Derrelle Janey Publishes Article in Bloomberg Law on Navigating the Crime-Fraud Exception in Antitrust Filing

Olshan Litigation and White Collar & Government Investigations partner Derrelle Janey published an article in Bloomberg Law entitled “KKR-Kirkland Email Ruling Shows Legal Privilege Is No Guarantee.” In the article, Derrelle explains how the crime-fraud exception can expose attorney-client communications in high-stakes M&A and antitrust matters. Using the KKR situation as a timely example, he highlights why deal teams and counsel should treat privilege as a lifecycle risk and build disclosure and communications discipline from the start. “A party can commit fraud by repeated and intentional efforts to conceal, manipulate records, or produce misleading records,” Derrelle explains. “An opposing party can ask a court (without notifying the other side) for the withheld materials, including otherwise attorney-client privileged communications.” M&A counsel should understand the practical importance of advising clients to follow both the letter and spirit of HSR filing obligations, especially when competitive harm information exists. Clear documentation, clear legal reasoning and giving unambiguous advice are essential to avoiding being associated with the concealment of fraud. “In numerous federal jurisdictions, a party seeking to invoke the crime-fraud exception must at least demonstrate there is probable cause to believe that a crime or fraud has been attempted or committed and that the communications furthered it,” Derrelle writes. “The exception applies to both the attorney-client privilege and the work product doctrine.”