The last three
described six favorable analyses from a Southern District of New York
decision (Judge Gorenstein) assessing defendant Barnes & Noble's
privilege assertions covering its investigation and later firing of its CEO
for sexual harassment. Parneros v. Barnes & Noble, Inc., 332
F.R.D. 482 (S.D.N.Y. 2019).
Seventh, the court addressed fired CEO Parneros's argument that Barnes
& Noble waived its privilege protection for communications relating to
its press release when announcing Parneros's firing – because the press
release said Parneros's termination "was taken by the Company's Board of
Directors who were advised by the law firm Paul, Weiss." Id. at
500. The court rejected Parneros's argument, noting that "[b]ecause the . .
. press release does not disclose the substance of counsel's advice, but
rather only discloses the fact of counsel's consultation, there was no
waiver based on the inclusion of the statement in the press release." Id. Eighth, the court addressed fired CEO Parneros's argument that
Barnes & Nobel triggered an "at issue" waiver by including in its
Answer a contention that Barnes & Noble's termination decision was
"clearly made in good faith." Id. at 501-02. The court rejected
Parneros's argument – explaining that "the mere use of the term 'good
faith' in an Answer does not reflect reliance on a 'good faith' defense,"
and emphasizing that "Barnes & Noble has disclaimed any intention to
assert a 'good faith' defense." Id. at 502.
This extensive well-reasoned opinion by such a well-respected judge in such
a high-profile case provides favorable holdings and practical guidance for
corporations seeking to maximize their investigation-related privilege