Ambac Assurance Corporation v. Countrywide Home Loans, Inc.

Case Updates

The New York Court of Appeals reversed the order of the New York Appellate Division, First Department, concluding that “the policy reasons for keeping a litigation limitation on the common interest doctrine outweigh any purported justification for doing away with it, and therefore [we] maintain the narrow construction that New York courts have traditionally applied.”

The U.S. Chamber filed a joint amicus brief with the Association of Corporate Counsel urging the Court of Appeals for the State of New York to affirm a decision of the First Department that applied the common-interest privilege to shield legal advice that two companies shared pursuant to a merger agreement because the two companies shared a common legal interest even absent a specific expectation of litigation. The brief argues that limiting the common-interest privilege to situations of anticipated litigation will discourage businesses from obtaining and sharing legal advice that enables them to comply with the law. The brief also argues that a rule limiting the common-interest privilege to litigation would discourage corporate transactions in New York, as counsel will be wary of advising clients to share materials with counterparties to a transaction if doing so might waive otherwise valid privilege.

Jonathan G. Cedarbaum and Leon T. Kenworthy of Wilmer Cutler Pickering Hale and Dorr LLP served as counsel for the amici.