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

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.

The ILR Research Review - Fall 2016

September 22, 2016 | This edition of the ILR Research Review offers valuable insights from ILR's latest research on over-criminalization and the challenges of business compliance, over-enforcement, third-party litigation funding in the UK, and asbestos trust claims.

Additional Resources

All Results for Over-Enforcement

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 »

DOJ Official Says Corporate Prosecution Policy is Under Review

September 15, 2017 | News and Blog

Deputy Attorney General Rod Rosenstein said there "may be some change" on the Department of Justice's corporate prosecution policy, according to POLITICO. Read More »

Yates Memo Altered Cos.' Response To Probes, Panelists Say

August 14, 2017 | News and Blog

A panel at the American Bar Association's annual meeting said former Deputy Attorney General Sally Yates' instruction to pursue individual actors has had a greater effect on the companies being probed, rather than the officials conducting the investigation. Read More »

In the News Today - January 26, 2017

January 26, 2017 | News and Blog

Senator Orrin Hatch writes on the need for mens rea, or "guilty mind," requirements in our courts. He says that in recent years "these crucial protections have eroded through regulatory encroachment and congressional inattention." Read More »

Assistant U.S. Attorney Apologizes For Criticisms of Federal Prosecutors

December 19, 2016 | News and Blog

Leslie Caldwell appears to be conflicted -- and understandably so. At last week's Federalist Society event, "The Limits of Federal Criminal Law," Caldwell, the Assistant Attorney General for the Criminal Division at the U.S. Department of Justice, spoke clearly about concerns she had with the prosecutorial tactics of some U.S. Attorney offices around the country. Read More »

In the News Today - December 7, 2016

December 07, 2016 | News and Blog

Former U.S. Attorney John Wood said that the decision by Trump to keep NY AG Preet Bharara "suggests that the Feds will continue to keep the pressure on C-suite executives to adopt and maintain strong compliance programs for their companies. Read More »

In the News Today - December 2, 2016

December 02, 2016 | News and Blog

In the last year, the Justice Department has lost three major cases against companies, in what the companies claim were examples of prosecutorial over-enforcement and over criminalization. Read More »

Opening Remarks: Lisa A. Rickard

October 27, 2016 | Video

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