The New Jersey USDC ruled that a company’s former CEO did not have waiver power over putatively privileged communications with the company’s counsel. The court issued this ruling even though the former CEO claimed to have never received an Upjohn warning.
Despite a dispute over Upjohn warnings, the court found that the CEO’s conversations pertained to company—not personal—matters and held it was the company’s privilege to waive. United States v. Blumberg, 2017 WL 1170851 (D.N.J. Mar. 27, 2017). You may read the decision here.
The U.S. Government filed criminal charges against Anthony Blumberg, former CEO of a global business unit for ConvergEx, alleging that he defrauded institutional investors with hidden investment fees. You may read about the indictment in this SEC press release.
The government served a third-party subpoena on ConvergEx which covered information, including attorneys’ notes, arising from two pre-indictment meetings Blumberg held with Bracewell LLP—ConvergEx’s counsel.
Blumberg moved for a protective order claiming that (1) Bracewell represented him and ConvergEx, (2) the attorney–client privilege belonged to Blumberg, and (3) he had not waived it.