Stuart Gerson Discusses Recent DOJ Antitrust Whistleblower Complaint and OPR Opinion


Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, discusses a recent whistleblower complaint and the Office of Professional Responsibility’s opinion in JustSecurity.

Following is an excerpt:

On Wednesday, the House Judiciary Committee heard from a whistleblower inside the Department of Justice’s Antitrust Division alleging serious abuses committed by Attorney General William Barr. To blunt the force of the whistleblower’s complaint, Rep. Doug Collins (R-Ga) entered into the record a letter from the Office of Professional Responsibility (OPR), which investigates allegations of misconduct by employees and which, in this case, rejected the whistleblower’s complaint. The letter had been circulated just the evening before, according to the testimony by the whistleblower, John Elias. …

I asked some of the most highly respected antitrust law [professionals] across the country for their views on Mr. Elias’s allegations compared to the OPR letter. Here’s what they said. …

Stuart M. Gerson, a former Acting Attorney General of the United States, Assistant Attorney General, and Assistant United States Attorney:

“These legal issues involve a segment of my current professional activities; I am part of a team in a merger case that is attempting to fend off a second request. So, I am particularly sympathetic to the gravity of the whistleblowers’ allegations and the cost and complexity of compliance. As an ethical and substantive matter, it certainly is unacceptable to pursue a second request without reason to believe that the underlying transaction might violate the antitrust laws, for example, if the Herfindahl-Hirschman Index exceeds normative levels. And that certainly is the general practice of the two antitrust enforcement agencies. The OPR letter opines that this isn’t a requirement, and that a fake investigation for political purposes doesn’t violate any law or departmental regulation. If it doesn’t, it should.

There certainly are times when governmental artifice can be justified, for example, in the area of counterintelligence. However, conducting actual fraudulent investigations against citizens to whom the government is responsible not only deprives them of due process, but is criminal in and of itself.”