Antitrust Whistleblower Reward

Learn What You Need to Know About Antitrust Whistleblower Rewards from the Attorneys at Oberheiden P.C.

There are many reasons to report both civil and criminal antitrust violations to the federal government. These violations have the potential to cause significant harm to the general public—whether through monopolies, price fixing, and other anticompetitive business practices or through fraudulent pricing under federal contracts that results in substantial overpayments of taxpayer funds. Additionally, while not available in all cases, some individuals who report violations will be eligible to receive antitrust whistleblower rewards.

When it comes to financial compensation, antitrust whistleblower cases are somewhat unique. While whistleblower programs like those administered by the U.S. Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) provide compensation to whistleblowers regardless of who was harmed by the violation(s) at issue, antitrust whistleblowers are currently only eligible for rewards when they report violations that financially impact the federal government.

Antitrust Whistleblower Reward Eligibility: An Overview

Although there have been efforts to establish a broad federal antitrust whistleblower program, these efforts have been unsuccessful to date. Most recently, Senator Amy Klobuchar (D-Mn.) reintroduced the Competition and Antitrust Law Enforcement Reform Act (CALERA) in 2024. If passed, CALERA would entitle antitrust whistleblowers to between 10% and 30% of the amount the federal government recovers in criminal enforcement cases, subject to certain eligibility criteria and exceptions.

However, the 2024 version of CALERA has not made it out of committee, and prior versions of the bill have similarly failed to progress through the Senate. As a result, at present, it appears unlikely that CALERA will pass in the near future.

This, unfortunately, means that antitrust whistleblower rewards currently are not available to individuals who report violations purely within the private sector. However, in cases involving violations committed during the federal procurement process or under federal contracts, rewards may be available under the False Claims Act.

The federal False Claims Act is a statute that broadly prohibits fraud against the federal government. It includes provisions for civil and criminal enforcement; and, crucially, it also includes provisions for whistleblower compensation. Some examples of antitrust violations that the federal government may be able to prosecute under the False Claims Act include:

• Bid rigging
• Bid rotation
• Complementary bidding
• Geographic market allocation 
• Market allocation based on contract type
• Price fixing 
• Other bidding and pricing-related violations

In antitrust whistleblower cases under the False Claims Act, whistleblowers who provide information that leads to a successful enforcement action are generally entitled to a reward of 10% to 30% of the amount the government recovers. The specific percentage awarded is determined based on the importance of the information the whistleblower provides, the whistleblower’s level of assistance with the government’s investigation, and whether the case involves criminal or civil forfeiture or other remedies.

Importantly, there is precedent for pursuing enforcement action (and issuing whistleblower rewards) under the False Claims Act in antitrust cases. For example, in 2020, the U.S. Department of Justice (DOJ) Antitrust Division announced a civil settlement in a federal bid rigging case involving fuel contracts with the U.S. Department of Defense (DOD). As the DOJ noted in its press release, “[t]he United States’ civil investigation resulted from a whistleblower lawsuit filed under the qui tam provisions of the False Claims Act. . . . [which] allow for private parties to sue on behalf of the United States and to share in any recovery.”

Whistleblowers can report antitrust violations under bids and contracts involving all federal departments, offices, and agencies. This includes, but is by no means limited to, those involving:

• U.S. Department of Defense (DOD)
• U.S. Department of Energy (DOE)
• U.S. Department of Health and Human Services (DHHS)
• U.S. Department of Homeland Security (DHS)
• U.S. Department of Transportation (DOT)
• U.S. Department of Veterans Affairs (VA)
• U.S. General Services Administration (GSA)

Government entities currently spend close to $800 billion under federal contracts annually, making them vulnerable to fraud and criminal antitrust violations. While the full scope of government contract fraud is not known, the U.S. Government Accountability Office (GAO) has recently estimated that the federal government loses anywhere from $233 billion to $521 billion annually to fraud. A significant percentage of this is almost certainly due to antitrust violations under federal bids and contracts. As a result, antitrust whistleblowers play an important role in the government’s ongoing fight against fraud, waste, and abuse—and those who help the government recover taxpayer funds fully deserve their antitrust whistleblower rewards.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Factors that Can Affect the Amount of an Antitrust Whistleblower Reward Under the False Claims Act

As we said above, several factors can affect the amount of an antitrust whistleblower reward issued under the False Claims Act. For potential whistleblowers, it is important to be aware of these factors—and to take them into account when deciding how to proceed. Some of the key factors the federal government considers when calculating antitrust whistleblower awards include:

How Quickly the Whistleblower Comes Forward

Coming forward promptly can help improve the government’s chances of pursuing a successful civil or criminal enforcement action. As a result, when whistleblowers come forward at the first available opportunity, this can lead to a larger reward.

Whether the Government was Previously Aware of the Violation at Issue

Larger awards are also generally offered in cases in which the government was not previously aware of the violation at issue. Importantly, the government’s prior knowledge of a violation can also preclude individuals from securing whistleblower status in some cases.

The Amount and Importance of the Information Initially Disclosed

The amount and importance (or materiality) of the information an antitrust whistleblower provides to the federal government is a key factor in determining a False Claims Act reward as well. This is true regardless of any prior knowledge on the part of the federal government.

The Amount and Importance of Any Additional Information Provided

If the government requests additional information from a whistleblower during its investigation, the whistleblower’s decision to provide this information can support a claim for an antitrust whistleblower reward on the higher end of the statutory range.

How Much the Whistleblower Assists with the Government’s Investigation

In many cases, the most important factor for determining the amount of a whistleblower reward under the False Claims Act is the whistleblower’s level of assistance during the government’s investigation. At Oberheiden P.C., our whistleblower lawyers work with the government on behalf of our clients before, during, and after the investigative process to help maximize their reward eligibility when desired.

FAQs: Whistleblower Rewards in Federal Antitrust Cases