On March 17, 2016, the ACC, in conjunction with The Chamber of Commerce of the United States, filed an Amicus brief in the Court of Appeals of the State of New York to argue that the applicability of common-interest privilege between corporations, affiliated companies, and their counsel does not depend on the anticipation of litigation. ACC’s brief argues that a broader interpretation of the privilege promotes compliance in both the adversarial and transactional realms.
In Ambac Assurance Corp. v. Countrywide Home Loans Inc. et al., Ambac seeks to discover privileged communications between Countrywide and Bank of America that were made after the two parties negotiated a merger agreement and completed due diligence on the deal. The trial court found that Bank of America’s communications were covered under common-interest privilege, citing the importance of information sharing, irrespective of potential litigation, in facilitating regulatory compliance. In relation to Ambac’s request, the trial court recognized the importance of common-interest privilege in allowing the companies to freely disclose sensitive information related to tax, securities, and employment during the process of a merger. ACC’s brief supporting the trial court’s ruling argues that limiting the common-interest privilege to the litigation context would chill legal advice in many types of corporate transactions, including intellectual property transfers, tax and corporate restructuring, joint ventures, and public regulatory programs. Without the assurance of privilege, companies are less likely to seek the expert advice of counsel and, in turn, less able to comply with complicated legal obligations.
Click here to view the amicus brief.