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. In The News Today - November 6, 2014

    November 06, 2014 | News and Blog

    An op-ed in the Wall Street Journal by House Speaker John Boehner and Senate Minority Leader Mitch McConnell highlights "excessive regulations and frivolous lawsuits that are driving up costs for families and preventing the economy from growing" as one of the top priorities for reform under the newly elected Republican majority in the House and Senate.... Read More

  2. SCOTUS Docket Includes Two Cases In Which U.S. Chamber Filed Briefs

    October 06, 2014 | News and Blog

    As the U.S. Supreme Court returns to the bench this week, BusinessWeek's Paul Barrett highlights important business cases before the Court, including two in which the U.S. Chamber Litigation Center has filed amicus briefs.... Read More

  3. Holder to Recommend Big Rewards for Wall Street Whistleblowers

    September 17, 2014 | News and Blog

    The Wall Street Journal reports that Attorney General Eric Holder will announce a new Justice Department proposal this Wednesday at New York University. He is expected to call for increased cash rewards under the Financial Institutions Reform, Recovery and Enforcement Act, or Firrea, for whistleblowers who provide evidence of wrongdoing on Wall Street.... Read More

  4. Amend the False Claims Act

    August 04, 2014 | News and Blog

    On July 30, 2014, I testified before the U.S. House Judiciary Committee's Subcommittee on the Constitution and Civil Justice on behalf of the U.S. Chamber Institute for Legal Reform. In that hearing, I urged Members to consider relatively modest yet critical reforms to the Act. ... Read More

  5. National Law Journal: Ogden Pushes for False Claims Act Changes on Behalf of ILR

    July 31, 2014 | News and Blog

    The National Law Journal reports on former U.S. Deputy Attorney General David Ogden's House testimony on behalf of ILR in support of changes to the False Claims Act.... Read More

  6. U.S. Chamber: Congressional Reform of False Claims Act Enforcement Needed

    July 30, 2014 | Press Release

    Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform (ILR), made the following statement today urging Congress to reform aspects of the False Claims Act (FCA):... Read More

  7. Orange County, CA District Attorney Takes Duplicative Legal Action Against GM

    July 01, 2014 | News and Blog

    Orange County, CA District Attorney Tony Rackauckas is taking legal action against General Motors, charging the company with, "unfair business practices and deceptive marketing for concealing ignition-related defects and others in order to boost its bottom line," reports The New York Times.... Read More

  8. Florida AG Moves to Assert Control over State False Claims Act Claims

    June 16, 2014 | News and Blog

    In a positive step forward that would empower states to diminish frivolous False Claims Act cases, Florida Attorney General Pam Bondi's office is arguing that "it has the authority to dismiss a False Claims Act suit brought against Motorola Inc. [which] it deemed frivolous, saying it does not need approval from the relator who filed suit."... Read More

  9. Judge: Evidence Not Getting Any Fresher in FCPA Case

    March 12, 2014 | News and Blog

    The government's use of the Foreign Corrupt Practices Act has exploded in recent years, but the track record once those cases get some scrutiny isn't so good.... Read More

  10. Gibson Guitar's 'Government Series II' Les Paul Memorializes Federal Raid

    January 31, 2014 | News and Blog

    In memory of the 2011 federal raid of its factory, Gibson Guitar is inviting Americans to "fight the powers that be" by purchasing its new, "Government Series II Les Paul" guitar.... Read More