DOJ Antitrust Announces New Whistleblower Program

1. Introduction

On July 8, 2025, the Department of Justice, Antitrust Division ("Antitrust Division") announced that it is creating the Antitrust Whistleblower Rewards Program (the "Whistleblower Program") in partnership with the U.S. Postal Service Inspection Service ("USPIS") and U.S. Postal Service Office of Inspector General ("USPS OIG"). The new program will, for the first time, offer monetary payouts to whistleblowers who voluntarily report to the Antitrust Division new information about potential criminal antitrust law violations, such as price fixing, bid rigging, or market allocation.

Historically, unlike other federal agencies and divisions of the DOJ, the Antitrust Division has relied on its Leniency Program, and not whistleblower rewards, to incentivize self-reporting of criminal antitrust violations. The new Whistleblower Program could change that. Below we outline the key aspects of the Whistleblower Program, how it intersects with the Antitrust Division's existing Leniency Program and how it may affect criminal antitrust enforcement moving forward.

2. The Antitrust Division's Leniency Program

The Antitrust Division's Leniency Program was created in 1993 and provides protection from prosecution under the Sherman Act to organizations or individuals who self-report participation in a criminal antitrust violation and cooperate in the Antitrust Division's investigation.

Only the first organization or individual who self-reports the conduct and successfully satisfies the requirements for leniency enjoys full protection from criminal prosecution.¹ The individual or corporation must report the conduct "promptly" upon "discovery of the illegal activity."² The construction of "promptly" depends on the circumstances but typically is interpreted to mean a matter of months after discovery. "Discovery" is defined as the earliest date on which the board of directors, counsel, or a compliance officer learns of the potential violation. The individual or company does not need to confirm that the alleged conduct is a criminal antitrust violation before reporting it, only that the conduct might constitute a violation.³ The individual or company also cannot have coerced others into participating in the violation or served as the "leader or originator" of the violation, must report the violation with "candor and completeness," and cooperate fully with the Antitrust Division's investigation.⁴

The first company or person to self-report obtains a "marker" for the conduct, reserving its place in line for leniency.⁵ The applicant then proceeds either to "perfect" the marker—providing evidence to show a criminal violation by producing documents, providing proffers, or making witnesses available for interview—or the applicant or the Antitrust Division can release the marker if on further investigation it determines that there is no violation.⁶ On perfecting the marker, the applicant obtains a conditional leniency letter, which is conditional on the applicant cooperating with the Antitrust Division's investigation into and prosecution of its co-conspirators.⁷

There are two types of corporate leniency: Type A and Type B.⁸ Type A is available if the Antitrust Division has not yet opened an investigation into the applicant and if the Antitrust Division has not received any information about the illegal activity before the self-reporting.⁹ Additionally, if granted, Type A leniency applies to the applicant's current directors, officers, and employees.¹⁰ Type B is available even after the Antitrust Division has opened an investigation or received information, but protection is not guaranteed to the entity's current directors, officers, or employees.¹¹

A successful leniency applicant avoids criminal prosecution. For individuals, this means escaping penalties of up to ten years in prison and fines of $1,000,000; corporations can avoid fines of up to $100,000,000 for each violation.¹² In addition, under the Antitrust Criminal Penalty Enhancement and Reform Act ("ACPERA"), leniency applicants who provide "timely" and "satisfactory" cooperation to civil antitrust plaintiffs receive two significant benefits in the context of private lawsuits: (1) their damages are limited to "actual damages sustained" [under the Sherman Act, antitrust violators are otherwise subject to treble damages]; and (2) their damages are limited to those based on their own commerce [under the Sherman Act, antitrust violators are otherwise subject to joint and several liability].¹³ To obtain ACPERA benefits, an applicant must meet all of the criteria in the Leniency Program, and also provide civil plaintiffs with a "full account" of all potentially relevant facts known to the applicant and all potentially relevant records.¹⁴

3. Antitrust Division's New Whistleblower Program

a. Whistleblower Program Created in Conjunction with USPS

The new Whistleblower Program was created through a memorandum of understanding ("MOU") between the Antitrust Division and USPIS and USPS OIG, relying on USPS's statutory authority to collect fines and penalties for matters affecting USPS.¹⁵ The Antitrust Division is tasked with implementation and oversight of the Whistleblower Program, while USPIS and USPS OIG will collaborate with the Antitrust Division to develop eligibility criteria and ensure operational coordination.¹⁶ The MOU specifies that the Antitrust Division will cover all funding related to its establishment and operation of the Whistleblower Program.¹⁷

Any eligible violation requires that the criminal violation be in some sense "postal-related"—that is, it results in identifiable harm to the USPS, its revenues, or its property.¹⁸ This standard is vague, and the MOU only requires that USPIS must identify a "specific and credible harm" to the USPS, though the harm need not be substantial or material. One way this could happen is a conspiracy conducted using USPS mail systems, though other conduct may also meet this standard. Assuming some harm is identified, USPS is authorized to collect fines and penalties for violations affecting the USPS.¹⁹ The MOU authorizes payment of a "maximum total reward" of 30% of any recoverable criminal fine. The mechanism for the reward payment involves the Antitrust Division determining the amount that should be paid to the whistleblower and paying twice the total reward to USPS and then USPS is authorized to award half of the amount to the whistleblower.²⁰

It is uncertain how broadly USPIS and the Antitrust Division will interpret what constitutes an eligible violation. This will determine whether the Whistleblower Program is virtually open to any antitrust infringement, or only those closely related to USPS operations. The Antitrust Division and USPS have taken an aggressive enforcement approach through the work of the Procurement Collusion Strike Force ("PCSF")—a multi-agency initiative focused on deterring, detecting, and prosecuting antitrust crimes and related schemes that target public procurement, including those involving USPS contracts and funding.²¹ In addition, USPS was an active participant in the generic pharmaceutical investigation, presumably because of the potential to affect health care costs. They may take a similarly broad approach with respect to the Whistleblower Program.

b. Eligible Criminal Violations

Though the Whistleblower Program promises potential payouts for whistleblowers, significant requirements must be met for an applicant to be eligible for a reward. To qualify, an individual must:

Provide original information, meaning the whistleblower provides independent knowledge about the circumstances of the violation, the information cannot have been known to the Antitrust Division or USPS before the disclosure, the information is not derived from publicly available materials, the information is not derived solely through other third parties, and the information is not obtained from privileged or restricted materials;²²
Provide the information voluntarily, meaning that the individual provides it freely and not through a compulsory process;²³ and
Not be an employee or close relative of someone working for the DOJ or USPS.²⁴

Further, the reporting must be related to an "Eligible Criminal Violation," which includes²⁵:

Criminal violations of Sections 1-3 of the Sherman Act (for example, price fixing, bid rigging, market allocation, monopolization);
Federal crimes committed to effectuate or conceal violations of the Sherman Act;
Federal crimes committed targeting procurement; or
Federal crimes committed targeting or effecting federal competition investigations or proceedings.

Finally, the alleged violation must affect USPS, its revenues or its operations and result in a criminal fine or recovery of at least $1 million.

c. Evaluating Reward Criteria

Whistleblowers whose information leads to a successful enforcement action may receive up to 30% of the criminal fine. Ultimately, it is the Antitrust Division who determines the amount of the award, even though it is USPIS that makes the payment. The Antitrust Division evaluates several factors when determining the exact amount of the award, including²⁶:

The direct impact of the information on the prosecution;
The reliability and completeness of the submission;
The information's help in conserving government resources;
The information's role in supporting criminal convictions;
The extent of the whistleblower's cooperation;
The extent of the whistleblower's assistance in recovering assets;
Any hardships the whistleblower faced due to their disclosure;
The whistleblower's truthfulness and integrity;
The whistleblower's role in the underlying violation; and
Any compensation received from other sources for the same conduct.

Though the Antitrust Division has ultimate discretion to determine the amount to pay out to the whistleblower, it shall do so in collaboration with USPIS and USPS OIG.²⁷

d. European Commission Whistleblower Program: A Model for Success?

Though the Whistleblower Program is a new tool for U.S. antitrust enforcers, other jurisdictions have created similar programs. In 2017, the European Commission ("EC") introduced an anonymous antitrust whistleblower tool, enabling any individual or company to submit anonymous complaints or reports about collusion or other antitrust infringements.²⁸ Unlike the Antitrust Division's Whistleblower Program, the tool is not open to companies actually involved in anticompetitive conduct, which would instead apply for leniency. The EC tool also does not offer financial rewards, but does offer certain protections to employees against retaliation.²⁹ In 2024, Maria Jaspers, Director of the Cartel Directorate of the Directorate General for Competition, stated that the EC receives around 200 leads per year through the whistleblower tool, many of them assumed or known to be from employees of potentially infringing companies, and noted that the EC and national competition authorities have already acted on some of those leads.³⁰

4. Comparing the Programs

The Whistleblower Program includes some similarities and key differences from the Leniency Program. In terms of similarities, both programs (i) are only available to the first self-reporter; (ii) require a credible suspicion of a criminal violation; (iii) require voluntary disclosure; and (iv) are unavailable to those who coerced another party to participate in the conspiracy or the leaders or originators of the conspiracy.

Two key differences between the programs are that the Whistleblower Program only applies to individuals, not corporations, and it offers a direct financial payout to a whistleblower. The Leniency Program allows corporations to apply and, though it allows an applicant to escape criminal fines, it does not offer potential for direct payouts.

There are some other more nuanced differences. The information that the whistleblower offers must be "original," meaning derived from independent knowledge and not already known to the Antitrust Division or USPS. The whistleblower also cannot report information it received in its capacity as an officer, director, or compliance official of the company. These conditions do not apply in the Leniency Program, where the information is often discovered through a report to a director, officer, or compliance official and may be disclosed through someone without independent knowledge of the conduct. Further, Type B Leniency allows applicants to benefit even if the Antitrust Division is aware of the conduct and has already opened an investigation.

The Whistleblower Program does not identify the timeframe for disclosure, unlike the Leniency Program that requires "prompt" disclosure upon "discovery" of the potential violation. The Whistleblower Program also appears to have more lax cooperation requirements. The whistleblower is expected to voluntarily provide truthful information. Ongoing cooperation is not explicitly required, though the extent of cooperation with the investigation is considered when determining the reward. The Leniency Program imposes a cooperation obligation "as far as the investigation requires," and often involves the applicant engaging in covert investigative tactics such as wiretaps. The Leniency Program also requires corporate applicants to provide restitution to victims.

The Whistleblower Program requirement that the alleged conduct in some way affect the USPS is also unique. This means that for a whistleblower to recover, the report must involve or affect USPS in some way. For example, a price-fixing conspiracy conducted through mail sent through the USPS might qualify. The Whistleblower Program also applies to Sherman Act violations, as well as fraud and obstruction aimed at impeding an antitrust investigation. The Leniency Program, by contrast, only requires the applicant to report a potential criminal violation of the Sherman Act.

The Antitrust Division and USPS appear to have accounted for the interplay between the Whistleblower Program and the Leniency Program, indicating that the Whistleblower Program is not meant to serve as a substitute for or undermine the incentives of the Leniency Program. For example, corporate officers, directors, or compliance professionals cannot be whistleblowers. These individuals are typically integral to deciding whether to seek leniency. This exclusion indicates that the Antitrust Division wants to maintain corporate self-reporting and encourage corporate compliance. The MOU still allows a whistleblower to recover a reward if they report the conduct internally and the company subsequently reports it to the Antitrust Division, as long as the whistleblower reports it to the Antitrust Division within 120 days of the company's disclosure.³¹ The Antitrust Division, therefore, provides both avenues for self-disclosure, instead of allowing only the company or the whistleblower to benefit. It is best to think of the Whistleblower Program and the Leniency Program as complementary tools available to the Antitrust Division to help root out potential criminal antitrust violations, not substitutes for one another.

5. The Future of Self Reporting

One potential impact of the Whistleblower Program could be an increase in the number of cases reported and a shift in how the Antitrust Division identifies potential new criminal conduct to investigate. The Antitrust Division does not publish statistics regarding the number of leniency applications it receives, but the total number of criminal cases has steadily fallen in recent years,³² suggesting that leniency applications have also declined. In recent years, private plaintiff suits have driven antitrust enforcement and often led to subsequent criminal investigations, instead of the other way around. The Whistleblower Program could change that if it succeeds in increasing the number of employees (or others) who self-report.

The Whistleblower Program's impact on how investigations are conducted is less clear. The Leniency Program always allowed individual employees to come forward and report potential violations to the Antitrust Division prior to their employers. The Whistleblower Program's promise of potential financial award increases that risk by providing additional incentives for individual employees to report potential violations. This could complicate companies' management of internal investigations if the Whistleblower Program results in witnesses refusing to cooperate in order to obtain a financial reward for themselves. The increased risk that individual employees will self-report may bias companies towards seeking leniency in close cases. Even a company that previously decided not to seek leniency may decide to seek leniency if it identifies a risk that an employee will report the conduct in exchange for a payout. The Whistleblower Program, therefore, may actually increase potential investigation leads both through whistleblowers and through corporate self-disclosure through the Leniency Program.

It will take time to assess the impact of the Whistleblower Program. Its success may depend on employee awareness and how broadly the Antitrust Division and USPS construe eligible violations. If the Antitrust Division and USPS take a broad interpretation of qualifying violations and are generous in the payment of rewards, the Whistleblower Program could provide significant incentives to self-reporting and increase criminal antitrust enforcement in the United States. The increased chances that violations will be reported by employes means companies should focus even more on antitrust compliance.

Summer associate Evan Dennis provided invaluable assistance in drafting this client alert.

Footnotes

1. U.S. Dep't of Just., Frequently Asked Questions ¶ 3 (Jan. 3, 2023) ("FAQ"), https://www.justice.gov/atr/page/file/1490311/dl?inline.

2. FAQ #21-22.

3. FAQ #23.

4. U.S. Dep't of Just., Voluntary Disclosure Policy Antitrust Division § 7-3.300 (2022), at 2.

5. FAQ # 3, 4.

6. Id. # 1, 4, 7.

7. Id. # 4, 7, 51, 61, 68.

8. Id. # 19.

9. Id. # 20.

10. U.S. Dep't of Just., Just. Manual § 7-3.310 (2022), https://www.justice.gov/jm/jm-7-3000-organization-division#7-3.310.

11. Id. § 7-3.320.

12. U.S. Dep't of Just., Just. Manual § 7-2.200 (2020), https://www.justice.gov/jm/jm-7-2000-prior-approvals#7-2.200.

13. 15 U.S.C. § 7a.

14. 15 U.S.C. § 7a-1(b).

15. See 39 U.S.C. § 2601(a)(2), which authorizes the Postal Service to collect civil penalties and fines for violations affecting USPS operations, revenues, or property. While this authority has traditionally been used in administrative contexts, the Whistleblower Program represents a novel application of the statute in support of DOJ-led criminal enforcement. See also Memorandum of Understanding Between the Antitrust Div., U.S. Dep't of Just., the U.S. Postal Serv. & the U.S. Postal Serv. Office of Inspector Gen. Regarding the Whistleblower Rewards Program and Procedures, at 8 (May 7, 2025) ("MOU"), https://www.justice.gov/atr/media/1407261/dl?inline.

16. USPIS will retain final approval authority over the eligibility criteria developed by the Antitrust Division. (MOU at 2, https://www.justice.gov/atr/media/1407261/dl?inline).

17. Id. at 3.

18. Id. at 8.

19. 39 U.S.C. § 2601.

20. MOU at 3; 39 U.S.C. § 404(a)(7).

21. MOU at 1-2.

22. Id. at 5.

23. Id. at 4-5.

24. Id. at 4.

25. Id. at 7.

26. Id. at 8-9.

27. Id.

28. Eur. Comm'n, Commission introduces new anonymous whistleblower tool (Mar. 15, 2017), https://ec.europa.eu/commission/presscorner/detail/en/ip_17_591 and Eur. Comm'n, Whistleblowers and Informants, https://competition-policy.ec.europa.eu/index/whistleblower_en (last accessed July 16, 2025).

29. Directive 2019/1937, of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law, O.J. L 305, 26 Nov. 2019, at 17.

30. GCR, Number and quality of EU whistleblower submissions increasing, Jaspers says (Apr. 22, 2024), https://globalcompetitionreview.com/article/number-and-quality-of-eu-whistleblower-submissions-increasing-jaspers-says?utm_source=chatgpt.com.

31. MOU at 7.

32. U.S. Dep't of Just., Criminal Enforcement Trends Charts (May 2, 2025), https://www.justice.gov/atr/criminal-enforcement-fine-and-jail-charts.

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