If it seems like 2020 was the year when everyone was talking about antitrust on their socially distant Zoom calls, that is because government antitrust lawyers have been busy. Just before the year began, the Department of Justice announced the formation of the Procurement Collusion Strike Force and, in January 2020, the Antitrust Division rolled out its new vertical merger guidelines. In the criminal realm, courts issued three antitrust fines at or above the $100 million statutory maximum, and the past year also saw the first-ever criminal antitrust indictment for wage fixing, which was brought in the Eastern District of Texas against the owner of a physical therapy staffing company.
Against this backdrop, the Department of Justice and the Federal Trade Commission have filed lawsuits asserting that pretty much the entire Internet is an antitrust violation, and they are seeking to break up the company that is probably the home page on your Internet browser. In addition, a bi-partisan group of state attorneys general filed their own antitrust lawsuit against tech companies, and then another subset of states filed yet another Internet antitrust lawsuit.
Not to be outdone, Congress also got in on the antitrust action. On December 8, 2020, Congress passed the Criminal Antitrust Anti-Retaliation Act of 2019, which was later signed into law. The statute, which took more than a year to be enacted, prohibits any employer from retaliating against an employee, agent, or contractor who reports a potential criminal antitrust violation to the federal government or an internal company supervisor. The statute also explicitly excludes from protection any person who planned and initiated an antitrust violation, attempted to obstruct an antitrust investigation by the Department of Justice, or engaged in another violation of the law in connection with an antitrust violation. The Anti-Retaliation Act provides that an aggrieved individual is entitled to “all relief necessary to make [him] whole,” which includes reinstatement, back pay with interest, and special damages, which includes litigation costs, expert witness fees, and attorneys’ fees.
Unlike some of the other antitrust developments in 2020, the passage of the Criminal Antitrust Anti-Retaliation Act requires some immediate action. First, a company’s whistleblower and compliance policies should be updated to ensure that no adverse action is taken against an employee who reports an antitrust violation. Because the protections of the law apply only to those whistleblowers who report criminal conduct, this effectively limits a whistleblower’s protection to complaints relating to price or wage fixing, bid rigging, output agreements, market or customer allocations, or naked no-poach agreements. Second, those individuals in a company’s compliance department or who are responsible for whistleblower reports must be educated on the antitrust laws in order to ensure the proper controls and procedures are followed once a report is received. Because a protected whistleblower claim will necessarily involve a report of a criminal antitrust violation, procedures should be implemented to ensure that the legal department is involved from the beginning of the process in order to ensure that a proper investigation is performed and the attorney-client privilege is protected.
We’re all waiting to see what 2021 will bring to the world of antitrust. More tech lawsuits? A chorus of criminal no-poaching cases? Increased antitrust prosecutions in government procurement? If 2020 is any indication, in-house counsel and compliance departments should keep their seatbelts fastened and prepare for another bumpy ride.