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and perform all acts as may be necessary or appropriate to the
conduct of the Company’s business as permitted [by law].”
Specifically, the Manager “shall have exclusive, full and
complete authority, power and discretion to manage and control
the business, affairs and Properties of the Company, to make all
decisions regarding those matters and to perform any and all acts
or activities customary or incident to the management of the
Company’s business.” Accordingly, we believe that the Manager
has exclusive authority to assert, or waive, the attorney-client
privilege on behalf of Surgery Center. International argues
that, as evidenced by Waiver of Notice and Right to Purchase,
attached to Exhibit 65-J, Assignment and Assumption Agreement,
and a document styled “Resignation”, dated July 28, 2000, and
attached as Exhibit C to the reply memorandum, Dr. Joffe was
Manager of Surgery Center in 1997, when Kelly authored the
exhibits, and continuing through July 28, 2000 (the date of his
resignation as manager). Petitioners make no argument to the
contrary, and we so find.
International argues that, at present, on account of the
passage of control of Surgery Center to International, the
authority to assert or waive Surgery Center’s attorney-client
privilege rests with New Management, the Manager of Surgery
Center installed by International. See Ramada Franchise Sys.,
Inc. v. Hotel of Gainesville Associates, 988 F. Supp. 1460, 1463
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