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Senate Unanimously Votes to Extend Whistleblower Protections to Employees Filing Complaints or Providing Information on Antitrust Violations

On November 4th, 2013, the Senate unanimously voted to pass the Criminal Antitrust Anti-Retaliation Act (CAARA), also known as the Leahy-Grassley Bill to protect whistleblowers in criminal antitrust cases. The bill provides innocent third-party whistleblowers with a civil remedy for employer retaliation for cooperating with the U.S. Department of Justice, which conducts criminal antitrust investigations. Also, the bill is meant to help enforce criminal antitrust law and heighten protections for consumers from this harmful activity.

Introduced last year by U.S. Senators Patrick Leahy and Chuck Grassley, CAARA represents a bipartisan effort to strengthen current criminal antitrust law. The bill is a follow-up to the Antitrust Criminal Penalty Enhancement and Enforcement Act of 2004, which established the Justice Department’s Antitrust Division Leniency Program. This program was designed to encourage companies to investigate antitrust violations, such as price fixing, by their own employees by allowing them to face lesser penalties than companies, which do not discover and report employee violations. Leahy and Grassley argued that initiatives such as the leniency program needed to be supplemented because current law encourages self-report of criminal antitrust activity, but does not provide protection for individuals who assist the process. Consequentially, whistleblowers in this context could risk their careers if they exposed waste, fraud and abuse by their employers. Although the Leahy-Grassley Bill is not designed to incentivize reporting by employees, it is meant to provide them with recourse to fairness in the event they suffer from employer discrimination or retaliation as a result of their actions.

The bill is based on recommendations offered by a July 2011 report from the Government Accountability Office, which stated that there was widespread support for anti-retaliatory protection in criminal antitrust cases. It covers employees, contractors, subcontractors, or agents who provide information on internal or external violations of antitrust laws or violations of other criminal law committed conjointly with a potential violation of the antitrust laws or with an investigation. The legislation would allow these whistleblowers to file complaints with the Department of Labor (DOL) if they believe they have suffered from employer retaliation. They may also bring suit in a U.S. District Court if the DOL fails to take action within 180 days. This law would allow such employees with recourse to relief such as pay with interest, reinstatement, or special damages including reasonable attorney’s fees, litigation costs, and expert witnesses fees.

Critics of the bill emphasize the fact that it does not provide financial incentives for employees to risk retaliation and as a result, it is too divergent from the False Claims Act, which is perceived as the foundation of American whistleblower laws and the Dodd-Frank Wall Street Reform Act. They favor reward provisions to motivate employees to bring claims despite the risk of negative repercussions to their careers and take a lead in antitrust enforcement. However, its supporters intended for such financial incentives to be excluded from the protections because they believed that it was important to prevent fraudulent complaints.

The bill is now being considered by the House.

If you believe that you have been a victim of employer retaliation as a result of your cooperation in law enforcement investigations against your employer, please contact The Harman Firm, LLP.

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