Legal strategies
for complex cases

COMPLEX CASES

Legal strategies for complex cases

Cases involving different public agents require coordination and relations

A legal context involving different public, regulatory and supervisory agents – the so-called complex cases – require companies to have experience, creativity, fast decision-making and a high capacity to deal with various agencies, in addition to multidisciplinary legal knowledge.

Different jurisdictions involved in a single proceeding or investigation lead to recurrence of proceedings and bring cases to a halt. This happens commonly because of zones of intersection of competencies among various public agencies involved in a single case, generating greater complexity along with complementary or contradictory penalties and regulations.

A NEW HOLISTIC POINT OF VIEW

A complex case involving multiple public agencies requires work on several legal fronts.

T his vision requires a comprehensive approach in order to avoid a recurrent lack of coordination in the proceeding, and a strategic action plan.

Based on cases that have had significant repercussions in Brazil over the past few years, originating in everything from the criminal to the environmental area, a holistic approach to resolving issues has already been put into use and marks a change in attitude by businesses. The result has been the adoption of preventive work so that, when crises arise, the team is prepared to act.

As partner Flávio Pereira Lima explains, “In the last ten years ago, we have seen companies concern themselves with the preventive side of things, analyzing situations from the points of view of various areas and seeking to resolve problems by means of settlements and mediation”.

On the public agency side, even though there is still a lack of coordination, there has been a perceptible desire to work conflicts out in the best way possible and sometimes that avoids the filing of cases with the courts. And, the prosecutor’s office plays an important role in this process. According to partner Thiago Luís Sombra, “the prosecutor’s office can be the focal point of these conversations”.

Furthermore, it would also be good to see a change in the legal culture so that those involved can come to feel the direct effects of the safety offered by the courts when they interpret and apply the law. In 2013, with the approval of the Anticorruption Law (Law No. 12,846/2013), which establishes civil and administrative sanctions for companies for crimes they have committed, agencies of the legislative and executive branches began to implement rules to encourage compliance programs.

 

Complementary reading

“The main aspects of an Anticorruption Compliance Program and the new Implementation Handbook from the Office of the Comptroller General”


Read more here.

 

Complex cases:
stages and requirements

T he greatest risk is a company failing to properly assess all the effects a penalty can bring. According to Thiago, “the starting point is understanding the reach of the case and defining a coordinated action plan to avoid a misalignment of information. Then, you need a team working to establish a common language and, finally, you need greater clarity regarding the functions each jurisdiction affects and the impact each one can have”.

For partner Ana Cândida Sammarco, multidisciplinary legal efforts are important to line up the many regulations and to provide legal certainty for those involved.


“The best practice is to seat with all the agencies involved so that they can feel the problems involved and are aware of the hurdles to reaching a solution.”

In this regard, mapping out the various stakeholders involved and maintaining everyone in the loop are essential.

Once a crisis has arisen, another stage begins, one more focused on execution. As partner Lina Pimentel points out, “the first thing is always to assess the risk to human health and safety”. Next comes the diagnosis of the case, mapping out which agencies are involved and what the company has already effectively achieved before finally trying to get all the agents into the same conversation.

PROACTIVITY AND COMPLIANCE

The lack of organization in a legal proceeding is often the cause of misunderstandings, multiple interlocutory decisions and legal contradictions that lead to delayed final rulings.

Without a coordinating agency that provides directives, cases become more complex, requiring private agents to take over the organization of the proceedings.

“Companies are the ones at risk. If they do not lead the conversations with controlling agencies, they will be manhandled into an investigation in the worst possible position”, Thiago warns. During a corporate crisis, a company needs to be the protagonist and narrate the facts to the various interlocutors in order to avoid simply responding to negative narratives from third parties. This being the case, leading the discussions is part of the message they need to convey.


In addition to being proactive, a consistent compliance program also provides safety in a crisis. According to partner Kevin Altit, “compliance works as a vaccine against crisis situations”.

However, it is not enough to adopt codes of conduct and anticorruption policies. It is essential to make companies assimilate these as an inherent part of their cultures. “The way to formalize that culture is through a set of policies and rules that formally state what the company believes to be right. This begins much more in the corporate culture and by raising awareness; the code of conduct is just the instrument”, Kevin emphasizes.

 
 
 

Creativity in finding alternatives


The truck drivers’ strike, which took place in May of 2018, illustrates how to deal with a complex case. A series of public and private agents mobilized, together, in order to try grind production to a halt for companies which were interrupted by the strikes.

“It was guerrilla warfare, mapping out the entire landscape and identifying those who could help locally – from lawyers up to members of the judiciary, in each city and region. We had to act in a coordinated manner with the many agencies that had the same legal interests”, partner Flávio Pereira Lima recalls.

“We had an injunction and legal support and backing, but the public were on the side of the truckers and helping them to block the streets. We had to get creative to solve the problems, which, at the time, had not been seen before.”

This is a typical case in which the multiple agents involved tend to try to take the lead. In this situation, a complex case allows for new potential solutions for the future. And, contact with stakeholders is essential: proactive actions, whether it is reaching out to agencies, communications from companies, represent a much better strategy than simply being reactive.