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Business Litigation Alert: "Expanding Whistleblower Protection - Recent Senate Bill Represents Big Changes"

A new bill was unanimously passed the U.S. Senate in July that could make it significantly more difficult for general counsel when considering whether to self-report antitrust issues. The Criminal Antitrust Anti-Retaliation Act of 2015 would expand protection for third-party whistleblowers reporting criminal antitrust activity to the Department of Justice.

Under current DOJ guidelines, a company that self-reports an antitrust conspiracy is eligible to receive immunity from prosecution; however, if someone else reports the conspiracy first, that chance for immunity is lost.  With the new law, if a whistleblower reports an antitrust conspiracy first, there is no leniency for the company, and the company cannot retaliate against the whistleblower – whether that is an employee, contractor, or agent. 

As we wait to see if this bill will be put into effect, there are several things companies should consider in case it does become law.

  1. Self-Reporting is Key: This has been the case for a while as it is the best way to secure immunity from prosecution.  If the law passes, it will be even more important for companies to promptly self-report any antitrust activity.
  2. But Time is Limited: If this bill passes, it could significantly shorten the time frame that companies have to make a decision about reporting antitrust activity.  Time will be of the essence when it comes to reporting and seeking immunity.
  3. No Retaliation: If a whistleblower reports antitrust activity to the DOJ before a company has a chance to self-report, the law will extend whistleblower protection to that individual.  Consequently, companies need to have strict policies in place regarding whistleblower retaliation in order to protect themselves against further legal issues.

This bill will now go before the U.S. House for consideration, and time will tell whether it will become law.  However, it is better to err on the side of caution and be prepared to prevent potential legal problems down the road.

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