Post-Transaction Privilege Lessons From Del. M&A Opinion

Law360 (June 16, 2020, 5:04 PM EDT) -- In a letter opinion recently published by Vice Chancellor Morgan Zurn, the Delaware Court of Chancery provided helpful guidance on a frequently debated deal point in M&A transactions.

The opinion in DLO Enterprises Inc. v. Innovative Chemical Products Group LLC[1] articulates for the first time Delaware's default position on the passing of ownership of a seller's privileged, preclosing communications with its counsel following the closing of an asset purchase transaction.

This article will explore questions of post-closing ownership of privileged communications between attorney and client and will close with some practical guidance for transactional lawyers when addressing these issues.


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