Marlene Koury of Constantine Cannon LLP has written an interesting comparative article on the extension by some international enforcement agencies of protections to whistleblowers, in addition to existing immunity or leniency program protections (see: Making It Easier to Whistle While You Work).
According to the author, while approximately 50 foreign jurisdictions now have leniency programs in place, and while the U.S. pioneered leniency as a cartel detection tool, the U.S. does not yet have whistleblower protections.
In this interesting article, the author describes the fact that, for example, while the Antitrust Division of the U.S. Department of Justice, like Canada’s Competition Bureau, relies on its Corporate Leniency Program to encourage self-reporting of cartel activity, it is limited in that it fails to offer people who are aware of, but not complicit in, cartel activity with any incentive to report:
“The question of whether U.S. antitrust enforcement should emulate foreign whistleblower rewards programs as part of a crackdown on cartels is analyzed in a recent article by a Constantine Cannon attorney: Making It Easier to Whistle While You Work.
Cartel detection and prosecution are top priorities for the Antitrust Division of the U.S. Department of Justice (“Antitrust Division”) – regardless of which political party occupies the White House. Given the often secretive nature of cartels, however, they can be hard to detect. The Antitrust Division relies on its Corporate Leniency Program to encourage self-reporting of cartel activity, by offering immunity and/or reduced sanctions.
As important as leniency programs are, however, they are limited. Given their narrow focus on those at the heart of the cartel, corporate leniency programs fail to offer people who are aware of, but not complicit in, cartel activity with any incentive to report illegal activity. This absence of an antitrust informant rewards program undoubtedly means that much cartel activity victimizing U.S. consumers goes unreported.
Over the past 10 years, four jurisdictions – South Korea, Pakistan, the United Kingdom and Hungary – have addressed the limitations of their corporate leniency programs by adding an antitrust informant, or whistleblower, rewards program. Each jurisdiction noted that the aim of adding a rewards program was to increase reporting from those who are either uninvolved in, or on the periphery, of a cartel.”
In Canada, the Competition Bureau has both Immunity and Leniency Programs, under which applicants may receive full immunity from prosecution or, where they do not qualify for full immunity, may receive 30% or 50% reductions in penalties under the Bureau’s Leniency Program for cooperating with the Bureau in a criminal investigation (see: Immunity & Leniency).
In Canada, the federal Competition Act also contains express whistleblower protections. In this regard, section 66.1 of the Competition Act provides that any person with “reasonable grounds” to believe that a person has committed an offence under the Act may notify the Commissioner [of Competition] and request that his/her identity be kept confidential. Section 66.2 further provides that no employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee (or deny an employee a benefit of employment) based on the fact that the employee, acting in good faith and on the basis of reasonable belief: (i) reported an offence committed by the employer or other person, (ii) refused to do anything that is an offence under the Act, or (iii) took steps to avoid an offence under the Act.
The Competition Bureau also takes the position that an effective competition law compliance program should include a reporting mechanism that, among other things, should “educate employees who are in a position to engage in, or be exposed to, conduct in potential breach of the [Competition Act] on the Bureau’s Immunity Program and the whistleblowing provisions …” (see: Corporate Compliance Programs Bulletin).
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