02/12/2013 11:52:00 AM EST
Cadwalader Clients & Friends Alert: Criminal Antitrust Whistleblower Act Reintroduced
On January 22, 2013, Sens. Patrick Leahy (D-VT) and Chuck
Grassley (R-IA) reintroduced legislation to the Senate Judiciary Committee that
would extend whistleblower protections to employees who provide information to
federal prosecutors in criminal antitrust investigations. If passed, the
Criminal Antitrust Anti-Retaliation Act of 2013 ("Act") would allow employees
to file a complaint with the U.S. Department of Labor about suspected
retaliation for cooperating with the Department of Justice.
The Act would amend the Antitrust Criminal Penalties
Enforcement and Reform Act, which protects guilty informants through the
Antitrust Division's Leniency Program. The Act would apply to innocent third
parties who come forward and report antitrust violations. Also, as written, the
Act would protect any individual except those who "planned and initiated"
the antitrust conspiracy (emphasis added). This narrow limitation allows for
protection of a broad class of employees who may not only have violated company
policies but may even have acted in their own personal interest rather than in
the best interests of the company.
The effort to introduce the Act was the result of a July
2011 Government Accountability Office study that stated: "Without civil remedy
for those who are retaliated against as a result of reporting criminal
antitrust violations, whistleblowers are currently unprotected and may
therefore be hesitant to report wrongdoing to DOJ." The GAO's research found
that there was no consensus among key stakeholders interviewed (antitrust
plaintiffs' and defense attorneys among others) regarding the addition of a
whistleblower reward, but there was wide support for adding anti-retaliatory protection.
Sens. Leahy and Grassley reported that the Act would create whistleblower
protections modeled on those in Sarbanes-Oxley, the 2002 financial accounting
and corporate governance reform law that both senators played a role in
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