Partner Saul Morgenstern Analyzes Whistle-blower Protection Legislation in Global Competition Review

Global Competition Review reports that two US senators are trying to re-introduce a bill that would protect whistle-blowers from being targeted by their employers for reporting antitrust crimes. The Criminal Antitrust Anti-Retaliation Act was originally proposed in July 2012 but did not get through the judiciary committee. Senators Patrick Leahy and Chuck Grassley are hoping that if it passes, the protection provided by the legislation will encourage more people to come forward with information about potential antitrust violations.

However, GCR reports that Kaye Scholer Antitrust Practice Co-Head Saul Morgenstern argues that there is no immediate need for such legislation: “I have not seen any empirical evidence that whistle-blowers are routinely being subjected to retaliation.” He points out that “On the contrary, whistle-blowers are often former employees who have been fired or quit, and often claim that they were forced out because they would not abide or tried to resist the company’s alleged misconduct. The water in such cases is often quite muddy, which makes legislating their ‘protection’ and then administering such protection if passed, challenging.”

Morgenstern also noted that the Department of Justice’s antitrust division already has an amnesty program that is “well-designed” and successful in tracking down cartels. Therefore, he believes that “Without empirical evidence that the proposed legislation would materially aid enforcement, lawmakers ought to tread carefully before they create another layer of regulation and potential collateral litigation.”