I’ve received several comments on the idea of an Antitrust Whistleblower Statute. Some of the top comments are:
Didn’t you retire? No.
Well, you should have. I sometimes think the same thing, but what could be more fun than being an antitrust lawyer?
Your website design stinks and for a nominal fee I can fix it and help you lose weight. I’m not worried about the website design. But, please email me with the weight loss help.
There were concerns that, particularly with international cartels, a whistleblower award could be excessive. We agree that some allowance should be made to address this possibility. John Connor offered this helpful comment: “What is an appropriate standard for the size of the award? Using a percentage the employer’s fine is likely to be excessive. What about 5 or 10 years’ of the whistle-blower’s compensation?”
There were some questions as to whether cartel whistleblower bounty provisions exist in other countries. That is a good question. We are researching that and will follow up.
Several people noted that an antitrust whistleblower idea is not a new idea and has never received support in the past from the Antitrust Division or Congress. This is true, and we may get nowhere with our proposal this time. But, as we’ve noted, the leniency “cash cow” is slowing down and the SEC whistleblower provision has been a huge success (by most people’s estimation). Sometimes persistence pays off and the time may have come has come for a successful antitrust whistleblower push. And, I may humbly suggest that Kimberly Justice and I may have some insights based on our many years with the Antitrust Division that have not been considered before. We’ll see.
The Grassley-Leahy Criminal Antitrust Anti-Retaliation Act of 2017, was just passed unanimously in the Senate. The legislation would make it unlawful for an employer to retaliate against an employee who reports a violation of antitrust laws or a crime connected to antitrust laws. This is the third time this legislation has passed the Senate unanimously, but it has never even been taken up by the House.
The American Antitrust Institute, a Washington D.C. organization, has written a letter to the United States Sentencing Commission recommending that fines for antitrust violations be increased. The recommendation grows out of work done by Professors John Connor and Bob Lande, who have been studying whether the penalties (including fines, jail time, and civil liability) adequately deter would-be price fixers. Their study, which looks at a significant amount of data over many years, suggests that price fixing is under-deterred, and that it therefore can be a rational business decision for firms to illegally fix prices, even in the current era of large fines, big jail sentences and private treble damages cases. They specifically point out that while the Guidelines assume that price fixing raises prices by an average of 10% over what prices would be in a competitive market, there is evidence that this estimate is too low, and should be revised to 20%, if not higher.