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Senate Judiciary Committee Approves Bill Adding Whistleblower Protection in Antitrust Cartel Investigations

Daniel E. Shulak

Daniel E. Shulak,

New York

Megan Dixon

Megan Dixon,

San Francisco

01 November 2013
On 31 October 2013, the Senate Judiciary Committee approved a bill aimed at preventing retaliation against whistleblowers who report criminal antitrust violations. The bill amends the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA)[1] by adding whistleblower protections for anyone who provides the federal government information regarding, or otherwise assists an investigation or a proceeding relating to:

  • Any violation of, or any act or omission the whistleblower reasonably believes to be a violation of the antitrust laws, or
  • Any violation of, or any act or omission the whistleblower reasonably believes to be a violation of another criminal law committed in conjunction with a potential violation of the antitrust laws or in conjunction with an investigation by the Department of Justice of a potential violation of the antitrust laws.[2]

Unsurprisingly, the bill limits its protection by excluding anyone who plans, initiates, or attempts a violation of the antitrust laws, another criminal law in conjunction with the antitrust laws, or who obstructs or attempts to obstruct the Department of Justice’s investigation.[3]

Whistleblower protection was originally recommended in a July 2011 Government Accountability Office (GAO) report that studied ACPERA's effect.[4] The report specifically noted that those who report criminal antitrust violations lack a civil remedy should they experience retaliation and suggested such retaliation had been occurring.[5] The report also noted consensus among key stakeholders interviewed by the GAO, mainly antitrust plaintiffs' and defense attorneys, who widely supported adding whistleblower protection.[6] At the time of the report, senior DOJ Antitrust Division officials stated that they neither supported nor opposed the addition.[7]

The bill, were it to become law, merely protects those not personally involved in the alleged illegal conduct from retaliation should they come forward. Although a valuable protection in many circumstances, the bill does little to actually incentivize the reporting itself.  Other measures, including the introduction of qui tam-style litigation or reward-like bounties, have also floated around Washington in the decade following the passage of ACPERA. Neither of those measures is incorporated in the proposed Leahy-Grassley Criminal Antitrust Anti-Retaliation Act.

The bill will still need to be taken up by the full Senate, and there is no word on whether the House of Representatives will draft its own legislation.

Stay tuned.


1. Antitrust Criminal Penalty Enhancement and Reform Act of 2004, Pub. L. No. 108-237, 118 Stat. 661, 665-69.

2. Criminal Antitrust Anti-Retaliation Act of 2013, S. 42 113th Cong. (2013), at 2-3. Available here.

3. Id. at 3-4.

4. Highlights, Criminal Cartel Enforcement: Stakeholder Views on Impact of 2004 Antitrust Reform Are Mixed, but Support Whistleblower Protection. (July 25, 2011). Available here.

5. Id.

6. Id.

7. Id.

Daniel E. Shulak

Daniel E. Shulak,

New York

Megan Dixon

Megan Dixon,

San Francisco

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