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. 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

  2. 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

  3. 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

  4. FCPA Enforcement Still Lacks Clarity

    December 09, 2013 | News and Blog

    As federal prosecutors ramp up their anti-corruption enforcement activities, serious questions remain for U.S. companies trying to comply with the Foreign Corrupt Practices Act.... Read More

  5. Time to Fix the False Claims Act

    November 15, 2013 | News and Blog

    A new ILR report argues that the False Claims Act, while good at encouraging frivolous litigation, is simply ineffective at preventing fraud. ... Read More

  6. Congress Should Take Action to Address Regulatory Over-criminalization

    October 30, 2013 | News and Blog

    The U.S. House Judiciary Committee's bipartisan task force on over-criminalization today continued what The Wall Street Journal has called, "the most expansive re-examination of federal law since the early 1980s" by holding a hearing on criminal enforcement of federal rules and regulations.... Read More

  7. Legal Reformers Must Act to Heal the Lawsuit System

    October 23, 2013 | News and Blog

    By being proactive and persistent, we can achieve a healthy lawsuit system.... Read More

  8. U.S. Chamber Proposes Code of Conduct for State AGs

    October 23, 2007 | Press Release

    WASHINGTON, D.C.-In response to what it sees as improper practices by some officials, the U.S. Chamber Institute for Legal Reform (ILR) issued a new set of ethical standards for state attorneys general today, and will urge its voluntary adoption.

    "This proposed code of conduct balances the ability of the AGs to pursue wrongdoers while protecting the due process rights of the targets of the investigation and litigation," said ILR president Lisa Rickard in remarks at the Chamber's 8th Annual Legal Reform Summit.... Read More