To date, few courts have considered the validity and applicability of collective action judgment agreements. Historically, agreements on the distribution of judgments on cartels and abuse of dominance have been confirmed, for example. B.dem the above review, as the legislation on cartels and abuse of dominance does not provide for a right of assessment among the defendants. Similarly, funding agreements are often used in environmental disputes to avoid the often severe consequences of clean-up legislation. However, in mass trials, confidential alliances between defendants have rarely been attacked and there is little precedent as to whether it is possible to shed light on the sharing of judgments or funding agreements. One of the arguments in favour of this discovery is that, since judgment allocation agreements are comparable to those of insurance contracts (i.e., the obligations of the parties depend on the arrival of a future event), they should be subject to publicity in the same way as insurance agreements. According to this reasoning, the transaction negotiations would remain privileged, but once a final agreement was reached, the agreement itself would be the subject of the discovery. When an act is tendered, it will play an important role in determining the scope of a common defence privilege. The federal rule of evidence 501 provides that “the privilege of a witness . . .
are determined by the principles of the common law, as they can be interpreted by the courts of the United States . . . . In civil actions and proceedings, however, with respect to an element of a claim or defense in which the law of the state provides the rule of the decision, the privilege of a witness . are determined by state law. Moreover, a written agreement of common defence of the defendant does not necessarily prohibit a defendant from agreeing with the applicants and agreeing to participate in the plaintiffs` proceedings against the other defendants. See Waller v. Financial Corporation of America, 828 F.2d 579 (9 cir 1987). At Waller, the plaintiffs of a derivative actuator operated the company, several of its executives and directors and its accountants.
The defendants signed a common defence agreement which provided in part that privileged communications would remain privileged when disclosed to other defendants or their counsel, and that defendants who settled or dismissed would continue to protect the confidentiality of shared defence information. Id. to 581. The defendants also agreed to incriminate the statute of limitations with respect to all claims against each other. When the company took its accounts with the plaintiffs, the unen established defendants argued that the company`s promise to cooperate with the complainants was contrary to their common defence agreement. The Tribunal found that the transaction was not contrary to the common defence agreement and that the only recourse of the inachevant defendant was to seek remedies that could be intensed to prohibit disclosure or to commit to the disqualification of legal advice. There may be litigation situations in which the accused should sign a “common defence agreement.” When such an agreement is in place, the question naturally arises as to whether the agreement is privileged or rather recognizable by the other parties.