GAO Recommends Adding Whistleblower Protection to Federal Antitrust Laws

On July 25, 2011, the Government Accountability Office (GAO) released a report recommending the addition of whistleblower protections to the Antitrust Criminal Penalties Enforcement and Reform Act (ACPERA). ACPERA, enacted in 2004, was designed to increase reports of criminal cartels by providing leniency to guilty parties who came forward with information. Currently, ACPERA fails to provide any protection or incentives for whistleblowers who report violations.

According to an article on Law360, ACPERA has had “mixed success in encouraging guilty parties to alert the U.S. Department of Justice to antitrust violations.” The report revealed that since ACPERA’s enactment, the Department of Justice has received an increased number of reports regarding criminal activity but there has been little change in the number of guilty parties applying for leniency.

In order to encourage third parties to report illegal cartel activity, the GAO recommended ACPERA include whistleblower protection and emphasized the need for protection from retaliation. The report concluded:

It is widely accepted as a good public policy to protect those who take risks to report crime and Congress has passed numerous laws providing protection for whistleblower reporting the various types of illegalities in various industries. By considering a civil remedy for whistleblowers who are retaliated against for reporting criminal antitrust violations, Congress could provide existing whistleblowers an assurance of protection for their efforts and further, could motivate additional indivuals to come forward with evidence of criminal cartel activity.

The possibility of financial rewards for whistleblowers was met with mixed reactions by stakeholders. The employment-law newsletter Employment Law360 reports that some stakeholders expressed concerns that financial rewards would harm the credibility of the whistleblower, encourage superficial claims, and frustrate internal compliance programs. According to Security Management, however, other stakeholders “interviewed for the report said whistleblower rewards might convince more people to come forward to report cartel activity.” Other supporters of whistleblower protection predicted “increased information from whistleblowers could knock cartels off balance by increasing uncertainty and fear of detection among cartel members.”