In In re Bank of New York Mellon Corp. Forex Transactions Litigation, Nos. 12-md-2335, 11-cv-6969 (S.D.N.Y. Nov. 10, 2014), the district court held that disclosing a legal opinion to third party investment managers did not waive the attorney-client privilege.  The U.S. Attorney’s Office for the Southern District of New York and private plaintiffs had sued defendant, the Bank of New York Mellon (“BoNY”), for civil penalties and alleged damages stemming from its foreign exchange practices.  Class plaintiffs sought discovery of a memorandum originally prepared for BoNY by its outside counsel (the “Groom Memo”), that was forwarded to third party investment managers associated with BoNY’s pension plan.  The Groom Memo discussed BoNY’s foreign exchange transactions business with respect to ERISA compliance.  Plaintiffs argued that the disclosures waived the attorney-client privilege; BoNY argued that it had disclosed the memorandum to its pension fund managers to ensure compliance with counsel’s advice, therefore, the common interest doctrine prevented waiver, as the disclosure promoted the “common legal interests” of the bank, its pension plan, and its investment managers with respect to ERISA compliance.  Acknowledging that it was exploring the outer limits of the common interest doctrine, the court held that the disclosure did not waive privilege because the disclosure was made for the purpose of securing ERISA compliance.  The court explained that, due to the complicated nature of ERISA, the bank had delegated some of its investment responsibilities to third party investment managers: “[S]ociety in general has an important interest in ensuring that those involved in such a heavily regulated and complicated activities act in the fullest possible knowledge of the legal implications of what they do.”