UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2024

(Argued: September 18, 2024 Decided: February 7, 2025)

Docket Nos. 24-1588-cv (L), 24-1589-cv (Con)

IN RE: GRAND JURY SUBPOENAS DATED SEPTEMBER 13, 2023

UNITED STATES OF AMERICA,

Movant-Appellee,

— v. —

SEALED APPELLANT 1, SEALED APPELLANT 2, AND SEALED APPELLANT 3,

Respondents-Appellants.*

B e f o r e:

LYNCH, ROBINSON, AND MERRIAM, Circuit Judges.

__________________

* The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the caption above. Sealed Appellant 1, the former Chief Executive Officer (“CEO”) of a publicly traded company (“the Company”) and the subject of an ongoing grand jury investigation, and Sealed Appellants 2 and 3, a lawyer and law firm, respectively, that formerly represented Sealed Appellant 1 and the Company, appeal from an order of the United States District Court for the Southern District of New York (Caproni, J.) compelling Sealed Appellants 2 and 3 to produce documents withheld under a claim of attorney-client privilege in response to subpoenas issued by the grand jury. The district court held that the crime-fraud exception to attorney-client privilege applies to the subpoenaed documents, concluding that there was probable cause to believe that certain communications between Sealed Appellants 1 and 2 were made in furtherance of, among other violations, Sealed Appellant 1’s attempts to criminally circumvent the Company’s “legal contracts” control, which required the Company’s legal department to review all significant contracts. After first concluding that we have appellate jurisdiction over this appeal, we conclude that the crime-fraud exception applies to the communications at issue. Accordingly, we AFFIRM the district court’s order compelling production of the documents.

ROBERT W. ALLEN, Kirkland & Ellis LLP, New York, NY (Patrick Gallagher and Yi Yuan, Kirkland & Ellis LLP, New York, NY, and Michael M. Purpura, Hueston Hennigan, Newport Beach, CA on the brief), for Sealed Appellant 1.

BENJAMIN S. FISCHER, Morvillo Abramowitz Grand Iason & Anello PC, New York, NY (Elkan Abramowitz, Thomas A. McKay, Peter Menz, and Abbe Ben-David, Morvillo Abramowitz Grand Iason & Anello PC, New York, NY on the brief), for Sealed Appellants 2 and 3.

SARAH MORTAZAVI, Assistant United States Attorney (Emily Johnson, Jared Lenow, and Danielle Sassoon, Assistant

2 United States Attorneys on the brief), for Damian Williams, United States Attorney for the Southern District of New York.

GERARD E. LYNCH, Circuit Judge:

Sealed Appellant 1 is the former Chief Executive Officer (“CEO”) of a publicly traded company (“the Company”). He is also the subject of an ongoing grand jury investigation concerning whether, as CEO, he engaged in a criminal scheme to circumvent the Company’s internal accounting controls – a violation of 15 U.S.C. §§ 78m(b)(2), 78m(b)(5) and 78ff(a) – and mislead Company auditors – a violation of 15 U.S.C. §§ 7202, 7242, and 78ff(a) and 17 C.F.R. § 240.13b2-2 – in order to conceal multiple allegations of sexual misconduct raised against him by two former Company employees (“Victims 1 and 2”).1 Sealed Appellants