Senate Considering Antitrust Whistleblower Protections Again

The bipartisan bill promoting whistleblower protections for individuals reporting antitrust violations, the Criminal Antitrust Anti-Retaliation Act (“CAARA”), is back in the Senate.

The law is co-sponsored by Senators Charles Grassley (R-Iowa) and Patrick Leahy (D-Vermont). On November 2nd, S. 807 advanced out of the Senate Judiciary Committee and the next step would be a vote by the Senate. Two years ago, the bill was adopted by the Senate unanimously but did not receive a vote in the U.S. House of Representatives.

The law amends the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 to provide covered individuals compensatory damages (reinstatement, backpay and special damages including litigation costs, expert witness fees and reasonable attorney’s fees) through a lawsuit.

The bill requires an individual who is discharged or otherwise discriminated against in violation of the law to file a complaint with the Secretary of Labor within 180 days of the date on which the violation occurs. If the Secretary of Labor has not issued a final decision within 180 days, and other conditions are met, the claimant can bring an action in the appropriate district court of the United States. This procedure mimics the procedure of some other employment law statutes.

The law protects reports of what a covered individual reasonable believes to be criminal antitrust conduct in violation of Section 1 or Section 3 of the Sherman Act made to a member of Congress or a federal regulatory or law enforcement agency. The law also covers various acts related to assisting a Federal Government investigation or proceeding, including testifying in it or otherwise assisting.

The law does not provide protections to individuals that planned and initiated a violation of the antitrust laws, another criminal law in conjunction with the violation of the antitrust law, or an obstruction or attempted obstruction of an investigation by the Department of Justice.

One thing that the law does not do is offer rewards to antitrust whistleblowers. In the past, whistleblower protections have in some instances been a precursor to subsequent adoption of a whistleblower reward program. Most recently, the Motor Vehicle Safety Whistleblower Act, adopted as part of the FAST Act, was preceded by the Moving Ahead for Progress in the 21st Century Act (MAP-21).

We’ll continue to post updates to the progress on CAARA as we find them.