Over-Enforcement

The evolution of over-enforcement is impacting various issues including the False Claims Act, the Foreign Corrupt Practices Act, and State Attorneys General.  Recently released research, Enforcement Gone Amok: The Many Faces of Over-Enforcement in the United States frames the over-enforcement landscape:

All elements of American society benefit when the legal system is used as intended by our Founders—namely, to prosecute and punish genuine wrongdoers whose actions have violated the law and caused injury or damage, guided by due process and the Eighth Amendment principle that the punishment should fit the crime. However, recent events have shown that government enforcement actions increasingly overstep reasonable bounds. read more...

Other notable points include:

  • Over-enforcement occurs when individual government agencies exercise unfettered discretion to rely on novel or expansive interpretations of laws to coerce settlements. Companies that are targets of this practice cannot be certain that the courts will set aside these actions, given the often vague and broad statutory language that confers authority on these agencies.
  • Over-enforcement also occurs when the prosecution of wrongdoing is carried out by multiple regulators conducting duplicative investigations and legal actions, either simultaneously or in succession, which are directed at the very same conduct. Faced with these multiple assaults, companies often have little choice but to agree to whatever settlements those various government officials demand, even if the company has meritorious arguments against the underlying charges.
  • One consequence of both coercive and “pile-on” over-enforcement is large and duplicative fines and penalties that too often are disproportionate to the alleged wrongdoing. The fact that over-enforcement targets are typically corporations and not individuals does not excuse the abusive nature of the practice—“justice for all” must apply across the board.


Critical Reforms Road Map

Limits on multiple, duplicative investigations and prosecutions are essential to preserve fairness in our system of justice and our overall economy. One way to control government overreaching in this context is by ensuring that enforcement officials’ discretion is appropriately channeled in order to reduce their ability to make unjustified prosecutorial decisions. This should include:

  • Clear rules of the road so that individuals and businesses know what is legal and what is not, and prosecutors cannot impose retroactive liability based on vague standards.
  • Defendants should be given a fair chance to defend themselves, rather than being subjected to multiple, overlapping enforcement actions that leaves no choice and results in an unfair and unjust settlement.
  • Punishments should fit the offense and prohibit excessive demands that coerce settlements from the innocent.


Click below for detailed information on issues impacted by over-enforcement:

Research

West Virginia's Climb: Lawsuit Climate Progress in the Mountain State and the Path Ahead

January 10, 2018 | West Virginia has begun shedding its reputation for having one of the worst civil justice systems in the nation. The state's lawsuit climate ranked dead last or second to last in surveys of business executives and attorneys conducted eleven times over the past fifteen years--until 2017. This report explores the beginning of the state's encouraging transformation and highlights areas where it may continue this progress.

Big Bucks and Local Lawyers: The Increasing Use of Contingency Fee Lawyers by Local Governments

October 26, 2016 | The increasing use of contingency fee counsel by local government entities is a disturbing trend that poses real risks to the fair and impartial administration of justice.

Additional Resources

All Results for Over-Enforcement

NYT: DOJ Memo Ushers in "Sweeping Limits" on Federal Enforcement Actions

February 12, 2018 | News and Blog

ILR's Harold Kim said the Department of Justice's memo that limited the use of "guidance documents" could rein in "overzealous enforcement," reports the New York Times. Read More »

In the News Today - February 5, 2018

February 05, 2018 | News and Blog

Climate Change Could Swamp Your Muni-Bond Portfolio; DOJ Limitation On Agency Guidance Levels Playing Field Read More »

"New DOJ Memo Will Make Waves In Fraud Cases"

January 31, 2018 | News and Blog

A memo sent by Associate Attorney General Rachel Brand may signal "lighter enforcement of the government's informal policy views," writes Law360. Read More »

"It Can Happen to Anyone"

January 11, 2018 | News and Blog

Howard Root, the former CEO of medical device company Vascular Solutions, warned InsideSources that an overzealous government prosecution "can happen to anyone." Read More »

WV's "State of the State" on Legal Reform: Improving

January 10, 2018 | News and Blog

Ahead of West Virginia Governor Jim Justice's "State of the State" address on Wednesday night, new research from the U.S. Chamber Institute for Legal Reform (ILR) provides a snapshot of the state's past accomplishments and future opportunities on legal reform. Read More »

West Virginia's Climb: Lawsuit Climate Progress in the Mountain State and the Path Ahead

January 10, 2018 | Research

West Virginia has begun shedding its reputation for having one of the worst civil justice systems in the nation. The state's lawsuit climate ranked dead last or second to last in surveys of business executives and attorneys conducted eleven times over the past fifteen years--until 2017. This report explores the beginning of the state's encouraging transformation and highlights areas where it may continue this progress. Read More »

Deputy AG Announces New FCPA Guidelines

November 30, 2017 | News and Blog

U.S. Deputy Attorney General Rod Rosenstein said the Department of Justice now may pass on criminal charges if companies disclose foreign bribery violations, reports Bloomberg Politics. Read More »

DOJ Will Stop "Practice of Regulation by Guidance," AG Sessions Says

November 20, 2017 | News and Blog

U.S. Attorney General Jeff Sessions said in a press release the Department of Justice will stop issuing guidance documents that "have the effect of adopting new regulatory requirements or amending the law." Read More »

DOJ "Mindful of Piling On," Working to Improve Coordination

November 09, 2017 | News and Blog

U.S. Deputy Attorney General Rod Rosenstein said the Department of Justice wants to improve agency coordination to lessen the amount of "piling on" in enforcement actions, reports Law360. Read More »

Rosenstein: DOJ to Forgo New Memo, But Will Review Current Policies

October 13, 2017 | News and Blog

Deputy Attorney General Rod Rosenstein said in a speech at the NYU School of Law that he will not pen a new memo on the Department of Justice's focus in corporate prosecutions, but will instead revisit and review the agency's current policies, reports Law360. The article cited experts who said Rosenstein's speech could "eventually lead to major changes." Read More »

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