On Tuesday, July 8, the DOJ Antitrust Division announced a first-of-its-kind Antitrust Whistleblower Rewards Program (the “Program”). But the Program’s fine print suggests it may not be as lucrative for whistleblowers as it appears at first blush.
The Program’s press release explains rewards may be paid to certain whistleblowers who provide original information about antitrust offenses that result in criminal fines or other recoveries of at least $1 million. The DOJ will partner with the United States Postal Inspection Service (“USPIS”) and the United States Postal Service Office of Inspector General (“USPS OIG”) to implement the program and pay the rewards. A reward could amount to 15-to-30% of the amount of the criminal fine or recovery, which could be substantial in some antitrust cases.
However, the Program’s Memorandum of Understanding (“MOU”) clarifies that payments may be limited to a narrow set of circumstances. To start, the whistleblower’s information must have a nexus to the Postal Service. MOU at 2-3. This is because the Postal Service, not the DOJ, has statutory power to pay informants. Under that statutory scheme, a whistleblower can only get paid for information about “violations of law affecting the Postal Service, its revenues, or property.” 39 U.S.C. § 404(a)(7). The MOU describes that the Program requires that “[a] whistleblower reasonably articulates violations of law affecting the Postal Service, its revenues, or property when sufficient facts and evidence are provided for the USPIS Official to conclude that the Postal Service has suffered an identifiable harm.” MOU at 8. Clarifying that, “the harm need not be material or otherwise pose any substantial detriment to the Postal Service.” Id.
