On June 14, 2016, the firm published an alert titled “New York’s Highest Court Holds Common Interest Doctrine Inapplicable to Commercial Transactions Absent Litigation.”
In a decision with important consequences for merger and acquisition transactions and the litigation resulting from those transactions, a divided New York Court of Appeals held last week that the common interest doctrine applies only to post-signing, pre-closing communications between parties to a merger agreement if they relate to pending or anticipated litigation. Other communications between separately represented parties to a merger (or other commercial transaction) are not entitled to privilege under New York law.