A Step In The Right Direction: Proposed Protection for Antitrust Whistleblowers
12/01/2012 // San Francisco, CA, USA // Whistleblower Law Firm // Jeffrey Keller // (press release)
Criminal antitrust violations, including price fixing and bid rigging, have long been considered detrimental to the competitive marketplace. That’s why they’ve also been the focus of the Department of Justice’s criminal enforcement efforts. In the 1990’s, the DOJ implemented a corporate leniency program in an effort to increase self-reporting by cartel members. A new bill introduced in Congress on July 31 to create protections for those on the inside who report criminal antitrust violations to the Department of Justice who lose their jobs, are demoted, or otherwise retaliated against for reporting violations like price fixing, market allocations, and bid rigging marks a shift in strategy on how best to enforce the antitrust laws and acknowledges the invaluable role of whistleblowers in any enforcement effort.
In introducing the Criminal Antitrust Anti-Retaliation Act, Senator Patrick Leahy (D-VT) said: “Congress must encourage employees with reasonable beliefs about criminal activity to report it by offering meaningful protection to those who blow the whistle rather than leaving them vulnerable to reprisals,” The bill is co-sponsored by Senator Chuck Grassley (R-Iowa).
“Clearly legislators have taken note that the DOJ’s corporate leniency program isn’t enough. The DOJ needs whistleblowers to help them uncover these criminal schemes. So it’s a step in the right direction,” says Jeffrey F. Keller, a founding partner at Keller Grover, a nationally recognized labor and employment law firm, and a veteran whistleblower lawyer. “We’re pleased with every step Congress takes to help protect whistleblowers against retaliation.”
The gold standard of all U.S. whistleblower law is the federal False Claims Act — legislation that dates back to the Civil War but was substantially amended during the mid-1980s. It has proven to be a stunningly successful tool in helping the government recover funds wrongfully paid because of fraud in the financial services, pharmaceutical, defense, and other industries in part because the whistleblower has a direct stake in the government’s recovery. The recently enacted Dodd-Frank whistleblower programs, which are modeled on the False Claims Act, are beginning to pay dividends in just the first year. Between the two laws, Congress has taken on fraud on the government and fraud on shareholders. The False Claims Act has led to billions of dollars in recovery of improperly paid taxpayer funds. The SEC and CFTC are already seeing important results using Dodd Frank.
The Antitrust Anti-Retaliation bill now under consideration is based on a 2011 study by the Government Accountability Office (GAO) in which antitrust lawyers and law professors broadly supported the use of whistleblower provisions to motivate individuals to come forward with evidence of improper acts. The bill would explicitly provide antitrust whistleblowers — for the first time — the means to regain their job or monetary damages, should they be subjected to retaliation for reporting their employer’s anti-competitive conduct.
“The antitrust arena is a natural place to rely on whistleblowers. And with the Criminal Antitrust Anti-Retaliation Act Congress is acknowledging the valuable role these employees could play in curbing illegal practices that can result in reduced competition and higher prices for businesses and consumers. But if Congress and the DOJ really want to root out criminal antitrust violations, they need to do more than give whistleblowers a civil remedy for when they lose their jobs. To bust open the criminal antitrust arena using whistleblowers Congress needs to employ the proven gold standard – providing whistleblowers incentives to come forward with the information.”
“Providing incentives to whistleblowers works,” says Keller, whose firm is based in San Francisco and Los Angeles. “The courts have seen it. The government agencies like the SEC have seen it. Those of us in the whistleblower bar have seen it. And the companies that have had to repay billions of dollars in ill-gotten gains have seen it. Incentives are the most effective way to encourage people who see something improper
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