LLC v. JAB (2013)

RULING RE PLAINTIFF'S OBJECTION TO DISCOVERY

The issue pending before the court is whether the plaintiff, as an assignee of a failed bank's financial instruments, may assert the attorney-client and attorney work product privilege of the failed bank in connection with the defendant's requests for discovery.   For the following reasons, the answer is “No.” The plaintiff's objection, therefore, is overruled.

This case was commenced by the plaintiff, Atlantic National Trust, LLC (Atlantic National), against the defendant, JAB Realty Trust (JAB), to foreclose on a note and mortgage which it holds by assignment.   The mortgage is secured by property known as 855 Farmington Avenue, Farmington, CT. In response, JAB filed counterclaims against Atlantic National.   Atlantic National withdrew its complaint, and has filed a motion to dismiss those counterclaims.   The parties are currently engaged in discovery concerning certain issues involved in that motion to dismiss.   In connection therewith, JAB has requested production Atlantic National's entire file concerning the subject loan documents at deposition.   Apparently, Atlantic National is in possession of not only the note and mortgage and a collateral assignment of leases and rents, but also hundreds of other records and correspondence concerning the disputes between the parties over the account over the years.   Atlantic National has produced some records, but it objects to the disclosure of certain others on the grounds of attorney-client and attorney work product privilege.   The crux of the dispute is the fact that the purportedly privileged documents do not involve Atlantic National's attorneys, rather, they involve attorneys for its predecessor(s) in interest.

From a review of the pleadings and other documents on file, and from the undisputed facts, the following history appears with respect to the ownership of the promissory note and mortgage at issue in this case:  The note was originally payable to Heritage Bank for Savings (Heritage), which failed in December of 1992, at which time it appears that the Federal Deposit Insurance Corporation (FDIC) was appointed as Liquidating Agent of the bank.   In September of 1996, the note and mortgage were then transferred by the FDIC as Liquidating Agent to Atlantic Bank & Trust Co.;   which then immediately transferred the note and loan documents to Atlantic National Trust, LLC;  which later that month then transferred them to another entity (Foothill Capital Corporation, which became Wells Fargo Foothill, Inc.).   It appears that the note was ultimately reacquired, and mortgage reassigned, to Atlantic National Trust, LLC, the plaintiff.

I

The Roles of the Federal Deposit Insurance Corporation and the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA)

At the outset, a basic survey of the roles of the FDIC and FIRREA is necessary in order to properly frame the issue that this court presently confronts.

“The [FDIC] was established by Congress in order to promote stability and confidence in the nation's banking systems ․ This purpose is achieved in two ways, first by providing insurance for payment to depositors of banks in case of failure, and second by providing an alternate method for handling failed banks by keeping the bank's assets and deposits intact.   In the first instance, the FDIC in its corporate capacity is authorized ․ to act as insurer of the deposits of a bank.   In the second instance, the FDIC ․ acts in a separate capacity as receiver of the insolvent bank.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Suffield Bank v. Berman, 228 Conn. 766, 778, 639 A.2d 1033 (1994).

“In 1989, Congress established FIRREA to facilitate the efficient recovery of the assets of failed institutions.”  (Internal quotation marks omitted.)   National Loan Investors Ltd. Partnership v. Heritage Square Associates, 54 Conn.App. 67, 74, 733 A.2d 876 (1999).  “Under [FIRREA], ․ the FDIC has statutory authority to administer claims against a depository institution for which the FDIC is receiver.”  Farnik v. Federal Deposit Ins. Corp., 707 F.3d 717, 720–21 (7th Cir.2013).  “When the FDIC steps in as receiver of a failed bank, it takes over the bank's assets and operations, collects all monies and obligations due the failed bank, preserves and conserves its assets, and performs all functions of the institution consistent with receivership ․ The FDIC has two primary options as receiver of a failed bank:  liquidate the bank's assets or enter into a purchase and assumption transaction with another bank ․ In the latter, the FDIC sells the failed bank's assets to a healthy bank, which agrees to pay the failed bank's depositors ․ The FDIC then pays the successor bank the difference between the value of the assets and what it owes depositors.”  (Citations omitted.)  Id., 724.   The FDIC, in its capacity as receiver, has the power to assign the FDIC, in its corporate capacity, assets of the failed bank.¹  12 U.S.C. § 1823;  Federal Deposit Ins. Corp. v. Ashley, 585 F.2d 157, 162 (6th Cir.1978);  Federal Deposit Ins. Corp. v. Godshall, 558 F.2d 220, 223 (4th Cir.1977).

In Suffield Bank v. Berman, supra, 228 Conn. 766, the state Supreme Court held that the FDIC, in its capacity as receiver of a failed bank, has the ability to assert the failed bank's attorney-client privilege.   In coming to this conclusion, the court cited consistent federal district decisions that stood for that proposition.  Id., 779–80.   See e.g., Federal Deposit Ins. Corp. v. Cherry, Bekaert & Holland, 129 F.R.D. 188, 192–93 (M.D.Fla.1989);  see also Federal Deposit Ins. Corp. v. Amundson, 682 F.Sup. 981, 986–87 (D.Minn.1988);  Federal Deposit Ins. Corp. v. McAtee, 124 F.R.D. 662, 664 (D.Kan.1988);  Odmark v. Westside Bancorporation, Inc., 636 F.Sup. 552, 554 (W.D.Wash.1986).   The Berman court, however, did acknowledge the split of authority in the lower federal courts “concerning whether the FDIC, acting in its corporate capacity, has the right to assert the attorney-client privilege of a failed bank by virtue of its purchase of certain assets of the bank from the FDIC acting as receiver.”  (Emphasis in original.)  Suffield Bank v. Berman, supra, 789–80 n.18. The split of authority is relevant to the issue presented in the present case inasmuch as the FDIC acting in its corporate capacity as an assignee of a failed bank's assets is potentially comparable to other assignees of a failed bank's assets, such as the plaintiff in the present case.

A

The FDIC, as assignee of a failed bank's financial instruments, may not, in its corporate capacity, assert the failed bank's attorney-client privilege.

Some courts have held that the FDIC in its corporate capacity may not assert the attorney-client privilege that once existed between the failed bank, as a client, and its attorney.

For example, in Federal Deposit Ins. Corp. v. Amundson, supra, 682 F.Sup. 981, the court found that the FDIC in its corporate capacity had no authority to assert the failed bank's attorney-client privilege because the failed bank was no longer an entity.   The court reasoned that “[h]ere, the potential conflict of interest assertion is of no value to the FDIC—save and except as a sword to drive into its opponent.   The [failed] bank is dead.   There is no existing—or potential—corporation.   That entity is gone and it will not, and cannot, be reconstituted ․ To belabor the obvious, it must be pointed out that the bank is not a party.   The bank no longer exists.   It is the FDIC which is the party.”  Id., 987.   The court likened the FDIC's function in its corporate capacity to a liquidator that gives “no thought or effort to reconstitute the entity or to run it at all.”  Id.

In Federal Deposit Ins. Corp. v. McAtee, supra, 124 F.R.D. 662, the court explicitly endorsed the holding in Amundson and provided clarification regarding why differing rules would result depending on whether the FDIC were acting in its capacity as receiver or in its corporate capacity.   The court explained that when the FDIC acts in its capacity as receiver, the entity controlling the attorney-client privilege, namely, the failed bank, continues to exist;  however, when the FDIC acts in its corporate capacity, it is “merely a purchaser of its assets” and “[s]uch purchase does not place plaintiff FDIC in the role of client of the former attorneys of the bank.”  Id., 664.

It must be noted, however, that these two cases did not take into consideration the 1989 enactment of FIRREA, which amended, inter alia, the FDIC Act. Those amendments arguably provide a strong basis for concluding that the FDIC in its corporate capacity may assert the failed institution's attorney-client privilege.   That, however, may not necessarily translate to the same conclusion for all assignees of a failed bank's assets.

B

The FDIC, as assignee of a failed bank's financial instruments, may, in its corporate capacity, assert the failed bank's attorney-client privilege.

On the other end of the spectrum, some courts have held that the FDIC acting in its corporate capacity steps into the shoes of the FDIC in its capacity as receiver, thereby assuming all of the rights, powers and privileges, including the attorney-client privilege, that the FDIC in its capacity as receiver once enjoyed.   In Federal Deposit Ins. Corp. v. Cherry, Bekaert & Holland, supra, 129 F.R.D. 188, the court addressed whether the FDIC could, in its corporate capacity, assert the failed bank's attorney-client privilege.   In answering that question, the court focused mainly on the recent enactment of FIRREA, which amended, inter alia, the FDIC Act. The court interpreted those amendments to the FDIC Act as strong evidence that the FDIC would, in its corporate capacity, be able to assert the failed bank's attorney-client privilege.   The court addressed and interpreted these amendments as follows.

The court looked to § 1823(d)(3), which sets “forth the powers and privileges that FDIC—Corporate has when it engages in a purchase and assumption transaction.”  Federal Deposit Ins. Corp. v. Cherry, Bekaert & Holland, supra, 129 F.R.D. 191.  Section 1823(d)(3) provides in relevant part:  “(A) In general—With respect to any asset acquired or liability assumed pursuant to this section, the Corporation shall have all of the rights, powers, privileges, and authorities of the Corporation as receiver ․ (B) Rule of construction—Such rights, powers, privileges, and authorities shall be in addition to and not in derogation of any rights, powers, privileges, and authorities otherwise applicable to the Corporation.”

The court also looked to the newly added § 1821(d)(2)(A)(I) which provides:  “The Corporation shall, as conservator or receiver, and by operation of law, succeed to—(I) all rights, titles, powers, and privileges of the insured depository institution, and of any stockholder, member, account holder, depositor, officer, or director of such institution with respect to the institution and the assets of the institution ․”

The court also looked to § 1821(c)(3)(B) which provides:  “In addition to the powers conferred and the duties related to the exercise of such powers imposed by State law on any conservator or receiver appointed under the law of such State for an insured State depository institution, the Corporation, as conservator or receiver pursuant to an appointment described in subparagraph (A), shall have the powers conferred and the duties imposed by this section on the Corporation as conservator or receiver.”

Considering those amendments, the court opined that “[t]hese provisions cited above clearly support plaintiff's position that FDIC—Corporate is entitled to assert the rights, titles, powers, and privileges of FDIC—Receiver, including the attorney-client privilege.”  (Internal quotation marks omitted.)   Federal Deposit Ins. Corp. v. Cherry, Bekaert & Holland, supra, 129 F.R.D. 191.   The court also relied upon Florida law, which suggested that a receiver of a failed institution may assert the attorney-client privilege of a defunct entity.²  Id., 192.

Also relying on § 1821(d)(2)(A)(I), the court in Resolution Trust Corp. v. Miramon, United States District Court, Docket No. 92–2672 (E.D.La. November 15, 1993), concluded that the former Resolution Trust Corporation ³ (RTC) acting in its corporate capacity was able to assert the failed bank's attorney-client privilege.   The court stated:  “[c]onsidering that congressional mandate, this Court is of the opinion that the plaintiff in the case at bar RTC succeeds to the rights and privileges of the now defunct South Savings including its right to assert the attorney client privilege.”  Id. In rejecting the applicability of Amundsun, the court noted that “[Federal Deposit Ins. Corp.] v. Amundson, 682 F.Sup. 981 (D.Minn.1988) cited by the [defendant's law firm] for the proposition that the transfer of assets of a failed bank from FDIC—Receiver to FDIC—Corporate did not transfer the attorney-client privilege was decided pre-FIRREA.  Amundson does not address the FIRREA mandate that the RTC succeed to all of the rights of the defunct institution.”  (Emphasis added.)  Resolution Trust Corp. v. Miramon, supra, United States District Court, Docket No. 92–2672.

Based on those holdings, however, it does not necessarily follow that an assignee of a failed bank's assets other than the FDIC in its corporate capacity would be able to assert the failed bank's attorney-client privilege.   The statutory language upon which the Miramon and Cherry, Bekaert & Holland courts relied does not reference assignees generally;  rather, it speaks specifically to the FDIC.

C

Connecticut's Jurisprudence Regarding Transfer of Rights and Privileges

While there is little relevant case law in this state, the Appellate Court's holding in National Loan Investors Ltd. Partnership v. Heritage Square Associates, supra, 54 Conn.App. 67, provides guidance.   In that case, the Appellate Court was faced with the issue of whether a bank that purchases assets of a failed bank from the FDIC may, by virtue of being an assignee of the FDIC, assert the FDIC's right to the extended statute of limitations period pursuant to FIRREA.⁴  Because FIRREA is silent as to whether the extended limitations period would apply to assignees who purchase defaulted assets from the FDIC, the court looked to common-law principles governing assignments in order to resolve the issue.  Id., 72–73.   The court explained that, in Connecticut, common-law principles provide that an assignee stands in the shoes of the assignor; ⁵  however, it acknowledged that this rule would apply only to incidental benefits associated with the instrument, and not to rights or privileges that are personal to the assignor.  Id., 73, 75–76;  see also 6A C.J.S. Assignments § 76 (“Unless a contrary intention is manifest or inferable, an assignment ordinarily carries with it all rights, remedies and benefits which are incidental to the thing assigned, except those which are personal to the assignor and for his benefit only”).   Agreeing with the weight of authority of other jurisdictions, the Appellate Court opined that “the Federal receiver's right to sue within the extended limitations period is inherent in the possession of the instruments it holds, and is among the rights, remedies and benefits which are incidental to the instrument assigned, rather than merely a right personal to the assignor only.”  (Emphasis added.)   National Loan Investors Ltd. Partnership v. Heritage Square Associates, supra, 76.   The court accordingly concluded that the plaintiff would stand in the shoes of the FDIC by virtue of the assignment and thus would be vested with all of the FDIC's rights, remedies and benefits incidental to the note, including the right to sue within the extended statute of limitations period.   Id., 73.

Applying this framework, the plaintiff in the present case would not be able to invoke the failed bank's attorney-client privilege inasmuch as the attorney-client privilege appears to be a privilege personal to the assignor that exists primarily for its benefit only, and not a right or remedy incidental to the note, mortgage and collateral assignment of leases.  “The attorney-client privilege exists for the benefit of the client ․” (Internal quotation marks omitted.)  Harp v. King, 266 Conn. 747, 767, 835 A.2d 953 (2003).  “[T]he attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice ․ It is undisputed that the privilege was created to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observation of law and administration of justice.

Exceptions to the attorney-client privilege should be made only when the reason for disclosure outweighs the potential chilling of essential communications.   It is obvious that professional assistance would be of little or no avail to the client, unless his legal adviser were put in possession of all the facts relating to the subject matter of inquiry or litigation, which, in the indulgence of the fullest confidence, the client could communicate.   And it is equally obvious that there would be an end to all confidence between the client and [the] attorney, if the latter was at liberty or compellable to disclose the facts of which he had thus obtained possession ․” (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 52, 730 A.2d 51 (1999).  “The power to waive the attorney-client privilege rests with the client or with his attorney acting with his authority.”  Gebbie v. Cadle Co., 49 Conn.App. 265, 274, 714 A.2d 678 (1998).   Inasmuch as the privilege exists to facilitate open communication and protect the client, this privilege is personal to the client, rather than incidental to the subject to which it relates.   Since the attorney-client privilege is personal, then this privilege would not transfer to the plaintiff in the present case by virtue of the assignment.

The power to invoke the work product doctrine also would appear to be a right personal to an attorney and his or her client.  “[T]he work product rule is designed to protect the right of an attorney to thoroughly prepare a case by precluding a less diligent adversary from taking undue advantage of an opponent's efforts.”   Carrier Corp. v. Home Ins. Co., Superior Court, judicial district of Hartford–New Britain at Hartford (June 12, 1992, Schaller, J.) (6 Conn. L. Rptr. 478).  “The work product rule protects an attorney's interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs and countless other tangible and intangible items ․ Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation.” ⁶  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Ullmann v. State, 230 Conn. 698, 714, 647 A.2d 324 (1994);  see also Practice Book § 13–3(a) (“[T]he judicial authority shall not order disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation”).   In order to apply, “[t]he attorney's work must have formed an essential step in the procurement of the data which the opponent seeks, and the attorney must have performed duties normally attended to by attorneys.”  Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 95, 230 A.2d 9 (1967).   Although our courts have not addressed whether the power to invoke this doctrine is a personal right, the purpose of the doctrine, namely, to protect an attorney's particular ideas and strategies, compel the conclusion that the power to invoke this doctrine is a personal right rather than a benefit incidental to particular instrument.

II

Transfer of the Attorney–Client Privilege from Entity to Entity

Another approach to the issue involves an examination of the attorney-client privilege in the context of a transfer of assets from one corporation to another, without involvement of FIRREA or the FDIC. While there is little authority in this state on this issue, holdings in other jurisdictions are helpful.

In Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985), the United States Supreme Court held that “the trustee of a corporation in bankruptcy has the power to waive the corporation's attorney-client privilege with respect to pre-bankruptcy communications.”  Id., 358.   The court explained that “when control of a corporation passes to new management, the authority to assert and waive the corporation's attorney-client privilege passes as well.   New managers installed as a result of a takeover, merger, loss of confidence by shareholders, or simply normal succession, may waive the attorney-client privilege with respect to communications made by former officers and directors.”  Id., 349.

In American International Specialty Lines Ins. Co. v. NWI–I, Inc., 240 F.R.D. 401 (N.D.Ill.2007),⁷ the court observed that “[f]ollowing the rationale of Weintraub, several courts have found that the power to invoke or waive a corporation's attorney-client privilege is an incident of control of the corporation.”  Id., 405.   Weighing this principle, the court concluded, as many others have, that “[a] transfer of assets, without more, is not sufficient to effect a transfer of the privileges;  control of the entity possessing the privileges must also pass for the privileges to pass.  In re Grand Jury Subpoenas, 734 F.Sup. [1207, 1211 n.3 (E.D.Va.1990), aff'd and vacated in part, 902 F.2d 244 (4th Cir.1990) ];  see also, NCL Corp. v. Lone Star Bldg. Ctrs., Inc., 144 B.R. [170, 174 (S.D.Fla.1992) ] (transfer of a lease did not transfer the attorney-client privilege);  Zenith Elecs.   Corp. v. WH–TV Broad.   Corp., [United States District Court, Docket No. 01 C 4366 (N.D.Ill. August 7, 2003) ] (sale of certain assets did not transfer the right to invoke the attorney-client privilege despite contract provision stating that the privilege transferred with the sale);  Pilates, Inc. v. Georgetown Bodyworks Deep Muscle Massage Ctrs., Inc., 201 F.R.D. 261 (D.D.C.2000) (assignee of trademarks had no right to assert the attorney-client privilege where there was no transfer of control of the corporation);  SMI Industries Canada, Ltd. v. Caelter Industries, Inc., 586 F.Sup. 808 (N.D.N.Y.1984) (assignment of trademarks and goodwill did not assign attorney-client privilege);  see also In re In–Store Advertising Sec. Litig., 163 F.R.D. [452, 458 (S.D.N.Y.1995) ];  Sobol v. E.P. Dutton, Inc., 112 F.R.D. 99, 103 (S.D.N.Y.1986).”  American International Specialty Lines Ins. Co. v. NWI–I, Inc., supra, 406;  see also Trading Technologies International, Inc. v. GL Consultants, Inc., United States District Court, Docket Nos. 05 4120, 05 C 5164 (N.D.Ill. March 14, 2012).   The American International Specialty Lines Ins. Co. court also noted that accepting the theory that the attorney-client privilege accompanies the transfer of an asset would be akin to “[dividing] up the attorney-client privilege based on the assets that the multiple successors of [a bankrupt company] acquired as a result of the [bankruptcy].”  Id., 407.

Agreeing that the transferability of the attorney-client privilege hinges on whether the assignee or transferee exercises control over the entity formerly in control of the assets, the court in John Crane Production Solutions, Inc. v. R2R & D, LLC, United States District Court, Docket No. 11 CV 3237 D (N.D.Tex. August 12, 2012),⁸ provided the following analysis for determining whether control exists.  “[W]hen determining whether the attorney-client privilege has transferred, courts should examine whether the practical consequences of the transaction result in the transfer of control of the business and the continuation of the business under new management, and if they do, the attorney-client privilege will follow as well ․ In determining whether the practical consequences of a given transaction result in the transfer of control, courts consider such factors as the extent of the assets acquired, including whether stock was sold, whether the purchasing entity continues to sell the same product or service, whether the old customers and employees are retained, and whether the same patents and trademarks are used.”  Id.

Accepting those principles, it is clear that the plaintiff in the present case does not exercise or maintain control over the failed bank, Heritage, inasmuch as the plaintiff merely acquired the note, mortgage and collateral assignment of leases and rentals that originally was in possession of the failed bank.   Accordingly, the plaintiff does not enjoy the right to invoke the failed bank's attorney-client privilege.

It should also be noted that Amundson, albeit decided without consideration of the 1989 FIRREA amendments, distinguished Weintraub, a case involving a trustee of a corporation in bankruptcy, reasoning that “[t]he bankruptcy trustee maintains the pre-existing entity, managing its affairs.   The prior management is supplanted and efforts are made to run the existing business entity in a prudent fashion or to systematically wind it down and fairly distribute its assets.”  Federal Deposit Ins. Corp. v. Amundson, supra, 682 F.Sup. 987.   The Amundson court contrasted that situation with the role of the FDIC acting in its corporate capacity as a liquidator, where “[t]here is no thought or effort to reconstitute the entity or to run it at all.   There is only an effort to sift the ashes, selling off what is valuable or collecting on its receivables.”  Id.

Atlantic National asks the court to analogize its situation to that of a subrogee of an insurance claim, in which some courts have allowed the subrogee to control the attorney-client privilege claim;  or decisions from other jurisdictions that allow assignment of legal malpractice claims and the attorney-client privilege rights inherent therein.   Those cases involve factual situations not comparable to the instant case.   The analogies are inapposite.

III

Conclusion

For all of the foregoing reasons, the court concludes that the plaintiff, as an assignee of a failed bank's financial instruments, may not assert the attorney-client and attorney work product privilege of the failed bank in connection with the defendant's requests for discovery.   The plaintiff's objection, therefore, is overruled.

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. It must be noted, however, that the FDIC in its corporate capacity may not necessarily assume the liabilities of the failed bank.   See, e g., Credit Life Ins. Co. v. Federal Deposit Ins. Corp., 870 F.Sup. 417, 421 (D.N.H.1993) (“FDIC—Corporate and FDIC—Receiver are distinct entities ․ The liabilities of the failed bank are assumed by FDIC—Receiver until transferred to the bridge bank ․ FDIC—Corporate may come into possession of the failed bank's assets, but cannot be held responsible for the failed bank's liabilities or the receivership's actions.”  (Citations omitted))..  FN1. It must be noted, however, that the FDIC in its corporate capacity may not necessarily assume the liabilities of the failed bank.   See, e g., Credit Life Ins. Co. v. Federal Deposit Ins. Corp., 870 F.Sup. 417, 421 (D.N.H.1993) (“FDIC—Corporate and FDIC—Receiver are distinct entities ․ The liabilities of the failed bank are assumed by FDIC—Receiver until transferred to the bridge bank ․ FDIC—Corporate may come into possession of the failed bank's assets, but cannot be held responsible for the failed bank's liabilities or the receivership's actions.”  (Citations omitted)).

FN2. See, e.g., Fla. Stat. § 90.502(3)(d) (providing that the attorney-client privilege may be claimed by “[a] successor, assignee, trustee in dissolution, or any similar representative of an organization, corporation, or association or other entity, either public or private, whether or not in existence”)..  FN2. See, e.g., Fla. Stat. § 90.502(3)(d) (providing that the attorney-client privilege may be claimed by “[a] successor, assignee, trustee in dissolution, or any similar representative of an organization, corporation, or association or other entity, either public or private, whether or not in existence”).

FN3. “Section 1441a(b)(4)(A) of Title 12 of the United States Code [provided] that the RTC shall have the same powers and rights to carry out its duties with respect to institutions described in Paragraph (3)(A) as the Federal Deposit Insurance Act [12 U.S.C. §§ 1821, 1822, and 1823].”  (Internal quotation marks omitted.)  Resolution Trust Corp. v. Miramon, supra, United States District Court, Docket No. 92–2672..  FN3. “Section 1441a(b)(4)(A) of Title 12 of the United States Code [provided] that the RTC shall have the same powers and rights to carry out its duties with respect to institutions described in Paragraph (3)(A) as the Federal Deposit Insurance Act [12 U.S.C. §§ 1821, 1822, and 1823].”  (Internal quotation marks omitted.)  Resolution Trust Corp. v. Miramon, supra, United States District Court, Docket No. 92–2672.

FN4. 12 U.S.C. § 1821(d)(14) Provides:  “Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Corporation as conservator or receiver shall be—(i) in the case of any contract claim, the longer of—(I) the 6–year period beginning on the date the claim accrues;  or (II) the period applicable under State law ․” General Statutes § 42a–3–118(a) provides in relevant part:  “[A]n action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.”.  FN4. 12 U.S.C. § 1821(d)(14) Provides:  “Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Corporation as conservator or receiver shall be—(i) in the case of any contract claim, the longer of—(I) the 6–year period beginning on the date the claim accrues;  or (II) the period applicable under State law ․” General Statutes § 42a–3–118(a) provides in relevant part:  “[A]n action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within six years after the due date or dates stated in the note or, if a due date is accelerated, within six years after the accelerated due date.”

FN5. The court also relied upon General Statutes § 42a–3–203(b), which codifies this common-law principle.   This court looked to this statute in particular because the note at issue was a negotiable instrument within the meaning of Connecticut's Uniform Commercial Code. See General Statutes § 42a–3–104..  FN5. The court also relied upon General Statutes § 42a–3–203(b), which codifies this common-law principle.   This court looked to this statute in particular because the note at issue was a negotiable instrument within the meaning of Connecticut's Uniform Commercial Code. See General Statutes § 42a–3–104.

FN6. In North American Philips Corp. v. Aetna Casualty & Surety Co., Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 91 0395790 (June 7, 1993, O'Neill, J.) (9 Conn. L. Rptr. 230), the court discussed this requirement as follows:  “In order for documents to qualify as attorney work-product there must have been an identifiable prospect of litigation i.e., specific claims that have already arisen at the time the documents were prepared ․ This standard is similar to those used in Connecticut cases to determine the likelihood of litigation.   Our superior court has held that the work-product doctrine applies only to materials obtained or produced when a specific legal action is pending or contemplated ․ A more recent superior court decision follows this standard and holds that the doctrine applies only to materials prepared for a particular litigation that is either pending or reasonably anticipated.”  (Citations omitted;  internal quotation marks omitted.);   see also Lieberman v. Freedom of Information Commission, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 86 0323962 (August 2, 1988, Ripley, J.) (3 C.S.C.R. 711) (the work product doctrine was inapplicable absent any specific civil action pending or contemplated)..  FN6. In North American Philips Corp. v. Aetna Casualty & Surety Co., Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 91 0395790 (June 7, 1993, O'Neill, J.) (9 Conn. L. Rptr. 230), the court discussed this requirement as follows:  “In order for documents to qualify as attorney work-product there must have been an identifiable prospect of litigation i.e., specific claims that have already arisen at the time the documents were prepared ․ This standard is similar to those used in Connecticut cases to determine the likelihood of litigation.   Our superior court has held that the work-product doctrine applies only to materials obtained or produced when a specific legal action is pending or contemplated ․ A more recent superior court decision follows this standard and holds that the doctrine applies only to materials prepared for a particular litigation that is either pending or reasonably anticipated.”  (Citations omitted;  internal quotation marks omitted.);   see also Lieberman v. Freedom of Information Commission, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 86 0323962 (August 2, 1988, Ripley, J.) (3 C.S.C.R. 711) (the work product doctrine was inapplicable absent any specific civil action pending or contemplated).

FN7. That case involved an entity that purchased substantially all of a corporate debtor's assets that had been transferred through bankruptcy proceedings..  FN7. That case involved an entity that purchased substantially all of a corporate debtor's assets that had been transferred through bankruptcy proceedings.

FN8. That case involved an asset purchase agreement, which resulted in a transfer of one business' assets, including, inter alia, all machinery, equipment, inventory, office furniture, fixtures, automobiles, leasehold improvements, computers, and all company intellectual property, to another entity..  FN8. That case involved an asset purchase agreement, which resulted in a transfer of one business' assets, including, inter alia, all machinery, equipment, inventory, office furniture, fixtures, automobiles, leasehold improvements, computers, and all company intellectual property, to another entity.

Vacchelli, Robert F., J.