Emerging Litigation Podcast

Episode: New and Improved Antitrust Whistleblowing Incentives with Julie Bracker and Dan Mogin
Date: October 4, 2025
Host: Tom Hagy
Guests: Julie Keaton Bracker, Dan Mogin

Episode Overview

This episode delves into the fresh landscape of antitrust whistleblower incentives, focusing on the new DOJ Antitrust Whistleblower program announced in 2025. Host Tom Hagy brings together acclaimed whistleblower attorney Julie Bracker and widely respected antitrust litigator Dan Mogin for a practical, history-aware, and strategic discussion about how whistleblower laws have evolved, how antitrust law operates, and what the latest DOJ initiative means for legal practitioners, corporations, and insiders considering stepping forward. The dialogue touches on litigation mechanics, legal incentives, challenges, constitutional controversies, and why incentivizing whistleblowers is critical to both fraud detection and market fairness.

Key Discussion Points & Insights

1. Whistleblower Law 101: Origins and Mechanics

[04:22] – [19:31]
Speaker: Julie Bracker

• Historical Roots:

  • The False Claims Act (FCA), also called “Lincoln’s Law,” was born in the Civil War era to combat rampant fraud against the Union Army. Insiders—sometimes even accomplices—were incentivized to report fraud, as “it’s often set a thief to catch a thief” ([05:41], Bracker).
  • “Insider” meaning has broadened—today’s whistleblowers can be “naive employees just doing their job, not knowing it’s fraud” ([06:33], Bracker).

• Qui Tam Explained:

  • The FCA’s qui tam provision uniquely lets private parties sue on behalf of the government; “[It] empowers someone else to file suit on behalf of the government. The case still belongs to the government. The government is still the injured party. But you are relaying to the government that there’s been fraud, which is why you’re called a relator” ([07:15], Bracker).
  • “Some people say ‘qui’ some say ‘kwee’ – it really doesn’t matter. It’s a dead language. Say it however you choose” ([06:49], Bracker).

• Insider Risks & Retaliation:

  • Many whistleblowers face retaliation before even filing: “That’s got to be a very dicey time for an employee… often, they are fired before they ever find us” ([11:35], Hagy & Bracker).
  • The FCA protects against retaliatory job actions, but practical remedies are retrospective—a suit can compensate for wrongful termination; it cannot always prevent it.

• Process & Challenges:

  • FCA cases start “under seal,” meaning only the court, DOJ, and relator’s counsel know—defendants may be unaware for months or years ([12:11], Bracker).
  • Investigations can move “glacier slow: there’s slow, litigation slow, and FCA slow—slower than that” ([14:25], Bracker).
  • Criminal investigations (which take precedence over civil ones) can further delay FCA cases.

• State Laws and Scope:

  • More than 40 states now have their own False Claims Acts, often focused on Medicaid or state spending. State-level whistleblower provisions are gaining traction ([18:35], Bracker).

• The Key Role of Whistleblowers:

  • “Without qui tam, the federal government often would never find out about fraud at all.” ([19:04], Hagy)
  • “Amen… Hallelujah. That’s the whole idea. We’re bringing in insiders, you know, people… unless someone tells you.” ([19:11-19:15], Bracker)

2. The Fundamentals of Antitrust Law

[20:04] – [39:42]
Speaker: Dan Mogin

• Core Principles & Statutes:

  • Sherman Act is considered the “Magna Carta of free enterprise.” ([20:21], Justice Thurgood Marshall, cited by Mogin)
  • “If you’re going to have capitalism, you gotta have competition. And if you’re going to have competition, somebody’s got to police it. And we do it through the antitrust laws.” ([20:04], Mogin)

• Where Antitrust Law Comes From:

  • Sherman Act: Section 1 (“concerted action in restraint of trade” – price fixing, bid rigging, etc.), Section 2 (monopolization).
  • Clayton Act: Authorizes private enforcement.
  • Federal Trade Commission Act: Prohibits unfair methods of competition and provides for administrative courts and merger review ([22:39], Mogin).

• How an Antitrust Case Comes Together:

  • Cases are expensive: “Money. First and foremost, these are expensive cases.” ([24:44], Mogin)
  • Analysis Method:
    • Context/History: Industry background
    • Structure: Market organization (monopoly, oligopoly, competitive, etc.), pricing dynamics
    • Conduct/Behavior: What allegedly anti-competitive behavior occurred—collusion, horizontal/vertical restraints
    • Antitrust Injury & Standing: Demonstrate actual harm relevant under antitrust law
    • Damages: Econometric/regression analysis, lost profits, etc.

• Market Definition:

  • Proving a “relevant market” is essential in most cases—functional and evidentiary hurdles are high.
  • “We must use economists and their tools to establish a relevant market… there’s no such thing in the field of economics. They don’t have it. So… we have imported a principle that the economists themselves don’t recognize.” ([38:17], Mogin)

• Challenges for Plaintiffs:

  • “Imagine that’s the government… now imagine what a private antitrust plaintiff has to go through” ([36:24], Hagy). Private claims are daunting against well-resourced defendants.

3. The DOJ Antitrust Whistleblower Program: What’s New?

[39:42] – [45:59]
Speakers: Hagy, Mogin, Bracker

• New DOJ Program Highlights:

  • Announced in summer 2025, this program is an expansion from corporate leniency to individual whistleblower incentives.
  • Offers monetary rewards “up to 30% of any criminal fines that are recovered”—parallel to FCA, SEC models ([41:30], Mogin).
  • Initial focus is on “postal-related antitrust claims” but expected to broaden; overlaps with mail fraud are common in antitrust cases.

• Leniency Program Examples:

  • Historically, DOJ’s leniency policy led to high-profile cartel busts (Vitamins, Christie's & Sotheby's, marine construction, DRAM memory chips). Many involved international conspiracies ([42:59–44:47], Mogin).
  • Whistleblower incentives and leniency are “template cases for enforcement,” often making the difference in exposing hidden cartels.

• Recent Example (FCA):

  • Omnicell settled for $4.4 million for government overcharge; whistleblower received $700,000 (“just an example of the other type where the whistleblower has the incentive and collects something recent” [45:59], Hagy).

4. Strategic & Ethical Considerations in Whistleblower and Antitrust Litigation

[46:52] – [53:30]
Speaker: Julie Bracker

• Where to File?

  • Choice between FCA, SEC, or now DOJ antitrust whistleblower programs is increasingly complex: practitioners must navigate multiple potential remedies.
  • Simultaneous filings may cause overlapping investigations; coordination with government agencies is key.

• Civil vs. Criminal:

  • Government chooses whether civil, criminal, or both types of action proceed; relators cannot control it.
  • Serious offenses (e.g., unnecessary cancer treatments) typically bring both criminal and civil cases.

• Ethics and Privilege:

  • Whistleblower counsel must vigilantly screen for privileged information: “We don’t want to build a case based on privileged information… The US does not want to see anything that has been even potentially tainted by attorney-client privilege because we would just wind up recused.” ([51:50], Bracker)
  • Particularly relevant for insiders in cyber-fraud or regulated industries who may encounter complex legal advice internally.

5. Constitutional Controversies & Other Hot Topics

[54:15] – [60:42]
Speaker: Julie Bracker

• Constitutionality of Qui Tam:
  • Recent opinions challenge whether relators can act as “officers of the executive branch.” One order (Judge Mizelle, M.D. Fla.) questioned the appointment and authority of relators—potentially threatening “declined” cases where the DOJ does not intervene ([54:45], Hagy; [54:45–60:42], Bracker).
  • Consensus is that the challenge is legally weak, affecting only a narrow slice of FCA actions, and solvable via congressional mechanisms if necessary.
  • Notable quote: “Did I mention more than $700 billion returned to the United States through the statute…? Let me emphasize that.” ([55:54], Bracker)

6. Future of Antitrust Enforcement: Market-Distorting Laws & Regulations

[60:42] – [61:57]
Speaker: Dan Mogin

• Market-Distorting Regulations:
  • DOJ/FTC reviewing 125+ laws and regulations alleged to stifle competition—an initiative spanning both Democratic and Republican administrations.
  • Example: Tensions between competitive effect and environmental regulation; agencies are “auditing the code of federal regulations and trying to ferret out those regulations that… stifle competition” ([61:35], Mogin).
  • “If done in good faith, it is an excellent use of government resources.” ([61:57], Mogin)

Notable Quotes & Memorable Moments

• On Whistleblower Incentives:
  “Whistleblowers are courageous individuals who expose fraud against the government. What more can—Amen.”
  — Julie Bracker ([04:09])

• On Why Antitrust Law Is Needed:
  “If you’re going to have capitalism, you gotta have competition. And if you’re going to have competition, somebody’s got to police it. And we do it through the antitrust laws.”
  — Dan Mogin ([20:04])

• On What It’s Like for Plaintiffs:
  “We get in our canoes, our little canoes, we paddle out into a mean sea, we try to slay a whale and bring it back to the village where we chop it up and eat for many, many moons.”
  — Dan Mogin ([36:24])

• On Market Definition:
  “We must use economists and their tools to establish a relevant market… there’s no such thing in the field of economics. They don’t have it. So… we have imported a principle that the economists themselves don’t recognize.”
  — Dan Mogin ([38:17])

• On Case Speed:
  “There’s slow, and then there’s litigation slow, and then there’s like glacier slow, and then slower than that would be FCA slow.”
  — Julie Bracker ([14:25])

• On How Important Relators Are: “Without qui tam, the federal government often would never find out about fraud at all.”
  — Tom Hagy ([19:04])
  “Amen… Hallelujah. That’s the whole idea.”
  — Julie Bracker ([19:11])

• On Recent Constitutional Challenge:
  “You don’t have anything like the powers as asserted in the Mizelle order… The constitutionality was well established previously.”
  — Julie Bracker ([56:21])

Key Timestamps

• 04:22 – 19:31: Julie Bracker on FCA, whistleblower process, and risks
• 20:04 – 39:42: Dan Mogin on antitrust law, market definition, and litigation hurdles
• 39:42 – 45:59: DOJ Antitrust Whistleblower program and case examples
• 46:52 – 53:30: Strategic & ethical considerations for whistleblower claims
• 54:15 – 60:42: Constitutional challenges (qui tam under attack?)
• 60:42 – 61:57: Laws & regulations distorting competition—future enforcement dimensions

Takeaways

• Whistleblower incentives remain essential: They help uncover otherwise invisible wrongdoing, recover taxpayer funds, and police corporate and government behavior.
• Antitrust enforcement is evolving: The DOJ has broadened opportunities for insiders—no longer limited to corporate applicants, now rewarding individuals directly.
• Private enforcement is formidable but hard: Cases are expensive, slow, and demand rigorous proof as to market definition, injury, and damages.
• Strategic navigation of overlapping legal regimes (FCA, DOJ, SEC) is more important than ever.
• Ongoing constitutional debates and regulatory scrutiny will shape the landscape of litigation and whistleblower protection going forward.

For additional resources or to contact the host, reach Tom Hagy at Editor@LitigationConferences.com