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1 September 2020

Recent Delaware Court Decision on privileged Communications between Management and Legal Counsel – Danish Perspectives

In a recent decision dated 21 August 2020, the Delaware Court of Chancery (In re WeWork Litigation) held that management cannot unilaterally decide to withhold its communication with the in-house or external legal counsel from the board of directors or individual members of the board. Accordingly, directors have unfettered access to legal advice provided to the board or the company. This access can only be limited in exceptional circumstances, such as if a special committee of the board obtains separate legal counsel, and then only to the extent of the special committee’s authority or if certain board members have interests that may be adverse to the company and could thus not expect to be considered clients of the legal counsel in question. The decision highlights a number of issues of relevance to Danish companies and seeks to provide a perspective on the corresponding provisions applicable under Danish company law.

Dan Moalem

Partner

+45 30 37 96 10

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Henning Hedegaard Thomsen

Partner

+45 30 37 96 18

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