The “Collection Gap” Explained: A White-Collar Practitioner’s View - YALE LAW & POLICY REVIEW

    14 August 2012

    Introduction

    Ezra Ross and Martin Pritikin’s well-researched article1 regarding the col-lection of fines and penalties imposed on corporate offenders answers the ques-tion of what happens after the enforcement action ends—the government does not collect the vast majority of corporate enforcement penalties imposed. In this Essay, I address some of the practical realities of enforcing corporate penal-ties. First, I provide a different explanation than Ross and Pritikin for the “col-lection gap”—that prosecutors and other government enforcers are highly mo-tivated to impose high penalties but far less motivated to collect them. Second, I address some significant practical reasons why the government appears to place a low priority on collecting penalties—reasons that Ross and Pritikin have ar-guably under-emphasized, such as the existence of alternative nongovernmental remedies. Third, I agree to some extent with Ross and Pritikin’s observation that procedures already in place could, if the government were so inclined, be used to conduct more robust and effective collection activity. Finally, I suggest that narrowing the “collection gap” might occur just as effectively through re-forms in how the government and the courts assess financial penalties as op-posed to developing alternative collection strategies.

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