Bench Memos

The Continuing Problem of Over-Criminalization

Fulbright & Jaworski’s Ninth Annual Litigation Trends Survey illuminates the issue of over-criminalization, a topic that I’ve previously written about. According to the ABA Journal:

“General counsels at nine of 10 U.S. businesses say they expect litigation at their corporations to remain at the same or increase in 2013, according to Fulbright & Jaworski’s 9th Annual Litigation Trends Survey.

Companies are facing more litigation over governmental regulatory investigations and proceedings . . .

The Fulbright survey found that 55 percent of U.S. companies hired outside counsel to advise on government inquiries and regulatory matters in 2012, which is up from 43 percent in 2011.

 “Dodd Frank, the Foreign Corrupt Practices Act and federal and state False Claims acts have spurred a tremendous growth in whistleblower-related claims,” [Fulbright litigation partner Layne Kruse] says. “I think that is only going to continue.”

Although the threat of class-action litigation has dropped due to tort reform, the survey found that “[t]he majority of all respondents — 92% (compared with 89% in last year’s survey) — expect the number of legal disputes their companies will face to rise or stay the same in the next 12 months.”

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