Antitrust Whistleblower Protection Bill Advances in Senate

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By Alexei Alexis

The Senate Judiciary Committee advanced legislation (S. 807) Nov. 2 to protect people who risk workplace retaliation by reporting an employer’s criminal antitrust violations to the Justice Department.

The bipartisan bill, introduced by Chairman Charles Grassley (R-Iowa), would amend the 2004 Antitrust Criminal Penalty Enhancement and Reform Act to prohibit an employer from taking actions such as discharging, demoting, suspending, or harassing antitrust whistleblowers.

Individuals who believe they have been retaliated against in violation of the bill would be allowed to file a complaint with the Labor Department and ultimately a lawsuit, if the first steps fails. The committee approved the bill on a voice vote, without any amendments.

The 2004 law strengthened the Justice Department’s “leniency program,” which encourages corporations to self-report illegal cartels or other misconduct like bid-rigging and cooperate in investigations to avoid fines and punishment.

In 2011, the Government Accountability Office issued a report recommending that Congress consider adding a civil remedy for antitrust whistleblowers who have been subjected to retaliation.

Grassley’s bill, which is cosponsored by Sen. Patrick Leahy (D-Vt.), would provide such protections.

“Since we’re willing to incentivize folks to report their own bad behavior, then we ought to protect whistleblowers who report on the bad behavior of others,” Grassley said.

The Senate passed similar legislation in previous Congresses, but the House hasn’t taken it up.

“I’m hoping they will realize they need for it this time,” Leahy told Bloomberg Law. “It’s a bipartisan bill. If the Republican leadership in the House will bring it up, we know there are enough votes to pass it.”

Under the legislation, antitrust whistleblowers who allege discharge or other discrimination by an employer would be allowed to seek relief by filing a complaint with the Labor Department. If that agency hasn’t issued a final decision within 180 days, the individual could file a federal district court lawsuit.

A successful complainant would be entitled to “all relief necessary” to make the individual whole, including reinstatement with the same status, back pay plus interest, and compensation for any special damages.

Politically Desirable

Despite failed attempts in the past, the bill has a decent chance of getting through Congress and to President Donald Trump’s desk, according to Christopher Sagers, a Cleveland State University professor whose focus includes economics and antitrust law.

“It’s politically desirable to support a bill like this because a hard-core price-fixing cartel is nobody’s constituency, and you can win points for getting tough on wrong-doers without hurting your support anywhere,” he told Bloomberg Law.

The bill has the potential to boost the Justice Department’s leniency program, which is already generally regarded as a success, according to Sagers, who also serves as a senior fellow for the American Antitrust Institute, a competition advocacy group. “That is kind of a big deal in my mind,” he said.

Steven Cernak, an antitrust partner at Schiff Hardin LLP, said he isn’t yet convinced that such legislation is needed. “I don’t think we’ve had many, or any, examples where top execs were fixing prices and lower level employees knew it and were afraid to say something,” he told Bloomberg Law.

But Cernak agreed that it’s tough politically to oppose such a bill. “I can see it passing, as both political parties can use it to show themselves being tough on antitrust,” he said.

To contact the reporter on this story: Alexei Alexis in Washington at aalexis@bna.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bna.com

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