Surviving Corp. Gets Premerger Attorney-Client Privilege

Law360, New York (December 10, 2013, 11:47 PM EST) -- The Delaware Court of Chancery recently ruled that, absent express contractual provisions to the contrary, control of a target company’s premerger attorney-client communications transfers to the surviving corporation in a merger pursuant to Section 259 of the Delaware General Corporation Law (the “DGCL”). As a result, we recommend that parties to a merger discuss the intended treatment of the attorney-client privilege with respect to premerger communications and, if necessary, reflect their desired arrangements in the transaction documentation.


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