Two documents with teal checkmark; one with photos, one with text.

HSR Compliance Under the Spotlight

The $12M combined penalty ($10M from Edwards, $2M from Genesis), announced on July 13, 2026, by the FTC and the DoJ's proposed settlement requiring KKR to pay $250 million, the largest HSR civil penalty ever announced on August 26, 2026, show that the federal agencies care about procedural HSR violations.

The HSR Act requires parties to a merger, acquisition, or other transaction above a certain size to submit a premerger filing to the Department of Justice’s Antitrust Division and the Federal Trade Commission to facilitate the agencies’ enforcement of Section 7 of the Clayton Act, which prohibits mergers and acquisitions that threaten to harm competition.

What happened in the acquisition of JC Medical

On July 22, 2024, Edwards Lifesciences acquired JC Medical from Genesis MedTech for $115M plus approximately $1.8M in milestone payments, structured to fall just under the then-applicable $119.5M HSR threshold. Edwards made a separate $25M investment in Genesis; the FTC alleged that “the parties intentionally structured the transaction…” and “that a sufficient portion of the investment constituted additional consideration." The FTC’s case concerned Rule 801.90 (the anti-evasion rule that implements the Hart–Scott–Rodino Act’s premerger-notification regime) and leaned heavily on Edwards’ own words, including an internal reference to the deal being “below the threshold! Intentional.”

What happened with KKR

DOJ sued KKR in January 2025, alleging systematic HSR noncompliance across at least 16 transactions during 2021–2022. The case was not principally about structuring transactions below the filing threshold. It was about what happened after a transaction was plainly subject to HSR—or should plainly have been filed. More precisely, the DOJ alleges altered documents in at least eight transactions, omitted required documents in at least ten, and no HSR filing at all in at least two.

The legal distinction

In JC Medical, the main issue is whether a reportable acquisition was disguised as a non-reportable one. The case against KKR answers a different question: were required HSR filings incomplete, altered, or omitted?

In Edwards/Genesis, purpose is integral to Rule 801.90. The rule specifically concerns a device entered into “for the purpose of avoiding” HSR. Consequently, evidence concerning why the parties chose this structure is central.

The KKR failure-to-file counts are legally simpler than Edwards/Genesis, even though the overall KKR case is vastly larger and more serious because it alleges systemic misconduct across many transactions.

In a nutshell: Edwards tests the legitimacy of transaction structuring; KKR tests the integrity of the HSR compliance process, including whether a filing was made at all.

Practical guidance

Rule 801.90 does not prohibit parties from choosing a transaction structure merely because one benefit is that no HSR filing is required. The FTC itself stresses that Rule 801.90 does not automatically make a below-threshold acquisition reportable. In other words, Rule 801.90 is a look-through rule, not an independent source of HSR jurisdiction. But parties should not assume that a contractual purchase price below the HSR threshold necessarily makes an asset acquisition non-reportable. Under Rule 801.10, asset valuation generally takes account of fair market value and, where the acquisition price is determined and greater, the acquisition price. A genuine reduction in the scope or value of the assets acquired may eliminate a filing obligation; merely reducing the stated purchase price may not. That valuation point should be distinguished from JC Medical. The FTC did not principally contend that JC Medical’s fair market value exceeded the threshold. Rather, it alleged that part of the consideration for JC Medical had been placed in the separate Genesis investment and therefore had to be taken into account in determining the acquisition price.

IP transactions raise a related question: has an HSR asset actually been acquired? PNO staff have historically taken the position that a genuine nonexclusive IP license generally does not constitute an asset acquisition for HSR purposes because the licensor retains the ability to use the rights or grant them to others. The treatment of IP licenses nevertheless depends on the rights actually transferred, particularly where the arrangement confers substantial exclusivity. Even an intent to avoid HSR review does not, by itself, create an HSR violation if the substance of the transaction remains non-reportable.

KKR provides a different practical lesson. HSR compliance does not end with determining whether a filing is required. Parties must ensure that required filings are timely, complete, and accurate and that the process for identifying and producing responsive documents is reliable. Repeated omissions, alterations, or failures to file can generate substantial penalties even where the underlying acquisition is not ultimately challenged on the merits. Frequent acquirers should therefore treat HSR compliance as a formal control function, with clear procedures for document preservation, collection, review, certification, and escalation.

Mario Cistaro — Founder, CILC | US/ EU Attorney | Antitrust, IP & Regulatory

U.S. company cannot rely on U.S. attorney-client privilege rules in the EU

For EU antitrust investigations, a U.S. company cannot rely on U.S. attorney-client privilege to prevent the Commission from demanding U.S.-located documents, particularly communications with in-house counsel. The context is an EU antitrust investigation into Broadcom/VMware’s licensing practices (VMware virtualization-software licensing practices following Broadcom’s 2023 acquisition of VMware, including moving customers from perpetual licenses to subscriptions, bundling VMware products, significant price increase, contractual terms that could increase customer lock-in, restrict interoperability, or make it harder for customers to switch).

What happened

The Commission’s information request asked Broadcom to provide all documents responsive to the Commission’s search criteria unless they are protected by EU legal professional privilege. Broadcom argued this was too broad because some documents were protected by U.S. legal privilege, including communications with U.S. outside counsel and U.S. in-house counsel.

The Ruling

The EU General Court rejected Broadcom’s request to suspend a European Commission information demand because it failed to establish a prima facie case that the Commission’s demand was unlawful. The Commission’s demand concerned communications involving non-EU in-house counsel advising on third-country law. Broadcom argued that compelling production of documents located in the United States was an extraterritorial exercise of enforcement power. The stakes are structural: how far the European Commission’s antitrust investigative powers extend when evidence is outside the EU and would be privileged under U.S. law. The conclusion is that third-country law doesn’t alter the EU analysis even when the lawyer and the document are both outside the EU. The order focused on Broadcom’s attempt to withhold documents from the Commission, not on whether these licensing practices actually violate EU antitrust law.

The EU law on Privilege

Legal professional privilege in the EU protects a written communication with an attorney only if three conditions are met: purpose, independence, and admission to practice in a Member State. The three conditions are applied strictly. Privilege is an autonomous EU concept and EU law determines whether a document is protected in Commission proceedings, not whether it would be privileged under U.S. law. Allowing third-country law to define the scope of protection would undermine the uniform application of EU law.

The Transatlantic Angle: Why American Businesses Should Care

These conditions produce four consequences that U.S. general counsel routinely find counterintuitive:

1) Communications with in-house counsel are not privileged in Commission proceedings, whatever the lawyer’s nationality, bar admission or seniority.

2) Communications with U.S. outside counsel are not privileged as a matter of EU law.

3) The location of the document, and the privilege law of the place where it was created, are irrelevant.

For a U.S. company, that translates into a working protocol:

1) Map the decisions that generate legal analysis with an EU dimension — pricing and rebates, exclusivity and distribution, licensing and bundling, interoperability, platform terms, data practices, M&A, foreign-investment and subsidy questions.

2) Route substantive legal advice on those decisions through independent EU-admitted counsel. In-house counsel frames the question, transmits the answer and manages the relationship; the analysis itself comes from outside.

3) Structure the internal record. Requests for advice drafted for that purpose; internal notes that faithfully report external advice without added in-house commentary; in-house analysis kept in separate documents. Privilege labels are useful for later identification but create no protection on their own.

4) Train business teams. Copying the legal department on an email does not make it privileged in Europe.

5) Have a dawn-raid and information-request protocol in place with EU counsel — including the document-by-document privilege claim and the sealed-envelope procedure the General Court set out in Akzo.

6) Treat U.S.-privileged material with the waiver risk in section 5 in mind before any production.

7) Apply the same discipline under the DMA, DSA, FSR, EUMR and national FDI screening regimes, not only in Article 101/102 matters.

Mario Cistaro — Founder, CILC | US/ EU Attorney | Antitrust, IP & Regulatory

A question with sharp consequences on both sides of the Atlantic

An appeal now pending before the EU General Court, EUROBAT v Commission (Case T-149/26), will test how far legal professional privilege ("LPP") extends when legal advice travels beyond the immediate client — specifically, from a trade association to its member companies. According to the pleas published in the Official Journal in May 2026, Eurobat argues, among other grounds, that the European Commission built its cartel case in part on material covered by legal confidentiality rules and, in doing so, violated its duties of good administration and impartiality.

The stakes are structural, because EU LPP is traditionally narrow. The protection covers written communications with an independent external lawyer entitled to practice in an EEA Member State, made for the purposes of the client’s rights of defense. In-house counsel fall outside the protection regardless of bar admission. Advice from lawyers qualified only outside the EU/EEA — the US, for example, or, since the end of the Brexit transition period, lawyers qualified solely in England and Wales — receives no protection in Commission investigations at all. And the Commission has consistently taken a restrictive line, routinely challenging privilege claims in cartel inspections.

The core issue

The question presented is whether LPP continues to protect advice from external counsel once a trade association circulates that advice to its members. Eurobat presses what an American lawyer would recognize as a "common interest" theory: parties with aligned legal interests should be able to share counsel's advice among themselves without surrendering protection as against the regulator. The Commission's apparent position is the opposite — the association is the client; member companies are third parties; and dissemination to third parties strips the communication of the confidentiality on which LPP depends. Association-to-member circulation crosses business lines — and that is precisely the step the Commission treats as fatal.

The Case Background

The appeal stems from the Commission's decision of 15 December 2025 in Case AT.40545 (Automotive starter batteries), imposing fines totaling approximately €72 million for a cartel of more than twelve years' duration. The addressees found liable were three manufacturers — Exide, FET (including its predecessor Elettra), and Rombat — together with the trade association EUROBAT itself, which was sanctioned for its role in facilitating the conduct, in the tradition of facilitator liability running from AC-Treuhand (Case C-194/14 P). A fourth manufacturer, Clarios (formerly JC Autobatterie), received full immunity as the leniency applicant that revealed the cartel.

The Implications of the Case

Trade associations are, by design, distribution channels. They routinely commission external advice — on antitrust compliance above all — and disseminate it to members precisely so that an industry can align its conduct with the law. If the General Court sides with the Commission, that model comes under real pressure: guidance circulated through an association becomes fair game in a dawn raid. If the Court accepts Eurobat’s position, EU privilege law would take a meaningful step toward a flexible, quasi-common-interest framework — a genuine doctrinal innovation in Luxembourg.

The Transatlantic Angle: Why American Businesses Should Care

This is no abstraction for U.S. companies. The leniency applicant in the underlying case — Clarios, the Wisconsin-headquartered group formerly known as Johnson Controls Power Solutions — is American, and U.S. manufacturers sit inside Brussels-based trade associations across every regulated sector, from batteries to pharmaceuticals to payments. (Exide, though American in lineage, participates today through the Exide Technologies group headquartered in Gennevilliers, France, following the 2020 restructuring that separated its U.S. operations.) American privilege instincts are a poor guide in Brussels. U.S. attorney-client privilege has comfortably covered in-house counsel; the work-product doctrine adds a second layer; and the common-interest (or joint-defense) doctrine allows aligned parties to share privileged material without waiver in most U.S. jurisdictions. None of those premises holds before the European Commission. In-house communications are unprotected (Akzo). Advice from U.S.-qualified counsel is not protected unless EU/EEA-qualified lawyers give it. And there is, today, no established common-interest doctrine in EU competition procedure, which is exactly why Eurobat could become a landmark. Eurobat is a reminder that in EU proceedings, privilege is the exception, not the default: external, EU-qualified, and confined to the client. For American businesses active in European industry groups, the safe working assumption — until the General Court says otherwise — is that anything circulated through an association can end up in the Commission’s file, and from there in a damages claim on either continent. Structure the advice channel accordingly.

Mosaic LLM Litigation: The Black Box Defense Loses Ground

A Northern District of California order this April reallocated the burden of dataset opacity in LLM copyright litigation. Read narrowly, it is a Rule 12 ruling. Read structurally, it points toward the same place EU law is reaching by statute.

The decision

Judge Breyer denied Databricks's motion to dismiss the direct copyright infringement claim targeting its DBRX family of open-weight large language models. The procedural history matters. The Court had previously dismissed the DBRX claim with leave to amend once discovery surfaced supporting facts. After taking that discovery, plaintiffs—book authors whose works appear in the training pipelines of essentially every frontier model litigated to date—filed a Second Amended Consolidated Complaint reasserting the claim. Defendants argued that the new allegations still fell short. The Court disagreed and denied both the motion to dismiss and the related motion to strike.

The structural argument that the Defendants lost

Defendants conceded, for pleading purposes, that copying occurred at some point during DBRX's development. What they contested was the connection between that copying and DBRX's release as a product. The complaint, they observed, does not allege that plaintiffs’ works appear in the final training dataset—the curated corpus that produced the released model weights. The allegations describe upstream activity: ingestion, intermediate training, and the development pipeline as a whole. On Defendants’ framing, copying confined to development, without a showing that the protected expression migrated into the product, is too attenuated to support direct infringement liability against the model itself. Anything before the final run is, on this account, research, not the product.

The Doctrinal Shift

Frontier model developers control the information in their training corpora. Plaintiffs do not, and absent discovery cannot. If defendants could win dismissal by pointing to gaps in plaintiffs’ knowledge about the final dataset’s composition, the informational asymmetry would convert directly into a pleading-stage shield. The Court’s holding forecloses that move. A plaintiff need not plead the contents of a training set that defendants alone can see. The key doctrinal move is procedural: attenuation becomes a fact question rather than a pleading defect. That aligns with standard Rule 12(b)(6) principles but is especially significant in AI cases where defendants control the training data.

Mosaic sits comfortably alongside the broader pattern across the Northern District of California and the Southern District of New York. Bartz v. Anthropic and Kadrey v. Meta addressed related variants of the attenuation defense, yielding generally plaintiff-favorable results at the pleading stage; Andersen v. Stability AI addressed analogous structural challenges in the image-generation context. The cumulative direction is unmistakable. Courts are increasingly unwilling to allow opacity to serve as a defense. The substantive contests—substantial similarity, fair use, the existence and extent of memorization, the doctrinal status of model weights as copies or derivatives—are being pushed into summary judgment and trial, where the factual record can support them. Mosaic removes one of the more attractive structural defenses available at the pleadings. The "development versus product" distinction can still be pressed at summary judgment, where evidence about what was in the final dataset and how it relates to the released weights will actually be available. It will not defeat a complaint that plausibly alleges copying within the development pipeline of a named model.

The transatlantic angle

What U.S. plaintiffs are extracting through pleading-stage doctrine and discovery, EU law is approaching through a statutory disclosure obligation.

Article 53(1)(d) of the EU AI Act requires providers of general-purpose AI models to draw up and make publicly available a "sufficiently detailed summary" of the content used for training, in a template specified by the AI Office. The obligation applies to new GPAI models from August 2025 and to models already on the market from August 2027. The instrument is not a copyright remedy, but it directly addresses the informational asymmetry that defines the U.S. litigation landscape. A rightsholder who knows—because the developer has been required to disclose it—the categories of content used in training begins the merits inquiry from a different starting point than a plaintiff pleading against a black box.

The FTC accuses Amazon of engaging in manipulating evidence

The FTC's motion strikes at the core of Amazon's evidentiary strategy, targeting a systematic, company-wide program designed to manipulate the documentary record in anticipation of antitrust litigation: the "P&C Protocol."

How It Worked

The attorney-supervised corporate policy has three interlocking components. First, employees were trained to avoid creating written records of sensitive business discussions — and in some cases to delete documents that violated the policy. Second, when unfavorable documents were created anyway, in-house attorneys and executives would rewrite them: cutting incriminating language and inserting legal justifications dressed up as business judgments. Third, documents were systematically routed through attorneys and stamped "privileged and confidential" — not to obtain legal advice, but to create a discovery shield. The practice became so embedded in Amazon's culture that employees reportedly joked about it.

Why the Privilege Claim Fails

The P&C Protocol is a corporate communications policy, not a legal advice function. The involvement of in-house lawyers doesn't change that, especially since non-attorneys also enforced it. Under the crime-fraud exception, even legitimate privilege can be stripped when it is used to facilitate litigation misconduct — which plaintiffs argue is precisely what happened here.

A Documented Pattern

Critically, this is not Amazon's first time on privilege-related issues. In Garner v. Amazon.com Inc., Judge Lasnik found that Amazon had over‑designated many operational or business communications as privileged and ordered production of a majority of the documents reviewed in camera. In related Amazon antitrust matters, including De Coster and the FTC v. Amazon action, Judge Chun and a Special Master have scrutinized Amazon’s privilege and clawback practices under Rule 502(b) and 502(d), reflecting ongoing judicial concern with the scope and use of Amazon’s privilege claims.

The FTC is seeking a court order compelling production of all withheld P&C Protocol documents, along with a full re-review of Amazon's privilege log, which it argues is deliberately too vague to allow identification of the full scope of the concealment.

OpenAI Copyright Litigation: How Privilege Missteps May Result in Increased Damages

Judge Ona Wang's discovery decision in the ongoing OpenAI copyright dispute with authors and publishers centers on the attorney-client privilege and the deletion of two datasets containing pirated books. This case also tests fundamental questions about copyright law's application to AI training datasets and generative systems.

The OpenAI cases before the Southern District of New York

The ruling occurred in the multidistrict pretrial proceedings involving OpenAI cases pending in the Southern District of New York (In re OpenAI, Inc. Copyright Infringement Litigation, MDL No. 3143 (S.D.N.Y.)). The complaints ask whether OpenAI's use of copyrighted materials to train large language models, including ChatGPT, violates authors' and publishers' exclusive rights under the U.S. Copyright Act. The case hinges on whether AI training qualifies as transformative use under the four-factor fair use test.

The Procedural Ruling

OpenAI's counsel initially stated that two datasets—Books1 and Books2, sourced from the pirate library LibGen—were deleted due to non-use. Notably, these are the only training datasets OpenAI has ever deleted. When plaintiffs sought discovery into the deletion, OpenAI reversed course, claiming all reasons for deletion should be shielded under attorney-client privilege.

Judge Wang rejected this position. OpenAI cannot state a reason (which implies the material is not privileged) and then later assert that the reason is privileged to avoid discovery: by disclosing a reason for deleting the datasets—claiming they weren't being used—OpenAI had already waived privilege protection.

Practical Implications

The ruling requires OpenAI to produce communications that the court reviewed in camera, all written communications with in-house counsel from 2022 regarding the deletion, and internal references to LibGen that OpenAI previously withheld.

The stakes are substantial. Willful infringement under the Copyright Act permits statutory damages of up to $150,000 per work, compared to $750 for non-willful infringement. If the now-discoverable communications reveal that OpenAI's lawyers flagged copyright risk before the datasets were used—or recommended deletion specifically to limit litigation exposure—that would be strong evidence of willfulness. With tens of millions of works potentially at issue across the consolidated cases, exposure could reach billions.

How CILC Can Help?

OpenAI ruling illustrates a broader principle: privilege protections are only as strong as the discipline with which they're maintained. Once litigation is reasonably anticipated, inconsistent positions, selective disclosures, or poorly structured communications can waive protections entirely.

Our attorneys are qualified in both US and EU jurisdictions, enabling us to bridge the privilege gap and advise on structuring communications appropriately for both regimes. Our team includes attorneys with backgrounds at leading international firms delivering sophisticated competition law counsel without the overhead of traditional full-service firms.

If your company has US and EU operations or conducts business in these markets, we encourage you to schedule a consultation to assess your current exposure and discuss privilege-protective structuring options.

Legal professional privilege for in-house counsel and US-only qualified counsel: US companies in the European Union face a fundamentally different legal landscape

Any substantive assessment of EU law compliance should be routed through external counsel who are qualified in an EU jurisdiction. This is not merely best practice; it is the only way to ensure privilege protection in European Commission proceedings.

The European Commission maintains a restrictive position on this issue. Communications with in-house and external US-only qualified counsel are unprotected. This stands in contrast to jurisdictions like the United States, where attorney-client privilege generally extends to in-house counsel communications without distinction, and the UK, where in-house solicitors enjoy the same privilege as external solicitors, provided they're acting in their capacity as legal advisors.

The Transatlantic Privilege Gap

In the United States, attorney-client privilege extends equally to communications with in-house counsel and external lawyers. Many US companies structure their compliance programs around this assumption, routing sensitive law assessments through their legal departments with the expectation of confidentiality.

On November 10, 2025, the European Commission published Competition Policy Brief No. 1/2025, definitively rejecting calls to extend privilege to in-house counsel or to US-only-qualified attorneys.

The European Commission's Conclusions

Self-assessment does not justify extension, and the enforcement effectiveness concerns are paramount. The Commission warned that extending LPP to in-house lawyers "would most likely hamper the effectiveness of EU law investigations," citing structural risks of abuse to conceal wrongdoing. In the Teva Copaxone case from October 2024, the Commission relied on documents from in-house lawyers who were involved in designing Teva's abusive strategy.

Practical Implications

Companies should establish clear protocols distinguishing between business communications (which may involve in-house counsel) and legal advice communications (which should be channeled through external counsel). The Commission noted that in-house lawyers frequently participate in "internal exchanges that are not linked or limited to the provision of legal advice," making segregation essential.

Companies with significant EU exposure should audit existing documentation practices. Legacy documents—particularly those involving competition-sensitive matters like pricing, distribution arrangements, or competitor discussions—may present latent risk if they were created under the assumption of in-house privilege.

How CILC Can Help?

If your company has EU operations or conducts business in EU markets, we encourage you to schedule a consultation to assess your current exposure and discuss privilege-protective structuring options.

Data Collection: Google case in California and the EU Digital Omnibus

A jury in California found Google liable in September 2025 for unlawfully collecting data from nearly 100 million users. The company was ordered to pay $425.6 million in compensatory damages and now faces up to $4.6 billion in additional unjust enrichment damages—representing profits allegedly gained from the data collection. Google used cookies to track users’ activity for advertising and analytics, even when users took steps to block such tracking via browser settings or Google’s own privacy controls.

In the EU, the Digital Omnibus package is expected to include targeted changes to the e-Privacy Directive—rules requiring user consent before tracking technologies like cookies can be placed on devices. The reform aims to reduce “cookie fatigue” while updating outdated rules that many in the industry argue hinder innovation. They argue that current rules demand consent even for minimal or privacy-friendly data uses, discouraging alternative advertising models. Privacy advocates, however, warn that relaxing the consent standard would erode privacy rights guaranteed by EU law and allow further exploitation of personal data.

Practical Implications

The Digital Omnibus aims to harmonize and simplify EU regulations for tech companies, including rules on cookies and tracking technologies, by revising the e-Privacy Directive, but user consent remains a legal requirement for most non-essential cookies and tracking technologies.

Tracking users after they have turned off privacy settings or attempted to block cookies remains a violation of current EU privacy requirements. It is among the practices that have triggered large regulatory fines in the EU. Even with simplification, the Omnibus is unlikely to exempt companies from respecting user choices to opt out of tracking, especially for advertising or behavioral data collection. The reforms will clarify the legal basis for data processing, but Google's conduct would have to align with users’ informed and freely given consent

Google's conduct, as judged unlawful in the US, would not be exempted under the new Digital Omnibus if it involves tracking without valid, user-informed consent. Any changes will likely clarify specific use cases for exemptions, but advertising and analytics tracking without opt-in consent remains a red line under EU law—even after the Digital Omnibus takes effect.

Attorney Legal Privilege Challenges for US and EU businesses

The divergences in the transatlantic framework for the Legal Professional Privilege (LPP)

For businesses operating in the US and EU markets, navigating cross-border legal matters requires more than just expertise—it demands the ability to protect sensitive client communications on both sides of the Atlantic.

An American attorney cannot provide privileged legal advice on European law in Europe under EU rules. To protect client confidentiality and comply with EU law, U.S. attorneys should collaborate with or defer to EEA-qualified counsel when advising on matters governed by European law.

Practical Implications & Increased Costs

Clients seeking comprehensive privilege protection in cross-border matters face increased costs due to these divergences:

Mandatory Engagement of Additional Lawyers
Coordination and communication overheads
Duplicate legal analysis and Work Product.

For a multinational business facing a European regulatory investigation, internal documents and advice must be carefully channeled through EEA-qualified counsel for EU purposes and U.S. counsel for U.S. privilege needs. This not only doubles legal spending but also requires careful planning to maintain privilege in both jurisdictions.

Divergent Legal Standards:
Attorney-client privilege and related protections such as the work product doctrine vary widely between jurisdictions. The US, as a common law jurisdiction, generally offers broad attorney-client privilege, encompassing both in-house and external counsel, and often extends protection to work product. In contrast, many civil law jurisdictions in Europe, including under EU law, provide a narrower scope: privilege typically applies only to communications with external, EEA-qualified lawyers and often excludes in-house counsel

CILC: A Strategic Solution

CILC offers a unique advantage: our attorneys are qualified in both the EU and the US, enabling us to secure legal privilege for clients in both jurisdictions. With CILC, clients benefit from seamless, comprehensive privilege protection in multi-jurisdictional matters—without the complexity of engaging separate legal teams in each region.

Attorney Legal Privilege: Amazon Litigation

Amazon ordered to give the materials to the private consumer plaintiffs

Judge John Chun’s recent ruling underscores the company’s improper designation of business documents as attorney-client privileged, thus enabling private plaintiffs to obtain critical operational materials for their case.

Amazon had improperly classified a range of documents—including operational, business, and strategy papers—as subject to attorney-client privilege or attorney-work product protection. The court ordered Amazon to provide these materials to private consumer plaintiffs, reinforcing judicial scrutiny of privilege claims and supporting transparency in antitrust discovery.

Amazon Cases

Private plaintiff actions—De Coster et al., Brown et al., Hogan, and Frame-Wilson—are proceeding in parallel with the broader FTC and state case against Amazon (FTC et al. v. Amazon). The government case centers on monopolization and anticompetitive conduct under federal law, seeking remedies to reform Amazon’s practices. Private plaintiffs are pursuing damages or injunctions on behalf of consumers, alleging that Amazon’s restrictive agreements caused consumer harm and limited market competition.

Ruling Implications

Judge Chun’s decision demonstrates courts’ willingness to pierce overbroad privilege assertions, facilitating plaintiff access to essential evidence in complex monopoly and anticompetitive conduct cases. It goes without saying that those same documents would almost certainly be disclosable if European antitrust regulators were to investigate Amazon. The European Union’s privilege rules are stricter than the US: only communications with external, independent EU-qualified lawyers for defense purposes are protected, while in-house counsel and business documents do not receive privilege. Therefore, operational, strategic, and mixed-purpose legal documents released under Judge Chun’s order would be subject to review and production if requested by the European Commission or national authorities in an antitrust probe.

Why CILC?

CILC’s integrated business model is centered on attorneys qualified in multiple jurisdictions. This unique approach enables organizations to strengthen privilege compliance and safeguard sensitive communications and documents across borders. Our international attorney network ensures that your organization benefits from expert guidance, tailored legal frameworks, and consistent oversight, no matter where you operate.

Stay ahead of compliance risks. Contact CILC to learn how we can support your organization’s confidentiality needs.

Attorney Legal Privilege: Compliance and Risks in Litigation

A recent US federal court case highlighted the serious risks of improper privilege designation

A judge described the “systemic disregard” of evidentiary rules as “concerning,” noting that a major online platform appeared to be putting “no thought” into marking materials as attorney-client privileged. Such lapses can result in sanctions and reputational harm.

How a Robust Compliance Program Prevents Mistakes

Revamping compliance programs helps organizations address systemic weaknesses and foster a culture of proactive, accurate legal and regulatory adherence. Clear policies, ongoing training, and centralized oversight are essential to ensuring privileged communications are handled correctly.

Strategic Benefits Beyond Avoiding Sanctions

Demonstrating a commitment to proper compliance safeguards a company’s reputation, especially valuable during high-profile litigation or regulatory scrutiny. Operational efficiency and long-term sustainability are further strengthened when compliance is integrated into core business processes.

Why Choose CILC?

Stay ahead of compliance risks. Contact CILC to learn how we can support your organization’s confidentiality needs.