Whistleblowing Developments: DOJ Antitrust Division’s Whistleblower Rewards Program (Part 2)

In this episode of S&C’s Critical Insights, Kamil Shields, a partner in S&C’s Litigation Group, Kyle Mach, a partner in S&C’s Antitrust Group, and Litigation Associate Sabrina Solow discuss the new whistleblower program established by DOJ Antitrust Division. They start off with brief background on antitrust law and then discuss the new whistleblower program and how it reflects a change in the Antitrust Division’s approach.   A preview of the conversation can be found in the Q+A below. Sabrina: Kamil, can you speak to the genesis of the Antitrust Division’s new whistleblower program and how it fits into existing DOJ Antitrust policies?  Kamil: Since the 1990s, the Antitrust Division has had a “leniency policy.” Broadly speaking, when an organization or individual is the first to report that it engaged in a criminal conspiracy, it can receive non-prosecution protection. Under the statute known as “ACPERA,” the first to report these conspiracies can also receive a variety of benefits in related civil litigation as well. The leniency policy is an important enforcement tool for the Antitrust Division. It creates a powerful incentive for companies and individuals to self-report in order to avoid or mitigate criminal prosecution and penalties. Then, on July 8, the DOJ Antitrust Division announced a partnership with the U.S. Postal Service to create a Whistleblower Rewards Program for reporting criminal offenses on “antitrust crimes and related offenses.” Under this program, whistleblowers who voluntarily provide information about antitrust offenses that result in at least a $1 million recovery may be eligible to earn a reward, which is presumptively 15-30 percent of the amount of the fine or recovery.   Sabrina: Kyle, what are the eligibility requirements of this new program? Kyle: There are a few key eligibility requirements we should touch on: (1) the tip must relate to an eligible criminal violation; (2) the whistleblower must provide original information; and (3) there must be a nexus to the U.S. Postal Service. Taking the first requirement first. The whistleblower must provide information relating to an eligible violation under this Antitrust program. It can’t be a tip on just anything.