No longer blowing in the wind – US senate offers protection for antitrust informers

Published On 21/08/2012 | By Alysia Abeyratne | Mergers, Reform

On 31st July 2012 the Criminal Antitrust Anti-Retaliation Act was introduced to the US Congress by Senators Patrick Leahy and Chuck Grassley.

The legislation is significant as, if it passes, it would be the first of its kind to extend protection in the US for those who come forward to report breaches of antitrust laws.

As currently drafted the bill would prohibit an employer from discriminating against a whistle-blower employee, including harassing or threatening the employee or terminating their employment.  A whistle-blower employee who alleges they have been discharged or discriminated against by virtue of their reporting anti-competitive breaches to the Department of Justice would be entitled, under the new legislation, to lodge a complaint  with the Secretary of Labour.  This may result in the re-instatement of the employee as a result of a hearing of the matter.

Importantly, whistle-blower employees may also be entitled to compensation for damages they may have suffered as a result of the discrimination including litigation costs, expert witness fees, and reasonable attorney’s fees.

The new laws do not offer whistle-blower employees a share in any fines imposed against their employer. Such incentives and rewards, offered under other whistle-blower protection legislation (such as for certain reports to the SEC) has proven to be controversial and stakeholders voiced concerns that it may undermine the integrity of witness testimony in criminal cases.

In Australia, protection for whistle-blowers who report breaches of the ASIC or Corporations Acts has existed for some time. To obtain protection, Australian whistle-blowers are required to have reasonable grounds to suspect there has been a breach and must make the report in good faith.  Victimisation of whistle-blowers is a crime under the Corporations  Act and where an employee makes a protected disclosure and is penalised as a result, this may be investigated and prosecuted with the possibility for compensation to be sought by the employee.

Photo credit: Vvillamon / Foter / CC BY-SA

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About The Author

Alysia Abeyratne is a solicitor in the Melbourne office of King & Wood Mallesons specialising in competition, consumer protection and general commercial law.

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