There are few events more likely to catalyze shareholder litigation than an M&A transaction. And with transactional attorneys and litigators aplenty, merger transactions present a multitude of novel attorney-client privilege issues to untangle.

These issues are only exacerbated by significant state-by-state differences in applying privilege in the transactional context. For example, California provides a robust common interest protection of privileged matters once parties are committed in some capacity to a deal while New York only applies its common interest doctrine when a deal has closed or there is actively threatened litigation. See, e.g., OXY Resources California LLC v. Superior Court, 115 Cal. App. 4th 874 (2004); Ambac Assurance v. Countrywide Home Loans, 27 N.Y.3d 616 (N.Y. 2016).

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