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
  • Lighting the Way: FCA Reform and Compliance Program Credit

    Lighting the Way: FCA Reform and Compliance Program Credit

    June 27, 2018

    This paper contends that in order to encourage companies to create and sustain a culture of consistent compliance, particularly with regard to the federal False Claims Act, the U.S. Department of Justice should formalize a policy of offering credit for companies that implement effective compliance and ethics programs. Read More

  • The Great Myths of State False Claims Acts

    The Great Myths of State False Claims Acts

    February 28, 2018

    The 2018 update to "Great Myths of State False Claims Acts" shows that the whistleblowers' bar is continuing to capitalize on state qui tam False Claims Acts (FCAs), harvesting windfall awards from states and the federal government. The paper also points out that the dubious benefits of implementing a state FCA turn into a clear financial net negative when states allow their FCAs to fall out of compliance with federal standards. Read More

Additional Resources

All Results for Over-Enforcement

  1. Bill Barr Confirmed as Next Attorney General

    February 15, 2019 | News

    The U.S. Senate has confirmed Bill Barr to be the next U.S. Attorney General by a 54-45 vote yesterday, the National Law Journal reports.... Read More

  2. In the News Today - February 4, 2019

    February 04, 2019 | News

    The Granston Memo, One Year Later; Are New Data Rules Fueling Securities Litigation in Europe?... Read More

  3. Do the DOJ Qui Tam Dismissals Signal a Department Sea Change?

    January 10, 2019 | News

    Legal Newsline reports in Forbes that the U.S. Department of Justice's (DOJ) recent move to dismiss 11 whistleblower, or qui tam, lawsuits under the False Claims Act may be a shift towards an administration strategy to "rein in trial lawyers who are using a federal whistleblower law to seek millions of dollars."... Read More

  4. "DOJ: Company Wasted 1,500 Hours of Gov't Time Filing Meritless Suits"

    December 19, 2018 | News

    The U.S. Department of Justice (DOJ) announced it was looking to dismiss 11 False Claims Act lawsuits after learning a company used a cookie-cutter-style model and major plaintiffs' lawyers to file qui tam lawsuits that were "essentially cloned," Law360 reports.... Read More

  5. Is the U.S. Supreme Court About to Rein in Agency Powers?

    December 14, 2018 | News

    A Wall Street Journal opinion piece discusses a forthcoming U.S. Supreme Court case that could significantly limit the power of the federal administrative state. ... Read More

  6. In the News Today - December 13, 2018

    December 13, 2018 | News

    "The Increased Importance of Compliance Going Forward"... Read More

  7. In the News Today - December 7, 2018

    December 07, 2018 | News

    President Trump to Nominate William Barr as Attorney General... Read More

  8. Department of Justice Announces Major Changes to "Yates Memo"

    November 30, 2018 | Blogs

    The holiday season is in full swing, but the Department of Justice (DOJ) isn't letting visions of sugar plums get in the way of conducting business. ... Read More

  9. Deputy AG Rosenstein Announces Revisions to Policies on Individual Accountability

    November 30, 2018 | News

    U.S. Deputy Attorney General Rod Rosenstein announced new polices yesterday that National Law Journal says will "give prosecutors more discretion to award credit to companies even when they do not identify every employee who might be potentially culpable."... Read More

  10. In the News Today - November 29, 2018

    November 29, 2018 | News

    "FCPA Compliance 1 Year After DOJ Revised Policy"... Read More