II 

Calendar No. 233 

113TH CONGRESS 

1ST SESSION S. 42 

To provide anti-retaliation protections for antitrust whistleblowers. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 22 (legislative day, JANUARY 3), 2013 

Mr. LEAHY (for himself and Mr. GRASSLEY) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

OCTOBER 31, 2013 

Reported by Mr. LEAHY, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To provide anti-retaliation protections for antitrust 

whistleblowers. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Criminal Antitrust 

5 Anti-Retaliation Act of 2013’’. 


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1 SEC. 2. AMENDMENT TO ACPERA. 

2 The Antitrust Criminal Penalty Enhancement and 

3 Reform Act of 2004 (Public Law 108–237; 15 U.S.C. 1 

4 note) is amended by adding after section 215 the fol5 lowing: 

6 ‘‘SEC. 216. ANTI-RETALIATION PROTECTION FOR WHISTLE7 BLOWERS. 

8 ‘‘(a) WHISTLEBLOWER PROTECTIONS FOR EMPLOY9 EES, CONTRACTORS, SUBCONTRACTORS, AND AGENTS.— 

10 ‘‘(1) IN GENERAL.—No person, or any officer, 

11 employee, contractor, subcontractor, or agent of 

12 such person, may discharge, demote, suspend, 

13 threaten, harass, or in any other manner discrimi14 nate against a whistleblower in the terms and condi15 tions of employment because— 

16 ‘‘(A) the whistleblower provided or caused 

17 to be provided to the person or the Federal 

18 Government information relating to— 

19 ‘‘(i) any violation of, or any act or 

20 omission the whistleblower reasonably be21 lieves to be a violation of the antitrust 

22 laws; or 

23 ‘‘(ii) any violation of, or any act or 

24 omission the whistleblower reasonably be25 lieves to be a violation of another criminal 

26 law committed in conjunction with a potenVerDate Mar 15 2010 23:56 Oct 31, 2013 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S42.RS S42

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1 tial violation of the antitrust laws or in 

2 conjunction with an investigation by the 

3 Department of Justice of a potential viola4 tion of the antitrust laws; or 

5 ‘‘(B) the whistleblower filed, caused to be 

6 filed, testified, participated in, or otherwise as7 sisted an investigation or a proceeding filed or 

8 about to be filed (with any knowledge of the 

9 employer) relating to— 

10 ‘‘(i) any violation of, or any act or 

11 omission the whistleblower reasonably be12 lieves to be a violation of the antitrust 

13 laws; or 

14 ‘‘(ii) any violation of, or any act or 

15 omission the whistleblower reasonably be16 lieves to be a violation of another criminal 

17 law committed in conjunction with a poten18 tial violation of the antitrust laws or in 

19 conjunction with an investigation by the 

20 Department of Justice of a potential viola21 tion of the antitrust laws. 

22 ‘‘(2) LIMITATION ON PROTECTIONS.—Para23 graph (1) shall not apply to any whistleblower if— 


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1 ‘‘(A) the whistleblower planned and initi2 ated a violation or attempted violation of the 

3 antitrust laws; 

4 ‘‘(B) the whistleblower planned and initi5 ated a violation or attempted violation of an6 other criminal law in conjunction with a viola7 tion or attempted violation of the antitrust 

8 laws; or 

9 ‘‘(C) the whistleblower planned and initi10 ated an obstruction or attempted obstruction of 

11 an investigation by the Department of Justice 

12 of a violation of the antitrust laws. 

13 ‘‘(3) DEFINITIONS.—In the section: 

14 ‘‘(A) PERSON.—The term ‘person’ has the 

15 same meaning as in subsection (a) of the first 

16 section of the Clayton Act (15 U.S.C. 12(a)). 

17 ‘‘(B) ANTITRUST LAWS.—The term ‘anti18 trust laws’ means section 1 or 3 of the Sher19 man Act (15 U.S.C. 1, 3) or similar State law. 

20 ‘‘(C) WHISTLEBLOWER.—The term ‘whis21 tleblower’ means an employee, contractor, sub22 contractor, or agent protected from discrimina23 tion under paragraph (1). 

24 ‘‘(b) ENFORCEMENT ACTION.— 


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1 ‘‘(1) IN GENERAL.—A whistleblower who alleges 

2 discharge or other discrimination by any person in 

3 violation of subsection (a) may seek relief under sub4 section (c) by— 

5 ‘‘(A) filing a complaint with the Secretary 

6 of Labor; or 

7 ‘‘(B) if the Secretary has not issued a final 

8 decision within 180 days of the filing of the 

9 complaint and there is no showing that such 

10 delay is due to the bad faith of the claimant, 

11 bringing an action at law or equity for de novo 

12 review in the appropriate district court of the 

13 United States, which shall have jurisdiction 

14 over such an action without regard to the 

15 amount in controversy. 

16 ‘‘(2) PROCEDURE.— 

17 ‘‘(A) IN GENERAL.—A complaint filed with 

18 the Secretary of Labor under paragraph (1)(A) 

19 shall be governed under the rules and proce20 dures set forth in section 42121(b) of title 49, 

21 United States Code. 

22 ‘‘(B) EXCEPTION.—Notification made 

23 under section 42121(b)(1) of title 49, United 

24 States Code, shall be made to the person named 

25 in the complaint and to the employer. 


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1 ‘‘(C) BURDENS OF PROOF.—A complaint 

2 filed with the Secretary of Labor under para3 graph (1) shall be governed by the legal bur4 dens of proof set forth in section 42121(b) of 

5 title 49, United States Code. 

6 ‘‘(D) STATUTE OF LIMITATIONS.—A com7 plaint under paragraph (1)(A) shall be filed 

8 with the Secretary of Labor not later than 180 

9 days after the date on which the violation oc10 curs. 

11 ‘‘(E) CIVIL ACTIONS TO ENFORCE.—If a 

12 person fails to comply with an order or prelimi13 nary order issued by the Secretary of Labor 

14 pursuant to the procedures in section 42121(b), 

15 the Secretary of Labor or the person on whose 

16 behalf the order was issued may bring a civil 

17 action to enforce the order in the district court 

18 of the United States for the judicial district in 

19 which the violation occurred. 

20 ‘‘(c) REMEDIES.— 

21 ‘‘(1) IN GENERAL.—A whistleblower prevailing 

22 in any action under subsection (b)(1) shall be enti23 tled to all relief necessary to make the whistleblower 

24 whole. 


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1 ‘‘(2) COMPENSATORY DAMAGES.—Relief for any 

2 action under paragraph (1) shall include— 

3 ‘‘(A) reinstatement with the same seniority 

4 status that the whistleblower would have had, 

5 but for the discrimination; 

6 ‘‘(B) the amount of back pay, with inter7 est; and 

8 ‘‘(C) compensation for any special damages 

9 sustained as a result of the discrimination in10 cluding litigation costs, expert witness fees, and 

11 reasonable attorney’s fees. 

12 ‘‘(d) RIGHTS RETAINED BY WHISTLEBLOWERS.— 

13 Nothing in this section shall be deemed to diminish the 

14 rights, privileges, or remedies of any whistleblower under 

15 any Federal or State law, or under any collective bar16 gaining agreement.’’. 

17 SECTION 1. SHORT TITLE. 

18 This Act may be cited as the ‘‘Criminal Antitrust 

19 Anti-Retaliation Act of 2013’’. 

20 SEC. 2. AMENDMENT TO ACPERA. 

21 The Antitrust Criminal Penalty Enhancement and 

22 Reform Act of 2004 (Public Law 108–237; 15 U.S.C. 1 

23 note) is amended by adding after section 215 the following: 


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1 ‘‘SEC. 216. ANTI-RETALIATION PROTECTION FOR WHISTLE2 BLOWERS. 

3 ‘‘(a) WHISTLEBLOWER PROTECTIONS FOR EMPLOY4 EES, CONTRACTORS, SUBCONTRACTORS, AND AGENTS.— 

5 ‘‘(1) IN GENERAL.—No employer may discharge, 

6 demote, suspend, threaten, harass, or in any other 

7 manner discriminate against a covered individual in 

8 the terms and conditions of employment of the covered 

9 individual because— 

10 ‘‘(A) the covered individual provided or 

11 caused to be provided to the employer or the Fed12 eral Government information relating to— 

13 ‘‘(i) any violation of, or any act or 

14 omission the covered individual reasonably 

15 believes to be a violation of the antitrust 

16 laws; or 

17 ‘‘(ii) any violation of, or any act or 

18 omission the covered individual reasonably 

19 believes to be a violation of another crimi20 nal law committed in conjunction with a 

21 potential violation of the antitrust laws or 

22 in conjunction with an investigation by the 

23 Department of Justice of a potential viola24 tion of the antitrust laws; or 

25 ‘‘(B) the covered individual filed, caused to 

26 be filed, testified, participated in, or otherwise 


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1 assisted an investigation or a proceeding filed or 

2 about to be filed (with any knowledge of the em3 ployer) relating to— 

4 ‘‘(i) any violation of, or any act or 

5 omission the covered individual reasonably 

6 believes to be a violation of the antitrust 

7 laws; or 

8 ‘‘(ii) any violation of, or any act or 

9 omission the covered individual reasonably 

10 believes to be a violation of another crimi11 nal law committed in conjunction with a 

12 potential violation of the antitrust laws or 

13 in conjunction with an investigation by the 

14 Department of Justice of a potential viola15 tion of the antitrust laws. 

16 ‘‘(2) LIMITATION ON PROTECTIONS.—Paragraph 

17 (1) shall not apply to any covered individual if— 

18 ‘‘(A) the covered individual planned and 

19 initiated a violation or attempted violation of 

20 the antitrust laws; 

21 ‘‘(B) the covered individual planned and 

22 initiated a violation or attempted violation of 

23 another criminal law in conjunction with a vio24 lation or attempted violation of the antitrust 

25 laws; or 


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1 ‘‘(C) the covered individual planned and 

2 initiated an obstruction or attempted obstruction 

3 of an investigation by the Department of Justice 

4 of a violation of the antitrust laws. 

5 ‘‘(3) DEFINITIONS.—In this section: 

6 ‘‘(A) ANTITRUST LAWS.—The term ‘anti7 trust laws’ means section 1 or 3 of the Sherman 

8 Act (15 U.S.C. 1, 3). 

9 ‘‘(B) COVERED INDIVIDUAL.—The term ‘cov10 ered individual’ means an employee, contractor, 

11 subcontractor, or agent of an employer. 

12 ‘‘(C) EMPLOYER.—The term ‘employer’ 

13 means a person, or any officer, employee, con14 tractor, subcontractor, or agent of such person. 

15 ‘‘(D) PERSON.—The term ‘person’ has the 

16 same meaning as in subsection (a) of the first 

17 section of the Clayton Act (15 U.S.C. 12(a)). 

18 ‘‘(4) RULE OF CONSTRUCTION.—The term ‘viola19 tion’, with respect to the antitrust laws, shall not be 

20 construed to include a civil violation of any law that 

21 is not also a criminal violation. 

22 ‘‘(b) ENFORCEMENT ACTION.— 

23 ‘‘(1) IN GENERAL.—A covered individual who al24 leges discharge or other discrimination by any emVerDate Mar 15 2010 23:56 Oct 31, 2013 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\S42.RS S42

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1 ployer in violation of subsection (a) may seek relief 

2 under subsection (c) by— 

3 ‘‘(A) filing a complaint with the Secretary 

4 of Labor; or 

5 ‘‘(B) if the Secretary has not issued a final 

6 decision within 180 days of the filing of the com7 plaint and there is no showing that such delay 

8 is due to the bad faith of the claimant, bringing 

9 an action at law or equity for de novo review in 

10 the appropriate district court of the United 

11 States, which shall have jurisdiction over such 

12 an action without regard to the amount in con13 troversy. 

14 ‘‘(2) PROCEDURE.— 

15 ‘‘(A) IN GENERAL.—A complaint filed with 

16 the Secretary of Labor under paragraph (1)(A) 

17 shall be governed under the rules and procedures 

18 set forth in section 42121(b) of title 49, United 

19 States Code. 

20 ‘‘(B) EXCEPTION.—Notification made under 

21 section 42121(b)(1) of title 49, United States 

22 Code, shall be made to any individual named in 

23 the complaint and to the employer. 

24 ‘‘(C) BURDENS OF PROOF.—A complaint 

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1 graph (1)(A) shall be governed by the legal bur2 dens of proof set forth in section 42121(b) of title 

3 49, United States Code. 

4 ‘‘(D) STATUTE OF LIMITATIONS.—A com5 plaint under paragraph (1)(A) shall be filed 

6 with the Secretary of Labor not later than 180 

7 days after the date on which the violation occurs. 

8 ‘‘(E) CIVIL ACTIONS TO ENFORCE.—If a 

9 person fails to comply with an order or prelimi10 nary order issued by the Secretary of Labor pur11 suant to the procedures in section 42121(b), the 

12 Secretary of Labor or the person on whose behalf 

13 the order was issued may bring a civil action to 

14 enforce the order in the district court of the 

15 United States for the judicial district in which 

16 the violation occurred. 

17 ‘‘(c) REMEDIES.— 

18 ‘‘(1) IN GENERAL.—A covered individual pre19 vailing in any action under subsection (b)(1) shall be 

20 entitled to all relief necessary to make the covered in21 dividual whole. 

22 ‘‘(2) COMPENSATORY DAMAGES.—Relief for any 

23 action under paragraph (1) shall include— 


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1 ‘‘(A) reinstatement with the same seniority 

2 status that the covered individual would have 

3 had, but for the discrimination; 

4 ‘‘(B) the amount of back pay, with interest; 

5 and 

6 ‘‘(C) compensation for any special damages 

7 sustained as a result of the discrimination in8 cluding litigation costs, expert witness fees, and 

9 reasonable attorney’s fees. 

10 ‘‘(d) RIGHTS RETAINED BY WHISTLEBLOWERS.— 

11 Nothing in this section shall be deemed to diminish the 

12 rights, privileges, or remedies of any covered individual 

13 under any Federal or State law, or under any collective 

14 bargaining agreement.’’. 


tjames on DSK6SPTVN1PROD with BILLS
Calendar No. 233 

113TH CONGRESS 

1ST SESSION S. 42 

A BILL 

To provide anti-retaliation protections for antitrust 

whistleblowers. 

OCTOBER 31, 2013 

Reported with an amendment 


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