In a recent report, the Government Accountability Office ("GAO") found wide support for legislation to protect antitrust whistleblowers from retaliation. Specifically, the report states that "all key stakeholders who had a position on the issue . . . generally supported the addition of a civil whistleblower protection provision for those who report criminal antitrust violations." The GAO report explained that it is good public policy to protect those who take risks to expose illegalities, and that whistleblowers may be reluctant to report wrongdoing absent such protection. Inspired by a whistleblower client who alleges that he was subjected to an industry-wide boycott, my firm and I have engaged in a pro bono lobbying effort seeking legislation to protect antitrust whistleblowers. After I participated in a roundtable discussion on the Hill, Congress mandated that the GAO conduct this study of our proposal for antitrust whistleblower protection. We also proposed that affirmative rewards be offered to antitrust whistleblowers, similar to the qui tam provisions of the False Claims Act, but based on any criminal fines collected by the Antitrust Division. The GAO report was less supportive of this proposal, stating that DOJ and certain other stakeholders were against the proposal. DOJ expressed concern that a reward provision could jeopardize existing DOJ criminal cases because the possibility of a reward may hinder the informant's credibility, many of which are already assisted by a leniency applicant. Such a concern could be overcome, however, if the reward were contingent on the whistleblower providing corroborating evidence, such as documentation of the collusion. DOJ also cited concerns about false reporting by whistleblowers, but criminal penalties already exist to discourage making false statements to the government, and rewards would only be provided if the claims had merit and resulted in criminal fines. While there does not appear to be sufficient support for antitrust whistleblower rewards at this point, England and South Korea have an antitrust whistleblower rewards program, and their programs may prove instructive in assessing the effectiveness of such a rewards program. Meanwhile, there is a clear consensus in favor of anti-retaliation protections for antitrust whistleblowers, and we hope that Congress will include such provisions when they reauthorize ACPERA.
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