Antitrust Matters Episode 4: The Whistleblower
Antitrust Matters provides engaging and timely conversations about competition policy in the digital age. Antitrust has always mattered to consumers and businesses, and to antitrust lawyers and economists, but today it also is in the political and public discourse more than ever. From the prices we pay for food, travel, financial services, payments to the way we interact daily using digital apps and platforms, antitrust touches each and every one of us in ways we may not even realize. Antitrust Matters brings you you perspectives of experts and visionaries in the field who discuss where antitrust law has been, where it is going and why it is so important to our current political discourse.
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Episode Transcript and Show Notes:
Welcome to Antitrust Matters, a Constantine Cannon podcast, where we have engaging and timely conversations about competition policy in the digital age. My name is Jeff Shinder, and I’ll be your host. Antitrust has always mattered to consumers and businesses, but today it is also in the public discourse more than ever. From how we get our food on our plates, to how we travel, to the way we interact daily using digital apps and platform, antitrust touches each and every one of us in ways we may not even realize. In Antitrust Matters, we bring you perspectives of experts and visionaries in the field who discuss where antitrust law has been, where it is going, and why it matters today more than ever before.
Today, we are joined by Mary Inman, a partner in our whistleblower group, and Kris Soltes, an associate in our antitrust group who also specializes in the intersection between antitrust law and whistleblowing.
First of all, I welcome you both to the pod. It’s great to have you, and Mary, if I may open the bidding, if you will, by having you say a little bit about yourself, our whistleblower practice and the importance of whistleblower law and whistleblowing generally, why it’s important.
Thank you so much, Jeff, for having me on the podcast, and Kris also for shepherding us through this important topic. One of the best parts about joining Constantine Cannon was where our practices intersect, in terms of this is a firm that’s well established in the competition antitrust space. It was only logical that we would add at a whistleblower practice, because whistleblowers are often the best tools for exposing criminal competition law violations. They are also often the conscience of a corporation, or of an organization. So, I have the distinction of heading our international whistleblower practice. I’ve practiced as a whistleblower specialist for over 25 years, and I specialize exclusively, as does our whistleblower practice at Constantine, in helping whistleblowers bring information to government agencies who pay whistleblowers for that information. So, we’re kind of like matchmakers, and matching up the fantastic sources that whistleblowers are with the agencies who vitally need that information to help their enforcement efforts.
So, while we often say we’re like women in a medieval court, we don’t have subpoena power, but we are whispering in the ears of people with power. So, our whistleblowers provide information to the people who can actually act upon it. So, it’s really great in watching what our whistleblower clients can do in basically unlocking an investigation, opening an investigation with government, and providing what essentially is a roadmap to the fraud from the inside out.
Thanks, Mary. That’s fascinating, and obviously near and dear to all of our hearts. So, on this podcast, Antitrust Matters, let me ask you, why are whistleblowers so important, not just generally, but specifically also in the antitrust context? Is there something about antitrust that makes the need for whistleblowers particularly paramount?
Yeah. So, whistleblowers generally are important because it’s very difficult for government regulators to find out about fraud. So, we do a lot of Medicare fraud cases where it’s difficult for the TMS, for our centers for Medicare and Medicare services, to come from the outside and figure out if what amounted to misspelling was actually intentional or not. It’s all the scienter piece. And so, just generally, whistleblowers can tell you, because they have a bird’s eye view of what was actually happening on the ground within the organization, it can provide that scienter, that knowledge piece, that a prosecutor vitally needs to prove a Medicare fraud case.
Turn that over to antitrust, it’s even more important, because in the antitrust context, we all know that cartels in particular, and other anti-competitive activity, often only happens in dark, smoke-filled rooms, back rooms, that are for a very closed tight group of people by definition. So, it is very difficult to unpack. And so, I think whistleblowers are particularly vital in competition and antitrust law because of the nature of the criminal enterprise of colluding on prices, or trying to stifle the movement of workers, and other competition law events. So, I think that’s one of the most important ways, because how else do you break a cartel, but from the inside?
So, Mary, if you could talk about different approaches. You mentioned that your specialty is international whistleblower law, to providing incentives to whistleblowers, and different regimes have different approaches to this. Are there things happening outside the US in the whistleblower sphere and competition law that would be of interest, that could potentially inform what we do in the US? And then, we’ll talk about some of the things that are being discussed in the US.
Sure. So, we started about four and a half years ago. We officially planted a flag via our London office by opening our whistleblower practice there, recognizing what we saw from the SEC’s data. So, the Securities and Exchange Commission has as a result of and in the wake of the financial crisis adopted a whistleblower reward program. And they have some really fascinating statistics, but what really prompted the opening of our London whistleblower practice was looking at the data that the SEC provides to Congress annually, which they’re required to do under Dodd-Frank. They track the number of whistleblowers outside of the United States who provide tips. And just this past year, 20% of the whistleblowers who received rewards came from outside of the United States, from five separate continents.
So, we thought there would have to be—and they actually particularly identified the United Kingdom as you can imagine—another financial center would be another big source of potential whistleblowers. The UK often has the largest number of whistleblower tips coming. So, it just seemed like a natural extension for us, and we have not been disappointed. Since pulling up our flag there, we’ve received enormous amounts of tips from around the globe. There’s something about being an American firm that stepped outside and put a flag in Europe to attracting whistleblowers from all the different continents, because we’re not just US-focused. We’re clearly internationally focused.
You were really asking more about antitrust, and I wanted to take that opportunity to talk about what for the firm has been our most exciting intersection of our two practices, which is our South Korean whistleblower. So, we have a south Korean whistleblower who was able to work with both the DOJ criminal and civil, and he brought a False Claims Act case. He basically launched a lawsuit in the name of the government, because he had inside information about bid rigging. The victim of the bid rigging was against the United States government. The Defense Department had put out to bid a fuel supply contract to fuel our military bases in Korea, and this individual knew about five separate companies engaging in bid rigging that inflated the prices on those contracts.
So, I love to focus on that one because it shows that, how extraordinary is it that someone from South Korea knew, a whistleblower from South Korea knew, that they could bring information to the United States government, and be shepherded in doing that, and basically unlock a case that resulted in the largest antitrust False Claims Act settlement of $363 million.
So, I think cartels are hard to detect in the United States. They’re even harder to detect outside of the United States. And also, maybe in countries where “pay to play” has been a little more accepted culturally. So, it has been a real pleasure to know that the success of the whistleblower programs in the US, word has spread. Success begets success, and some of these great cases have really been a calling card for the US programs globally to attract people, to let them know that we’re out there, and that the United States government values whistleblowers so much that they will pay them a guaranteed percentage of any recovery.
That’s fascinating, and I think a great example that encapsulates why inside protection is so important, especially in the antitrust context. I’m not sure how this case would have broken any other way, from what I understand. And so, let me bridge that with your international experience. What are some of the different philosophies and methods by which various jurisdictions around the world kind of protect and incentivize whistleblowers, like the example that you just gave?
Yeah. So, the United States has spearheaded the efforts to pay whistleblowers a percentage of the recovery as a way of incentivizing them to come forward. So, we are a leader in, one of our first original programs is the False Claims Act. It basically helps whistleblowers bring information to the US government. Actually, you can launch a lawsuit in the name of the US government if you know about misappropriation on government contracts. So, that was the tool used in this cartel-busting case, and what I think is so interesting, right, is that the victim of the fraud is the United States government. But we know in antitrust cases that’s the only intersection of our two practices. We don’t have a statute that allows whistleblowers, unless the government is a victim, to bring that information and receive payment.
So, I just wanted to underscore that. But the United States, because the False Claims Act has been so successful in allowing whistleblowers to not just provide a tip to the government, which we’re going to talk about a little bit later with the SEC program, our IRS program, our CFTC program, or Commodity Futures Trading Commission, a lot of agencies pay whistleblowers a tip mandatory as a percentage of, if the information they give them helps them spur an open investigation and impose – and engage in an enforcement action and impose a fine.
The False Claims Act lets that whistleblower actually launch the lawsuit in the name of the government, which is a remarkable power that really we only see in the United States. We have seen Canada replicate our SEC type program, our tip type program. The Ontario Securities Commission has a whistleblower program now. They’ve paid out $8.5 million to whistleblowers in the four or five years since creating it.
But it’s really extraordinary to think about a country in the United States, where we basically make and deputize whistleblowers as private attorneys general. And one of the advantages that has, and that’s something we could talk about, was that applicable in the antitrust context, is it really allows whistleblowers to be a force multiplier. And not just the whistleblower, but the law firms who represent them.
So, one of the things that’s fascinating about the False Claims Act in particular is, it’s a very bipartisan legislative effort. So, traditionally Republicans love the idea of, and Senator Grassley has been sort of the grandfather of the False Claims Act, loves the idea of incentivizing, privatizing, giving a private incentive to law firms like ours, to help whistleblowers bring these cases and sort of nip at the heels of the government, and make sure that we’re bringing additional resources to bear, and bring bringing the principles of free enterprise.
So, the Democrats, on the other side, like the idea of going after big corporations and exposing fraud, and of course, no one is pro tax fraud. Everyone wants our taxpayer dollars to be used appropriately. So, it’s a real interesting area where there’s this confluence, but I think one of the most significant pieces of it, and why where we’ve seen the power of the whistleblower statute under the False Claims Act, is that it allows law firms like ours to help the government when you’re bringing massive bet the company type cases, right? We’re helping the United States government currently go after United Health Group, one of the largest health insurers in the world. We’ve been engaged in 10 years of litigation. That’s not something that – The government has its own team, but they actually get the resources of our firm and other firms to help them engage in the sort of trench warfare that becomes litigation in some of these massive cases.
So, that’s just a very long-winded way of saying that the United States leads the way in not only just False Claims Act type cases. There are actually 31 states, in addition to the federal government, that also have False Claims Act statutes that allow whistleblowers to bring cases and launch them in the name of the state of New York, for instance. There’s 31 states and there are eight municipalities.
So, this is clearly something that works, but just to give you one statistic, from 1987 to 2020, the United States government has collected over $46 billion as a result of lawsuits, False Claims Act cases initiated by whistleblowers, and those whistleblowers have received $7.7 billion in rewards. So, that’s basically a 15% finder’s fee. Strikes me as a very good return on investment for the United States government to pay that amount as a way of attracting these whistleblowers to come forward. And it’s these successes of the False Claims Act cases that actually inspired the SEC and these other agencies, the CFTC, IRS, to actually say, hey, we also want to get in on the act and empower whistleblowers, because they’re one of our number one enforcement tools.
So, the United States has expanded its programs based on their first program. The success of the False Claims Act has spawned this whole expansion, both in 31 states for other False Claims Acts, but also in all of these agencies now, including most recently FinCEN for money laundering violations, all the way. So, we now have six separate agency programs.
So, success begets success, but we are still pretty rare. There aren’t that many countries outside the United States that take a similar approach. What is ironic is that in the one place where we should be having mandatory whistleblower rewards, which is in the antitrust space, our market regulator doesn’t have a mandatory whistleblower reward program, although Senator Klobuchar has introduced legislation. But there are countries, there are six countries outside the United States, that actually do pay whistleblowers. They pay them a very small amount, but Slovakia, the United Kingdom, Hungary, Pakistan, South Korea, and Peru, their competition authorities all have devices that pay whistleblowers, whereas the United States does not. So, that just seems to be, to turn on its head this idea that United States is a leader in all areas, except for antitrust.
Mary, if I may, forgive me for interrupting, but this raises an interesting question. So, as I understood what you just said, the False Claims Act encourages whistleblowers to come forward with information with respect to fraud against the US government and file lawsuits for the government. And that fraud could include antitrust activity that constitutes fraud. And so, the South Korean case was an example of that. Do I have that right? Because you’re the expert.
Yes, absolutely. As long as the United States is the victim of the fraud, right? So if the bid rigging was for a United States government contract, so the Department of Defense was harmed by it, then yes, the False Claims Act works.
So, that’s the only way, just because getting back to the irony you called out, there are other enforcement bodies in the US that have their own regimes, and as you characterize it, have gotten in on the whistleblower action, but not the antitrust agencies, either it be FTC or the Department of Justice. There is no specific antitrust whistleblower statute. So, this frames the question, why do you think that is? And could you talk a bit about the efforts underway to address that, and which, do you like any of them? Do you think they go far enough? If you could speak to, first, do you have a sense as to why that is, why there’s a sort of gap with whistleblowing that doesn’t reach antitrust specifically, and only indirectly through the False Claims Act? And then, if you could talk to what’s on the table in Washington, that would be great.
I think that there’s been a… You guys are certainly more expert in this, but my supposition is the fact that the antitrust laws have contemplated a leniency and amnesty type program, that that has somehow, that the legislators, folks in Congress have not seen that coexist well with whistleblower incentives. So, I think they may have thought that it’s duplicative when it really isn’t.
So, with a leniency program-based approach, you’re really only inviting people who are complicit to bring the information forward, and in exchange for that, you’re hopefully given some sort of a leniency. So, you come in first, and you talk about your wrongdoing and that of the other people you colluded with, and in that way, you’re supposed to come forward, and there was a sense that that was an effective enforcement tool.
I don’t know why that was perceived as being exclusive of, that whistleblowing somehow doesn’t dovetail nicely with that, because it really, really does, and that leniency-only approach leaves out an enormous proportion of sources who are the people who are not complicit who have information, right? There’s tons of people in companies who know about cartels, price rigging, big rigging, that don’t necessarily have unclean hands. So, why would we want to exclude what we have seen from all of these other agencies is a massively effective tool in bringing these people forward?
So, that’s my supposition about why. I think it’s just misguided. And I know that there was recently, in the past few years, a report from the GAO that basically showed that the leniency program hasn’t been as effective in getting people to come forward and help enforcement as it should be. So, my hope is that that fact that it’s been a little bit lackluster, the program for amnesty and leniency, it just opens a door for why wouldn’t you put in an injection of energy into this by deputizing whistleblowers and financially incentivizing them to come forward?
So, currently there’s two pieces of legislation. Amy Klobuchar, Senator Klobuchar’s bill CALERA, the Competition and Antitrust Law Enforcement Reform bill that she introduced in February of ’21, that would seek to pay whistleblowers up to 30% if they’re able to bring information to the regulators about violations of the Sherman Act, so criminal antitrust violations.
I think that could go a long, long way to really helping what we all are wanting to see in this moment, where we know that antitrust is sexy again, and when we look at what’s going on with big tech and with whistleblowers like Francis Haugen at Facebook and other things. If you’re going to ask whistleblowers to put so much on the line, which is potential career blacklisting, the psychosocial impacts that we’ve seen from gaslighting, and all the things that happen to whistleblowers. When you’re a whistleblower, you almost become radioactive. Often you lose your peers, your friends at work, and you’re often stigmatized or retaliated against.
So, whistleblowers need not just the retaliation protections, which I know did get passed in 2020 with the enactment of the Criminal Antitrust Anti-Retaliation Act. That’s good, but that’s only one piece of the equation. Whistleblowers need not just protections against retaliation, because it’s sometimes very difficult to prove retaliation, and the success of whistleblowers in, and that only gives you back pay and whatever the detriment is as to that one employer. But what rewards do is basically create a safety net for what ultimately could be career-long loss.
So, that’s why Senator Klobuchar’s bill is so important, is it builds on the CAARA, Criminal Antitrust Anti-Retaliation Act, which only got us half the way there to providing information that would… providing protections that would lure whistleblowers to undertake an act that can often be career suicide. The second piece of that is that you really need to be able to pay them rewards.
So, I think that the CALERA bill would be a game changer for antitrust enforcement in the way that it has similarly been for the SEC. And so, I think we’re at a pivotal moment where if that legislation were to pass, we would start to see numbers that the SEC sees now, where this program, the Dodd-Frank whistleblower program has been in existence for 10 years now. They started out getting something like 3000 tips a year, and this year they have 12,000 tips. They’ve paid out $1.2 billion in awards to 230 whistleblowers, and those whistleblowers have helped them impose monetary sanctions of over $5 billion. So, it went from an agency, the SEC, more of a backwater, lesser-known agency, to having whistleblowers around the world giving them tips to basically supercharge and superpower their enforcement agents.
So, I would love to see that legislation pass. That would be huge on my 2022 wish list. I know the FTC also has a similar piece of legislation right now. I’m less impressed with that, because the awards that they’re proposing for both consumer violations and consumer protection, this would be within the FTC, Federal Trade Commission would pay whistleblowers, but it’s a discretionary program, which means that it’s not guaranteed that the whistleblower would receive the reward.
And what we’ve seen in the context of the SEC, before Dodd-Frank, the SEC had a discretionary program. In 11 years, they only paid out close to $160,000 in awards. And that’s like night and day compared with the Dodd-Frank regime, once it’s mandatory. And that’s because whistleblowers hate uncertainty, right? You’re not going to put, when you have so much at risk, you’re not going to do that. You’re not going to come forward unless there’s a guarantee that if the information you give is original information and it’s valuable, it helped the government in imposing a fine or starting an investigation, then you will receive that reward. It’s mandatory, not discretionary. So, much more happy with Amy’s bill than with the FTC bill.
So, I’ll jump in here. Let’s say the US does what it should do, it implements CALERA, a mandatory incentive program for whistleblowing in the antitrust context. You mentioned that when the SEC did something similar, the number of cases reported just kind of mushroomed. Is that something we can expect to see in the antitrust case? Is there kind of like a general increase in a race to whistleblowing when we see these protection and incentive measures passed? What do you expect?
Yeah, we’ve actually seen some empirical data that shows that whistleblowers are far more likely to report in programs where they’ll receive a reward than in context where there’s no reward provided. So, there’s been research done that demonstrates the fact that if you provide retaliation protection, which we already have from CAARA, and then you add in a reward program, you’re going to lure whistleblowers out. And that’s just not the case if you don’t provide those things. So, absolutely you will see that. If past is prologue, you will absolutely see that.
The other thing that will happen is a really interesting phenomenon, which is that there’s a deterrent effect that happens within organizations. Once it’s clear that you understand that if your colleagues are incentivized to receive a reward for reporting on that cartel type conduct, you’re more likely to report defensively, because you realize there’s more exposure for you, that it’s not just the fear. It used to be a very low fear that people have in organizations, that the government, from the outside looking in, would detect it, because right? Cartels are very difficult to detect.
But when you inject the element of an insider, who’s properly incentivized, who under the SEC program, for instance, can remain anonymous. We’ve had clients who helped the SEC, receive a check, and still are within the organization, and no one’s the wiser. Then that creates an environment where people start to blow the whistle defensively, because they want to be the first through the door and potentially receive the reward, and the fact that the government wants to applaud people who come forward voluntarily, as opposed to people who come forward once an investigation has been launched and now they’re all subpoenaed.
So, I think you’d see an increase in good Samaritan whistleblowers who are doing it because it’s the right thing to do, and now have that added push of the financial safety net that a reward provides, but also, the more pragmatic whistleblowers, who say, I’ve got to do it to protect myself because of the potential risk that I might get exposed by someone in the cubicle next to me.
Okay, Mary, so I have one final topic/question for you, which is, you mentioned that we do not have an antitrust whistleblower statute. We have statutory protections against whistleblowers in the antitrust context. We’re halfway there, but we do not have a statute of rewards whistleblowers to come forward. So, the question is, how likely is it that in Washington, where legislators have trouble, frankly, tying their shoelaces and getting anything done, that this type of statute could get passed? And how likely is it that the states might step into the breach and pass their own statutes? Since we have, you mentioned the False Claims Act statutes at the state levels. So, how likely is it that this kind of thing, these kinds of bills can actually get passed in the United States?
Actually, I think we’re at a really opportune moment in the antitrust space for getting Senator Klobuchar’s bill, or bill like it, passed. And that’s because of the unique moment we are in in the United States as a nation, with increasing level of discomfort with the concentration of power in big tech. And I think that’s what we’ve been seeing with… And the fact that it was actually a Facebook whistleblower, there are multiple whistleblowers, that the whistleblower was a very well-resourced whistleblower, was one of the individuals to actually bring all of this forward to cause the amount of scrutiny that Congress is placing on it right now. So, I feel like the Biden administration has an emphasis right now on this very issue, but I think really, the Facebook example, and as a country, our level of discomfort with the way that that Facebook and its holding of information can impact our democracy, I think we’ve reached an inflection point where people want to take action.
So, it strikes me that this is… Where there’s a desire on the part of Congress to, bipartisan desire, especially on the bipartisan issue, which should be free enterprise as the Magna Carta of free enterprises, antitrust law. I would think that this is the time, because of… And whistleblowers are the people to be doing it. So, it’s just a really… And all you need to do is look at the data that we’ve talked about a little bit already, the success, unbridled success of the SEC, CFTC, IRS, and other programs. It just makes it a no brainer that why is antitrust being left out? Why is the FTC and other regulators prosecuting with one hand tied behind their back when they don’t need to? Why aren’t we injecting them with this resource?
So, I think now is absolutely the time. But I love your second question, which is, and if the feds don’t do it, what’s the role for the states? Or if the feds do it, how about the states going with a me too? We have seen something similar, and our whistleblower practice has been involved in helping the national association of securities regulators. So, basically, the group’s called NASAA, has put together model legislation on how state governments can actually put in their own version of the SEC legislation. It hasn’t been adopted yet, but it certainly could be.
And so, I think one of the areas, the best area I can give as an example for states empowering whistleblowers to help them with their regulatory missions, is the state of New York has a False Claims Act that allows whistleblowers who know about tax fraud to actually launch cases where there’s evasion of New York tax obligations. And it’s been an amazing device, and it’s been one of the most successful, because most of the other states have carve outs in their False Claims Act, saying whistleblowers can come and deal with government fraud, except we are not going to let them do tax fraud. New York had that exception, put this in there, and has had some really amazingly strong cases brought, they’re able to bring because whistleblowers gave them the roadmap to the tax evasion.
And that, in turn, has put the pressure on the IRS agency, when there’s been a fraud that crosses both federal tax and state tax, that if the IRS hasn’t been acting, the fact that New York has actually gotten and imposed a fine for that exact same behavior, as it relates to New York taxes, really puts pressure. It’s a peer pressure environment.
So, I would love to see states getting in on the antitrust game, because it puts pressure on the federal regulators to also do something for conduct that overlaps. So, the states have a really vital role to play. I’m not sure what the equivalent is in the antitrust states to NASAA, the national association of securities regulators, but I’d love to talk to them about putting some model legislation together that includes paying whistleblowers, protecting them against retaliation, allowing anonymous reporting, and protecting them against retaliation for even internal reporting, not just external.
That’s great, Mary. Fascinating across the board, and we really enjoyed having you here. I have just some thoughts that I want to throw in before we conclude, on some things you’ve said. I particularly enjoyed and agreed with your perspective on the complementarity of leniency and whistleblower statutes. The notion that there’s somehow intention does not make any sense to me. In fact, leniency is all about, it will encourage someone to come forward first to get protections, and the other co-conspirators will then feel the full force and weight of the US government going after the cartel. I would think that possibility, and leniency only works if you’re bringing information that the government doesn’t know. Once a whistleblower comes forward, the ability to use leniency as a way to protect your company is eliminated. So, I can see a complementarity between the two. So, their intention, I completely agree with your perspective on that.
Just to wrap, but two other things that you just spoke to so well. The inflection point, I agree with you. We are at an important inflection point. What’s happening with Facebook and the whistleblower coming forward with Facebook, and how powerful a moment that is in Washington, which matters so much in our politics, that moment, and is important when you kind of marry it up with, there is a bipartisan, a kind of strange bipartisan consensus around doing something in antitrust. I call it strange because unlike in the whistleblower sphere, it usually is Republicans want to shut down antitrust enforcement. Democrats would prefer to invigorate it. But the reality of the last 40 years is both Democratic and Republican administrations have embraced an enforcement methodology, the Republicans in more extreme ways, that has allowed corporate concentrations to exist.
For political reasons, the Republicans do want to do something. For what I consider more pure reasons from a competition policy standpoint, Democrats do. So, something may happen, and Senator Klobuchar’s bill seems to be directed in the most thoughtful attempts to articulate an approach. The states have a role. You mentioned New York. New York has anti monopoly legislation that is pending, that could be groundbreaking. It would be great to see New York also get into the whistleblower game, in terms of having a whistleblower, an antitrust whistleblower component to that statute, which I’m not aware of has been a part of that.
So, really, really interesting. You are so good that we are going to have you back, so congratulations. We got you an extra bouquet. But this has been great. I want to thank you both. Kris, it was great having you. Kris will be periodically part of the pod, so it was good having you, Kris. And Mary, always a pleasure.
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