Attorney-client privilege is an obsession for litigators. But now it’s also getting renewed interest in the M&A world, and it’s all because a Delaware judge made clear that if you want your client’s information to stay privileged, you need to ask for it.
Outside counsel are asking for a relatively new carve out for private-company clients engaged in a sale. They’re asking that, after a deal closes, the buyer doesn’t automatically “inherit” the seller’s attorney-client privileged information. The clauses are rarely a sticking point with buyer’s counsel, and the clauses work for sales of all sizes, from $50 million to $5 billion, lawyers said.
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