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Senate Passes Criminal Antitrust Whistleblower Bill

Also contributed by Roselle Oberstein and Wendy Fu

On November 4, 2013, the Senate unanimously passed a bill that would protect antitrust whistleblowers from employer retaliation, sending the bill to the House for approval.1 The Criminal Antitrust Anti-Retaliation Act (CAARA) provides that no employer may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against a covered individual who reports a criminal violation of the antitrust laws.2 The bill protects whistleblower employees who provide information to the federal government or cooperate with investigations or proceedings related to violations, or acts or omissions the employee reasonably believes are violations of (i) the antitrust laws, or (ii) of another criminal law committed in conjunction with a potential violation of the antitrust laws or in conjunction with a Department of Justice antitrust investigation.3 Covered individuals include employees, contractors, subcontractors, and agents of employers.4

CAARA would amend the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA), which provides leniency to corporations or individuals who self-report their cartel activity to the DOJ.5 CAARA would supplement the existing law by extending protection to an individual who reports on an employer’s criminal antitrust activity to the DOJ.6

There are some limitations on the protection provided under CAARA. First, the term “violation” is construed as a criminal violation of the antitrust laws such as price-fixing and would not include civil violations such as exclusive dealing or other rule of reason violations.7 Second, CAARA does not cover individuals who (i) planned and initiated a violation or attempted violation of the antitrust laws, (ii) planned and initiated a violation of another criminal law in conjunction with a violation of the antitrust laws, or (iii) planned and initiated an obstruction or attempted obstruction of a DOJ antitrust investigation.8

The bill directs a whistleblower employee to file a complaint with the US Department of Labor within 180 days of the date of the violation. If the Secretary of Labor does not respond within 180 days of the filing, the employee may bring suit in federal court.9 Unlike other whistleblower statutes, CAARA does not provide economic incentives for reporting antitrust violations. Instead, whistleblowers may seek reinstatement, back pay with interest, and special damages such as litigation costs, expert witness fees, and attorney’s fees.10

The bill follows a 2011 report from the Government Accountability Office that recommended increased protection for antitrust whistleblowers.11 The report reasoned that anti-retaliatory measures are consistent with public policy to protect those who take risks to expose illegalities, as existing statutes lack civil remedies for retaliation against criminal antitrust whistleblowers.12 The report noted that following ACPERA there was little change in the number of leniency applications submitted by corporations and individuals. While it is difficult to determine the extent to which retaliation against whistleblowers has occurred, CAARA aims to motivate individuals to come forward with evidence of criminal cartel activity.13

Senators Patrick Leahy (D-Vt.) and Chuck Grassley (R-Iowa), Chairman and Ranking Member of the Senate Judiciary Committee, respectively, co-sponsored CAARA and authored similar whistleblower provisions in the Sarbanes-Oxley Act in 2002. The senators previously introduced CAARA in July 2012, but the bill did not pass through the committee.14

 


 

Endnotes    (↵ returns to text)

  1. Criminal Antitrust Anti-Retaliation Act of 2013, S. 42, 113th Cong. (as passed by Senate, Nov. 4, 2013), available at http://www.gpo.gov/fdsys/pkg/BILLS-113s42es/pdf/BILLS-113s42es.pdf.
  2.  Id. § 216(a)(1).
  3.  Id.
  4.  Id. § 216(a)(3)(B).
  5.  Antitrust Criminal Penalty Enhancement and Reform Act of 2004, Pub. L. No. 108-237, § 201, 118 Stat. 665 (2004) (codified at 15 U.S.C. § 1 note (2012)).
  6.  Press Release, Senator Patrick Leahy, Senate Unanimously Passes Leahy-Grassley Bill to Protect Whistleblowers in Criminal Antitrust Cases (Nov. 5, 2013), available at http://www.leahy.senate.gov/press/senate-unanimously-passes-leahy-grassley-bill_to-protect-whistleblowers-in-criminal-antitrust-cases.
  7.  Id. § 216(a)(4). This limitation to classic criminal antitrust violations is also consistent with the legislative history and with CAARA being proposed as an amendment to ACPERA. Nevertheless, there is some ambiguity in this version. A literal reading of the Act along with the Sherman Act (which technically makes all violations criminal) could lead to attempts to apply the Act to a very broad range of conduct. One hopes that the bill will be refined before consideration by the House or enactment into law.
  8.  Id. § 216(a)(2).
  9. Id. § 216(b).
  10.  Id. § 216(c). See, e.g., False Claims Act, 31 U.S.C. § 3729 et seq. (2012), which includes a qui tam provision permitting an individual with knowledge of fraud committed against the federal government to file an action on its behalf and receive a portion of any recovered damages.
  11.  Prepared Statement of Senator Chuck Grassley of Iowa, Grassley Judiciary Executive Committee Statement (Oct. 31, 2013), available at http://www.grassley.senate.gov/news/Article.cfm?customel_dataPageID_1502=47314.
  12.  See U.S. Gov’t Accountability Office, GAO 11-619, Criminal Cartel Enforcement: Stakeholder Views on Impact of 2004 Antitrust Reform Are Mixed, but Support Whistleblower Protection 45 (2011).
  13.  Id. at 46.
  14.  S. 3462, 112th Cong. (2012), available at http://www.gpo.gov/fdsys/pkg/BILLS-112s3462is/pdf/BILLS-112s3462is.pdf.