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:

Suggested Resources

Research
  • Enforcement Gone Amok: The Many Faces of Over-Enforcement in the United States

    Enforcement Gone Amok: The Many Faces of Over-Enforcement in the United States

    May 26, 2016

    This paper documents compelling examples of over-enforcement abuses, and offers details of the wide-ranging and interrelated ways government enforcement actions impact American businesses. Read More

  • ILR Research Review - Fall 2017

    ILR Research Review - Fall 2017

    November 30, 2017

    This special double-issue of the ILR Research Review features a wealth of insight and analysis on the world's rapidly changing litigation environment. The research contained in this issue targets exploitative litigation at home and abroad, examining numerous developments ranging from hyper-aggressive trial lawyer advertising in the U.S. to the imminent expansion of class actions in Europe. Read More

Additional Resources

All Results for Over-Enforcement

  1. "It Can Happen to Anyone"

    January 11, 2018 | News

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

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

    January 10, 2018 | Blogs

    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

  3. 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

  4. Deputy AG Announces New FCPA Guidelines

    November 30, 2017 | News

    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

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

    November 20, 2017 | News

    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

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

    November 09, 2017 | News

    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

  7. 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

  8. 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

  9. 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

  10. 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