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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Commercial Law

Date & Time
  • event Date

    Wednesday, March 27, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    30 minutes

Credit Information

  • An excellent opportunity to earn Ethics CLE credits. Note: BARBRI cannot guarantee that this course will be approved for ethics credits in all states. To confirm, please contact our CLE department at pdservice@barbri.com.

$347.00
CLE
ALL

This CLE course will examine the developing body of case law on who controls the privilege when litigation arises after a deal has closed and the implications for M&A practitioners.

Faculty

Jeffrey Schomig
Attorney
Wilmer Cutler Pickering Hale and Dorr, LLP

Mr. Schomig is a highly regarded practitioner of legal privileges, including the attorney-client, work product, associational and bank examination privileges, and the privilege for self-critical analysis. Aside from litigating these privileges in a range of civil and criminal contexts, Mr. Schomig’s practice includes pro-active counseling and risk management to help companies and other organizations develop effective, tailored privilege guidelines. A frequent contributor to the literature on privileges, Mr. Schomig has also served as an advisor to the ABA on issues of international privilege law.

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Lawrence Silverman
Partner
Sidley Austin LLP

Mr. Silverman has vast experience in antitrust, class action, mass action and commercial litigation matters. His antitrust practice focuses on distribution law issues (such as MAP, resale, and unilateral pricing policies, internet sales restrictions, and dealer agreements), state, federal, and civil cartel investigations, and governmental premerger approvals.

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Description

Attorney-client privilege issues abound in M&A transactions due to the disclosure of sensitive information between prospective deal parties during due diligence and negotiations, as well as the disclosure of deal-related documents to financial advisers and other third parties.

Accordingly, counsel advising deal parties should familiarize themselves with how privilege operates in a deal setting, including risks of privilege waiver.

Our panel will guide deal counsel in navigating the challenges of recognizing and effectively addressing the attorney-client privilege in M&A transactions. The panel will discuss when and how the attorney-client privilege is implicated in communications between prospective deal parties and members of the transaction team, such as investment bankers and other financial advisers.

Listen as our authoritative panel of attorneys examines current issues surrounding the attorney-client privilege in the context of M&A deals, including who holds the privilege, how it can be waived, and how to shield the information. In addition, the panel will discuss their insights and best practices to preserve and control the privilege.

Outline

  1. Overview of attorney-client privilege issues in the context of M&A
  2. Pre-closing privilege issues
    1. Common interest doctrine
    2. Waiver issues relating to financial advisers
  3. Post-closing privilege issues
  4. Privilege issues relating to transaction communications
  5. Best practices to preserve the privilege

    Benefits

    The panel will review these and other key issues:

    • What lessons do recent court rulings offer M&A counsel in developing best practices and advising deal parties to protect privileged communications?
    • In what circumstances can counsel assert the privilege--and how can counsel navigate the gray areas?
    • How does the common interest doctrine factor into assessing privilege protection when litigation ensues post-closing?