In Hyde Park Venture Partners Fund III, L.P. v. FairXchange, LLC, the Delaware Court of Chancery provided a valuable reminder to corporations and their directors and officers that a corporation cannot assert a privilege, such as the attorney-client privilege, against its directors or the investors that appointed those directors in litigation unless one of three exceptions are met: (1) the parties agree by way of contract, such as a confidentiality agreement, that the corporation may assert privilege against certain directors and the investors that appointed that director; (2) the board of directors forms a special committee that excludes the director after which the committee can consult with counsel confidentially and retain the privilege against the director and the investor that appointed the director; or (3) sufficient adversity of interests has arisen and becomes known to the director, thus impacting the director’s ability to rely on corporate counsel for matters where the director or the investor that appointed the director and corporation’s interests are adverse.
Tyler is an associate in the firm’s Business Litigation practice. After college, Tyler worked with PwC as an external auditor. Later, he worked as a transaction advisory services consultant where he provided buy-side and sell-side financial due diligence services to private equity clients and strategic investors. Tyler has experience working with C-Suite level executives and possesses a deep understanding of complex legal, accounting, and financial issues.