Antitrust Whistleblower Protections

Sens. Patrick Leahy (D-VT) and Chuck Grassley (R-IA) recently reintroduced legislation that would provide, if passed, protection to whislteblowers who provide information to federal prosecutors in criminal antitrust investigations.  The proposed Criminal Antitrust Anti-Retaliation Act of 2013 (pdf file) would permit an employee to file a complaint with the U.S. Department of Labor about suspected retaliation for cooperating with the Department of Justice.  As stated by Sen. Leahy:

It would prohibit an employer from retaliating against an employee who provides information to the Department of Justice regarding conduct that violates the criminal antitrust laws, and is based on recommendations from a Government Accountability Office report released July 2011.  The bill allows an employee who believes they are the victim of retaliation to file a complaint with the Secretary of Labor, and provides for that employee to be reinstated to their former status if the Secretary finds in their favor.

This proposed protection for whistleblowers is welcome and necessary.  But it, alas, is too limited.  First, it only provides protections to those who bring information regarding criminal antitrust actions.  It should protect whistleblowers who provide information regarding civil antitrust actions too.  Second, it lacks a mechanism that would provide a financial incentive for the whistleblower to come forward.   There should be a qui tam provision as in the False Claims Act.  Or there should be the same incentive that the Dodd-Frank bill added to the securities law where the voluntary submission of “original information” relating to a violation of the securities laws to the Securities and Exchange Commission (“SEC”) that leads to the successful enforcement of a judicial or administrative action, and that results in monetary sanctions exceeding $1,000,000, will entitle the whistleblower to an award equal to not less than 10 percent, but not more than 30 percent, of the total amount of the monetary sanctions collected from the action.