On July 31, in the waning days of the 112th Congress, Senator
Patrick Leahy of Vermont introduced the "Criminal Antitrust
Anti-Retaliation Act," designated as S. 3462. The bill is
designed to protect employees, contractors, subcontractors and
agents from retaliation for providing information to the federal
government about possible violations of the antitrust laws.
Specifically, the bill would make it unlawful for an employer to
"demote, suspend, threaten, harass or discriminate
against" an individual who assists the Department of Justice
in connection with an antitrust investigation. As a remedy, the
whistleblower will be permitted to bring an action seeking (1)
reinstatement with the same seniority status the whistleblower
would have had absent the discrimination; (2) back pay, with
interest; and (3) compensation for any special damages sustained,
including litigation costs, expert witness fees and reasonable
attorney's fees. Notably, however, "whistleblower"
status will not be afforded to any individual found to have
"planned and initiated" the violation or attempted to do
As yet, no action has been taken on the bill since its
introduction (not surprising, given that Congress has been on its
summer recess almost since the date of introduction). Given the
largely noncontroversial nature of the bill, however, it would not
be surprising if it gets attached to some other piece of
legislation that Congress needs to take up before the end of the
session as an amendment and gets enacted through that process. Stay
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A well-attended program on antitrust treatment of "bundled pricing" and "loyalty discounts" at the American Bar Association Antitrust Section Spring Meeting highlighted the confusion generated by the antitrust law implications.
An interesting and growing debate in the antitrust arena is whether most favored nation ("MFN") pricing provisions are pro-competitive or anticompetitive. For many years, MFN provisions have been considered a fairly noncontroversial contract term included by purchasers in an attempt to assure that other buyers do not receive a more favorable price.
In remarks made this week at the International Competition Network annual conference, Federal Trade Commission (FTC) Chairwoman Edith Ramirez stated that health care will continue to be a top priority for the FTC.
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