New York’s Highest Court Holds Common Interest Doctrine Inapplicable to Commercial Transactions Absent Litigation

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.