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.
Employers cannot “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against” a covered individual for:
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.
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”:
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.
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.
Individuals who are successful in their complaints are “entitled to all relief necessary to make [them] whole.” This includes recovery of compensatory damages, including:
Notably, orders to reinstate an individual are immediately effective and not suspended pending appeals.
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
J. Clayton Everett, Jr.
Ariel E. Braunstein