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Congress Adds Criminal Antitrust Anti-Retaliation Act to DOL-Administered Whistleblower Protection Programs

December 16, 2020

The US Congress passed S.2258, the Criminal Antitrust Anti-Retaliation Act of 2019, on December 8 and presented the bill to the president on December 11 – almost a year-and-a-half after Senator Chuck Grassley (R-IA) introduced the bill in the Senate. The bill follows recommendations from a 2011 GAO report and its passage follows a significant antitrust matter involving two Korean oil/petroleum companies. The origin of that matter was an investigation initiated by a whistleblower.

The bill amends the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 by adding Section 216, “Anti-Retaliation Protection for Whistleblowers.” These whistleblower protections are modeled after the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), which is one of 23 whistleblower protection programs that the US Department of Labor (DOL) administers. DOL will likewise investigate and adjudicate complaints brought under the Criminal Antitrust Anti-Retaliation Act of 2019.

What Does the Criminal Antitrust Anti-Retaliation Act of 2019 Do?

Employers cannot “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against” a covered individual for:

  • Providing, or helping to provide, information to the federal government, to a supervisory authority figure, or to an individual working for the employer with investigative powers pertaining to:
    • Violations (or suspected violations) of antitrust laws; or
    • Violations (or suspected violations) of other criminal laws committed “in conjunction with”:
      • Potential violations of antitrust laws, or
      • An investigation by the Department of Justice of a potential violation of antitrust laws;
  • Participating or assisting in a federal investigation or proceeding related to:
    • Violations (or suspected violations) of antitrust laws; or
    • Violations (or suspected violations) of other criminal laws committed “in conjunction with”:
      • Potential violations of antitrust laws, or
      • An investigation by the Department of Justice of a potential violation of antitrust laws

In short, an individual must provide information or participate in a proceeding involving a “violation” of “antitrust laws” in order to be protected. The term “violation” within the act “shall not be construed to include a civil violation of any law that is not also a criminal violation.” “Antitrust laws” refers to “section 1 or 3 of the Sherman Act (15 U.S.C. 1 and 3).” Those provisions of the Sherman Act prohibit “contracts, combinations or conspiracies” in restraint of trade among the US states or territories. As a practical matter, the only Sherman Act violations that are subject to criminal prosecution—and hence the only violations that might create whistleblower protection obligations under the Antitrust Criminal Anti-Retaliation Act—are price-fixing, wage-fixing, bid-rigging, customer or market allocations, conspiracies to restrain supply, and so-called “naked no poach” agreements.

Whom Does the Criminal Antitrust Anti-Retaliation Act of 2019 Cover?

Employees, contractors, subcontractors, and the employer’s agents are “covered individuals.” Individuals are not “covered” – and are, therefore, not protected by the above provisions – if they “planned and initiated”:

  • The violation or attempted violation of the antitrust laws;
  • The violation or attempted violation of another criminal law in conjunction with a violation or attempted violation of the antitrust laws; or
  • An obstruction or attempted obstruction of an investigation by the Department of Justice of a violation of the antitrust laws.

How Can Covered Individuals Seek Relief?

Similar to the other whistleblower protection programs that the DOL administers, covered individuals alleging discrimination or some other violation of the Criminal Antitrust Anti-Retaliation Act of 2019 must file a complaint with DOL within 180 days of the alleged violation. If DOL does not issue a decision within 180 days of receiving the complaint, the covered individual may remove the complaint to a district court with jurisdiction over the case. The act is silent on whether, upon removing the complaint to district court, the individual is entitled to a jury trial.

Additionally, the act adopts a majority of the procedural requirements outlined in the whistleblower protection provisions of AIR21.

What Must Covered Individuals Prove?

AIR21 also provides the burdens of proof required for each party. A covered individual must make a prima facie case that his protected activity was a contributing factor in the alleged discriminatory action the employer took against him. DOL, however, is not required to conduct an investigation – and cannot provide relief for the covered individual – if the employer demonstrates by clear and convincing evidence that “the employer would have taken the same unfavorable personnel action in the absence” of the protected activity.

What Can Covered Individuals Recover?

Individuals who are successful in their complaints are “entitled to all relief necessary to make [them] whole.” This includes recovery of compensatory damages, including:

  • Reinstatement with the same seniority status that the individual would have had, but for the discrimination;
  • Back pay, with interest; and
  • Compensation for special damages, including litigation costs, expert witness fees, and reasonable attorney fees.

Notably, orders to reinstate an individual are immediately effective and not suspended pending appeals.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Lewis M. Csedrik
J. Clayton Everett, Jr.
Ariel E. Braunstein
Tracey F. Milich