CALERA and Beyond
In February 2021, Senator Amy Klobuchar introduced the Competition and Antitrust Law Enforcement Reform Act (CALERA), a comprehensive antitrust reform bill that would not only strengthen antiretaliation protection for whistleblowers but also provide criminal antitrust whistleblowers a reward of up to 30% of the criminal fines imposed on the wrongdoer. If passed in its proposed form, the bill would not only encourage increased whistleblower activity in the field of antitrust but also greatly expand what constitutes an antitrust violation, resulting in more employees blowing the whistle on more types of corporate wrongdoing. Litigators should be prepared for this mushroom effect.
There is much reason to believe that the bill will fare well in its journey to becoming law. Bipartisan interest in comprehensive antitrust reform has already been made evident in the passage of CAARA. And perhaps more important, the debate over antitrust enforcement is no longer relegated to the backrooms of litigators, economists, and jurists. The American public now recognizes the importance of antitrust enforcement, particularly as questions of how to regulate the enormous power of big tech have entered everyday public discourse. In the words of renowned antitrust professor Carl Shapiro, “antitrust is sexy again,” and there is no indication that it will stop being sexy any time soon. It is not surprising that the Biden administration is being staffed by antitrust critics of big tech such as Tim Wu and Lina Khan.
These realities also show that the sanguinity of antitrust whistleblowing does not hinge on the passage of CALERA. With or without the proposed law, recent well-publicized antitrust cases are likely to further mark this era as a watershed moment for antitrust whistleblowing. As a prime example, a recent bid-rigging case involving fuel supply contracts for the U.S. military was brought by a whistleblower under qui tam provisions of the False Claims Act, resulting in the largest-ever bid rigging settlement and a significant monetary award to the whistleblower, to the tune of $36 million. Eric Havian, a lead attorney in the case, remarked, “I think this kind of bid-rigging goes on all over the world and so when the word gets out that there’s a reward for revealing this kind of widespread activity, I think you’re going to see a lot more of these cases.” Indeed, the confluence of trends—from the public to the legislature to the courts—all point to increased antitrust enforcement through whistleblowing.
The dawn of antitrust whistleblowing will shift how litigators approach antitrust cases over the next four years and beyond. Antitrust attorneys are already collaborating with whistleblower attorneys not only on legal developments, but also on how to market across practices, how to liaise with government entities, and how to encourage and foster client relationships. They should also be developing secure and simple channels that encourage potential whistleblowers to report. After all, those privy to antitrust wrongdoing may equivocate about whether to blow the whistle, and unnecessary complexity can be a deterrent. Firms would also be wise to closely follow antitrust criminal investigations and prosecutions, harbingers of the high-profile civil cases that will rise in their wake. In short, successful antitrust litigators should be proactively monitoring and responding to these changes in the industry. Antitrust whistleblowing is here to stay, and litigators will either embrace the interdisciplinary new world, or risk being left litigating on an island.