The Intersection Among Torts, Science, Corporate Law, Insurance & Bankruptcy

Defense Win in Talc/Meso/Asbestos Trial in LA, with Strong Experts

Posted in Asbestos, Cancer

The trials with talc and mesothelioma issues are getting tougher, with more and better experts for the defense.  The result of a 3 week  California trial was a defense verdict for the manufacturers/sellers of a talcum powder product.  The jury issued a 9-3 verdict for defendants  Colgate-Palmolive Co. and Imerys Talc America Inc. The trial is said to have lasted three weeks, and the Lanier firm took the loss. Deliberations were nominally three days, but apparently were prolonged by juror issues, according to a June 27, 2016 article by HarrisMartin (paywall).

According to HarrisMartin:

“Plaintiffs claimed that Ms. Alfaro developed peritoneal and pleural mesothelioma due to allegedly asbestos-containing talc product Cashmere Bouquet, manufactured by Colgate-Palmolive with talc supplied by Imerys Talc America.Alfaro specifically said that her mother used talcum powder on her daughter from birth, and she continued to use the product until she became a teenager.

“Colgate-Palmolive and Imerys Talc America both argued at trial that its product was not contaminated with asbestos; the defendants further said that Alfaro’s mesothelioma was spontaneous and not caused by exposure to asbestos.

Sources told HarrisMartin that when answering the first question on the verdict sheet –– was Alfaro exposed to asbestos from Cashmere Bouquet –– jurors found that, in fact, she had not been.”

Testifying on behalf of the defendant were Matthew Sanchez, Ph.D., Jennifer Sahmel, CIH, Brook Mossman, Ph.D., and Suresh Moolgavkar, Ph.D.

Testifying on behalf of the plaintiff were Arnold Brody, Ph.D., Jerrold Abraham, M.D., Barry Castleman, Ph.D., David Fractor, Ph.D., and Sean Fitzgerald.

Alfaro v. Colgate-Palmolive Co., et al., No. BC583520 (Calif. Super. Ct., Los Angeles Ct.).”

Securities Litigation Analyzed in Greater Depth

Posted in Litigation Industry, Securities

Very interesting analysis of securities law cases in related posts of June 24, 2016 at the D&O Diary and June 24, 2016 at the Stanford Securities blog. Motley Rice even breaks into the discussion in a small way; see footnote 2.

The overview introduction is as follows:

“ERA and Cornerstone have recently published annual reports showing that the volume of securities class actions has increased from 2006 to 2015, with a low in 2009 and a steady rise since then. In this blog we use the more detailed data of the SSLA database to dig deeper into this trend and expose some interesting drivers. As we will explain, the increase in case volume has come with a decrease in average case quality, measured a few different ways. In addition, low quality cases appear to have been litigated disproportionately—though not exclusively—by a group of firms that until 2009 had a relatively small share of the federal securities class action market but whose share has increased substantially since then. Much of the data we provide here will be presented in charts, with relatively little text. For a more detailed discussion of the data, please see our post on Kevin LaCroix’s D&O Diary blog.

Register Now: July 7 Webinar Provides Insight into Praedicat’s Incredible Early Warning Systems for Chemical Hazards, Developed Through Multi-disciplinary Teams

Posted in Cancer, Litigation Industry, Mass Tort Issues, Science

Today’s post is a shameless and sincere push for you, your companies and your clients to invest at least 45 minutes to learn about one of the smartest companies in the world, and how it can provide major, major assistance to understanding the opportunities and risks arising for businesses due to the ongoing revolution in molecular science as to diseases and causation. Specifically, Praedicat is far ahead of any other entity in the world when it comes to “looking around corners” to foresee “the next asbestos.” In fact, Praedicat already has seen and defined material risks from particular chemicals. Its systems and people also have knocked down faux risks. They blew me away some years ago when I was granted a sneak peek into some of the incredible work of this spin-off from RAND. Then, in 2014, Praedicat moved out of “stealth mode,” and I was given permission to write a public post about Praedicat’s work, which includes harnessing the knowledge of 22 million medical articles. Since then, Praedicat and the knowledge have improved and expanded. The further changes over the next few years will arrive at a pace and scale never before seen.

A July 7 webinar provides a first opportunity for you to see the results of years of incredible but quiet work by Praedicat’s multi-disciplinary team. Praedicat has organized, understand and made useable the world’s medical literature (and more) for the good of companies, their customers and the end users of products. The key is the scientific knowledge tools they’ve compiled – and integrated – through multi-disciplinary thinking. No one else in the world can provide anything even close in substance or in speed. Interested? I hope so. Register here; there’s no fee.
How to use Praedicat’s knowledge? There are many ways, including for M&A and investment risk analysis. But, in my view, Praedicat’s systems should be snapped up by corporate directors and officers seeking to fulfill Caremark duties and to avoid the catastrophic human agony and financial costs vividly illustrated by the tens of thousands killed and the billions lost during 45+ years of asbestos claiming after more decades of use. Hopefully manufacturers and premises owners (among others) will put Praedicat’s systems to work to design (or redesign) products, production systems and industrial processes to achieve real safety and earn larger profits with less risk.

Does all of this really matter? Yes. Need proof? Try giving a fresh read to the Caremark opinion on the duties of Delaware directors to put in place systems and processes to identify risks to the corporation. There, Chancellor Allen explained: “relevant and timely information is an essential predicate for satisfaction of the board’s supervisory and monitoring role under s 141 of the DGCL.” With those principles in mind, think about the record (or lack of a record) in your organization as to staying abreast of the incredible pace of scientific knowledge as to causes of diseases.
Need more evidence? Think about product liability claims and state of the art science. Many courts “follow a rule that holds a manufacturer to the skill and knowledge of an expert within its particular field of business; this, in turn, requires the manufacturer to keep abreast of scientific discoveries relevant to that field.” See Scott P. Kennedy, WHO KNEW? REFINING THE “KNOWABILITY”STANDARD FOR THE FUTURE OF POTENTIALLY HAZARDOUS TECHNOLOGIES,9 WASH J.L. TECH. & ARTS 267 (2014) (analyzing legal rules in the context of new understandings of the impacts of tasers on the human body). Now that Praedicat is in place, the “black swan” thought/defense becomes more tenuous.

Still need more? Read about the new TSCA statute in general. Then learn about its implications for businesses, as to both opportunities and risks. Then think about the implications of Praedicat’s knowledge and tools for 1) corporate compliance with TSCA and 2) building a business strategy that respects and builds new opportunities from new scientific knowledge.
A take away? It’s well worth investing 45 minutes in the webinar to learn a great deal about “seeing around corners” to avoid “the next asbestos.” The “next asbestos” will happen if people fail to act. Just look at the spectacular verdicts and new claim filings related to suits about talc and ovarian cancer. Then think about the reality that there are 22,000+ ovarian cancers each year in the US, in contrast to perhaps 3,200 mesotheliomas.

Set out below are further specifics from Praedicat:
“Please join us on Thursday, July 7, from 11:15 am Pacific/2:15 Eastern to 12:00 noon Pacific/3:00 pm Eastern time, for a FREE webinar:

How to use big data and technology as your early warning system for monitoring science on the chemicals, products and processes that your company makes and uses: an introduction to Praedicat


Staying on top of scientific research on the chemicals, products and processes that your company makes and uses (such as plasticizers BPA or DEHP, food ingredient diacetyl, flame retardants decaBDE or HBCD, or carbon nanotubes) would involve reading through, and digesting, and synthesizing, and staying up to date with an ever-growing library of millions of scientific papers published in thousands of scientific journals. And even then, the bulk of these papers aren’t focused on analysis of the science supporting causation. So relying on these sources raises the additional challenge of finding a scalable solution to extract signals from the noise.

Given all these challenges, how can you find objective information to help with risk management, research & development, product stewardship, regulatory affairs, scientific affairs, public relations and reputation management?

Praedicat’s Vice President of Global Client Development, Fred Kipperman, will provide a demo of CoMeta™, an analytics tool that can provide you with an objective view of the scientific literature on an emerging risk. Rather than reading articles one by one, you can use CoMeta’s meta-analysis to get a view of the big picture conveyed by the relevant science. You can also use CoMeta to forecast trends, to understand the most important exposure settings, and to review the most important scientific papers.

Fred will also provide an overview of Praedicat’s patent-pending methods – based on research originally conducted at the RAND Corporation and developed in multi-year partnerships with top global casualty insurance carriers – for collecting and assessing scientific literature to evaluate risk.

CoMeta was originally developed for and—until now—has been used exclusively by casualty underwriters and risk managers at the top liability insurance carriers in the world. They need to stay up to date with the fast moving scientific literature on bodily injury and property damage and they use CoMeta to do it.

Until recently, CoMeta was only available to top insurance carriers, and those insurance carriers were the only ones who could go beyond reading individual scientific articles and take advantage of CoMeta’s analysis of the worldwide scientific community’s 26,000,000 peer-reviewed articles, and meta-analysis of 1000s of scientific literatures about chemicals, products and substances in order to provide a systematic and objective perspective.

But now you have the opportunity to use CoMeta to get objective, unbiased information to inform your strategy in:

· risk management,

· research & development,

· product stewardship,

· regulatory affairs,

· scientific affairs, and

· public relations and reputation management.

We are also pleased to announce that Anna Pierce, Manager of EHS and Enterprise Risk Initiatives at General Electric will also join to offer her thoughts how GE is “looking around the corner” using CoMeta assessments of science relevant to its business.

During this webinar, Fred will provide a case study: using CoMeta to evaluate the science behind carbon nanotubes. Depending on which headlines you read, carbon nanotubes are either a “revolutionary” material set to transform everything from microchips to tennis rackets to airplanes, or, on the other hand, the “the next asbestos” that is going to result in a tidal wave of bodily injury lawsuits if it is not heavily regulated or banned. Fred will show you how CoMeta cuts through the noise, and gives you an objective picture of the risks of carbon nanotubes. Fred will also review how you can use these same techniques to evaluate dozens of other emerging risks.

We plan on covering a lot of ground, as well as answering as many of the questions submitted prior to the webinar as possible.



2016 July 7

11:15 am – 12:00 noon U.S. Pacific Time

2:15 pm – 3:00 pm U.S Eastern Time

To Register

Click here to register for this free webinar.

Please tell your friends

Feel free to forward this invitation to all your friends, colleagues and peers who want to be more effective in risk management, research & development, product stewardship, regulatory affairs, scientific affairs, public relations or reputation management.

We’d love to have them join us.

Please submit your questions

Given the large number of attendees expected, we won’t be able to take questions over the phone. However, you will be able to submit written questions to the moderator during the webinar. Also, if there are particular questions you would like Fred to answer or particular topics you would like him to address, please submit them on the registration form. You can also email your questions to us at (or just reply to this email).

We look forward to talking with you on Thursday, July 7 from 11:15 am Pacific/2:15 pm Eastern to 12:00 noon Pacific/3:00 pm Eastern time.

And as always, if you have any questions or comments, please feel free to contact us at any time by replying to this email, emailing us at, or calling Customer Support at +1.424.672.8999.

We’d love to hear from you.


5760 West Jefferson Blvd.

Los Angeles, CA 90016

(p) 424.672.8999

(f) 310.853.7160

Craziness: Scientists and Lawyers Talk Together: Upcoming “2016 Symposium – The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st Century”

Posted in Litigation Industry, Science, Workers' Compensation

Workplace deaths and injuries are increasingly in focus for many reasons. For one, cancer strikes 1 in 2 US males and 1 in 3 females, and workplace exposures do cause some cancers and other diseases. Second, thanks to great new molecular science, it’s increasingly clear that genetic variability among individuals is very real, and risk factors may vary by orders of magnitude from person A to person Z. And, of course, some jobs are hard physical work and just plain old beat up workers.  On top of all that, workers’ compensation systems are the subjects of torrents of memes and sound bites from a range of constituencies; some say the systems do too little and some say the systems are playgrounds for supposedly nefarious “trial lawyers.”

Against that background, there’s a great looking September symposium that will reach many of the topics, and has been put together by some top notch lawyers and law professors.  And, even better, it’s absolutely great to see lawyers bringing science people into the symposium. The world today is complex, and so multi-disciplinary teams are absolutely critical to fast, useful forward progress, in my opinion. In this instance, the lawyers are letting the stage include Bob Reville, President and CEO of Praedicat, Inc.  As readers may recall, I’ve been raving about Praedicat and their work ever since they became public about their incredible tools. Their tools are unmatched in the world for “looking around corners” to see what’s ahead as to actual and faux “toxins.” Therefore, it’s great to see Bob and Praedicat involved in working with lawyers, actuaries and others to think ahead on where workers’ compensation will or may go.

Specifics are pasted below from this page, where you can find all the links and registration information.

“2016 Symposium – The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st CenturyBackground

Co-sponsored by the Pound Civil Justice Institute, Northeastern University School of Law and Rutgers Center for Risk and Responsibility. Symposium papers to be published in the Rutgers University Law Review.Workers’ compensation systems arose as one of the great political compromises of the Progressive Era: workers injured on the job gave up the right to sue their employers for personal injury damages in return for less generous but more certain benefits. This exchange became known as The Grand Bargain.

This bargain has survived over the ensuing century despite frequent political battles in the states, often fought below the national radar screen. Over the past 25 years, the attacks on these systems have escalated. Most recently, a politically powerful coalition has proposed further constraints on benefits through implementation of “opt-out” systems, which allow employers to substitute self-designed and self-implemented programs for the traditional statutory system. Remedies have become so constricted in some states that courts have questioned whether a quid pro quo still supports the Grand Bargain.

This conference will re-examine The Grand Bargain in light of evolving legal doctrine, a changed labor market, and changing politics. How well is the workers’ compensation system serving its original purposes of swift, sure, and efficient remedies? Does an employer-based insurance scheme for workplace injuries supplanting tort remedies remain desirable? How does the common law command of a remedy for every legal wrong affect the architecture of workers’ compensation systems? What responsibilities should employers and employees bear in this system? What are the ramifications of a move towards universal health insurance? Responses to these questions can inform debates occurring now in courts and legislatures across America.


  • The Challenges of the Changing Legal Structure of Workers’ Compensation and the Changing Workforce
  • The Economics of Workers’ Compensation and the Changing Insurance Market: Who Are the Winners and the Losers in the Evolving Terrain?
  • Workplace Injuries as a Constitutional Law Issue
  • Alternative Structures for Addressing Workplace Injuries: Tort Law and Beyond


Paper Writers* and Discussants
Leslie I. Boden, Boston University School of Public Health
John F. Burton, Jr., Rutgers School  of Management and Labor Relations (emeritus)
George W. Conk, Fordham University School of Law
Charles R. Davoli, practitioner; Workers’ Injury Law & Advocacy Group
Michael C. Duff, University of Wyoming College of Law
Price V. Fishback, University of Arizona, Department of Economics
Monica Galizzi, University of Massachusetts Lowell, Department of Economics
Justin R. Long, Wayne State University Law School
James Lynch, Chief Actuary, Insurance Information Institute
*Alison D. Morantz, Stanford Law School
*Robert L. Rabin, Stanford Law School
Robert T. Reville, President, CEO, Praedicat, Inc.
*Adam Scales, Rutgers Law School
*Emily A. Spieler, Northeastern University School of Law
Hon. David B. Torrey, Workers’ Compensation Judge, Commonwealth of Pennsylvania
*Robert F. Williams, Rutgers Law School

Participants and Cost
Attendance at the Symposium is free for law professors, law students, judges, law clerks, non-profit advocates, and attorney Pound Fellows. Practitioners attend for $150, which includes the cost of lunch and New Jersey/Pennsylvania/New York CLE filing. (CLE accreditation is expected from these states.)

The Pound Institute
The Pound Civil Justice Institute is a national legal “think tank” created by pioneering members of the trial bar and dedicated to ensuring access to justice for ordinary citizens. Through its activities, the Institute works to give lawyers, judges, legal educators and the public a balanced view of the issues affecting the U.S. civil justice system.

Northeastern University School of Law
Northeastern University School of Law is a national leader in melding experiential education with a theoretical and practical understanding of the role of law in society and the ways in which law advances the public good. The law school advances this vision through rigorous classroom instruction and intensive experiential learning, innovative disciplinary and interdisciplinary research and scholarship, and real world connections in service, scholarship and teaching. Ranked #1 for practical training by The National Jurist, the school’s signature Cooperative Legal Education Program enhances students’ on-campus experience by guaranteeing all students, as part of their three year course of study, a full year of professional experience through four legal placements offered by more than 900 participating employers worldwide.

Rutgers Law School
Building on more than 100 years of providing legal education in New Jersey, the newly merged Rutgers Law School, with locations in Camden and Newark, is accredited by the American Bar Association. Steeped in history as a cornerstone of one of the nation’s oldest universities, with a longstanding commitment to social justice, Rutgers is at the forefront of innovation in legal education. With a robust faculty of more than 100 scholars and clinicians, with particular strengths in criminal law, intellectual property, corporate and business law, health law, and public interest law, Rutgers Law offers a comprehensive curriculum, propelled by cutting-edge immersive technology that connects the locations and allows for a fuller range of course offerings. Learn more at”

API Trust Yet Again Blows Out the Veil of Bankruptcy Trust Secrecy With Its Annual Report Listing Claimants by Name, Disease and Amount Paid

Posted in Asbestos, Asbestos Bankruptcy, Litigation Industry

Tis the season for annual “reports”  by asbestos trusts created through chapter 11 cases. Most reports today are farcically small and useless, consisting mainly of financial statements without little or no detail about past payments and projected future payments. But, the API Trust recently (June 15) filed its annual report  for 2015.  Once again the API Trust reported – in one place and in public – the name of each claimant who was paid an “initial payment,” the exact amount paid, the disease for which the payment was made and the exact date of the payment. The API Trust has been following the same practice for its annual reports dating back to 2008. The reports are collected online by the API Trust at this page.

Can Cancer Be Avoided in the Face of a Known Inherited Mutation?

Posted in Asbestos, Cancer, Litigation Industry, Science

Maybe, maybe, maybe a glimmer of moving down a path towards proactive cancer avoidance treatment in women with inherited BRCA-1 mutations. This is a VERY early days studies in mice, plus some human tissue studies.That said, the work is a strong enough it’s being published in a very respected medical journal. The story is told in a June 20, 2016 article in Science Daily, taken from a press release:

“People who carry a faulty BRCA1 gene are at high risk of developing aggressive breast cancer. Currently many women with a gene mutation choose surgical removal of their breast tissue and ovaries to reduce their chance of developing breast and ovarian cancer.

By pinpointing the cells that give rise to breast cancers in women who have inherited a faulty version of the BRCA1 gene, Walter and Eliza Hall Institute researchers have identified that the drug denosumab may have potential to prevent breast cancer from developing. If confirmed in clinical studies, this would provide a non-surgical option to prevent breast cancer in women with elevated genetic risk.

Using samples of breast tissue donated by women carrying a faulty BRCA1 gene, Ms Emma Nolan, Professor Jane Visvader and Professor Geoff Lindeman were able to pinpoint the cells that give rise to breast cancer. The research, which also involved researchers at the Australian familial cancer consortium kConFab and US biotechnology company Amgen was published in Nature Medicine.

Cancer precursor cells in BRCA1-mutant breast tissue had many similarities to aggressive forms of breast cancer, said Ms Nolan, who is a PhD student at the institute enrolled through The University of Melbourne’s Department of Medical Biology. “These cells proliferated rapidly, and were susceptible to damage to their DNA — both factors that help them transition towards cancer,” she said. “We were excited to discover that these pre-cancerous cells could be identified by a marker protein called RANK.”

Professor Lindeman, who is also a medical oncologist at The Royal Melbourne Hospital, said the discovery of RANK as a marker of cancer precursors was an important breakthrough, because inhibitors of the RANK signalling pathway were already in clinical use. “An inhibitor called denosumab is already used in the clinic to treat osteoporosis and breast cancer that has spread to the bone,” he said. “We therefore investigated what effect RANK inhibition had on the cancer precursor cells in BRCA1-mutant breast tissue.”

The research team showed that RANK inhibition switched off cell growth in breast tissue from women with a faulty BRCA1 gene and curtailed breast cancer development in laboratory models.

“We think this strategy could delay or prevent breast cancer in women with an inherited BRCA1 gene mutation,” Professor Lindeman said. “A clinical trial has already begun to investigate this further.”

“This is potentially a very important discovery for women who carry a faulty BRCA1 gene, who have few other options. Current cancer prevention strategies for these women include surgical removal of the breasts and/or ovaries, which can have serious impacts on people’s lives. To progress this work, denosumab would need to be formally tested in clinical trials in this setting as it is not approved for breast cancer prevention,” Professor Lindeman said.

Professor Visvader said the discovery had its basis in more than a decade of investigations of breast stem cell function. “By thoroughly dissecting how normal breast tissue develops, we have been able to pinpoint the precise cells that are the culprits in cancer formation,” she said. “It is very exciting to think that we may be on the path to the ‘holy grail’ of cancer research, devising a way to prevent this type of breast cancer in women at high genetic risk.”

Story Source:

The above post is reprinted from materials provided by Walter and Eliza Hall Institute. Note: Materials may be edited for content and length.

Journal Reference:

Emma Nolan, François Vaillant, Daniel Branstetter, Bhupinder Pal, Göknur Giner, Lachlan Whitehead, Sheau W Lok, Gregory B Mann, Kathy Rohrbach, Li-Ya Huang, Rosalia Soriano, Gordon K Smyth, William C Dougall, Jane E Visvader, Geoffrey J Lindeman. RANK ligand as a potential target for breast cancer prevention in BRCA1-mutation carriers. Nature Medicine, 2016; DOI: 10.1038/nm.4118

Fitch: Insurers Are Under-reserved for Asbestos Litigation

Posted in Asbestos, Litigation Industry

More people are figuring out that insurers were and remain under-reserved for asbestos litigation. Below, the text of a June 16, 2016 press release from Fitch.

CHICAGO, June 16 (Fitch) Fitch Ratings has published a new Dashboard Report on U.S. property/casualty (re)Insurers’ asbestos liability exposures. Fitch estimates industry asbestos carried loss reserves totaling approximately $22 billion at year-end 2015, may be deficient by a range of $5.3 billion — $12.7 billion. This estimate is based on projected ultimate all-time industry incurred losses of $90 billion, and several potential future loss payment scenarios. The industry’s 2015 survival ratio was relatively unchanged at 8.9x versus the prior year, and remains considerably below Fitch’s target of 11x — 14x. Fitch calculates the survival ratio by dividing total reserves by a three-year average of total paid losses. This survival ratio has been adjusted by Fitch to normalize paid losses for large individual settlements and reinsurance transactions. Over the last two years, asbestos-related paid losses have significantly exceeded annual incurred losses, reducing total reserves and generating a lower reported survival ratio. Continuation of this trend in combination with lower incidence of new claims and increased settlement actions could lead to a future reduction of Fitch’s target survival ratios. Asbestos losses continue to create an earnings drag for the industry and insurers with meaningful asbestos exposures. For a group of 25 insurers with the largest U.S. asbestos exposures, continued asbestos incurred losses have added nearly one percentage point to the group’s aggregate combined ratio over the past five years. Fitch does not expect near term rating actions that are driven by asbestos related claims as losses from this peril are not likely to severely affect capital, but are likely to remain a continued impediment to better earnings and return on capital. The ‘Asbestos Liability Dashboard’ is available on Fitch’s website at ‘’ or by clicking on the link. Contact: Douglas M. Pawlowski, CFA Senior Director +1-312-368-2054 Fitch Ratings, Inc. 70 West Madison St. Chicago, IL 60602 Jeremy Graczyk Associate Director +1-312-368-3208 Media Relations: Hannah James, New York, Tel: + 1 646 582 4947, Email: Additional information is available at ‘’. Asbestos Reserves Dashboard 2016 here

And Their Off: New TSCA Already Gives Rise to New Calls to Ban Asbestos in the US

Posted in Asbestos, Litigation Industry

As predicted, the arrival of the new TSCA legislation is leading to plaintiff side groups seeking renewed efforts by EPA to ban asbestos. The ADAO appears to have won the opening break out of the gate with a June 7, 2016 press release. The group argued:

“Asbestos has been the poster child for TSCA reform and will be the litmus test for the efficacy of this bill. The EPA must limit delay by including asbestos in the list of the first chemicals it evaluates and quickly exercising its authority under this legislation to ban asbestos. Until a complete ban is in place, asbestos will be found in construction materials, automobile parts, and even children’s toys.”

Asbestos is still being used in the US in amounts and uses some might not expect. For some overview numbers, see this May 31, 2016 blog post from a “mesothelioma” blog.

NY Court of Appeals Limits Claims for Common Interest Privilege in m&A

Posted in Litigation Industry, Privileges

A new (June 9, 2016) opinion from the New York Court of Appeals significantly limits claims to a common interest privilege in connection with pre-merger communications. Therefore, the opinion is drawing significant attention from corporate lawyers and litigators. Some key takeaways are provided in a June 16, 2016 post by lawyers from Cadwalader. Another summary by Proskauer lawyers also was published on June 16, 2016.  Both posts include a link to the opinion.

Set out below is the opening paragraph of the Cadwalader summary; the opinion should be read by any lawyers involved with issues arising from m&a activity.

“On June 9, 2016, a divided New York Court of Appeals in a much-anticipated ruling held that the attorney-client privilege can only be maintained for communications involving third parties in situations where litigation is pending or reasonably anticipated.  The decision reversed an intermediate appeals court’s expansion of the privilege to situations where the parties shared a “common legal interest” short of pending or reasonably anticipated litigation.  The opinion provides important guidance for corporate boards and financial advisors in determining whether sensitive information disclosed to deal parties and other members of the transaction team may have to be produced to plaintiffs in any subsequent litigations.”