As most everyone knows by now, on July 8, 2025 the Justice Department’s Antitrust Division announced a Whistleblower Rewards Program with a dedicated webpage. Only time will tell if the program results in any cases, but the announcement has already resulted in a deluge of “client alerts” and blog posts, to which I now add my own.
The announcement of a Whistleblower Program is unequivocally a good thing—a positive step in the right direction. The press release states: “The Whistleblower Rewards Program will provide individuals with the opportunity to report evidence of antitrust crimes directly to the Antitrust Division and, in appropriate cases, qualify for substantial monetary rewards of up to 30% of any criminal fines recovered, for violations of law affecting the Postal Service, its revenues, or its property.” (emphasis mine). The hard part for potential whistleblowers (and their attorneys) will be to figure out what that means. The most narrow reading of this qualification would be violations where the Postal Serve puts out a bid or RFP and the vendors collude. The Postal Service procures a wide range of goods and services such as building construction, vehicles, fuel, charging stations for electric vehicles, shipping material, maintenance and obviously, postage stamps. But there is already a whistleblower program for fraud against the Postal Service—the False Claims Act (discussed below). The most expansive reading of this qualification would be any antitrust crime where the Postal Service is used—which might mean any antitrust crime like a mail fraud hook.
The Whistleblower Rewards Program webpage has a link to the Memorandum of Understanding [between the Division and the Postal Service] Regarding The Whistleblower Rewards Program And Procedures. The Memorandum outlines the process for determining whistleblower eligibility after a whistleblower report is made to the Antitrust Division.
“If the Antitrust Division determines that the reported information qualifies as a whistleblower report, the Antitrust Division will disseminate the information it has received to the USPIS official designated herein (“USPIS Official”). The USPIS Official will assess whether the allegations reasonably articulate “violations of law affecting the Postal Service, its revenues, or property” MUO page 3.
Another MOU section Titled “Eligible Criminal Violations” states:
“A whistleblower reasonably articulates violations of law affecting the Postal Service, its revenues, or property when sufficient facts and evidence are provided for the USPIS Official to conclude that the Postal Service has suffered an identifiable harm. However, the harm need not be material or otherwise pose any substantial detriment to the Postal Service.” MUO p. 8.
“Need not be material” is a pretty low bar as far as standards go. Moreover, the Antitrust Division’s press release states: “For the first time, the Antitrust Division will offer rewards for individuals who report antitrust crimes and related offenses that harm consumers, taxpayers, and free market competition across industries from healthcare to agriculture — under existing law and at no additional cost to the taxpayer.” (my emphasis). Put it all together and it is clear that it is not at all clear what violations will be eligible for a whistleblower reward. Time and experience will tell.
The success of this new program will be hampered by other uncertainties, perhaps unavoidable, about how the program will work. Another big question to me involves, “Who is eligible for a whistleblower reward?” A great source for government procurement fraud leads is, not surprisingly, government procurement officials. They can flag suspicious bid patterns, identify co-workers with surprisingly large beach houses, or other signs of possible foul play in the bidding process. But since it is their job to report such things, they are not eligible to be a whistleblower. The plentiful fish in the potential whistleblower pond are, generally speaking, estimators or sales people. But these potential price fixing/bid rigging whistleblowers are likely to have some criminal liability themselves. Conspiracy law is expansive so an estimator who inflates a bid knowing his company has an agreement with competitors, or a salesperson who quotes a price knowing it was the product of collusion, may be considered a member of the conspiracy. A successful whistleblower program will hopefully make some allowance (i.e. immunity and eligibility) for lower level employees. The Antitrust Division has a very seldom used Individual Leniency Program that may be more inviting now that there is a potential for a whistleblower reward to go along with the leniency.
A potential whistleblower reward is a necessary incentive, not because whistleblowers are motivated by money (though some may be), but because a potential whistleblower has a reasonable fear of a short career in the industry they are blowing the whistle on and a legitimate concern about the cost of hiring an attorney to help with the whistleblower process. These fears are offset somewhat by the prospect of a whistleblower reward that will cover attorney fees and provide some economic security. Under the new program the potential whistleblower award is up to 30% of the criminal fines over $1 million recovered from cases relating to the whistleblower’s information. This payout, however, is totally in the discretion of the government and non-appealable. There is obviously no track record for this new program. Success breeds success so let’s hope there are some early cases where whistleblowers come out not regretting their bold decision to come forward.
Trust between a potential whistleblower and the Antitrust Division will be key because the uncertainty inherent in guidelines for a new program can only be reduced with experience. There was similar uncertainty when the Division launched the 1993 Corporate Leniency Program. Real life examples and speeches by government decision makers (who had a clear bias towards making the program successful) led to a level of trust that overcame concerns about how the new leniency program would work. And work it did. The same process will hopefully play out here.
It is important to remember that a potential whistleblower already has a more well-trod path to becoming a whistleblower when a government agency, like the Postal Service, is a victim of bidding fraud. A whistleblower can file a False Claims Act case—the false claim being invoice submitted for work/projects secured via collusion. The False Claims Act applies to all contracts with federal agencies (or contracts funded by federal dollars). The Antitrust Divion has had some big cases that flowed from a whistleblower(s). For example, in November 2018 the Antitrust Division and Civil Division announced that three South Korean oil refiners had agreed to plead guilty and to enter into civil settlements for rigging bids on United States Department of Defense Fuel Supply Contracts. The government entered into civil settlements of over $205 million. The investigation was started by a whistleblower filing a False Claims Act case. The DOJ press release noted, “The United States’ False Claims Act civil investigation resulted from a whistleblower lawsuit filed under the qui tam provisions of the False Claims Act. Those provisions allow for private parties to sue on behalf of the United States and to share in any recovery.” DOJ Press Release April 8, 2020 DOJ Agrees to Civil Settlement with Additional Firm Involved in Bid Rigging and Fraud Targeting Defense Department Fuel Supply Contracts for U.S. Military Bases in South Korea. While the amount awarded to the whistleblower[s] who initiated the investigation is not known, at 15-25% of the total recovery, there was ample reward for coming forward and exposing the scheme.
The qui tam provisions of the False Claims Act permit whistleblowers (known as “relators”) to bring certain fraud claims on behalf of the United States. 31 U.S.C. § 3730(b). These actions “are filed under seal and remain that way for at least 60 days” to give “the government an opportunity to assess the relator’s complaint and decide whether to intervene and assume primary responsibility for prosecuting the case.”
While not a qui tam (i.e. whistleblower) case, a July 14, 2025 USDOJ press release shows how corrupting the bidding process can result in a successful False Claims Act prosecution. A defense contractor agreed to pay $3.3 million to resolve allegations of causing fraudulent bids to be submitted. The defendant admitted that, from 2019 to 2021, it coordinated with other vendors to submit inflated quotes for rigid wall shelters so that the other vendors would win the awards at inflated prices. This was not a whistleblower case but in a situation like this, a whistleblower would now have the option of filing a False Claims Act case or reporting as a whistleblower under the new Antitrust Division’s Whistleblower Program. There will be plusses and minuses to consider for each whistleblower route. For instance, filing a whistleblower claim with the Antitrust Division seems simpler than filing an actual FCA case under seal. But, there is a long history of FCA cases so there is more certainty about how a False Claims Act case will proceed.
The Antirust Division’s Whistleblower Program is an important supplement to how one can be a whistleblower on contracts involving federal funds. The biggest gap when it comes to incentivizing persons to come forward with information about price fixing/bidding rigging or other forms of undermining the competitive process is when the violation targets the private sector economy. The FCA only applies when federal funds have been illegally obtained. It simply makes no sense to incentivize whistleblowers to come forward when the federal government is the victim of illegal collusion through the FCA, but not have similar program that provides a financial incentivize for coming forward with information about criminal antitrust violation victimizing the private sector. Perhaps the Division’s new Whistleblower Program will provide an avenue for private sector whistleblowers to come forward. That will depend on how broadly the Program is applied. We can’t expect any quick results since it is a long road between filing a whistleblower claim and an actual case—and the Division will protect the whistleblower’s anonymity to the extent possible under the law. My real hope is that the new Whistleblower Program is just first step in an expansion of incentives for whistleblowers to come forward, culminating someday in SEC style criminal antitrust whistleblower legistation.
See It’s Time For A Criminal Antitrust Whistleblower Statute (It Was Also Time Last Year and the Year Before Too), Cartel Capers, August 11, 2022.
PS. I have not been blogging much lately. There are many reasons but one is that Spell Check informed me that there were 163 spelling errors and a handful of grammatical mistakes in my first draft. You would be surprised at how many different ways I can misspell “whistleblower” when trying to get my thoughts down quickly in a draft. I cannot type and my ability to think is becoming more questionable.
But—Thanks for reading! Bob Connolly