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. Recent DOJ Memos Popping Up in Qui Tam Litigation

    July 30, 2018 | News

    Lawyers on both sides of the qui tam whistleblower litigation bar agree that the U.S. Department of Justice's (DOJ) Brand and Granston memos from earlier this year are being utilized in court, The American Lawyer reports.... Read More

  2. ILR's Kim: Put Brand Memo in U.S. Attorneys' Manual

    July 27, 2018 | News

    In an interview with Bloomberg Big Law Business, U.S. Chamber Institute for Legal Reform Executive Vice President Harold Kim urged the Department of Justice to include the directives from the Brand Memo in the U.S. Attorneys' Manual.... Read More

  3. Benczkowski Confirmation Signals DOJ's Continued Movement Towards "Fairness and the Rule of Law"

    July 13, 2018 | News

    Though all eyes are on Judge Brett Kavanaugh's Supreme Court confirmation process, Wednesday's confirmation of Brian Benczkowski as the new assistant attorney general of the U.S. Department of Justice's (DOJ) criminal division is "a big deal in its own right," according to an op-ed in the Washington Examiner.... Read More

  4. Senate Must Confirm Brian Benczkowski Today

    July 11, 2018 | Blogs

    Today the U.S. Senate is scheduled to vote on confirming Brian Benczkowski to this key post, which will allow DOJ to continue on its path of reining in over-enforcement against American companies. ... Read More

  5. Lighting the Way: FCA Reform and Compliance Program Credit

    June 27, 2018 | Research

    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

  6. In the News Today - June 18, 2018

    June 18, 2018 | News

    Associate Attorney General Cites Importance of Corporate Compliance Culture; Australian Attorney General Backs Licensing as "Sensible Approach" to Regulation of Third Party Litigation Funding... Read More

  7. Justice Dept. Can Spur Investment in Compliance by Giving Companies Credit

    June 15, 2018 | Blogs

    The U.S. Department of Justice (DOJ) has placed a welcome focus lately on enlisting businesses as partners instead of adversaries in the fight against corporate wrongdoing. One way to strengthen this partnership is to offer concrete incentives for companies to make an up-front investment in ethics and compliance programs designed to detect and prevent violations in the first place.... Read More

  8. ILR Research Review - Spring 2018

    May 31, 2018 | Research

    The Spring 2018 ILR Research Review explores a wide range of long-standing and emerging issues in legislation, regulation, and litigation, including artificial intelligence and other emerging technologies, state qui tam False Claims Acts, West Virginia legal reforms, and asbestos bankruptcy trusts.... Read More

  9. In the News Today - May 18, 2018

    May 18, 2018 | News

    CFPB head says no more "regulation by enforcement"... Read More

  10. DAG Rosenstein Addresses "Piling On" Enforcement

    May 10, 2018 | News

    In a speech yesterday, U.S. Deputy Attorney General Rod Rosenstein said that he has created new internal policies to address "piling on" enforcement, in which companies are subject to multiple fines from different agencies for the same conduct, Law360 reports.... Read More