Key Takeaways
- The DOJ Antitrust Division announced the creation of a new whistleblower program, marking the first time the Antitrust Division has formed a program to provide monetary rewards to individuals who assist in antitrust crime prosecutions.
- While the program will be operated by both the Antitrust Division and the U.S. Postal Service, rewards will be paid out by the U.S. Postal Service.
- The new whistleblower program could pay whistleblowers up to 30 percent of any criminal fines recovered.
- Companies should review their compliance policies and procedures and ensure that they are aligned with and consider the Antitrust Division's new whistleblower program because the whistleblower program could affect companies' options if they are part of a future criminal antitrust investigation.
Background
On July 8, the DOJ Antitrust Division (Division) announced the creation of its first-ever Whistleblower Rewards Program (Rewards Program). The new Rewards Program brings the Division in line with other DOJ whistleblower programs and further incentivizes companies to have effective compliance programs and internal reporting mechanisms. The Rewards Program is being launched in conjunction with the U.S. Postal Service (USPS) and the U.S. Postal Service Office of Inspector General (USPS-OIG); a Memorandum of Understanding (MOU) between the Division and the agencies sets the criteria for the Rewards Program. Paid rewards to eligible whistleblowers can be up to 30 percent of the recovered criminal fine. Under the Rewards Program, the USPS will pay the rewards to eligible whistleblowers under its statutory authority to pay for information and services related to violations of postal laws. See 39 U.S.C. §404(a)(7) and 39 U.S.C. §2601(a)(2). Whistleblowers will be able to submit reports through the Division's portal.
Key Program Details
- Eligible violations: The Rewards Program
covers broad categories of potential criminal offenses, including:
- Criminal violations of Sherman Act sections 1, 2 and 3;
- Federal criminal violations committed to effectuate, conceal or facilitate a Sherman Act violation;
- Federal criminal violations that target or affect public procurement at the federal, state or local level; and
- Federal criminal violations affecting federal competition-related investigations or proceedings.
- Eligibility for reward: To qualify as a
whistleblower, individuals must, among other things:
- Voluntarily provide original information about eligible violations;
- Provide information not already known to the government;
- Provide information before any formal legal demand is received;
- Provide information that is not derived exclusively from a judicial or administrative hearing, government report, audit or investigation, unless the whistleblower is the source of that information;
- Not be a leader or originator of the illegal activity;
- Not coerce others to participate in the illegal activity; and
- Not obtain information through attorney-client privileged communications.
- Reward amount: The whistleblower reward amount decision will be made in consultation with the USPS and the USPS-OIG, but the ultimate decision rests with the Division. If the Division determines that a reward is appropriate, the presumption will be that the total reward will be at least 15 percent of the recovered criminal fine, but no more than 30 percent, and multiple whistleblowers may split rewards. As a threshold, the criminal fine must be at least $1 million to be eligible for the Rewards Program.
- Criteria for determining amount of reward: The
Division has discretion to determine the appropriate reward amount
and may consider many factors, including:
- Whether the information provided by the whistleblower was directly related to a successful criminal prosecution;
- Whether the information was reliable and complete;
- Whether the information provided resulted in the conservation of government resources; and
- Whether the whistleblower provided ongoing, extensive, and timely cooperation and assistance by, for example, helping to explain complex transactions, interpreting key evidence, or identifying new and productive lines of inquiry.1
- Nexus to USPS: The alleged violations must affect the USPS, its revenues or its property, but the harm need not be material or otherwise pose any substantial detriment to the USPS.
Key Takeaways
- The new Rewards Program is a significant development, and it brings the Division in line with other federal agencies that have successfully implemented whistleblower programs. For example, under the False Claims act, the government awarded more than $400 million in whistleblower rewards in fiscal year 2024, and since the program began in 2011, the SEC has awarded more than $2 billion in whistleblower rewards.2
- The new Rewards Program may serve as a complement to the Division's long-standing leniency program. A company that may be on the fence regarding self-reporting to the Division under the leniency program, now may also face the possibility that a whistleblower employee seeking a financial reward will cut off the company's path to leniency. The Rewards Program creates powerful incentives for individuals to report violations, making timely internal corporate detection of antitrust related issues more important than ever.
- Importantly, the Division's leniency program relates to alleged Sherman Act violations. The new Rewards Program is not so limited. The MOU makes clear that far broader conduct may be eligible for whistleblower rewards.
- Although the program currently applies only to violations affecting the USPS, this is a low bar. The USPS has traditionally utilized a broad mandate and reach in antitrust-related investigations.
- We expect the Division to devote meaningful resources to the Rewards Program, including the review, investigation and consideration of received complaints. However, the implementation and impact of the Rewards Program will take time to play out, and it will be important to stay apprised of reporting rates and rewards provided through the Rewards Program.
Companies should consider reviewing and updating their antitrust compliance policies and procedures to align with this new program. With new incentives for whistleblowers to report antitrust-related violations, there is a greater likelihood that potential misconduct will be identified to enforcement authorities. As such, companies should ensure they are maintaining effective compliance programs that can identify potential misconduct and take appropriate measures if such misconduct is discovered. The BakerHostetler Cartel and Government Antitrust Investigations Task Force is composed of attorneys with extensive experience in proactive antitrust compliance counseling and regulatory investigations and litigation. The Task Force includes former DOJ prosecutors, as well as attorneys who are part of both the Antitrust and Competition and White Collar, Investigations and Securities Enforcement and Litigation teams. Please feel free to contact any of our experienced professionals if you have questions about this alert.
Footnotes
1 Memorandum of Understanding Regarding the Whistleblower Rewards Program and Procedures, https://www.justice.gov/atr/media/1407261/dl?inline.
2 False Claims Act Settlements and Judgments Exceed $2.9B in Fiscal Year 2024 (January 15, 2025), https://www.justice.gov/archives/opa/pr/false-claims-act-settlements-and-judgments-exceed-29b-fiscal-year-2024; Whistleblower Program (March 17, 2025) https://www.sec.gov/enforcement-litigation/whistleblower-program.
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