On September 17, 2019 Assistant Attorney General Makan Delrahim testified before the U.S. Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights. Mr. Delrahim’s prepared statement is here. During his testimony there was an interesting exchange between Senator Grassley and Mr. Delrahim relating to whistleblowing and antitrust violations. Senator Grassley asked Mr. Delrahim if he supports Senator Grassley’s proposed Criminal Antitrust Anti-Retaliation Act . Mr. Delrahim said he did. I may have missed it, but that is the first time to my knowledge Mr. Delrahim has expressed support for the legislation.
A little background: 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. The Senators’ bill would protect whistleblowers in criminal antitrust cases by prohibiting employers from retaliating against an employee who provides information to the Department of Justice regarding conduct that violates the criminal antitrust laws. Senator Grassley noted: “Just as whistleblower protections for government employees help root out waste, fraud and abuse, they can also help prevent misconduct in the private sector.” The Senate unanimously passed a similar version of the legislation in 2013, 2015 and 2017 but the bill was never even taken up by the House of Representatives. Makan Delrahim expressed his support for the bill while testifying before a United States Senate antitrust oversight hearing. He was asked by Senator Grassley:
Senator Grassley: Do you believe it [the proposed anti-retaliation legislation] would be helpful in going after antitrust violators?
Makan Delrahim: I think it would be helpful. I believe we have expressed support for the bill. I will check on that and get back to you. But I think it is sound policy that would complement and further enhance our cartel enforcement activities.
Testimony of Makan Delrahim, Assistant Attorney General Antitrust Division, U.S. Dep’t of Justice, at the Senate Judiciary Subcommittee on Antitrust, Antitrust Enforcement Oversight Hearing, September 18, 2019, available at C-Span, https://www.c-span.org/video/?464378-1/antitrust-enforcement-oversight-hearing. (47:08-47:42).
Passage of the Grassley-Leahy legislation would be a great, but modest step forward. Successful whistleblower legislation requires a second component: A potential financial award when the whistleblowers’ information results in a successful prosecution of violations of the law. I’ve posted on this topic frequently on this blog and co-authored with Kimberly Justice two short articles on the subject: It’s a Crime There Isn’t a Criminal Antitrust Whistleblower Statute, Antitrust Law Daily, April 5, 2019, http://business.cch.com/ald/ALD_Criminal-Antitrust-Whistleblower-Statute_04-05-2018_final_locked.pdf; and The Political Stars Align for a Criminal Antitrust Whistleblower Statute, Antitrust Law Daily, February 2019, http://business.cch.com/ald/ALD_Criminal-Antitrust-Whistleblower-Statute_20190208.pdf.
Thanks for reading.
Bob Connolly firstname.lastname@example.org