On a matter of first impression, the Delaware Court of Chancery
(the Court) found in In re WeWork Litigation that corporate
officers of a Delaware corporation may not unilaterally deny a
director of a corporation access to communications with company
counsel or outside counsel based on the premise that such
communications are privileged.
Background
As noted in our prior alert, a special committee (Special
Committee) of the board of directors (Board) of The We Company
(WeWork) was formed on October 12, 2019 to evaluate a potential
transaction with SoftBank Group Corp. and SoftBank Vision Fund
(together, SoftBank).
The Special Committee negotiated a Master Transaction Agreement
(MTA) entered into by SoftBank and WeWork on October 22, 2019,
which contemplated a $3 billion tender offer for WeWork's stock
to be completed by SoftBank subject to certain closing conditions.
The MTA resulted in SoftBank gaining the right to designate five of
WeWork's ten directors.
