Congress Creates New Protections for Antitrust Whistleblowers


Author: Jon Cieslak

Over a year after it was first passed by the Senate, the Criminal Antitrust Anti-Retaliation Act finally became law in December 2020. The new law protects employees who report criminal antitrust violations such as price fixing or bid rigging from retaliation.

The Act states that an employer may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against” an employee, agent, contractor, or subcontractor who reports suspected criminal antitrust violations to an appropriate authority, which includes the federal government, the employee’s supervisor, or an individual working for the employer with appropriate investigative powers (such as corporate counsel or an antitrust monitor). The Act also protects employees who participate in or assist a federal investigation of suspected antitrust violations, whether or not they acted as a whistleblower in the first instance.

If a company violates the Act, the employee must first seek relief by filing an administrative complaint with the Department of Labor. If the Department of Labor takes no action within 180 days, the employee can file suit in federal court. Remedies include (1) reinstatement of employment at the same seniority level, pay, and benefits; (2) back pay with interest; and (3) special damages, including attorney’s fees, litigation costs, and expert witness fees.

The Act has some important limitations to keep in mind.

  • Perhaps most importantly, it only applies to the reporting of criminal antitrust violations, not civil antitrust violations. According to the US Department of Justice Antitrust Division—which is responsible for criminal enforcement of federal antitrust laws—criminal antitrust violations are typically limited to “cases involving horizontal, per se unlawful agreements such as price fixing, bid rigging, and customer and territorial allocations.” This leaves a broad swath of anticompetitive conduct uncovered by the Act, such as some tying arrangements, monopolization, and many group boycotts, among others.
  • In addition, the Act does not protect anyone who planned or initiated the criminal activity. So employees engaged in criminal antitrust conspiracies cannot avoid discipline or termination by turning themselves in.
  • The Act also requires whistleblowers to move quickly if they experience illegal retaliation. Claims to the Department of Labor must be made within 180 days of the alleged violation.

Some have criticized the law for not going far enough. Many whistleblower laws—such as the Dodd-Frank Act and False Claims Act—provide financial incentives to whistleblowers, permitting them to share in a portion of the damages or fines collected by the government. The Criminal Antitrust Anti-Retaliation Act contains no such provisions, so some potential whistleblowers may remain unwilling to step forward, particularly when their evidence is marginal.

Nonetheless, the Act was welcomed by the Antitrust Division. Assistant Attorney General Makan Delrahim noted that, “[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.” While only time will tell whether the Act actually increases antitrust enforcement, potential whistleblowers can feel more confident that the law will protect them if they report criminal antitrust violations.

Image by Dmitry Abramov from Pixabay

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