DOJ's Announcement of New Criminal Antitrust Whistleblower Program Raises Important Questions

Yesterday, the U.S. Department of Justice's Antitrust Division announced a new Whistleblower Program. Under this program, a “whistleblower” who reports criminal antitrust conduct to the Department may receive 15-30% of any fine that may result from the whistleblower's report. Given the enormity of fines that companies have faced in the past in resolutions for criminal antitrust allegations, the rewards for whistleblowers have the potential to be significant.

Notably, this is for criminal conduct and does not apply to civil antitrust. This leaves an important question. Many whistleblower programs do not apply to individuals involved in the conduct that is being reported. Here, DOJ Antitrust's program does not currently speak to this issue, leaving open the question of whether an individual who was involved in the underlying criminal conduct can recover a whistleblower incentive, particularly in light of the DOJ's long-running leniency program. Attorneys representing potential DOJ Antitrust whistleblowers who have some level of criminal liability will likely need to negotiate this issue in advance with the Department before reporting the conduct.

Another unresolved question is whether this program only applies to individuals or if corporations can also be a whistleblower. While many whistleblower programs require that the whistleblower be an individual, this issue is not clear for the new program. For example, the Department's press release announcing the program starts by referencing whistleblowers as “individuals” but then Assistant Inspector General for Investigations Robert Kwalwasser of the U.S. Postal Service Office of Inspector General is quoted as saying the program will “incentivize individuals and companies to provide information” (emphasis added). As for DOJ Antitrust's whistleblower program website, it only references “whistleblowers” without specifying whether they may be companies. Presumably, companies that report criminal antitrust conduct under the leniency program would not be eligible, as that would result in the nonsensical situation of a company receiving a percentage of the fine they ultimately pay. However, there may be companies interested in reporting criminal antitrust conduct that they have witnessed or even been harmed by. Once again, attorneys representing companies that may wish to report criminal antitrust conduct should seek to negotiate this issue in advance of reporting.