This month, the U.S. Senate unanimously approved proposed legislation which would protect whistleblowers who alert authorities or their employers to suspected criminal antitrust activity (referred to as the Criminal Antitrust Anti-Retaliation Act of 2013). This bill would amend the Antitrust Criminal Penalties Enforcement and Reform Act of 2004 (“ACERPA”) and follows a 2010 report by the U.S. Government Accountability Office (“GAO”) which found “wide support for adding anti-retaliatory protection” to ACERPA. ACERPA encourages self-reporting of antitrust misconduct with the promise of leniency for cooperators in parallel civil proceedings. ACERPA is perceived by some in its present form as protecting wrongdoers who cooperate in civil actions brought against them, while affording no protection to whistleblowers who experience negative effects for reporting the same type of conduct.

Companies are already familiar with anti-retaliatory rules in other contexts (like Sarbanes-Oxley), and the same general framework would apply here. Employers, as always, should tread cautiously and involve counsel in situations where a whistleblower is involved. Under the new bill, a company’s actions, through its employees or agents, might increase the company’s legal risk exposure if a whistleblower believes that he or she has been discriminated against in connection with providing information about, or assisting the government in pursuing, potential antitrust misconduct.

Highlights of the bill:

Who does the bill protect?
Employees, contractors, subcontractors, and agents of the employer. “Employer” includes a person, corporation, association or any officer, employee, contractor, or agent of a corporation or association as defined in the Clayton Antitrust Act of 1914.

How does the bill define retaliatory conduct?

Discharging, demoting, suspending, threatening, harassing or in any other manner discriminating against the whistleblower because the whistleblower:

• Provided to the employer or federal government information about an actual or perceived violation of antitrust laws or another criminal law (if allegedly committed in conjunction with a violation of antitrust laws or Department of Justice investigation); or
• Filed, testified or otherwise assisted in an investigation or proceeding filed or about to be filed relating to an actual or perceived violation of antitrust laws or another criminal law (if allegedly committed in conjunction with a violation of antitrust laws or Department of Justice investigation).

How would a whistleblower enforce the statutory protection?

• By filing a complaint with the Secretary of Labor; and
• If the Secretary has not issued a final determination within 180 days, by filing a complaint in federal district court.

What are the proposed remedies for whistleblowers who establish retaliation?

• Reinstatement with the same seniority status the whistleblower would have had but for the discrimination;
• Back pay with interest; and
• Compensation for special damages including litigation costs, expert witness fees and reasonable attorneys’ fees.