August 24, 2020

Attorney-Client: The Limits of Privilege in Antitrust Merger Review

This WilmerHale memo discusses a recent federal court decision that addresses a variety of attorney-client privilege issues arising out of the antitrust merger review process. Here’s the intro:

Few lawyers would question the need to keep their clients apprised of negotiations with enforcers, particularly where merger approval hinges in the balance. A recent federal district court ruling, however, serves as a reminder that privilege protection is not a given for a lawyer’s factual updates to her client.

The ruling also addresses other frequent privilege issues in merger reviews, including the scope of the common interest exception to privilege waiver and antitrust lawyer involvement in public communications. The opinion helpfully acknowledges a common legal interest among parties to an agreed merger but takes a more conservative— and arguably draconian—approach to other privilege questions that can arise in merger review.

The case is Chabot v. Walgreens Boots Alliance, Inc., 2020 U.S. Dist. LEXIS 107547 (M.D. Pa. Jun. 11, 2020). Unfortunately, there is no free version of the decision available online. So, it looks you’ll have to head to a database to find it – or you can just read the memo, which is pretty comprehensive.

John Jenkins