I Think We’re Alone Now: Applying The Common-Interest Privilege When No Litigation Is Pending

Recently, the New York Appellate Division broadened that state's common-interest privilege doctrine. In Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 124 A.D.3d 129 (N.Y. App. Div. 1st Dep't 2014), the court removed the requirement that the communicators be co-parties in open litigation and allowed the privilege to be asserted in a merger/acquisition scenario. The court noted that "in today's business environment, pending or reasonably anticipated litigation is not a necessary element of the common-interest privilege." "[B]usiness entities often have important legal interests to protect even without the looming specter of litigation," the court said. Id. at 130-31. New York state courts now agree with the "overwhelming majority" of federal courts to decide this question. Id. at 134.