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. 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

  2. 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

  3. 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

  4. The Over-Enforcement Boiling Point

    October 27, 2016 | Video | Watch

  5. Pulling the Emergency Brake: Enforcement Off the Rails

    October 27, 2016 | Video | Watch

  6. Opening Remarks: Lisa A. Rickard

    October 27, 2016 | Video | Watch

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

    October 26, 2016 | Research

    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.... Read More

  8. The ILR Research Review - Fall 2016

    September 22, 2016 | Research

    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.... Read More

  9. Three Cheers for Three Companies who Refused to Cave to 'Schoolyard Bullies'

    September 12, 2016 | News and Blog

    An Investor's Business Daily editorial last week highlighted three recent court victories for companies who went against the grain and took a stand against trial lawyer and prosecutor bullying. ... Read More

  10. WSJ Says Volkswagen Being 'Looted', America's Tort System at Risk

    August 05, 2016 | News and Blog

    A federal judge may have approved a $14.7 billion civil settlement by Volkswagen over emissions scandal allegations, but the Wall Street Journal editorial board writes that "the fun for lawyers is only beginning, because this gigantic settlement doesn't even cover all the relevant cars, nor all of the pending claims."... Read More