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. High-Profile Federal FCPA Probe into Wal-Mart Finds 'Little in Way of Major Offenses'

    October 19, 2015 | News and Blog

    The three-year Foreign Corrupt Practices Act (FCPA) investigation into Wal-Mart's activities in Mexico "has found little in the way of major offenses, and is likely to result in a much smaller case than investigators first expected."... Read More

  2. SEC Opens New Front in Enforcement Efforts, Reaches Muni Bonds Sale Settlement

    August 14, 2015 | News and Blog

    The U.S. Securities and Exchange Commission has opened "a new front" with its enforcement efforts, reaching a $20 million settlement with Edward Jones over the company's sale of municipal bonds.... Read More

  3. U.S. Chamber Commends Federal Court Scrutiny of FDA Enforcement Actions

    August 07, 2015 | Press Release

    ... Read More

  4. Sen. Warren Steps Ups Attacks on SEC; Wants More Aggressive Enforcers

    July 09, 2015 | News and Blog

    Already dogged by complaints of over-enforcement by its in-house administrative courts, the Securities and Exchange Commission (SEC) is now facing attacks from Sen. Elizabeth Warren, who would like SEC enforcement to be even more aggressive.... Read More

  5. Quicken Loans Sues DOJ; Claims 'Political Agenda' Driving Pressure to Settle

    April 20, 2015 | News and Blog

    Quicken Loans Inc. sued the U.S. Department of Housing and Urban Development and the Justice Department on Friday, saying in its complaint that the company is "fed up" with being pressured to settle over wrongdoing it didn't commit.... Read More

  6. The Growing Threat of 'Enforcement Slush Funds'

    March 25, 2015 | News and Blog

    Federal prosecutors and regulators have extraordinarily broad discretion to decide who to target in enforcement investigations, what to charge them with, and how much to demand as the price for a settlement. ... Read More

  7. New Faces of Lawsuit Abuse Video Highlights Federal Raid on Gibson Guitar

    December 26, 2014 | News and Blog

    ILR unveiled a new Faces of Lawsuit Abuse video this week, detailing the 2011 federal raid on Gibson Guitar for alleged violations of the Lacey Act. ... Read More

  8. VIDEO: Making A Federal Case Out of Three Small Fish

    December 03, 2014 | News and Blog

    FacesofLawsuitAbuse.org has unveiled a new video highlighting the plight of Florida fisherman John Yates – whose case is currently before the U.S. Supreme Court after he was charged by federal authorities for violating the Sarbanes-Oxley Act.... Read More

  9. 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

  10. 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