RK&O Client Alert: S.D.N.Y. Decision Addresses Attorney-Client Privilege in the Context of Constituency Directors

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April 11, 2019

A federal court in the Southern District of New York recently issued a decision addressing the standard for determining whether communications between counsel to a company’s board of directors and individual members of the board who represent one of the company’s major investors are shielded from disclosure by the attorney-client privilege. The case, Argos Holdings Inc. and PetSmart Inc. v. Wilmington Trust, N.A., is of special interest to private fund managers that appoint principals as directors to their portfolio company boards. Directors of this type are sometimes known as “constituency directors” because they serve at the behest of, and owe separate duties to, the investment firm that has appointed them to the portfolio company board. 

In this client alert, RK&O partners Scott C. Budlong and James Q. Walker review the decision and provide key takeaways for board counsel and constituency directors.  

Click here to read the client alert.