Hogan Lovells Publications | 22 June 2016
New York Rejects Extension of Common Interest Doctrine to Parties in M&A Transactions in the Absence of Pending or Anticipated Litigation
On June 9, 2016, New York State’s highest court held that disclosures of privileged communications to a third party must be made in the context of pending or reasonably anticipated litigation if the “common interest” doctrine of the attorney-client privilege rule is to apply. In Ambac Assurance Corporation v. Countrywide Home Loans, Inc. (Ambac), the New York Court of Appeals reversed the intermediate appellate court’s decision and declined to follow Delaware, a number of other states and a majority of the federal courts, each of which extend attorney-client privilege protection to cover communications and information shared between parties to an M&A transaction, without requiring pending or reasonably anticipated litigation.
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