Enforcement Piggybacking and Multistate Actions
53 Pages Posted: 27 Apr 2022
Date Written: September 1, 2019
Civil enforcement in the United States is uniquely “multienforcer.” Numerous public and private enforcers including federal agencies, state attorneys general (AGs), and private litigants have overlapping authority to enforce myriad federal and state laws. Ideally, enforcers would complement one another’s efforts and use their comparative enforcement advantages to broaden the scope of enforcement and act as a check on underenforcement. But in reality, enforcers are often attracted to the same targets—large, public, deep-pocketed corporations. This means that multiple enforcers may pursue essentially the same enforcement action, arising from the same series of events and against the same target. Redundant enforcement actions may be necessary to adequately deter future misconduct and compensate victims of corporate fraud. However, duplicate actions may simply be the result of enforcers “piggybacking” on one another’s efforts and “piling on” to high-profile and lucrative enforcement actions.
Scholarly conversations about enforcement often treat broad categories of enforcers as static substitutes for one another rather than considering them as dynamic actors who are intertwined together. AGs are an example of dynamic enforcers that have changed the enforcement landscape by combining together in multistate actions. In some ways, state enforcement is a microcosm of the broader multienforcer system, with multiple state enforcers who can bring duplicative actions under fifty states’ laws. AGs can piggyback in multistate actions much like other public and private enforcers routinely do in enforcement actions. However, multistate actions don’t merely mimic the dynamics that occur in a multienforcer system. Multistate actions are also an innovation that changes the enforcement environment, potentially intensifying the practices of piggybacking and piling on in a multienforcer system.
Keywords: civil enforcement, state attorney general, multistate action, corporations, class action, private enforcement, administrative law, parens patriae, settlement
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