[Congressional Record Volume 161, Number 115 (Wednesday, July 22, 2015)]
[Senate]
[Pages S5474-S5475]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CRIMINAL ANTITRUST ANTI-RETALIATION ACT OF 2015
Mr. McCONNELL. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Calendar No. 151, S. 1599.
The PRESIDING OFFICER. The clerk will report the bill by title.
The senior assistant legislative clerk read as follows:
A bill (S. 1599) to provide anti-retaliation protections
for antitrust whistleblowers.
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on the Judiciary, with an
amendment to strike all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Criminal Antitrust Anti-
Retaliation Act of 2015''.
SEC. 2. AMENDMENT TO ACPERA.
The Antitrust Criminal Penalty Enhancement and Reform Act
of 2004 (Public Law 108-237; 15 U.S.C. 1 note) is amended by
inserting after section 215 the following:
``SEC. 216. ANTI-RETALIATION PROTECTION FOR WHISTLEBLOWERS.
``(a) Whistleblower Protections for Employees, Contractors,
Subcontractors, and Agents.--
``(1) In general.--No employer may discharge, demote,
suspend, threaten, harass, or in any other manner
discriminate against a covered individual in the terms and
conditions of employment of the covered individual because of
any lawful act done by the covered individual--
``(A) to provide or cause to be provided to the employer or
the Federal Government information relating to--
``(i) any violation of, or any act or omission the covered
individual reasonably believes to be a violation of, the
antitrust laws; or
``(ii) any violation of, or any act or omission the covered
individual reasonably believes to be a violation of, another
criminal law committed in conjunction with a potential
violation of the antitrust laws or in conjunction with an
investigation by the Department of Justice of a potential
violation of the antitrust laws; or
``(B) to cause to be filed, testify in, participate in, or
otherwise assist a Federal Government investigation or a
Federal Government proceeding filed or about to be filed
(with any knowledge of the employer) relating to--
``(i) any violation of, or any act or omission the covered
individual reasonably believes to be a violation of, the
antitrust laws; or
``(ii) any violation of, or any act or omission the covered
individual reasonably believes to be a violation of, another
criminal law committed in conjunction with a potential
violation of the antitrust laws or in conjunction with an
investigation by the Department of Justice of a potential
violation of the antitrust laws.
``(2) Limitation on protections.--Paragraph (1) shall not
apply to any covered individual if--
``(A) the covered individual planned and initiated a
violation or attempted violation of the antitrust laws;
``(B) the covered individual planned and initiated a
violation or attempted violation of another criminal law in
conjunction with a violation or attempted violation of the
antitrust laws; or
``(C) the covered individual planned and initiated an
obstruction or attempted obstruction of an investigation by
the Department of Justice of a violation of the antitrust
laws.
``(3) Definitions.--In this section:
``(A) Antitrust laws.--The term `antitrust laws' means
section 1 or 3 of the Sherman Act (15 U.S.C. 1 and 3).
``(B) Covered individual.--The term `covered individual'
means an employee, contractor, subcontractor, or agent of an
employer.
``(C) Employer.--The term `employer' means a person, or any
officer, employee, contractor, subcontractor, or agent of
such person.
``(D) Federal government.--The term `Federal Government'
means--
``(i) a Federal regulatory or law enforcement agency; or
``(ii) any Member of Congress or committee of Congress.
``(E) Person.--The term `person' has the same meaning as in
subsection (a) of the first section of the Clayton Act (15
U.S.C. 12(a)).
``(4) Rule of construction.--The term `violation', with
respect to the antitrust laws, shall not be construed to
include a civil violation of any law that is not also a
criminal violation.
``(b) Enforcement Action.--
``(1) In general.--A covered individual who alleges
discharge or other discrimination by any employer in
violation of subsection (a) may seek relief under subsection
(c) by--
``(A) filing a complaint with the Secretary of Labor; or
``(B) if the Secretary of Labor has not issued a final
decision within 180 days of the filing of the complaint and
there is no showing that such delay is due to the bad faith
of the claimant, bringing an action at law or equity for de
novo review in the appropriate district court of the United
States, which shall have jurisdiction over such an action
without regard to the amount in controversy.
``(2) Procedure.--
``(A) In general.--A complaint filed with the Secretary of
Labor under paragraph (1)(A) shall be governed under the
rules and procedures set forth in section 42121(b) of title
49, United States Code.
``(B) Exception.--Notification made under section
42121(b)(1) of title 49, United States Code, shall be made to
any individual named in the complaint and to the employer.
``(C) Burdens of proof.--A complaint filed with the
Secretary of Labor under paragraph (1)(A) shall be governed
by the legal burdens of proof set forth in section 42121(b)
of title 49, United States Code.
``(D) Statute of limitations.--A complaint under paragraph
(1)(A) shall be filed with the Secretary of Labor not later
than 180 days after the date on which the violation occurs.
``(E) Civil actions to enforce.--If a person fails to
comply with an order or preliminary order issued by the
Secretary of Labor pursuant to the procedures set forth in
section 42121(b) of title 49, United States Code, the
Secretary of Labor or the person on whose behalf the order
was issued may bring a civil action to enforce the order in
the district court of the United States for the judicial
district in which the violation occurred.
``(c) Remedies.--
``(1) In general.--A covered individual prevailing in any
action under subsection (b)(1) shall be entitled to all
relief necessary to make the covered individual whole.
``(2) Compensatory damages.--Relief for any action under
paragraph (1) shall include--
``(A) reinstatement with the same seniority status that the
covered individual would have had, but for the
discrimination;
``(B) the amount of back pay, with interest; and
``(C) compensation for any special damages sustained as a
result of the discrimination including litigation costs,
expert witness fees, and reasonable attorney's fees.
``(d) Rights Retained by Whistleblowers.--Nothing in this
section shall be deemed to diminish the rights, privileges,
or remedies of any covered individual under any Federal or
State law, or under any collective bargaining agreement.''.
Mr. LEAHY. Mr. President, I applaud the Senate is passing bipartisan
legislation that will protect employees who blow the whistle on
criminal antitrust violations. The Criminal Antitrust Anti-Retaliation
Act is legislation that I have worked on with Senator Grassley for
three Congresses now. This is the second Congress in a row that the
Senate has passed it unanimously. The bill is an extension of my
longstanding partnership with Senator Grassley on whistleblower issues.
Our bipartisan bill provides meaningful protections to employees who
blow the whistle on the worst forms of anticompetitive behavior such as
price fixing. Whistleblowers play an important role in alerting the
public, Congress, and law enforcement agencies to wrongdoing in a
number of areas. They often take significant risks in making these
disclosures and can be the target of retaliation. The Criminal
Antitrust Anti-Retaliation Act prohibits employers from retaliating
against employees who alert the company, Congress, or law enforcement
of criminal activity.
Senator Grassley and I modeled this legislation on the whistleblower
protections we authored as part of the Sarbanes-Oxley Act. The
protections are narrowly tailored and do not provide whistleblowers
with an economic incentive to bring forth false claims. Last Congress,
we made modest changes to the bill in the Judiciary Committee to
improve the definition of a covered individual and to clarify that
protections only apply to employees reporting criminal violations. This
Congress, we made additional refinements in the Judiciary Committee to
further clarify the scope of the bill. The protections in this bill
build on recommendations from key stakeholders in a 2011 Government
Accountability Office report to Congress.
Consumers benefit from competitive markets and the antitrust laws
serve to safeguard competition. By protecting those who would blow the
whistle on criminal antitrust behavior, our bill will help facilitate
the reporting of these kinds of violations. I urge the House to pass
this bipartisan legislation.
I ask unanimous consent that a letter in support of the bill from the
National Whistleblowers Center be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S5475]]
National Whistleblower Center,
Washington, DC, July 17, 2015.
Re Criminal Antitrust Anti-Retaliation Act of 2015.
Hon. Charles E. Grassley,
Senate Committee on the Judiciary,
Washington, DC.
Hon. Patrick Leahy,
Senate Committee on the Judiciary,
Washington, DC.
Dear Senators, I am writing to you in support of the
Criminal Antitrust Anti-Retaliation Act of 2015. This
legislation will extend whistleblower protection for
employees who provide information to the Department of
Justice related to criminal antitrust violations. This Bill
will create, for the first time, whistleblower protections
for employees who report antitrust violations.
The protections in this bill were recommend by the
Government Accountability Office in a 2011 report and will
plug a loophole in the patchwork of whistleblower protection
that currently exists. Current laws in place do not provide
any protections for innocent third parties who blow the
whistle on criminal antitrust activity. The proposed Bill
will allow employees to file an action with the Department of
Labor in the event that they are retaliated against for
reporting criminal violations of the antitrust laws.
Numerous studies have shown that employees are the first
defense to prevent fraud and white-collar crime. Such crimes
harm businesses, consumers, and our economy. Investigators
rely heavily on information from insiders to protect the
public interest and prevent illegal competitive practices.
The brave individuals that report antitrust violations should
be protected.
This is a narrow but important bill that will help to
improve enforcement of the antitrust laws.
Stephen M. Kohn,
Executive Director.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the
committee-reported substitute amendment be agreed to; the bill, as
amended, be read a third time and passed; and the motion to reconsider
be considered made and laid upon the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
The committee-reported amendment in the nature of a substitute was
agreed to.
The bill (S. 1599), as amended, was ordered to be engrossed for a
third reading, was read the third time, and passed.
____________________