In Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 998 N.Y.S.2d 329 (N.Y. App. Div. 2014) (No. 651612/10), the New York Appellate Division held that the common interest doctrine may apply even when privileged communications are shared with third parties in the absence of the anticipation of litigation.  Here, Bank of America and Countrywide intended to enter into a merger agreement.  The companies signed a common interest agreement just prior to signing the merger agreement.  Thereafter, the companies shared legal advice regarding a number of pre-closing issues, including preparation of a joint proxy and registration statement.  No litigation was anticipated at the time that the companies shared legal advice prior to the closing.  Plaintiff sought pre-closing communications between the companies, arguing that, under New York law, the common interest doctrine does not apply in the absence of anticipated litigation.  The court disagreed, holding that the common interest doctrine applies to protect waiver of attorney-client privilege where communications are shared with third parties for the purpose of furthering “nearly identical” legal interests.  Acknowledging that a line of New York cases requires pending or reasonably anticipated litigation for the doctrine to apply, the court noted that neither the Restatement of the Law Governing Lawyers, nor the majority of federal courts, nor Delaware law imposed a litigation requirement for the doctrine to apply.  The court decided to adopt this approach to enable parties, like those here, to share advice of counsel “in order to accurately navigate the complex legal and regulatory process involved in completing the transaction.”