Matthew Kutcher, Alexandra Eber, Matt K Nguyen, Wazhma Sadat and Kimberley Bishop1


This chapter provides an overview of the potential fines, penalties and other collateral consequences to corporates and individuals facing enforcement actions brought by authorities under United States federal law. The government's use of monetary fines and penalties has remained a dynamic area as authorities pursue enforcement in traditional areas such as the Foreign Corrupt Practices Act (FCPA), money laundering statutes and the Racketeer Influenced and Corrupt Organizations Act (RICO), emerging areas such as cybersecurity and cryptocurrency, and the application of traditional enforcement to new areas, such as the prosecution of false opioid marketing and covid-19 relief fraud under the False Claims Act (FCA).

In recent years, both the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) have exacted significant financial penalties through enforcement actions and settlements. For example, in the fiscal year ending in September 2021, the DOJ obtained more than US$5.6 billion in total settlements and judgments from FCA cases alone2 – more than double the US$2.2 billion the DOJ secured in the prior fiscal year.3 This significant increase is largely attributable to the DOJ's US$2.8 billion FCA settlement with major pharmaceutical company Purdue Pharma for its alleged role in the opioid crisis.4 Also in Fiscal Year 2021, the US Attorney's Office for the Eastern District of New York alone collected nearly US$250 million in criminal and civil actions.5 Other US Attorney's Offices across the country posted large collection numbers for 2021, including over US$48 million by the Eastern District of Virginia,6 over US$38.5 million by the District of Nevada,7 over US$38 million by the District of Arizona,8 and over US$36 million by the Southern District of Georgia.9

In Fiscal Year 2021, the SEC filed 697 enforcement actions, including 434 new enforcement actions, and obtained judgments and orders totalling approximately US$3.8 billion in disgorgement and penalties.10 The total number of actions filed was just shy of the SEC record of 715 enforcement actions filed in Fiscal Year 2020, but represented a 7 per cent increase in new enforcement actions over the prior year.11

Regulators remain focused on coordinated enforcement efforts aimed at ensuring economic fairness. The DOJ's strategic plan for financial years 2022–2026 promises that the DOJ will 'aggressively prosecute corporate crime, not only by holding companies accountable for their criminal conduct, but also by prosecuting the individuals who commit and profit from corporate malfeasance'.12 The SEC has said it will focus on (1) 'robust enforcement' by positioning itself as 'the cop on the beat' for the 'entire securities waterfront'; (2) 'robust remedies', including a focus on prophylactic relief 'such as officer and director bars, associational bars, suspensions, conduct-based injunctions and undertakings'; and (3) 'robust compliance' aimed at restoring trust by requiring companies to guard against emerging risks.13 As regulators ramp up enforcement in areas such as cybersecurity, cryptocurrency and covid-19 relief fraud, companies should expect to see increased enforcement activity in the next fiscal year, which will likely lead to increased penalties and fines.

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1 Matthew Kutcher is a partner, and Alexandra Eber, Matt K Nguyen, Wazhma Sadat and Kimberley Bishop are associates, at Cooley LLP. The authors wish to acknowledge the contribution of Rita D Mitchell of Willkie Farr & Gallagher LLP, who authored the chapter in previous editions on which this chapter is partly based.

2 Press Release, DOJ, 'Justice Department's False Claims Act Settlements and Judgments Exceed $5.6 Billion in Fiscal Year 2021' (1 February 2022), justice-department-s-false-claims-act-settlements-and-judgments-exceed-56-billion-fiscal-year.

3 Press Release, DOJ, 'Justice Department Recovers Over $2.2 Billion from False Claims Act Cases in Fiscal Year 2020' (14 January 2021), justice-department-recovers-over-22-billion-false-claims-act-cases-fiscal-year-2020.

4 Press Release, DOJ, 'Justice Department Announces Global Resolution of Criminal and Civil Investigations with Opioid Manufactuer Purdue Pharma and Civil Settlement with Members of the Sackler Family' (21 October 2020), -announces-global-resolution-criminal-and-civil-investigations-opioid.

5 Press Release, DOJ, 'Eastern District of New York United States Attorney's Office Collects Nearly $250 Million in Criminal and Civil Actions in Fiscal Year 2021' (22 December 2021), -office-collects-nearly-250-million.

6 Press Release, DOJ, 'EDVA Collects over $48 M in Civil and Criminal Actions in Fiscal Year 2021' (3 January 2022), -and-criminal-actions-fiscal-year-2021.

7 Press Release, DOJ, 'U.S. Attorney's Office Collects Over $38.5 Million in Civil and Criminal Actions in Fiscal Year 2021' (28 December 2021), us-attorneys-office-collects-over-385-million-civil-and-criminal-actions-fiscal-year-2021.

8 Press Release, DOJ, 'U.S. Attorney's Office Collects Over $38 Million in Criminal and Civil Actions in Fiscal Year 2021' (18 January 2022), us-attorneys-office-collects-over-38-million-criminal-and-civil-actions-fiscal-year-2021.

9 Press Release, DOJ, 'U.S. Attorney's Office recovers more than $36 million in civil, criminal actions in Fiscal Year 2021' (5 January 2022), us-attorneys-office-recovers-more-36-million-civil-criminal-actions-fiscal-year-2021.

10 Press Release, SEC, 'SEC Announces Enforcement Results for FY 2021' (18 November 2021),

11 Id.; see also SEC Div. of Enf't, 2020 Annual Report at 3 (2 November 2020),

12 DOJ FYs 2022-2026 Strategic Plan (26 August 2022), file/1516901/download.

13 Testimony on 'Oversight of the SEC's Division of Enforcement' Before the U.S. House of Representatives Committee on Financial Services Subcommittee on Investor Protection, Entrepreneurship, and Capital Markets (21 July 2022), statement/grewal-statement-house-testimony-071922.

Originally published by Law Business Research 2022

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.