On July 24, 2019 Senators Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.), reintroduced legislation to extend whistleblower protection for employees who provide information to the Department of Justice related to criminal antitrust violations.

From the Press Release:

            “Violations of our antitrust laws hurt consumers, often in the form of less choice and higher prices. Without the help of industry whistleblowers, these sorts of violations often fly under the radar. This legislation incentivizes private sector employees to disclose criminal violations by protecting them from retaliation in the workplace after coming forward with information. It also can be a real deterrent to those who are thinking about committing fraud in the future. We’ve seen how whistleblower protections can be a real tool to helping root out waste, fraud and abuse. Just as whistleblower protections for government employees help root out waste, fraud and abuse, they can also help prevent misconduct in the private sector,”Grassley said.”

            “Our country has a proud history of working to protect whistleblowers, beginning when the Continental Congress unanimously passed the first whistleblower law 241 years ago next week, on July 30, 1778. Today I’m again joining with Senator Grassley to further those protections. It is common sense that our laws should protect those who take on significant personal risks to report criminal antitrust violations, such as price fixing. The Senate has unanimously passed this legislation three times, and Senator Grassley and I are hopeful that Congress this year will finally enact our bipartisan bill,”Leahy said.

The text of the Criminal Antitrust Anti-Retaliation Act is available here.

The bill will likely pass the Senate, which has unanimously passed four earlier versions of the bill; the last time being in 2017.  Regrettably, the House of Representatives failed to even consider any of these previous bills. I expect/hope that this time the House of Representatives will approve the Grassley/Leahy bill.  It is a good bill, but it’s only a humble start. The prospect of some anti-retaliation protection is unlikely to draw out many people to take the enormous risk of becoming an industry whistleblower.  Moreover, a large pool of potential whistleblowers in international price fixing cartels are foreigners.  The Securities and Exchange Commission just announced a $500 million award to an overseas whistleblower whose reporting helped the Commission bring a successful enforcement action (here).  Whistleblower awards are a key component of an effective whistleblower statute.

Kimberly Justice, [Freed Kanner London & Millen] and I have written several articles advocating for a more significant criminal cartel whistleblower statute that, like the SEC whistleblower statute, provides a financial award when the information leads to the successful prosecution of a cartel. Two of these articles are:

It’s a Crime There Isn’t a Criminal Antitrust Whistleblower Statute

The Political Stars Align for a Criminal Antitrust Whistleblower Statute

Some of the Cartel Caper blog posts I’ve written on the subject are:

The Bid Rigging Whistleblower

A Whistleblower Story (Hypothetical)

I’m hoping that the Grassley-Leahy Anti-Retaliation bill will pass and create momentum for more significant efforts to draw out whistleblowers who have inside information ranging from local regions bid rigging to international price fixing cartels.

Thanks for reading

Bob Connolly

Bob@reconnollylaw.com

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