On Monday 20 March 2017, the UK Competition and Markets Authority (CMA) announced a campaign to encourage whistle-blowers to come forward and expose cartels. The campaign is going to target social media and key websites. It is part of the CMA’s renewed focus on enforcement and comes as the CMA attempts to educate the general public of the harm of cartels.
Most strikingly, the campaign also acknowledges that the CMA is willing to give cash rewards of up to £100,000 to people who come forward with information exposing cartels. However, rather counter-intuitively, the campaign immediately caveats this promise with the ominous statement that the cash reward would only be available “in exceptional circumstances” and [if the whistle-blower] “are not directly involved.” Often the people best placed to expose a cartel are one of the guilty parties but you can see the public policy aim of not wanting to be seen to reward cartel members for their crimes.
Cartel members who have seen the light are however reminded through the campaign that the CMA operates a policy of leniency for the first cartel member to expose wrongdoing, a separate policy to the cash rewards for whistle-blowers, which is instead focused on individuals and information rather than liability.
Those considering coming clean or perhaps looking forward to their cash rewards, would do well to first read the CMA’s 6 page cartel reward policy, which can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/299411/Informant_rewards_policy.pdf
It details how although the CMA will not pay out until after an investigation has concluded (presumably to factor the cash reward into the cartel fines), it can give potential whistle-blowers a “broad range” of what that financial reward will be. It also details, perhaps tantalisingly, how the CMA will consider possible cash rewards for whistle-blowers who were directly involved in the wrongdoing, but were “relatively peripheral”.
What is clear is that the UK is still unwilling to replicate the highly lucrative US Securities and Exchange Commission programme. Through this programme, some whistle blowers have been rewarded many millions of dollars (over $100m in one reported case). This is because they are entitled to between a 10-30% share of the regulatory fine. Whilst controversial in rewarding former cartel members, the success of the system has been directly evidenced by the SEC themselves in the number of successful prosecutions and information they received after its inception.
As can be seen from contrasting this US position with the new CMA campaign, the UK/CMA still has some way to go before it is truly comfortable with rewarding cartel members and whistle-blowers.