Litigation: How to scale back the hazards of regulatory challenges and the litigation that follows

A far more proactive approach is required to deal with the array of potential adversaries that may confront a company

Companies have always faced challenges in dealing with government regulators. Traditionally, those challenges were discrete and private — the company would provide as little information as possible to the regulator and hope the government either went away or could be persuaded to enter into a modest consent decree. The general counsel considered it a good day when the regulator stopped calling.

Regulatory challenges are no longer such a private affair. Today, they routinely spawn civil litigation, and executives face intense public scrutiny along the way. At the same time, competitors and plaintiffs’ lawyers pressure Congress and the agencies for action, make trips to Capitol Hill, instigate grand jury investigations, incite media coverage, and influence public opinion in well-orchestrated campaigns. Agencies are not immune from these pressures and must respond to a public that has been empowered by an array of social media tools to voice their concerns. Enforcement is on the uptick, and agency consent decrees impose compliance programs that can impact business activities for years.

Contributing Author

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Kent Gardiner

Kent Gardiner is Crowell & Moring’s chairman and a partner in the firm’s Antitrust and Trade Secrets groups. He is a former trial attorney with...

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Contributing Author

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Cheryl Falvey

Cheryl Falvey is co-chair of Crowell & Moring LLP’s Advertising & Product Risk Management Group, and she is the former general counsel of the Consumer...

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