Senate Approves Antitrust Anti-Retaliation Bill

Earlier this week, the Senate approved an anti-retaliation bill aimed at protecting whistleblowers that report or participate in investigations of violations of antitrust law. The proposed language of Senate Bill 42, or the Criminal Antitrust Anti-Retaliation Act of 2013 (CAARA), has the potential to cover a broad range of conduct, claimants, and actors.

In 2011, the U.S. Government Accountability Office recommended Congress consider enacting a remedy for antitrust whistleblowers to supplement the Antitrust Criminal Penalty Enhancement Act of 2004, which enacted the Department of Justice’s leniency program. The Senate-approved version of the bill revised an earlier version proposed by Senators Leahy and Grassley that received Senate Judiciary Committee approval last week. As approved by the Senate, CAARA provides that “no employer may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against a covered individual in the terms and conditions of employment” because of protected conduct. The bill incorporates the expansively-phrased and broadly-interpreted definition of “person” from 15 U.S.C. § 12(a) to define “employer,” and defines “covered individual” to include “an employee, contractor, subcontractor, or agent of an employer.”

The bill also aims to protect a broad range of conduct. It covers both internal and external reports of what the whistleblower reasonably believes is a violation of antitrust laws (but only agreements in restraint of trade under 15 U.S.C. § 1 or § 3, and only if the alleged conduct could also constitute a criminal violation), or a violation of other criminal law “in conjunction with” a violation of antitrust laws or a Department of Justice investigation. The bill also protects a whistleblower if he or she participates in an investigation or proceeding, but is not entitled to protection if he or she planned or initiated the violation or obstructed a Department of Justice investigation.

As is typical of other whistleblower statutes, the bill proposes that a claimant first file a claim with the Department of Labor before proceeding to federal court, and it adopts the procedural and burden-shifting provisions of 49 U.S.C. § 42121. The bill includes a 180-day statute of limitations period from “the date on which the violation occurred.” Finally, the bill offers whistleblowers broad relief, including reinstatement, back pay (with interest), and fees and costs.

Several provisions of CAARA are extremely broad and could apply to any manner of conduct (potential violations of particular antitrust laws or any other criminal conduct in conjunction with such an antitrust violation) by any covered entity (e.g., a “person”). The bill may undergo further revision to provide additional clarity regarding who is protected, what they are protected for, and who they are protected from. Drinker Biddle will continue to monitor CAARA as it proceeds through the legislative process.