The M&A Bar is Not Yet in Agreement on How Best to Address M&A Privilege Issues

Abstract

An analysis of merger agreements closed since the November, 2013 Great Hill ruling reveals no apparent consensus on how selling companies are assigning rights of attorney-client privilege related to pre-closing communications. Some agreements are silent on the issue, while others variously assign the privilege to the target company shareholders as a group, to the shareholder group and their post-closing representative, or to the representative only. We analyzed the frequency of these alternative formulations and discuss their pros and cons. Whichever approach is chosen, this is an important issue that should be considered by all selling companies in a merger and their shareholders.

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