Marc Alain Bohn was quoted regarding the trend of parallel litigation arising out of FCPA investigations. FCPA-related lawsuits are often filed soon after news breaks that a company is conducting an internal investigation into allegations of bribery, even when few facts have been established. "There is an element of throwing everything against the wall and seeing what sticks," Bohn said. Most FCPA-related shareholder suits end up being dismissed, but the risk remains. Some experts contend that in the past these types of lawsuits were usually filed after a settlement was reached with the government, however, increasingly they are filed immediately following a release of the news, placing companies in an awkward position to negotiate a deal with the government while handling discovery requests from a parallel lawsuit. Juggling the competing interests of a criminal investigation and civil litigation has changed the equation around making disclosures to the government, Bohn said, adding that attorneys now often fear that handing over products of an investigation may waive their right to later claim that such materials are protected by attorney client privilege in a civil suit.
Nowadays, during negotiations over FCPA allegations with the government, Bohn said he won't even leave prosecutors a copy of a powerpoint he used to give them a presentation because he fears that such a document could be later used in shareholder suits to argue that his client waived attorney client privilege and therefore plaintiffs are entitled to all the work product from his internal investigation. "You are sharing information [with the government]. The line between that and losing privilege is a close dance," he said.