So what? CAARA’s lack of financial incentive for whistleblowers to report suspected misconduct directly to the government is a good thing for companies. To capitalize on this distinction, employers should take a fresh look at their antitrust compliance policies and bolster the ways in which employees can quickly — and without fear of retaliation — alert the company (rather than the government directly) to possible wrongdoing. And here’s why this is important: robust, effective, and safe internal reporting mechanisms may allow employers to effectively identify potential antitrust concerns in the first instance and be in a position to seek leniency with the Department of Justice (“DOJ”). The DOJ’s Antitrust Division’s unique Corporate Leniency Program offers the possibility of significant benefits for companies that self-report misconduct. These benefits can be especially valuable if the Antitrust Division has already been informed about the possible misconduct from another source, such as an individual employee. Of course, should an employee report of possible misconduct result in retaliatory measures against that employee, such action could trigger a CAARA complaint.

As described in a recent article from Vinson & Elkins’ antitrust group, CAARA dovetails with the DOJ’s Antitrust Division’s policy shift to encourage corporate compliance announced in July 2019. Now, DOJ may consider mitigation credit for compliance efforts at the charging stage, as well as at the sentencing stage, of an enforcement action, and CAARA gives employers yet another incentive to detect potential misconduct in the first instance. Prompt internal detection may neutralize external whistleblowing and allow the employer to best position itself for self-reporting under DOJ’s Corporate Leniency Program.