In re California Bail Bond Antitrust Litigation, 4:19-cv-00717

Plaintiffs brought an antitrust class action against multiple bail bond surety companies, including Lexington and American Surety (ASC), alleging a conspiracy to fix bail bond premium rates and suppress rebating, violating state and federal antitrust laws.
The California Department of Insurance (CDI) sent inquiries to bail surety companies in 2016 about potentially excessive rates, asking for supporting information and threatening corrective actions if rates weren’t adjusted.
In response, Lexington, ASC, and Bankers Insurance jointly retained attorney Robert Hogeboom, coordinated with industry representatives, and submitted a joint "White Paper" to the CDI addressing the premium rate issue.
During discovery, defendants produced 29 documents but later attempted to claw them back, asserting attorney-client privilege; plaintiffs challenged this claim.
The court conducted an in camera review of the documents to determine if they were protected by attorney-client privilege or if that privilege was waived.
The court's order resolves whether these industry-coordination communications were primarily legal advice or non-privileged business/lobbying advice, and whether any privilege was preserved under the common interest doctrine.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Attorney-client privilege - primary purpose	Communications were mainly business/lobbying advice, not legal.	Main purpose was to seek and receive legal advice from counsel.	Privilege does not apply; advice was primarily lobbying/industry strategy.
Confidentiality of communications	Communications were intended to be shared with other industry members.	Communications were intended to remain confidential among joint clients.	Privilege requires confidential intent; here, advice meant to be shared, so no privilege.
Waiver by sharing (Common interest doctrine)	No joint legal interest—sharing waived any privilege.	Common legal interest among jointly represented sureties preserves privilege.	No common legal interest; interests were commercial, so sharing waived privilege.
Scope of privilege re: regulatory/lobbying advice	Legal privilege doesn't cover lobbying or regulatory advocacy.	Legal advice includes regulatory/litigation strategy, so privilege applies.	Lobbying/regulatory advocacy is not legal advice; no privilege attaches.

United States v. Richey, 632 F.3d 559 (9th Cir. 2011) (attorney-client privilege elements and burden of proof)
In re Grand Jury, 23 F.4th 1088 (9th Cir. 2021) (primary purpose test and limitation on privilege for dual-purpose communications)
United States v. Chen, 99 F.3d 1495 (9th Cir. 1996) (privilege only attaches to legal, not business, advice)
Upjohn v. United States, 449 U.S. 383 (1981) (privilege protects communications, not facts)
United States v. Gray, 876 F.2d 1411 (9th Cir. 1989) (privilege is narrowly construed)
Regents of Univ. of California v. U.S., 101 F.3d 1386 (Fed. Cir. 1996) (common legal interest doctrine)