahim of the U.S. Department of Justice’s Antitrust Division stated, “[b]y incentivizing disclosures of anticompetitive conduct, the Act will strengthen the Antitrust Division’s criminal enforcement program, a cornerstone of our mission to protect the American consumer.”
Although a step in the right direction in terms of providing protections to individuals who report antitrust violations, the new legislation does not go far enough for two reasons. First, the Act applies only to criminal antitrust violations, such as price fixing and bid rigging, and does not provide protections to whistleblowers who report civil antitrust violations.
Second, in order to truly encourage individuals to report such violations, whistleblowers must be provided financial incentives. Though individuals could file a False Claims Act case and receive a portion of the monies recovered if the victim of the criminal antitrust violation is the government, there is no whistleblower monetary reward in a case in which the government is not the victim. Without the offer of a financial reward, the Act is unlikely to incentivize many whistleblowers to come forward.
What the antitrust laws need is a whistleblower program similar to that of the U.S. Securities and Exchange Commission (“SEC”). In addition to prohibiting retaliation by employers against employees who provide the SEC with information, the SEC Whistleblower Program provides monetary awards to eligible individuals who come forward with original information that leads to an enforcement action in which over $1 million in sanctions is ordered. Whistleblowers who provide such information to the agency typically receive between 10% and 30% of the money collected. During its last fiscal year, the SEC made a record 39 individual awards, totaling approximately $175 million, more than in any prior fiscal year.
Antitrust and whistleblower laws are complex, and their application is fact specific. The provisions, and potential implications, of the Criminal Antitrust Anti-Retaliation Act are no different. Potential whistleblowers should consider contacting antitrust counsel with any questions as to how the Act may affect their particular situations.
Edited by Gary J. Malone
Tagged in: Antitrust Enforcement,