attorney-client privilege in the us and abroad
TRANSCRIPT
Baker & McKenzie International is a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm.
Attorney-Client Privilege in the US and Abroad: From Internal Counseling to Investigation to Trial
Thursday, July 14, 2011ACC San Diego Brown Bag Program
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Colin MurrayPartner, Baker & McKenzie [email protected]
Speakers
Brian ArbetterPartner, Baker & McKenzie [email protected]
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Overview
– Attorney Client Privilege– Work Product Doctrine– Waiver– Privilege Issues in International Investigations– ERISA Exceptions– Application of Privilege In Other Jurisdictions– Takeaways
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Elements Of Privilege – US Law
– Communications– For purpose of seeking legal advice or the rendering
of legal advice – Between the client from a professional legal
advisor acting in his or her capacity,– Made in confidence, and– Where the protection has not been waived
– Where the elements of the privilege are satisfied, the privilege is absolute, absent: 1) waiver; 2) application of the crime/fraud exception or 3) in extremely rare situations upon request by DOJ.
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Communications With Agents
– Client communications with legal assistants, law clerks, investigators, and retained experts are also protected where such persons are under an attorney’s supervision– Also applies, in context of investigation, to forensic
accountants, consultants and other agents retained in order to assist legal counsel
– Communications with an attorney’s agent must also meet the confidentiality and legal purpose requirements of all privileged communications
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Company Employees At The Direction Of An Attorney– Client communications with non-attorney employees of the
client may be privileged if the employee is acting at the direction of an attorney.– The employee communications must be made in
confidence for the purpose of assisting the attorney in rendering advice to the client.
– Law related work by any non-attorney employees should always be under the direction and supervision of an attorney.
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Legal Advice/Business Advice Overlap
– If the non-legal aspects of a consultation are integral to the legal assistance given and legal assistance is the primary purpose of the consultation, the privilege will apply
– Where there is an overlap of business advice and legal advice, application of the privilege will turn on the court’s perception of the primary purpose of the communication, whether the legal and nonlegal services were necessarily connected, and whether the context of the communication allowed a reasonable expectation of confidentiality – Generally, if legal and nonlegal portions of communication
can be identified and severed, courts will protect the legal portion and require production of the remainder upon in camera inspection…
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Generally Unprotected Communications
– Client identity (except under very rare circumstances)– Client fee arrangements– The existence of attorney-client relationship (the fact of it)– The purpose for which the lawyer was retained– The factual circumstances surrounding communications, i.e. the
date of the communication, persons present, means of communication, etc.
– The whereabouts of a client – Billing statements/hourly records, with the exception that such
communications are not discoverable to the extent they reveal client confidences (in which case such information is typically redacted)
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Attorney - Client Privilege - Corporations
– The attorney-client privilege applies with equal force to attorney communications with corporations, limited liabilities, partnerships, associations, trusts, and other legalentities
– Scope of Privilege?– Federal and State Law:
– “subject matter” test (Federal) – “control group” (Illinois)– “subject matter” test (California)
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Federal Corporate Privilege – The Subject Matter Test - Upjohn– Upjohn Co. v. United States, 449 U.S. 383 (1981) rejected control group
test as too limiting and instead adopted the “subject matter” test for privilege
– Counsel prepared a questionnaire to be completed by managers andalso conducted employee interviews and took notes
– IRS sought discovery of the questionnaires and notes– The Court deemed the documents privileged because:
– they were to in-house counsel at the direction of corporate superiors– they concerned matters within the scope of the employees’ duties– the information was not available from upper management– the employees interviewed all knew that the purpose of the
communication was so that the corporation could receive legal advice
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Federal Corporate Privilege – The Subject Matter Test
– Subject Matter test is satisfied even where employee is outside the control group:– communication is made at the direction of the
employee’s superiors; – the communication is made to obtain information
needed by counsel that is not available from upper-level management;
– the information communicated concerns matters within the scope of the employee’s corporate duties; and
– the employee is aware that the reason for the communicating with counsel is to allow the corporation to obtain legal advice
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Crime Fraud Exception
– If a client consults an attorney for the purpose of facilitatinga crime or a fraudulent act, the privilege will not apply
– The focus is on the intent of client -- if the client intended to obtain advice in furtherance of a crime or fraud, and not the lawyer’s knowledge
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Crime/Fraud Exception - Elements
– Party seeking to apply the exception must first make a prima facie showing that – the client was engaged in wrongful conduct when he
sought the advice of counsel – he was planning wrongful conduct when he sought the
advice of counsel; or– he committed a crime or fraud after receiving the benefit
of counsel’s advice; and – the attorney’s assistance was obtained in furtherance of
the wrongful act or was closely related to it
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Work Product Doctrine - Federal Work Product Rule
– Fed. R. Civ. P. 26(b)(3)– Protects only documents created “in anticipation of
litigation”– Work product protection can be overcome by a showing
of: – (i) a substantial need of the materials in case
preparation, and – (ii) undue hardship in obtaining the substantial
equivalent of the materials by other means – Nevertheless, opinion work product is not
discoverable
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Work Product Doctrine - Federal Work Product Rule
– What does “in anticipation of litigation” really mean?– The document at issue was prepared “because of” the
prospect of litigation: the “because-of test– The document would not have been prepared “but for” the
fact that the company anticipated litigation – 2d, 3d, 4th, 7th, 8th, 9th, D.C. Cirs.
– The document at issue was prepared for the “primary purpose” of litigation: the “primary-purpose test”– The primary motivating purpose behind the work product’s
creation was to aid in possible future litigation – 5th Cir.
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Waiver – Voluntary Waiver
– A waiver of the Attorney-Client Privilege is forever– Scope of Waiver: Subject-matter waiver, Fed. R. Evid.
502(a) – If waiver is intentional both non-disclosed and disclosed
material are waived where non-disclosed and disclosed materials relate to same subject matter and ought in fairness to be considered together.
– Once there is a waiver, the privilege cannot be resurrected
– Waiver by voluntary disclosure results in waiver of all communications concerning the same subject matter
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Waiver - Inadvertent Disclosure– Inadvertent disclosure, Fed. R. Evid. 502(b)
– Waiver depends on whether the discloser:– “took reasonable steps to prevent disclosure” and– “promptly took reasonable steps to rectify the error”
– “Factors” Used to Determine Waiver– the reasonableness of precautions taken– the time taken to rectify the error– the scope of discovery– the extent of disclosure and the overriding issue of
fairness – SEC Manual expressly acknowledges Rule 502 inadvertent
waiver
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Waiver - Selective Waiver?
– Commonly occurs where a Company is involved in a government investigation and discloses documents in hopes of obtaining cooperation credit or establishing a position to the Government
– Question: Can a company “selectively waive”privilege/work product protection only with respect to the agency?– Most Circuits that have considered the issue reject the
principle of selective waiver– Original draft of Fed. R. Evid. 502 contained a provision
that permitted selective waiver.– Confidentiality agreements?
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Waiver - Implied Waiver
– Privilege is waived when client acts in a manner inconsistent with maintaining the confidential natureof the privileged communication or fails to take steps to preserve confidentiality. Examples include:– failing to separate business records from legal records. – leaving documents in a place where a third party has
access to them– making privileged communications in the presence of
third parties (the social media trap)– cavalierly discarding documents in dumpster – failing to timely object or prevent disclosure
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Work Product Doctrine - Waiver– Federal Work Product Rule – Waiver– If a document was protected by attorney-client privilege and
work product doctrine, but was disclosed to a third party:– The disclosure likely waives attorney-client privilege– Work product protection is probably not waived unless the
disclosure substantially increased the possibility that an adversary could obtain the information
– Why the difference? The protections serve different goals:– Privilege exists to protect the confidential relationship
between attorney and client by fostering honest communications between them
– Work product doctrine exists to promote the adversarial system by protecting the fruits of the attorney’s labor in preparing for trial
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Internal Investigations And Government Investigations – 4 Key Privilege Issues– Who is the client?
– The Company/Management?– The Board of Directors?– The Audit Committee?
– Who conducts the investigation?– Who is involved in the investigation?– Reporting Lines and Type of Report
– Establish clear lines of reporting to person(s) within the “client” group (e.g., general counsel, key member of audit committee)
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Internal Investigations And Government Investigations – Subsidiaries And Individuals– “Joint client” privilege applies when two or more entities within a
corporate group are advised by in-house counsel on a matter of common interest to the entities
– “Intra-group sharing” does not effect a waiver; waiver requires consent of all parties to the privilege
– Protects communications between counsel and between clients
– Applies in corporate context– Common interest privilege: multiple clients each have separate
counsel but the attorneys collaborate on a matter of common interest to their clients
– Protects only information the attorneys share with each other– Often arises in the context of Government investigations
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Internal Investigations And Government Investigations – Keeping Information Privileged
– Interviews conducted by counsel– Interviewing current employees
– Privileged communications– Provide Upjohn Warnings
– Represent the Company/Audit Committee/Board
– Not represent individuals– Communications are privileged– Privilege belongs to the
company– Company can waive privilege– Request keep communications
confidentially
– Interviewing former employees– Interviews may be privileged
– Preparation of Interview Memos– Note taker prepares– To Partner or Client – Limited
circulation– Include the Upjohn– mental impressions– Cannot be verbatim transcript
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Internal Investigations And Government Investigations – Involvement Of Third Parties– Retaining Forensic Accountants and Consultants
– Communications and correspondence may be privileged– Careful drafting of engagement letter– Necessary to gather facts to assist counsel in advising client
– Keys:– purpose of retention?– who retains?
– Retained to advise and provide facts and information necessary for counsel to render legal advice to client?
– Has outside counsel or, in certain cases, general counsel retained the forensic accountant or consultant?
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Internal Investigations And Government Investigations – Reporting Of Information– Reporting of Findings – Privilege Nutshell
– To Client– Privileged under Attorney-Client Privilege and Protected by
Work Product Doctrine– To Auditor
– Attorney-Client Privilege waiver– Potentially waived Work Product Doctrine protection
– To SEC and DOJ– Attorney-Client Privilege waiver– Likely waived Work Product Doctrine protection. Prevailing rule
is that Work Product Waived – no commonality of interest.– Confidentiality Agreements
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Privilege Waiver – DOJ And SEC Investigations – Does Cooperation Require Waiver
Staff may request. Cooperation credit dependent upon production of all relevant facts.
Yes. Disclosure of all relevant facts, including facts learned during investigation, are cooperation factor.
Factual Work Product
Staff may request. Cooperation credit not dependent upon waiver.
Cooperation credit not dependent upon waiver.
Attorney Work Product
Staff may request. Cooperation credit not dependent upon waiver.
Cooperation credit not dependent upon waiver.
Attorney Client Communications
SEC ManualUS Attorney’s Manual (Filip Memo)
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ERISA Fiduciary Exception to the Attorney-Client Privilege
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In-House Counsel And Attorney - Client Privilege:
– Who is Your Client? – Company / Management? – Board of Directors? – Audit Committee? – Shareholders? – Employees? – Trust / Trustees? – Trust Beneficiaries?
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In-House Counsel And Attorney - Client Privilege:
– What is Your Role? – Business Advice? – Legal Advice? – Administration of a Trust or Plan? – Fiduciary? Trustee?
– Who is Paying for Outside Legal advice? – Company? – Plan or Trust?
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In re Long Island Lighting Co., 129 F.3d 268, 272 (2d Cir. 1997) – “An ERISA fiduciary has an obligation to provide full and
accurate information to the plan beneficiaries regarding the administration of the plan. As part of this obligation, the ERISA fiduciary must make available to the beneficiary, upon request, any communications with an attorney that are intended to assist in the administration of the plan. Thus, an employer acting in the capacity of ERISA fiduciary is disabled from asserting the attorney-client privilege against plan beneficiaries on matters of plan administration.”
– LILCO used the same lawyer for plan amendment and for representing fiduciaries.
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Special Concerns For In-House Counsel
– Compliance with ERISA or IRC – Legal advice sought by Plan Sponsor Company regarding
whether redesign complied with ERISA is privileged. Halbach v. Great-West Life & Annuity Ins., 2006 U.S. Dist. LEXIS 84591, at *15-16 (E.D. Mo. Nov. 21, 2006).
– But, legal advice concerning plan’s compliance with IRC statutory obligations is discoverable. Fischel v. The Equitable Life Assurance, 191 F.R.D. 606 (N.D. Cal. 2000) (in-house counsel is acting in the role of fiduciary to benefit the plan).
– “Serious consideration” issues – Fischer v. Philadelphia Elec. Co., 96 F.3d 1533 (3d Cir.
1996) – Business v. legal advice?
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Privilege In ERISA Matters
– Recommendations – Use engagement letters identifying purpose
ofassignment and capacity in which client has made the request.
– Define context of important communications. – Bill separately for different functions, or by case or
claim.– Consider use of other counsel or experts. – Preserve privileged communications by identifying them
as privileged and restricting their dissemination so as toavoid waiver.
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Privilege In ERISA Matters
– Use appropriate vehicles to satisfy the burden of proof, e.g., privilege logs, affidavits, and in camera inspection of challenged documents. This is especially important because the burden of proof is sometimes outcome-determinative.
– Always know who you are copying on communications and what role they play.
– Always know which “hat” you are wearing: Your statements may be discoverable by beneficiaries.
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Attorney - Client Privilege From Around The World
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The elements of the attorney-client privilege in the United States
≠The elements of the attorney-client privilege (if any) abroad
Warning:
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Role Of In-House Counsel
– Attorney-client privilege for in-house counsel does not exist in many countries (many of E.U. continental countries vs. common law/Commonwealth countries)
– Akzo Nobel Decision– EU’s highest court, Court of Justice, held that corporate
client’s communications with its in-house counsel are not privileged because such lawyers are not independent from their clients
– Applies to EU courts, not courts of EU member states– Other jurisdictions, however, do acknowledge that
communications to or from in-house counsel may be protected by the attorney-client privilege
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Practicing In Europe Post-Akzo Nobel
– Direct all questions about competition law issues to external counsel or clearly mark work prepared for the purpose of seeking external legal advice.– Note: External counsel should be EU qualified. If not, all
communications should be routed through an external EU qualified counsel.
– Protect all external legal advice and disclose only to those in the company who need to know.
– Keep all privileged communications separate and clearly marked as “privileged and confidential.” This includes electronic and physical communications.
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Communication With Foreign Lawyers– Communications between clients and foreign lawyers are governed by
US law and protected by privilege if they "touch base" with the United States. – US litigation or advice on US law sufficiently “touches base”
because there is more than an incidental connection to the United States.
– Level of Qualification – Courts have taken different approaches on whether foreign attorneys qualify for privilege– Functional Equivalence Approach - Some courts look at “whether
the individual is competent to render legal advice and is permitted to do so by law.” (Renfield Corp. v. E. Remy Martin & Co., 98 F.R.D. 442, 444 (D. Del. 1982).
– Other courts have found that communications between a company and foreign attorneys are only privileged if there is an expectation of confidentiality over the communications. (Honeywell, Inc. v. Minolta Camera Co., 1990 US Dist. LEXIS 5954/1990 WL66182 at *2-3.)
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In-house Counsel And Attorney - Client Privilege: Europe (Select Jurisdictions)
– Privilege Exists– Germany– Netherlands– Spain– United Kingdom
– No Privilege Exists– Belgium – France– Italy
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Map Of Judicial Systems
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Privilege In England
– “Legal advice privilege” analogous to U.S. A-C privilege– confidential communications between attorney and client whose
dominant purpose is seeking or providing legal advice (litigation or otherwise)
– case law has limited privilege to cover only communications between attorney and small group of persons in company actually charged with instructing attorneys (Three Rivers (No. 5): case akin to control group test)
– Also, “litigation privilege” analogous to U.S. work product protection– confidential communications between attorney and client or attorney
and third party whose dominant purpose is to be used in connection with actual or contemplated litigation
– Applies to in-house counsel– covers only legal work, not compliance or business administration work– but not for EU Court
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Privilege in Canada– Legal advice (“solicitor-client”) privilege analogous
to U.S. attorney-client privilege– Also, functional equivalent of U.S. work product protection
available (for documents created for litigation purpose)– Privilege applies to in-house counsel
– Communications must occur in the course of requesting or providing legal advice, and must be intended to remain confidential (as in U.S.)
– Privilege does not extend to communications outside of role of legal counsel (as in U.S.)
– Limited document discovery
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Privilege In Hong Kong
– Legal professional privilege is a constitutionaland substantive common law right (with an “advice privilege” and a “litigation privilege”)
– Same privilege applies to in-house counsel (acting in legal advisor capacity, relating to legal matters, etc.)
– No Hong Kong case decisions dealing directly with legal advice privilege in context of in-house counsel
– Hong Kong courts likely to consider and follow English common law authorities and principles
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Privilege In France– Law recognizes a “professional privilege” for confidential
information/communications– No attorney-client privilege for in-house counsel– In-house counsel (juristes d’entreprise) have confidentiality obligations but
only based on employee-employer relationship– can be trumped by demands of governmental and investigatory bodies
– Outside counsel (avocats) have an obligation of absolute professional secrecy and generally cannot disclose information provided by clients– cannot be trumped by demands of governmental and investigatory
bodies– But generally no U.S.-style discovery in France …
– except in criminal issues (where prosecuting authorities have investigation powers, and counsel can be called to testify against company)
– in civil cases, parties are free to disclose whatever information they choose to support their claims; a party can request that specific evidence be disclosed, but courts cannot order disclosure if other party refuses
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Privilege In Saudi Arabia
– No privilege for in-house counsel, per se
– though Labor Regulations do provide an employee duty not to reveal the employer’s secrets
– For outside counsel (advocates), the Saudi Advocacy Law (Article 23) regulates the conduct of lawyers and covers what is known elsewhere as the “attorney-client privilege”
– Regulation published on 24/08/1422 H. (corresponding to Nov. 9, 2001 in the Gregorian calendar)
– Regulation/privilege interpreted under Islamic law (Shari’ah)
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Privilege In Mexico– Concept of attorney-client privilege is not well developed– But various laws require attorneys to keep client matters confidential
– General Law for Professionals – provides that all professionals, including attorneys, must keep confidential any communication with their clients
– Federal Criminal Code – contains potential penalties (including imprisonment) for attorneys who disclose client confidential information
– Mexican Industrial Property Law – protects confidentiality of company’s trade secrets and proprietary information (intellectual property)
– No independent attorney-client privilege for in-house counsel, per se– Court generally will uphold party’s (including in-house counsel’s) refusal
to produce documents containing, or to provide testimony regarding, confidential client matters
– If judicial authority orders production of confidential information, in-house counsel relieved of confidentiality obligations
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Privilege In Japan
– No concept of attorney-client privilege exists – However, lawyers admitted in Japan (Bengoshi) and foreign law
business lawyers registered in Japan (Gaikokuho Jimu Bengoshi) are statutorily obligated to hold in confidence secret information obtained during the lawyer-client relationship
– This confidentiality protection does not belong to client; rather, Bengoshi or Gaikokuho Jimu Bengoshi may invoke protection to avoid having to testify as a trial witness in criminal case, or having to produce documents in civil case
– In-house counsel entitled to invoke protection only if they possessBengoshi or Gaikokuho Jimu Bengoshi status
– Also, Japanese Civil Procedure Code permits civil witness to refuse to testify regarding professional secrets, so long as these matters are still considered secrets (e.g., the trade secrets of the corporate employer)
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Privilege In China
– Attorney-client privilege not a recognized principle under the laws of the People’s Republic of China
– But Law of Attorneys and PRC Code of Ethics for Attorneys require attorneys to keep confidential documents and communications with a qualified lawyer (and state secrets)
– Attorneys can be forced to testify, or lose license or go to jail– In-house counsel are viewed differently than outside qualified
lawyers and have lesser confidentiality obligations and protections
– Foreign lawyers in China are not differentiated– Law may be becoming more receptive of A-C privilege
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Privilege In Brazil
– Observes “professional secrecy” which is analogous to the attorney-client privilege in the U.S.– Client cannot waive the privilege– Attorney may waive if
– Severe threat to his/her life or honor– Attorney is insulted by client– Self-defense
– Privilege applies to in-house counsel
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Privilege In India
– Professional communications between attorneys and clients are protected as ‘privileged communications,’
– Communications must be made within the scope and purpose of the attorney’s employment
– No attorney-client privilege for in-house counsel– In practice, employment contracts for in-house counsel
usually contain confidentiality clauses protecting any information disclosed during employment. – Client entitled to claim damages from the in-house
counsel in the event of breach of confidentiality clause.
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What Have US Courts Done When Faced With Privilege Claims For Cross-border Communications?
1. What law applies?
2. U.S. follows choice-of-law rules to determine which country’s privilege law applies
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Hypothetical #1
– U.S. publicly traded company recently acquired a formerly private Chinese-based company
– Post-close, reports start surfacing that local management are engaging in questionable accounting and revenue recognition practices and also making payments to local factory inspectors
– US parent company launches an internal investigation– Retains outside counsel at large multinational law firm– Local counsel employed to assist in understanding local legal
requirements as well as to help facilitate interviews, document collection and interaction with forensic accountant
– General counsel says – Let’s make sure we keep this subject to the attorney client privilege
– DOJ and SEC launch parallel investigations
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What Law Privilege Law Applies?
– Federal Court - Federal Rule of Evidence 501 – Federal common law of privilege if the claim arises
under federal law (as well as to pendant state claims)– The privilege law of the state in which they sit in cases
where subject-matter jurisdiction is based on diversity of citizenship
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International Investigations – Communications With Counsel Or Advisors In Non-US Jurisdiction
– What privilege law applies? – Choice-of-privilege-law questions do not arise unless
the privilege rules of two jurisdictions differ – If no difference, the federal court will simply apply the
law of the jurisdiction that it would ordinarily apply by default – US federal common law
– However, a party may request a court to apply the privilege laws of another jurisdiction
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International Investigations – Communications With Counsel Or Advisors In Non-US Jurisdiction– If privilege law of another jurisdiction is invoked, federal court will apply
various balancing or comity tests– Most commonly applied test: the “touching base” test– Under this test, if the communications at issue have not “touched base” with
the US, the court will apply the law of the country with the most important contacts with or the strongest interest in the communication– determine which country has the most compelling or predominant interest
in whether the communications should remain confidential– Case study: Inventio v ThyssenKrupp
– Exceptions have been made on comity and policy grounds, even where the touching base or similar test would seem to require the application of the foreign law that does not protect the communications foreign privilege law that does not protect the communications – Particularly relevant in jurisdictions with limited or no pre-trial discovery,
like China or South Korea. Astra Aktiebolag v. Andrx Pharms., Inc., 208 F.R.D. 92, 98 (SD .N. Y. 2002)
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Hypothetical #2
– US issuer acquires Asian assets of a German-based foreign private issuer with securities traded on the NASDAQ
– Post-close, acquiring company discovers that the Asian operations had engaged in conduct pre-close that possibly violates the FCPA.
– Involved payments to local customs, taxation and factory inspectors. – Before making these payments, the Asian operations contacted local
legal counsel in the each jurisdiction to assess propriety of these payments.
– SEC and DOJ have issues subpoena to acquiring company requestinginformation about these payments
– Privilege Issues– Ongoing Investigation – How to Structure– Pre-Close Communications With Legal Counsel
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Takeaways -- Dos
1. Understand the law in the applicable jurisdictions2. Understand who/what is the client and who holds the
privilege3. Draft assignment/engagement letters with an eye to
maximizing attorney-client privilege4. In investigations – consider use of US counsel in
communications in order to ensure US privilege law applies5. Draft forum selection and choice of law provisions to increase
choices of preferred law, realizing such clauses not always effective
6. Confirm admitted status of in-house counsel where applicable
7. Train your in-house colleagues8. Consider use of secure data base for storage of privileged
documents, with limited access rights
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Takeaways -- Dos9. Use legal counsel to retain third parties and document that
services are to assist counsel in rendering legal advice10. Use legends:
– “Request for facts so that legal advice can be given”– “For the purpose of receiving legal advice”
11. Describe the legal considerations which are involved in the subject matter
12. Be aware of the presence of unprivileged persons13. Watch the distribution list -- need to know basis14. Include confidentiality messages on e-mails and faxes15. Limit storage of records in locations where the privilege does not
exist or is limited in comparison to U.S.16. Designate note taker(s) for sensitive discussions with in house
counsel not protected by privilege
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Takeaways -- Don’ts
1. Don’t be US centric when operating internationally2. Don’t assume internationally that any privilege extends
to non-legal “conduits”3. Don’t write it if you don’t have to4. Don’t mix law and business in the same writing5. Don’t funnel all information through in-house counsel6. Don’t store privileged documents in locations where
rights are limited or nonexistent
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Upcoming Programs
Trends in Employment Class Actions (or How to Avoid Becoming a Class Defendant!) Date: Thursday, July 28, 2011Time: 8:00 - 10:30 amRecent Supreme Court decisions in employment cases have grabbed the headlines and stimulated a swell in class action litigation against employers. The opinions in Dukes v. Wal-Mart Stores, Inc., AT&T Mobility v. Concepcion, and Sullivan v. Oracle Corp. will likely alter workplace class action litigation dramatically in the future.
This complimentary briefing will explore the current trends in employment class action litigation, including the following topics:
– Analysis and Implications of recent court decisions– Overtime misclassification – Employee v. independent contractor issues– Glass ceiling/discrimination cases– Practical steps employers can take to protect and defend against class actions
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Questions?
Baker & McKenzie International is a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm.
Attorney-Client Privilege in the US and Abroad: From Internal Counseling to Investigation to Trial
Thursday, July 14, 2011ACC San Diego Brown Bag Program