On July 8th, the Department of Justice’s Antitrust Division announced a new whistleblower reward program, in partnership with the Office of the Inspector General of the United States Postal Service (USPS OIG) and the United States Postal Service (USPS).

The Whistleblower Rewards Program offers a monetary incentive to whistleblowers who voluntarily provide information through the program to the Antitrust Division of the Department of Justice, with awards of up to 30% of the ultimate recovery when the recovery includes a criminal fine that exceeds $1 million.

Who is Involved in the New Whistleblower Rewards Program

The organizations involved in the memorandum of understanding:

• DOJ Antitrust Division:  The Department of Justice Antitrust Division  
• USPS: The United States Postal Service 
• USPS OIG: The United States Postal Service Office of Inspector General 
• USPIS: The United States Postal Inspection Service 

The program will utilize the authority of the USPS to collect fines, penalties, and forfeitures arising out of matters affecting the Postal Service. 

The DOJ will design the criteria and methodology for the whistleblower program. The DOJ will fund the program. The Antitrust Division will review information to determine if they were already aware of the conduct, if the information reported shows an Eligible Crime Violation. 

The USPS OIG maintains a staff of 1,000 auditors and investigators and investigation support staff, to assist in investigations, research audits and evaluations. The USPIS is the federal law enforcement and security staff of the Postal Service. The USPIS will have “final approval authority” over the program after criteria and methodology are set by the DOJ Antitrust Division. The USPIS will designate a USPIS Official who will review claims made to the DOJ, to determine if the claims of crime violations involve the USPS in a way that is “affecting the Postal Service, its revenues, or property”.  The memorandum of understanding notes that this effect on the USPS need not be a material harm.   

The criminal acts need to involve the USPS in some capacity to activate their authority to collect fines and in turn issue awards, under 39 USC 2601.  The DOJ does not have a program in place to issue financial awards, and the use of the USPS, USPS OIG and USPIS allow the collection of fines and whistleblower payments through their given authority. 

Eligible Criminal Violations 

The DOJ Antitrust Division will review submissions for identifiable criminal violations of the Sherman Act, sections one, two and three. The Antitrust Division will also investigate and assess criminal violations if there was an effort to conceal violations of the Sherman Antitrust Act. 

The DOJ Antitrust Division will also consider violations involving federal, state, or local government public procurement, such as procurement fraud, bid-rigging and other actions barred by federal law.  They will also investigate any violations stemming from interrupting or affecting the investigation of market competition. 

To qualify under this program, the criminal violation must also involve some form of harm to the USPS, its property or its revenue, even if the harm is not noted to be material or a substantial detriment to the USPS. 

Eligible Whistleblower 

The criteria to be an eligible whistleblower under the program include: 

• Voluntary Information: The information offered must have been offered voluntarily. Information produced due to a subpoena or other coercion would not be eligible. Information shared due to criminal investigations would not be eligible. 
• New Information: The information must be original and not already known by the DOJ, USPS, USPS OIG or USPIS. 
• Not an Antitrust Division or USPS employee: Employees of the DOJ Antitrust Division, the USPS, contractors to the DOJ or USPS, and their family members and those living with them are not eligible for the program awards. 

Additional exclusions include: 

• Attorney-client privilege:  If the information is subject to attorney-client privilege, it is not to be considered original information unless there is a reason the disclosure is permitted such as the crime-fraud exception, using state attorney rules governing the privilege. 
• Legal services: If the information was gathered while offering legal services to a company, it is not to be considered original information. 
• Fraud investigation: If the information was learned during the course of a set procedure to investigate misconduct, such as an audit, it is not original information. This includes internal job roles focusing on audits or external vendors whose services include regular audits or investigations. 
• Illegal Information Gathering:  If the information was gathered by a means that violates state or federal law, it is not to be considered original information. 

If an employee is fired due to internal reporting of misconduct, they can report the information within 120 days to the DOJ Whistleblower program and the DOJ will consider the date of the internal reporting the effective date of the report of information, for determining if the information is original and not already known (including if later reported by others within the company based on the original internal report). 

Whistleblower Award 

The Antitrust Division may consider the following criteria in relation to each potential whistleblower reward: 

• Whether the information provided by the whistleblower was directly related to a successful criminal prosecution;  
• Whether the information provided by the whistleblower was reliable and complete; 
• Whether the information provided by the whistleblower resulted in the conservation of government resources;  
• Whether the information provided by the whistleblower supported one or more criminal convictions;  
• Whether the whistleblower provided ongoing, extensive, and timely cooperation and assistance by, for example, helping to explain complex transactions, interpreting key evidence, or identifying new and productive lines of inquiry;  
• Whether the whistleblower assisted law enforcement authorities in the recovery of the fruits and instrumentalities of the reported criminal violations;  
• Whether the whistleblower faced any unique hardships as a result of his or her reporting the criminal activity and assisting the criminal investigation and prosecution;  
• Whether, in their whistleblower submission, dealings with the Antitrust Division, USPIS, or USPS OIG, or dealings with another authority in connection with a related action, the individual knowingly and willfully made or makes any false, fictitious, or fraudulent statement or representation, withholds material or significant information, or used any writing or document knowing that it contained any false, fictitious, or fraudulent statement or entry with intent to mislead or otherwise hinder the Department of Justice, USPIS, USPS OIG, or another authority, or otherwise interfered or interferes with or obstructed or obstructs the investigation; 9. 10. V.  
• Whether and to what extent the whistleblower participated in the criminal violation reported; and  
• Whether the whistleblower received any award from any other government agency for reporting factually related conduct, or whether the whistleblower recovered in any related civil suit. 

The determination of the award requires a criminal conviction and fine of at least $1 million in connection with the original information supplied. The award will be provided by the USPS as they have the regulatory authority to permit and handle such payments. 

The amount of the award will be a determination between the DOJ, USPIS and USPS OIG, but the determination to issue an award remains solely with the DOJ Antitrust Division. 

If an award is deemed appropriate, the DOJ will presume the whistleblower should receive at least 15% of the recovery as an award. The maximum award that can be given is 30%.  If there are multiple whistleblowers receiving an award against a criminal fine recovery, the total award by all whistleblowers is not to exceed the individual 30% cap.  For example, if a $10 million recovery has multiple whistleblowers eligible to receive an award, the maximum award to all whistleblowers would be $3 million, or 30% of the original criminal fine recovery. 

Is there a Private Right of Action? 

No, the whistleblower program does not contain a private right of action.  To become a whistleblower that is eligible for an award, you must report the activity to the DOJ Antitrust Division per their procedures and be determined to be eligible for an award. 

Whistleblower Reward Attorney 

If you believe you have information that can be submitted to the DOJ Antitrust Division whistleblower program, and wish to speak with an experienced qui tam or whistleblower attorney, please contact the attorneys at Schneider Wallace at 1-800-689-0024 or info@schneiderwallace.com. Schneider Wallace Cottrell Kim LLP is a national law firm representing individual and corporate whistleblowers in a wide range of cases.