I have been advocating for some time that antitrust cartel whistleblower legislation be passed. Whistleblower legislation has been phenomenally successful for the SEC and other agencies and there is no reason price fixing/bid rigging cartels shouldn’t face the threat of a whistleblower. Kimberly Justice and I wrote a short article: It’s a Crime There Isn’t an Antitrust Whistleblower Statute, Wolters Kluwer, Antitrust Law Daily, April 8, 2018. We are working on a longer version of that article with cites to law review articles, business publications, prosecutors, defense attorneys, felons, statistics and all the usual ingredients of a “law review” style article. But, nothing makes an argument better than a good story so I’ll get ahead of myself and share one now.
After Hurricanes Harvey, Irma and Maria, the Antitrust Division and Federal Trade Commission recognized that collusion could emerge on a wide scale as rebuilding efforts begin. In a joint statement, the agencies said, “While natural disasters often bring out the best in human compassion and spirit, they can also lead to unscrupulous individuals and organizations taking advantage of those in need.”[2] There may be a lot of “Bills” out there who don’t like what they see but can’t afford the risk/expense of being a whistleblower without whistleblower legislation.
Note: Where the government is a victim of fraud, a whistleblower can currently bring a suit under the False Claims Act, but whistleblower legislation would make the process much more attractive.
Thanks for reading.
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[1] If not obvious yet, let me be clear that I have a bias—a personal interest –in seeing cartel whistleblower legislation passed. I have represented whistleblowers and would be particularly interested in representing cartel whistleblowers since I spent the bulk of my career investigating and prosecuting cartels for the Antitrust Division.
[2] FTC Antitrust Division Joint Statement: Antitrust Guidance: Hurricanes Harvey and Irma, September 12, 2017, available at https://www.ftc.gov/system/files/documents/public_statements/1253313/hurricanes_harvey_and_irma_ftc_doj_statement.pdf.