Criminal Antitrust Anti-Retaliation Act of 2019

I 116TH CONGRESS 2D SESSION H. R. 8226 To provide anti-retaliation protections for antitrust whistleblowers. IN THE HOUSE OF REPRESENTATIVES SEPTEMBER 11, 2020 Mr. NEGUSE (for himself, Mr. NADLER, Mr. CICILLINE, and Mr. SENSEN- BRENNER) introduced the following bill; which was referred to the Com- mittee on the Judiciary A BILL To provide anti-retaliation protections for antitrust whistleblowers. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Criminal Antitrust 4 Anti-Retaliation Act of 2019’’. 5 SEC. 2. AMENDMENT TO ACPERA. 6 The Antitrust Criminal Penalty Enhancement and 7 Reform Act of 2004 (Public Law 108–237; 15 U.S.C. 1 8 note) is amended by inserting after section 215 the fol- 9 lowing: 10 VerDate Sep 11 2014 07:26 Sep 15, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8226.IH H8226 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 8226 IH ‘‘SEC. 216. ANTI-RETALIATION PROTECTION FOR WHISTLE- 1 BLOWERS. 2 ‘‘(a) WHISTLEBLOWER PROTECTIONS FOR EMPLOY- 3 EES, CONTRACTORS, SUBCONTRACTORS, AND AGENTS.— 4 ‘‘(1) IN GENERAL.—No employer may dis- 5 charge, demote, suspend, threaten, harass, or in any 6 other manner discriminate against a covered indi- 7 vidual in the terms and conditions of employment of 8 the covered individual because of any lawful act done 9 by the covered individual— 10 ‘‘(A) to provide or cause to be provided to 11 the Federal Government or a person with su- 12 pervisory authority over the covered individual 13 (or such other person working for the employer 14 who has the authority to investigate, discover, 15 or terminate misconduct) information relating 16 to— 17 ‘‘(i) any violation of, or any act or 18 omission the covered individual reasonably 19 believes to be a violation of, the antitrust 20 laws; or 21 ‘‘(ii) any violation of, or any act or 22 omission the covered individual reasonably 23 believes to be a violation of, another crimi- 24 nal law committed in conjunction with a 25 potential violation of the antitrust laws or 26 VerDate Sep 11 2014 07:26 Sep 15, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8226.IH H8226 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 8226 IH in conjunction with an investigation by the 1 Department of Justice of a potential viola- 2 tion of the antitrust laws; or 3 ‘‘(B) to cause to be filed, testify in, partici- 4 pate in, or otherwise assist a Federal Govern- 5 ment investigation or a Federal Government 6 proceeding filed or about to be filed (with any 7 knowledge of the employer) relating to— 8 ‘‘(i) any violation of, or any act or 9 omission the covered individual reasonably 10 believes to be a violation of, the antitrust 11 laws; or 12 ‘‘(ii) any violation of, or any act or 13 omission the covered individual reasonably 14 believes to be a violation of, another crimi- 15 nal law committed in conjunction with a 16 potential violation of the antitrust laws or 17 in conjunction with an investigation by the 18 Department of Justice of a potential viola- 19 tion of the antitrust laws. 20 ‘‘(2) LIMITATION ON PROTECTIONS.—Para- 21 graph (1) shall not apply to any covered individual 22 if— 23 VerDate Sep 11 2014 07:26 Sep 15, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8226.IH H8226 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 8226 IH ‘‘(A) the covered individual planned and 1 initiated a violation or attempted violation of 2 the antitrust laws; 3 ‘‘(B) the covered individual planned and 4 initiated a violation or attempted violation of 5 another criminal law in conjunction with a vio- 6 lation or attempted violation of the antitrust 7 laws; or 8 ‘‘(C) the covered individual planned and 9 initiated an obstruction or attempted obstruc- 10 tion of an investigation by the Department of 11 Justice of a violation of the antitrust laws. 12 ‘‘(3) DEFINITIONS.—In this section: 13 ‘‘(A) ANTITRUST LAWS.—The term ‘anti- 14 trust laws’ means section 1 or 3 of the Sher- 15 man Act (15 U.S.C. 1 and 3). 16 ‘‘(B) COVERED INDIVIDUAL.—The term 17 ‘covered individual’ means an employee, con- 18 tractor, subcontractor, or agent of an employer. 19 ‘‘(C) EMPLOYER.—The term ‘employer’ 20 means a person, or any officer, employee, con- 21 tractor, subcontractor, or agent of such person. 22 ‘‘(D) FEDERAL GOVERNMENT.—The term 23 ‘Federal Government’ means— 24 VerDate Sep 11 2014 07:26 Sep 15, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8226.IH H8226 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 8226 IH ‘‘(i) a Federal regulatory or law en- 1 forcement agency; or 2 ‘‘(ii) any Member of Congress or com- 3 mittee of Congress. 4 ‘‘(E) PERSON.—The term ‘person’ has the 5 same meaning as in subsection (a) of the first 6 section of the Clayton Act (15 U.S.C. 12(a)). 7 ‘‘(4) RULE OF CONSTRUCTION.—The term ‘vio- 8 lation’, with respect to the antitrust laws, shall not 9 be construed to include a civil violation of any law 10 that is not also a criminal violation. 11 ‘‘(b) ENFORCEMENT ACTION.— 12 ‘‘(1) IN GENERAL.—A covered individual who 13 alleges discharge or other discrimination by any em- 14 ployer in violation of subsection (a) may seek relief 15 under subsection (c) by— 16 ‘‘(A) filing a complaint with the Secretary 17 of Labor; or 18 ‘‘(B) if the Secretary of Labor has not 19 issued a final decision within 180 days of the 20 filing of the complaint and there is no showing 21 that such delay is due to the bad faith of the 22 claimant, bringing an action at law or equity 23 for de novo review in the appropriate district 24 court of the United States, which shall have ju- 25 VerDate Sep 11 2014 07:26 Sep 15, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8226.IH H8226 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 8226 IH risdiction over such an action without regard to 1 the amount in controversy. 2 ‘‘(2) PROCEDURE.— 3 ‘‘(A) IN GENERAL.—A complaint filed with 4 the Secretary of Labor under paragraph (1)(A) 5 shall be governed under the rules and proce- 6 dures set forth in section 42121(b) of title 49, 7 United States Code. 8 ‘‘(B) EXCEPTION.—Notification made 9 under section 42121(b)(1) of title 49, United 10 States Code, shall be made to any individual 11 named in the complaint and to the employer. 12 ‘‘(C) BURDENS OF PROOF.—An action 13 brought under paragraph (1)(B) shall be gov- 14 erned by the legal burdens of proof set forth in 15 section 42121(b) of title 49, United States 16 Code. 17 ‘‘(D) STATUTE OF LIMITATIONS.—A com- 18 plaint under paragraph (1)(A) shall be filed 19 with the Secretary of Labor not later than 180 20 days after the date on which the violation oc- 21 curs. 22 ‘‘(E) CIVIL ACTIONS TO ENFORCE.—If a 23 person fails to comply with an order or prelimi- 24 nary order issued by the Secretary of Labor 25 VerDate Sep 11 2014 07:26 Sep 15, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8226.IH H8226 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 8226 IH pursuant to the procedures set forth in section 1 42121(b) of title 49, United States Code, the 2 Secretary of Labor or the person on whose be- 3 half the order was issued may bring a civil ac- 4 tion to enforce the order in the district court of 5 the United States for the judicial district in 6 which the violation occurred. 7 ‘‘(c) REMEDIES.— 8 ‘‘(1) IN GENERAL.—A covered individual pre- 9 vailing in any action under subsection (b)(1) shall be 10 entitled to all relief necessary to make the covered 11 individual whole. 12 ‘‘(2) COMPENSATORY DAMAGES.—Relief for any 13 action under paragraph (1) shall include— 14 ‘‘(A) reinstatement with the same seniority 15 status that the covered individual would have 16 had, but for the discrimination; 17 ‘‘(B) the amount of back pay, with inter- 18 est; and 19 ‘‘(C) compensation for any special damages 20 sustained as a result of the discrimination in- 21 cluding litigation costs, expert witness fees, and 22 reasonable attorney’s fees. 23 ‘‘(d) RIGHTS RETAINED BY WHISTLEBLOWERS.— 24 Nothing in this section shall be deemed to diminish the 25 VerDate Sep 11 2014 07:26 Sep 15, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8226.IH H8226 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 8226 IH rights, privileges, or remedies of any covered individual 1 under any Federal or State law, or under any collective 2 bargaining agreement.’’. 3 Æ VerDate Sep 11 2014 07:26 Sep 15, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\H8226.IH H8226 kjohnson on DSK79L0C42PROD with BILLS