Individuals now have a new incentive to blow the whistle on an antitrust cartel—the possibility of a monetary reward. The U.S. Department of Justice’s (DOJ) Antitrust Division has established its first whistleblower rewards program whereby individuals who report certain types of antitrust crimes can potentially receive a monetary reward in return for information.
The Antitrust Division recently partnered with the United States Postal Service (USPS) and the USPS Office of Inspector General (USPS OIG) to create the new program to incentivize individuals to provide information about collusion, particularly in industries where the USPS procures goods and services. Assistant Attorney General Abigail Slater of the Antitrust Division predicted in a press release that the whistleblower rewards program “will create a new pipeline of leads from individuals with firsthand knowledge of criminal antitrust and related offenses that will help us … hold violators accountable.”
Under the new whistleblower program, individuals who report “original information about antitrust and related offenses [affecting the USPS] that result in criminal fines or other recoveries of at least $1 million” may qualify for a monetary reward between 15 percent and 30 percent of any criminal fines recovered.
What’s New About This Program?
Until now, the DOJ has not offered a monetary reward as an incentive for individuals to report antitrust crimes.1 Instead, the DOJ has historically relied on other methods to encourage individuals to report collusive conduct, particularly the Antitrust Division’s leniency policy whereby companies and individuals can voluntarily self-disclose antitrust violations in exchange for nonprosecution protection. Additionally, the Criminal Antitrust Anti-Retaliation Act (CAARA), enacted in 2020, provides some protection for whistleblowers by prohibiting employers from retaliating against employees who report antitrust crimes or assist with a federal government investigation. However, whistleblowers under CAARA do not share in recovery of fines.
But in recent years, the Antitrust Division has increasingly looked for other ways to detect antitrust conspiracies. According to the DOJ, the new whistleblower program “expands upon the Division’s long-standing efforts to detect and prosecute cartels and criminal collusion by incentivizing individuals to report specific, credible, and timely information about illegal agreements to fix prices, rig bids, and allocate markets, as well as other federal criminal violations that impact, distort, or undermine the competitive process or market competition.”
Why the Postal Service?
The Antitrust Division often works with other law enforcement agencies, including the USPS OIG, to investigate criminal antitrust violations such as bid rigging and price fixing that affect those agencies. The USPS is authorized by statute to collect fines and penalties for matters affecting the USPS,2 which has led to the USPS partnering with the DOJ on a number of antitrust investigations. For example, the USPS OIG was involved in the DOJ’s investigation of collusion in the auto parts industry worldwide because the USPS is a large buyer of auto parts. The USPS OIG also worked with the Antitrust Division to investigate and prosecute airlines for fixing the prices of international air cargo rates, which affected the USPS’s business. Other industries where the USPS OIG has investigated criminal antitrust violations include online sales of DVDs and Blu-Ray discs, generic drugs, and ready-mix concrete.
What’s the Catch?
The idea of getting paid to report an antitrust violation might appear attractive at first. However, it may not be as easy as it sounds for whistleblowers to receive a monetary reward for providing information. The whistleblower program is subject to a Memorandum of Understanding (MOU) between the DOJ, USPS, and the USPS OIG, which places a number of limitations and conditions on an individual’s eligibility for a reward, including the following.3
- Voluntary disclosure. The information must be provided “voluntarily”; i.e., reported before the DOJ serves the individual with a grand jury subpoena or other formal demand for testimony or documents. Also, the individual cannot already be cooperating under an employer’s leniency application to the DOJ.
- Original information. The information provided has to be “original,” meaning truthful and complete information “derived from independent knowledge” of the facts rather than from publicly available sources. Additionally, the information must “not already [be] known to the Antitrust Division, USPIS, or USPS OIG from any other source.”
- Eligible criminal violation. The individual must report a potential or actual “Eligible Criminal Violation.” The MOU lists four categories of federal criminal offenses that are presumptively Eligible Criminal Violations: (i) criminal violations of sections 1, 2, and 3 of the Sherman Act, (ii) crimes committed to effectuate, facilitate, or conceal violations of the Sherman Act, (iii) crimes targeting or affecting federal, state, or local public procurement, and (iv) crimes targeting or affecting the conduct of federal competition investigations or proceedings. The latter category would likely include obstruction such as deleting or destroying ephemeral messages or emails.
- Affecting the USPS. The eligible criminal violation is further limited to crimes “affecting the Postal Service, its revenues, or property.” The MOU states that to affect the USPS, the harm must be “identifiable” but “need not be material or otherwise pose any substantial detriment to the Postal Service.” While the threshold appears to be relatively low, it remains to be seen what type of conduct meets this standard.
- Successful results. Finally, for the whistleblower to be eligible for a reward, the information they provide must lead to a resolution including a criminal fine of at least $1 million, or an equivalent recovery from a deferred prosecution or nonprosecution agreement.
Even if the whistleblower meets all the eligibility requirements, the Antitrust Division has discretion to determine the amount of the award depending on the facts and circumstances of each case. The MOU includes a list of factors that the Antitrust Division may consider in setting the amount of the award, including whether the whistleblower provided “ongoing, extensive, and timely cooperation and assistance” with the criminal investigation and prosecution. The Division may also consider whether the whistleblower faced any unique hardships as a result of their reporting the illegal activity and assisting the criminal investigation and prosecution.4
What Does It Mean for Companies?
Depending on the success of its new program, the Antitrust Division may expand the availability of whistleblower rewards to include more than postal-related antitrust crimes. In the meantime, however, the new whistleblower rewards program increases the risk for companies that employees or former employees will report suspected collusion to the DOJ, particularly if it affects the USPS. Given this increased risk, companies should have an effective antitrust compliance program in place to help prevent, detect, and remediate misconduct.
[1] In 2024, the DOJ’s Criminal Division launched a pilot program that rewards whistleblowers who report certain types of criminal conduct involving companies, but it does not apply to antitrust violations.
[2] See 39 U.S.C. § 2601(a), which authorizes the USPS to collect fines, penalties and forfeitures arising out of matters affecting the Postal Service.
[3] Someone who coerced others to participate in illegal activity or was the leader or originator of that activity is not eligible. For a complete list of eligibility requirements, see the MOU at 4-8.
[4] For a complete list of factors, see the MOU at 8-9.
