Congress passed legislation last week extending the Antitrust Criminal Penalty Enhancement and Reform Act ("ACPERA") until June 2020, and requiring that the U.S. Government Accountability Office ("GAO") study the appropriateness of adding a whistleblower rewards provision and an anti-retaliation provision.
ACPERA, which was originally enacted in 2004, increased the maximum penalties for price-fixing, and enhanced a leniency program to encourage cooperation. ACPERA originally included a five year sunset provision. In 2009, Congress passed a one-year extension in order to consider possible amendments or revisions before a more permanent reauthorization.
My firm has advocated for an amendment to ACPERA that would provide rewards to antitrust whistleblowers similar to the highly successful False Claims Act. Corporate insiders are in the best position to provide useful information regarding cartel activity, but currently have strong disincentives to expose unlawful collusion. Whistleblowers consistently face retaliation by their employers and by others in the industry. In order to overcome such disincentives, substantial rewards should be offered to whistleblowers. Like the False Claims Act, an antitrust whistleblower rewards program could offer as an incentive a percentage of the government's recovery – i.e., the criminal fines recovered from any defendants who are found guilty. Such rewards would create a win-win situation, discouraging criminal activity, allowing the government to collect hundreds of millions of dollars in fines that would not otherwise be collected, and rewarding insiders for taking the risk of blowing the whistle.
During the last two years, my firm has published articles in favor of the legislation on this blog and in CompLaw 360, has met with individuals at antitrust enforcement agencies, at antitrust policy groups, and has met with individuals and groups on Capitol Hill.
Last week, Congress passed legislation that requires the GAO to conduct a study of the appropriateness of the addition of whistleblower rewards and whistleblower protection provisions to the antitrust leniency program, and to report its findings back to Congress within one year. I look forward to reading the report.
Related posts: Incentives and Disincentives for Insiders to Expose Unlawful Cartels; Whistleblower Sues Packaged Ice Manufacturers; Considerations for Individuals Who Refuse to Participate in Illegal Business Practices