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Are whistleblowers protected against retaliation for disclosing antitrust violations?

Yes, the Criminal Antitrust Anti-Retaliation Act, which was signed into law on December 23, 2020, protects whistleblowers against retaliation for disclosing evidence of criminal cartel activity.

If you have suffered retaliation for reporting criminal antitrust violations, contact our experienced whistleblower protection lawyers at 202.262.8959.

Who is protected against retaliation under the Criminal Antitrust Anti-Retaliation Act?

The Criminal Antitrust Anti-Retaliation Act protects any employee, contractor, subcontractor, or agent of an employer.

The Criminal Antitrust Anti-Retaliation Act does not apply where:

  1. the covered individual planned and initiated a violation or attempted violation of the antitrust laws;
  2. the covered individual planned and initiated a violation or attempted violation of another criminal law in conjunction with a violation or attempted violation of the antitrust laws; or
  3. the covered individual planned and initiated an obstruction or attempted obstruction of an investigation by the Department of Justice of a violation of the antitrust laws.

What whistleblowing is protected under the Criminal Antitrust Anti-Retaliation Act?

The Act protects an employee (1) providing information to an employer, a federal regulatory or law enforcement agency, or Congress concerning an act or omission the individual reasonably believes to be a violation of the antitrust laws (section 1 or 3 of the Sherman Act) or a violation of another criminal law committed in conjunction with a potential violation of the antitrust laws; or (2) participating in, or otherwise assisting, an investigation relating to such a violation.

Criminal prosecutions of Sherman Act violations are typically limited to intentional and clear violations such as price fixing, bid rigging, and market allocation among competitors (also known as “horizontal agreements”).  According to the Department of Justice’s Antitrust Resource Manual, price fixing generally involves any agreement between competitors to tamper with prices or price levels, or terms and conditions of sale for commodities or services.  Bid rigging generally involves an agreement or arrangement among companies to determine the successful bidder in advance of a bid letting at a price set by the successful bidder.  Horizontal customer allocation is an agreement among competitors at the same level of distribution of a product or service that each will service certain designated customers or classes of customers and will not attempt to compete, or will limit the manner in which they will compete, for the business of customers allocated to a competitor.

Note that some forms of protected conduct under the Criminal Antitrust Anti-Retaliation Act are also protected under other whistleblower protection laws.  For example, a disclosure about bid-rigging to obtain a contract with a federal agency can also be protected conduct under the Defense Contractor Whistleblower Protection Act and the False Claims Act.

What type of retaliation is prohibited against antitrust whistleblowers? 

The Criminal Antitrust Anti-Retaliation Act prohibits a wide range of retaliatory acts, including discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against a whistleblower in the terms and conditions of employment.

The catch-all category of retaliation (“in any other manner” discriminating against a whistleblower) includes non-tangible employment actions, such as “outing” a whistleblower in a manner that forces the whistleblower to suffer alienation and isolation from work colleagues.  See Menendez v. Halliburton, Inc., ARB Nos. 09-002, -003, ALJ No. 2007- SOX- 5 (ARB Sept 13, 2011).  An employment action can constitute actionable retaliation if it “would deter a reasonable employee from engaging in protected activity.”  Id. at 20.

What is the burden of proof for an antitrust whistleblower in an antitrust whistleblower retaliation case?

The Criminal Antitrust Anti-Retaliation Act applies the causation standard and burden-shifting framework set forth in the AIR21 Whistleblower Protection Law.  Under that framework, the whistleblower prevails by proving that their protected whistleblowing was a contributing factor in the unfavorable personnel action taken by their employer.  The Department of Labor Administrative Review Board has emphasized that the standard is low and “broad and forgiving”; protected activity need only play some role, and even an “[in]significant” or “[in]substantial” role suffices.  Palmer v. Canadian Nat’l R.R., ARB No. 16-035, ALJ No. 2014-FRS-154, at 53 (ARB Sept. 30, 2016) (emphasis in original).  Examples of circumstantial evidence that can establish “contributing factor” causation include:

  • temporal proximity;
  • the falsity of an employer’s explanation for the adverse action taken;
  • inconsistent application of an employer’s policies;
  • an employer’s shifting explanations for its actions;
  • animus or antagonism toward the whistleblower’s protected activity; and
  • a change in the employer’s attitude toward the whistleblower after they engage in protected activity.

Once the whistleblower proves that their protected conduct was a contributing factor in the adverse action, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same adverse action in the absence of the whistleblower engaging in protected conduct.

What remedies or damages can a whistleblower recover in an antitrust whistleblower retaliation case?

A prevailing antitrust whistleblower is entitled to make-whole relief, which includes:

  • reinstatement with the same seniority status that the whistleblower would have had, but for the discrimination;
  • back pay, with interest; and
  • compensation for any special damages sustained as a result of the discrimination including litigation costs, expert witness fees, and reasonable attorneys’ fees.

What is the deadline or statute of limitations to file an antitrust whistleblower retaliation case?

The statute of limitations for an antitrust whistleblower retaliation claim is 180 days from the date that the employee was first informed of the adverse action.

Where are antitrust whistleblower retaliation cases adjudicated?

An antitrust whistleblower retaliation case must be filed initially with OSHA, which will investigate the claim.  If OSHA determines that there is reasonable cause to believe that a violation occurred, OSHA can order relief, including reinstatement of the whistleblower.

Either party can appeal OSHA’s determination by requesting a de novo hearing before the DOL Office of Administrative Law Judges (OALJ), but an employer’s objection to an order of preliminary relief will not stay the order of reinstatement.  Once an antitrust retaliation claim has been pending before the DOL for more than 180 days, the whistleblower can remove the claim to federal court. 

What is the purpose of the Criminal Antitrust Anti-Retaliation Act?

Senators Grassley and Leahy, the sponsors of the Criminal Antitrust Anti-Retaliation Act, offered the following explanation of the purpose of the Act:

“Competition is essential for a thriving, affordable and innovative marketplace.  When our antitrust laws are violated, consumers are often left paying the price.  The Criminal Antitrust Anti-Retaliation Act encourages and shields from reprisal private sector employees to shine a light on activities that violate our antitrust laws.  This bipartisan bill is an important step to safeguarding fair marketplaces as well as the whistleblowers who support them.  It’s earned broad support in both chambers of Congress, and I urge President Trump to sign it into law without delay,” Grassley said

“Our country has a proud history of protecting whistleblowers who expose wrongdoing . . .  In an era where dominant corporations aggressively seek to expand their profits and quash competitors, our laws should protect whistleblowers who take significant risks to report criminal antitrust violations like price-fixing that undermine free and fair competition . . . ,” Leahy said.

The Criminal Antitrust Anti-Retaliation Act implements a recommendation made in a July 2011 GAO Report about criminal cartel enforcement.

Criminal Antitrust Anti-Retaliation Act

Criminal Antitrust Anti-Retalia- tion Act of 2019
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Anti-Money Laundering Whistleblower Rewards

On January 1, 2021, Congress enacted the Anti-Money Laundering Act (AMLA), a comprehensive reform of anti-money laundering laws.  Recognizing the success of whistleblower incentives in combatting fraud against the government, securities fraud, tax fraud, commodities fraud, and other types of fraud, Congress included in the AMLA a provision that incentivizes whistleblowers to report violations of the anti-money laundering laws to the Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN).

Call our AML whistleblower lawyers at 202-930-5901 or contact us here to find out if you are eligible for an AML whistleblower award. A delay in reporting money laundering can potentially disqualify a whistleblower from recovering an award or can lower a whistleblower award, so call us today for a free consultation. Recently, the Wall Street Journal quoted our firm in an article titled Defense Bill Proposes Anti-Money-Laundering Whistleblower Program.

Eligibility for Anti-Money Laundering Whistleblower Reward

Section 6314 of the AMLA incentivizes whistleblowers to report money laundering by requiring Treasury to pay an award of up to 30 percent of collected monetary sanctions that it recovers in a judicial or administrative action brought under the Bank Secrecy Act that results in sanctions exceeding $1,000,000.

To be eligible for an award, the whistleblower must voluntarily provide original information to their employer, Treasury, or the Department of Justice

Whistleblowers abroad who are not U.S. citizens would be eligible for awards where the BSA violations they report are within the jurisdiction of U.S. law enforcement.

In contrast to the Dodd-Frank Act’s award eligibility rules, the AMLA whistleblower reward law does not impose limitations on award eligibility for whistleblowers who gain information through the performance of an audit of financial statements.  And it permits compliance personnel to obtain whistleblower awards in that the term “whistleblower” includes an individual who provides information relating to a violation “including as part of the job duties of the individual.

Fines for money laundering can be substantial. In February 2018, U.S. Bancorp/U.S. Bank paid $613 million in fines and forfeitures to settle charges that it failed to maintain adequate safeguards against money laundering. In particular, U.S. Bancorp/U.S. Bank limited the number of transactions its systems would flag as suspicious and processed Western Union transactions for non-customers

Submitting a Whistleblower Tip to FinCEN Anonymously

If represented by an attorney, an AML whistleblower may submit a tip anonymously to FinCEN. Even at the time of a reward, a whistleblower’s identity is not made available to the public.

In addition, the AMLA requires Treasury and Justice to take steps to protect the confidentiality of whistleblower submissions.  Any officer or employee of either agency must not disclose information provided by a whistleblower “which could reasonably be expected to reveal the identity of a whistleblower,” except where the agency is required to disclose the information to a defendant in a public proceeding instituted by the agency and in accordance with the Privacy Act.

An experienced AML whistleblower lawyer will be able to skillfully guide a whistleblower through the process, maximizing the likelihood that the whistleblower’s identity is not revealed to unauthorized parties. In addition, our experienced AML whistleblowers attorney can help protect whistleblowers who experience retaliation.

Monetary Sanctions Qualifying for an Award

The monetary sanctions collected in any judicial or administrative action that can qualify for an AMLA whistleblower award include any monies, including penalties, disgorgement, and interest ordered to be paid, but excludes (i) forfeiture; (ii) restitution; and (iii) any victim compensation payment.

An AMLA whistleblower may also qualify for a “related action” award, which is any judicial or administrative action brought by (i) any appropriate federal authority; (ii) a state attorney general in connection with any criminal investigation; or (iii) any appropriate state regulatory authority, when the action is based on the original information provided by the whistleblower and led to the successful enforcement of the action by Treasury or Justice.

Determining the Amount of an AMLA Whistleblower Award

To determine the amount of an AMLA whistleblower award, Treasury will consider:

  • the significance of the information provided by the whistleblower to the success of the covered judicial or administrative action;
  • the degree of assistance provided by the whistleblower and any legal representative;
  • the programmatic interest of Treasury in deterring the particular violations that the whistleblower disclosed; and
  • additional relevant factors that Treasury will promulgate, which will likely echo the factors that the SEC employs to determine the amount of an SEC whistleblower award.

Anti-Money Laundering Whistleblower Lawyers: Hire a Leading Whistleblower Law Firm

The whistleblower lawyers at Zuckerman Law have experience representing whistleblowers and one of our attorneys is also a Certified Public Accountant and Certified Fraud Examiner.  We are a leading whistleblower law firm and two of our attorneys were named top whistleblower lawyers in Washingtonian magazine.

U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.

To discuss potential representation in an anti-money laundering whistleblower case, click here or call us at (202) 930-5901.

Protecting Anti-Money Laundering Whistleblowers Against Retaliation

Section 6314(g) of the AMLA creates a private right of action for whistleblowers who have suffered retaliation for disclosing potential BSA violations to Treasury or Justice, a federal regulatory or law enforcement agency, Congress, or a person with supervisory authority over the whistleblower.  It also protects a whistleblower assisting in any investigation or judicial or administrative action of Treasury or Justice based on or related to the information that the whistleblower disclosed to the government.

In contrast to Dodd-Frank’s whistleblower protection provision, AMLA-protected whistleblowing does not require a threshold showing that the whistleblower reported a potential BSA violation to the appropriate regulatory agency.  Instead, internal whistleblowing alone is protected.  Moreover, the whistleblower need not meet the AMLA requirements for award eligibility to be protected under the anti-retaliation provision.

Similar to the SOX whistleblower protection law, the AMLA prohibits a wide range of retaliatory acts, including directly or indirectly discharging, demoting, suspending, threatening, blacklisting, harassing, or in any other manner discriminating against a whistleblower in the terms and conditions of employment due to the employee’s protected whistleblowing.

The causation standard in an AMLA retaliation claim is favorable to the whistleblower.  To prevail, the whistleblower need only demonstrate that their protected whistleblowing was a contributing factor in the unfavorable personnel action taken by their employer.  Once the whistleblower demonstrates contributing factor causation, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same adverse action in the absence of the whistleblower engaging in protected conduct.

A prevailing AMLA whistleblower is entitled to reinstatement, double back pay with interest,  uncapped compensatory damages, reasonable attorney fees, any other appropriate remedy with respect to the conduct that is the subject of the action.

AMLA retaliation claims must be filed initially with the Occupational Safety and Health Administration, and 180 days after filing, the whistleblower can remove the claim to federal court and try the case before a jury.

This new law will afford robust protection to whistleblowers disclosing money laundering, but it will not apply to employees at credit unions and FDIC-insured depository institutions.  Those employees can bring retaliation claims under weaker anti-retaliation laws that protect only whistleblowing to the government (not internal whistleblowing), impose a higher burden of causation, and provide anemic remedies. See 12 U.S.C. § 1831j; 12 U.S.C. §§ 1790b, 1790c.  For the AMLA whistleblower program to succeed, Congress should eliminate this exception to the scope of AMLA whistleblower protection.

Click here to learn more about AMLA whistleblower protection.

Resources About the Anti-Money Laundering Whistleblower Reward Law

Bank Secrecy Act

Bank Secrecy Act Regulations

Frequently Asked Questions Regarding the FinCEN Suspicious Activity Report (SAR)

Answers to Frequently Asked Bank Secrecy Act (BSA) Questions

FinCEN Files investigation

FACT Coalition: Landmark Bill Ending Anonymous U.S. Companies Is Enacted