A Deep Dive into Navigating the Intricacies of Parallel Proceedings and Strategically Negotiating Global Settlements

January 24, 2024 2:45pm

Lisa Kutlin
Senior Compliance Counsel, Investigations

Kevin Gingras
Vice President & Associate General Counsel Litigation & Compliance
Lockheed Martin Corporation
Former Trial Attorney, FCPA Unit, Fraud Section, Criminal Division, USDOJ

Daniel Suleiman
Partner | Co-Chair, Aerospace, Defense, and National Security Group
Covington & Burling LLP

John Vagelatos
Assistant United States Attorney, Criminal Division
USAO, Eastern District of NY

The DOJ’s efforts to increase corporate and executive prosecutions is increasingly resulting in parallel criminal and civil FCA proceedings. In this session, leading practitioners will conduct a deep dive into the intricacies of navigating parallel proceedings and strategies to negotiate the best outcome possible. Topics of discussion will include:

  • Identifying what factors in the CID or investigative interview suggest a criminal investigation is coming, and how to mitigate this risk without violating ethical or evidentiary rules
    • Considering what non-disclosure of potential criminal intent could mean for future civil settlement negotiations in light of DOJ’s corporate self-disclosure policy
  • Tackling the risks of adverse inferences when individuals plead the 5th and incorporating this possibility into settlement negotiations
    • Appreciating the unintended consequence of attracting the attention of the criminal division by pleading the 5th
  • Knowing when to hire separate counsel for the individual and the corporation and considering the benefits and pitfalls of entering into a joint defense agreement, including how Upjohn warnings work when there is a joint defense agreement
  • Developing unique strategies for settlements where DOJ insists on admissions and appreciating the potential impact of admissions