As though commercial transactions were not already fraught with enough potential pitfalls, a recent decision from the Southern District of New York highlighted yet another risk that could carry significant consequences to commercial litigations – the dreaded waiver of attorney-client privilege.… Continue Reading
On June 6, 2017, the First Department had an opportunity to apply—and reaffirm—last month’s decision in Peerenboom v. Marvel Entm’t, LLC, where the Court held that use of a company email system for personal purposes “does not, standing alone, constitute a waiver of attorney work product protections” even if the user lacked reasonable assurance of … Continue Reading
While attorneys provide legal advice to their clients, they are sometimes the recipients of such advice from their own counsel, including in-house firm counsel. Agreeing with recent decisions by the highest courts of Georgia and Massachusetts, a panel of the First Department Appellate Division this June handed down a decision declaring such advice protected by … Continue Reading
Although e-discovery has been part of complex commercial litigation for over a decade, there have been only a few federal appellate court rulings about e-discovery topics. On April 7, 2016, in In re Am. Nurses Ass’n, the Fourth Circuit became the latest appellate court to issue such a ruling. The Court upheld a district court’s … Continue Reading
Last Thursday, the New York Court of Appeals issued a stark reminder to transactional lawyers: no matter how much “common interest” two parties may have with respect to a transaction, the common interest doctrine may not protect their communications. In Ambac Assurance Corp. v. Countrywide Home Loans, Inc., New York’s highest court held, in a … Continue Reading
On May 16, 2016, the Supreme Court decided Spokeo, Inc. v. Robins, ruling that a plaintiff must sufficiently allege an injury that is both concrete and particularized in order to have Article III standing, and further that a “bare procedural violation” of a plaintiff’s statutory right may not be sufficiently “concrete” under this analysis. This … Continue Reading
In Jinnaras v. Alfant, decided on May 5, 2016, the New York Court of Appeals rejected a proposed settlement of a shareholder class action, where the proposed settlement would have deprived out-of-state class members of a “cognizable property interest” by failing to provide a mechanism for class members residing outside of New York to opt … Continue Reading
In a 3-2 split decision, a New York appellate court determined that a forum selection clause providing for litigation in New York courts had not been explicitly terminated and thus trumped agreements to submit to arbitration in London provided in later contracts that cancelled the previous one. Thus, the appellate panel for the First Department … Continue Reading
By Jacki L. Anderson and Joel Cavanaugh on Posted in Evidence
In-house counsel often communicate with corporate management under the assumption that these communications are protected by the attorney-client privilege— absent some type of unusual and extraordinary circumstance, such as waiver of the privilege or the crime-fraud exception. A surprising number of both in-house and outside counsel, however, are unfamiliar with the longstanding “fiduciary exception” to … Continue Reading
In State of New York v. Trump Entrepreneur Initiative LLC, New York’s Appellate Division recently denied a motion by Donald Trump’ organization to dismiss a fraud claim brought by the New York Attorney General (“AG”) under Executive Law § 63(12). Aside from the fame, or perhaps notoriety, of the respondents, Trump is noteworthy in two other … Continue Reading
