Faced with a damaging market-analyst report and a plummeting stock price, BlackBerry’s CLO entered crisis-management mode. He directed a fact investigation into the report and worked with PR consultants to publish an immediate press-release rebuke.
But in a subsequent securities-fraud class action, a court rejected the CLO’s privilege claims over these activities. The ruling came despite the CLO’s declaration that his efforts were to advise BlackBerry about various “legal avenues.” Pearlstein v. BlackBerry Ltd., 2019 WL 1259382 (SDNY Mar. 19, 2019).
This opinion, available here, contains valuable lessons for corporate legal counsel and those seeking to pierce privilege claims related to crisis-management efforts. So, let’s explore it.
Illegal Data, Damaging Report, and a Press Release
Not long after BlackBerry launched its Z10 smartphone in 2013, Detwiler Fenton & Co. issued a market-research report on April 11, 2013, stating that customer returns of the Z10 phones were exceptionally high. Read the WSJ report, available here, for the key language.
As it turns out, Detwiler based its report on information received from James Dunham, the former COO of Wireless Zone, which operates several Verizon Wireless outlets. Dunham later pled guilty to wire fraud. You may read more about this story here.
BlackBerry’s stock immediately declined, and BlackBerry went into crisis-management mode. The CLO directed his in-house legal team