Issues Relating To Parallel Litigation

The potential for multiple proceedings often arises in
antitrust and business tort litigation. This chapter addresses
the procedural issues that frequently arise in disputes involving
multiple proceedings. – Eds.
A. Introduction
Parties in antitrust and business tort litigation commonly disagree on
the “proper” forum for a dispute. Factors including jury pool
demographics, local publicity, docket speed, perceived judicial expertise,
evidentiary restrictions on expert testimony, and counsels’ familiarity
with local procedures may affect parties’ preference for one court over
another. Because these cases frequently involve numerous parties with
different interests and the ability to bring separate actions in the forums
of their choice, such disputes frequently trigger multiple proceedings in
different courts. In addition, business tort cases often run in tandem with
administrative and criminal proceedings, raising an array of complex
issues in concurrent private civil litigation (such as adverse civil
inferences from Fifth Amendment invocations, waivers of attorney-client
privilege, preclusive effects from criminal or administrative findings, and
alternative discovery opportunities from the government’s investigation).
These factors frequently cause one party to attempt to stay private
proceedings until the government actions have been resolved. In all
these situations, parties commonly employ an array of litigation
strategies designed to promote the action in their chosen forum but to
dismiss, stay, or otherwise impede concurrent litigation elsewhere.
The more common of these strategies include motions for stays
under a court’s inherent powers, invocation of abstention doctrines,
requests for anti-suit injunctions, and attempts to transfer claims. The
following discussion addresses each of these strategies as well as the role
of claim and issue preclusion in disputes involving multiple proceedings.
336 Business Tort Law
B. Stay or Abatement of State Court Proceedings
State courts generally have the discretion, but usually not the
obligation, to stay or dismiss proceedings before them when there is a
concurrent related action in another state court, in a federal court, or in
another country.1 When both actions involve the same or similar parties
and issues, state courts frequently stay their own proceedings to await the
outcome of the foreign action.2 The reasons most frequently cited by
courts for granting such stays include: (1) preventing a multiplicity of
actions,3 (2) promoting principles of comity,4 and (3) protecting the
defendant from harassment or unnecessary inconvenience.5
State courts typically rely on the following factors in deciding
whether to impose a stay in favor of another action: (1) which action
was filed first;6 (2) the comparative progress of both proceedings;7
(3) the potential res judicata effect of the action pending in the foreign
jurisdiction;8 (4) the interest of the forum state in the action;9 and
1. See, e.g., Howerton v. Grace Hosp., Inc., 476 S.E.2d 440 (N.C. Ct. App.
1996); Tonnemacher v. Touche Ross & Co., 920 P.2d 5 (Ariz. Ct. App.
1996); City of Miami Beach v. Miami Beach Fraternal Order of Police,
619 So. 2d 447 (Fla. Dist. Ct. App. 1993); Baisley v. Vielle (In re
Marriage of Baisley), 749 P.2d 446 (Colo. Ct. App. 1987).
2. See, e.g., El Paso Natural Gas Co. v. TransAm. Natural Gas Corp., 669
A.2d 36 (Del. 1995); Donnkenny, Inc. v. Nadler, 544 F. Supp. 166
(S.D.N.Y. 1982).
3. See, e.g., Zurich Ins. Co. v. Baxter Int’l, Inc., 670 N.E.2d 664 (Ill. 1996).
4. See, e.g., Fried v. Bergman, 736 So. 2d 1281 (Fla. Dist. Ct. App. 1999);
Commercial Union Ins. Co. v. Wheeling Pittsburgh Corp., 666 N.E.2d 571
(Ohio. Ct. App. 1995); Brooks Erection Co. v. William R. Montgomery &
Assocs., Inc., 576 S.W.2d 273 (Ky. Ct. App. 1979); Simmons v. Sup. Ct.
of Los Angeles County, 214 P.2d 844 (Cal. Ct. App. 1950).
5. See, e.g., HFTP Invs., LLC v. ARIAD Pharms., Inc., 752 A.2d 115 (Del.
Ch. 1999) (comparing expense and speed of resolving dispute in either
6. See, e.g., Acierno v. New Castle County, 679 A.2d 455 (Del. 1996); Am.
Home Prods. Corp. v. Adriatic Ins. Co., 668 A.2d 67 (N.J. Super. Ct. App.
Div. 1995).
7. See, e.g., First Midwest Corp. v. Corporate Fin. Assocs., 663 N.W.2d 888
(Iowa 2003).
8. See, e.g., Wiseman v. Law Research Serv., Inc., 270 N.E.2d 77 (Ill. App.
Ct. 1971).
Issues Relating to Parallel Litigation 337
(5) whether the foreign proceeding provides the parties the ability to
obtain complete relief.10
Conversely, motions for stays are more likely to be denied if (1)
there are material differences between the named parties in both cases,11
(2) if the actions involve different facts,12 (3) if different legal claims are
asserted or different remedies are pursued in either court,13 and (4) if a
judgment in the foreign jurisdiction will not fully resolve the disputes
asserted in the forum state.14 While many states hold that the power to
stay or dismiss duplicative actions is inherent in the court,15 a number of
jurisdictions have enacted statutes expressly providing such authority.16
Moreover, a state court may stay an action as to one or more of the
parties, while allowing it to proceed as to other parties.17
State business tort cases are most likely to be stayed or abated when
there are pending federal actions based on specialized federal laws (e.g.,
9. See, e.g., Biondi v. Scrushy, 820 A.2d 1148 (Del. Ch. 2003).
10. See, e.g., First Midwest Corp. v. Corporate Fin. Assocs., 663 N.W.2d 888
(Iowa 2003); El Paso Natural Gas Co., 669 A.2d at 38 n.1. But cf.
Derdiger v. Tallman, 773 A.2d 1005 (Del. Ch. 2000) (allowing stay even
though cases involved different named representatives in separate putative
class actions).
11. See, e.g., Del-Val Fin. Corp. v. FDIC, 598 N.Y.S.2d 197, 198 (N.Y. App.
Div. 1993) (citing “no identity of parties” as one factor in denying motion
to stay action); Argonaut Ins. Co. v. Occidental Petroleum Corp., 430
N.Y.S.2d 982 (N.Y. Sup. Ct. 1980).
12. See, e.g., Cong. Factors Corp. v Meinhard Commercial Corp., 493
N.Y.S.2d 917 (N.Y. Sup. Ct. 1985).
13. See, e.g., Keene Corp. v R.W. Taylor Steel Co., 594 P.2d 889 (Utah 1979);
Coaxial Commc’ns, Inc. v. CNA Fin. Corp., 367 A.2d 994 (Del. 1976).
14. See, e.g., May v. Smithkline Beecham Clinical Lab., Inc., 710 N.E.2d 460
(Ill. App. Ct. 1999).
15. See, e.g., Myshko v. Galanti, 309 A.2d 729 (Pa. 1973) (involving dismissal
of action in equity when similar action was pending at law).
16. See, e.g., GA. CODE ANN. § 9-2-44; N.Y. C.P.L.R. 3211(a), ¶ 4 (permitting
New York courts to dismiss action on grounds that there is “another action
pending between the same parties for the same cause of action in a court of
any state or the United States”); 735 ILL. COMP. STAT. ANN. 5/2-619(a)(3)
(West 2005) (providing Illinois courts discretion to dismiss action if “there
is another action pending between the same parties for the same cause”).
17. See, e.g., Sparrow v. Nerzig, 89 S.E.2d 718 (S.C. 1955).

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