On Thursday, August 14, the MCLA filed an amicus brief urging the Minnesota Supreme Court to review a Court of Appeals’ opinion that would impair manufacturers’ ability to seek effective legal counsel and frustrate the purpose and effectiveness of nearly every regulatory framework. The case involves a report prepared by a company’s outside counsel after the company had been notified that it was under investigation by the Consumer Product Safety Commission (CPSC). The Court of Appeals erroneously concluded that the report was not protected by the attorney-client privilege because it addressed safety and operational issues and was presented to the company’s board of directors.
The NAM filed an amicus brief arguing that the Court of Appeals’ opinion would chill “full and frank” communications between manufacturers and their counsel operating and litigating in Minnesota. As NAM explained, there are countless complex regulatory statutes that, like the CPSA, transform corporate practices and operations into legal issues. Moreover, courts across the country have consistently held that documents prepared by attorneys that evaluate compliance with these statutes and interrelated issues of company culture and operations are protected by the attorney-client privilege. Further, a company’s board of directors is well-situated and uniquely justified to seek and receive legal advice pertaining to compliance matters, especially if those recommendations involve significant new expenses and/or the conduct of corporate officers. On September 29, 2020, the Court granted NAM’s request and agreed to review the appellate court’s troubling opinion. On November 20, 2020 the NAM filed an amicus brief on the merits.
Unfortunately, on December 15, 2021, the Minneosta Supreme Court affirmed the lower court's decision.