Bet-the-company litigation often entails multiple cases and investigations that in-house counsel must juggle simultaneously. InsideCounsel asked Zuckerman Spaeder Partner Martin Himeles, an expert in bet-the-company litigation, for tips about effectively managing complexities. Following are his insights.
1. Don’t spread yourself too thin. Parallel proceedings present challenges that are among the most difficult in complex litigation. Civil and administrative litigation that occurs simultaneously—and even worse, civil or administrative litigation during a grand jury investigation or criminal proceeding—may force a company to choose between pursuing its interests in one proceeding and prejudicing them in another. These hazards are increasingly common in an era of increasing criminalization of regulatory conduct and are present in most high-stakes litigation in heavily regulated industries.
2. Choose the right representation. Addressing these problems effectively requires experience dealing with them. Consequently, when parallel proceedings can reasonably be expected, the general counsel must be certain to choose counsel with substantial experience in matters presenting these challenges. In rare instances, it may be possible to persuade a court to stay civil litigation pending resolution of a criminal proceeding or grand jury investigation. But courts are very reluctant to grant such stays, particularly absent a hard deadline after which the civil proceeding can move forward (such as a trial date in the criminal proceeding).
3. Strategize creatively. In other circumstances, parallel proceedings may pose some of the same hazards for the government as for the company. For example, whenever there are parallel civil and grand jury proceedings, the company may seek to depose in the civil proceeding government investigators and other witnesses to whom the company would otherwise not have access in the criminal proceeding. The prospect of having its investigators deposed may cause the government to defer its civil efforts until the conclusion of the grand jury investigation or criminal proceedings (or, if the government is not a party to the civil proceedings, to attempt to persuade the private parties to delay their efforts, or to seek a stay from the court). The precise strategy pursued in each case depends on the unique circumstances of that case. There are rarely easy answers, but there are always some answers that are better than others.