Thursday, September 10, 2009


AmLaw Litigation Daily reported this week that New York Attorney General Andrew Cuomo, via David Markowitz at Investor Protection, is jumping on the Rakoff bandwagon. Sort of. Markowitz wrote BofA outside counsel Lewis Liman that BofA should either cooperate more fully with the NYAG’s investigation (aka, stop claiming information is privileged and let us determine to what extent you in fact relied on outside counsel in structuring the merger) or else the NYAG will be forced to pursue charges against BofA specifically (where the advice of counsel defense will not be considered). Liman publicly responded that in the first instance: BofA has done nothing wrong and therefore has had no need to, and in fact has not, raised the advice of counsel defense. And in the second instance: Liman has made multiple requests, unheeded by the NYAG, to meet with the NYAG to discuss the Merrill merger.

This is getting really interesting. I do not have ready knowledge on the advice of counsel defense, and regrettably do not have access to Lexis today (read: will try to post later, but there are loads of other lawyers writing about the privilege issue involved in this matter). I am eager to see the NYAG’s next move, however (I have discussed earlier Cuomo’s success in achieving results with only the threat of litigation) ... wonder who will blink first?

Related side note to privilege discussion: JDJournal is reporting that Cuomo’s recent move, companioned to the recent ruling in U.S. v. Textron, is beating attorney-client and work product privilege into an ever-smaller corner. (n.1.). In Textron, the First Circuit Court found that work papers prepared for the purpose of documenting tax accrual are not considered attorney work product. The Court found the principle purpose for the work papers was not legal, but in fact accounting related. Other commentators have interpreted this decision to find dual-purpose documents protected by the work product doctrine only if prepared for use in litigation. JDJournal predicted the issue is “ripe” for Supreme Court review, as Textron represents a split among the circuit courts.

(n.1.) U.S. v. Textron, 2009 U.S. App. LEXIS 18103 (1st Cir. R.I., Aug. 13, 2009).

I'm reading: UPDATE TWO OF THREE: BofA vs. CuomoTweet this!

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