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.
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