Criminal Antitrust Participants Gain Whistleblower Immunity and Protection

Parkman White, LLP is closely monitoring Criminal Antitrust legislation, which was recently introduced into the United States Senate to provide civil and possible criminal protection to whistle blowers. The Criminal Antitrust Anti-Retaliation Act of 2013 is reportedly modeled after the infamous Sarbaney-Oxley Act. Readers will remember that Jim Parkman of Parkman White, LLP was the lead trial attorney on the first ever criminal prosecution of a corporate CEO using the Sarbanes-Oxley Act which resulted in unanimous “not guilty” verdicts on all counts. It is believed to be the only federal criminal prosecution of a corporate CEO to result in a complete acquittal, and it involved a number of cooperators and whistle blowers.

Now, Senators are seeking to extend similar protection to any whistle blower that contacts the Department of Justice about criminal anti-trust violations. The bill sponsor, Chuck Grassley (R-IA) indicated the reason for the legislation is because whistle blowers who expose waste, fraud, and abuse (such a price fixing and other criminal anti-trust activity) are often treated like second class citizens, and fear career suicide for coming forward.

This legislation is intended to encourage those aware of criminal activity, even if they were involved, to come forward. If this legislation passes, there could be a rush to the courthouse steps by whistle blowers seeking: 1. Financial compensation for reporting the criminal activity, 2. Protection from adverse employment action by their employer, and 3. Immunity from any criminal prosecution. This could pose a real problem for companies under anti-trust investigation.

While criminal immunity is not mandated by the new legislation, it is expected to be a bargaining chip for skilled anti-trust criminal defense attorneys seeking the best for their whistle blower clients. The legislation appears to provide whistle blower protection even to those that were involved in the anti-trust behavior as long as that employee did not “plan” the criminal activity, or “initiate” such activity.

The real practical question will be how does the Department of Justice subjectively interpret the words “plan” and “initiate.” Prosecutors are typically reluctant to provide immunity to anyone, as it compromises that witnesses testimony. This is where potential whistle blowers will need good antitrust criminal attorneys to represent them in their disclosure to the government to convince prosecutors as to:

1. The strength of the whistle blower’s information

2. The uniqueness of the whistle blower’s information that cannot be obtained from other sources

3. The limited involvement of the whistle blower in the criminal activity in question.

If you are either a whistleblower interested in providing information to the government about anti-trust activity (or any other fraud against the government such as healthcare fraud, or government contract fraud) give the attorneys at Parkman & White as call and we will confidentially assess your case to determine if you are a good candidate for whistleblower treatment and protection. Likewise, if you are a company accused of anti-trust behavior by a whistleblower, the attorneys at Parkman & White can help you protect you and your company against criminal allegations. Whether you are in Florida, New York, Louisiana, Alabama, or other state, give our anti-trust attorneys a call to evaluate your situation.

Posted in AntiTrust Law |