DOJ Antitrust Whistleblower Program: New Incentives, New Compliance Pressures

According to a Bloomberg Law article by Mark Krotoski and Vinny Sidhu of Pillsbury Winthrop Shaw Pittman, the Department of Justice’s Antitrust Division is offering financial incentives for whistleblower reports, a significant shift from its historic reliance on the Leniency Program. The new whistleblower program, announced in July, targets postal-related operations and federal procurement. Rewards may range from 15% to 30% of a criminal fine of at least $1 million, provided there is a conviction or a deferred or non-prosecution agreement in place.

The Leniency Program, in place since 1978 and revised in 1993, has long provided non-prosecution protections to the first company or individual who self-reports antitrust misconduct and fully cooperates. Unlike leniency, the whistleblower program does not shield participants in unlawful conduct but offers monetary incentives for employees, observers, or other witnesses who provide timely and substantial information. It also builds on the Criminal Antitrust Anti-Retaliation Act of 2020, which bars employer retaliation but does not provide financial rewards.

For compliance officers, the new program raises important strategic considerations. Key factors include the timing of reports, which can determine eligibility under either program; the scope of protection offered to companies and individuals; and the cooperation requirements that influence both immunity and the size of potential rewards. Notably, the whistleblower program allows multiple reports, though shared awards are capped at 30%.

This development means organizations should be updated to address the incentives employees now face to bypass internal reporting. As Krotoski and Sidhu note, early legal analysis and swift decision-making are critical, since delays may limit options and increase exposure.