Court Of Chancery Explains When A Lie Is Just A Lie

Touch Of Italy Salumeria & Pasticceria LLC v. Bascio, C.A. 8602-VCG (January 13, 2014)

In this case, the defendant quit his employment, lied to his co-owners about why and then set up a competing business.  However, the LLC agreement did not have any limitation on competing with it. As a result, while the court was quick to condemn the lie, it held that competing was permitted. This is an example of how people in business together often feel there are some unwritten ethical rules that a court will enforce even if they are not part of the parties' agreement.  At least in the area of competition, that is just not so. You need to get it in writing to enforce an obligation to not compete after some one leaves your employment. Of course, this does not mean that there are no fiduciary or other duties that may require a course of conduct not spelled out in writing.  Hence, this decision should not be read too broadly

Court Of Chancery Suggests Equity May Aid When Dissolution Waived

Huatuco v Satellite Heathcare, C.A. 8465-VCG (December 9, 2013)

As this decision affirms, it is possible to waive the right to a judicial dissolution in an LLC agreement. However, the decision also notes that the Court may use its equitable powers to remedy an abuse of power.  This possible "escape valve" may be hard to invoke given the respect the Delaware Courts have for the right to contract away one's rights in an LLC agreement.

Court Of Chancery Enforces Indemnification Rights Under LLC Agreement

Costantini v. Swiss Farm Story Acquisition LLC, C.A. 8613-VCG (September 5, 2013)

This decision holds that language in an LLC agreement that mirrors the indemnification language of the Delaware Corporation law will be interpreted the same way to mandate indemnification to a prevailing manager.

Court Of Chancery Continues To Explain Bad Faith

Stewart v. BF Bolthouse Holdco LLC, C.A. 8119-VCP (August 30, 2013)

The interplay between fiduciary duties and contractual obligations is often hard to understand.  Add to that the task of explaining the duty to act in good faith and deal fairly and the law is even more confusing. This decision does a good job of cutting through that problem to explain: (1) when a complaint alleges enough facts to state a claim for acting in bad faith, (2) when contractual obligations take the place of fiduciary duties, and (3) when the obligation to act fairly is not superseded by contract.

Court Of Chancery Explains How To Determine Memerbership Interests

Grove v. Brown, C.A. 6793-VCG (August 8, 2013)

This is an interesting decision because it explains what is the effect when a member fails to pay the consideration contemplated by the LLC operating agreement to obtain his membership interest.  The answer is determined by what the operating agreement says is the consequence, loss of interest or just a debt owed to the LLC.

This is also an example of what a mess may be created when parties try to do their own legal work in setting up an entity and working their way through disputes.

Supreme Court Broadly Upholds Fair Dealing Claims

Gerber v. Enterprise Products Holdings LLC, No. 46, 2012 (June 10, 2013)

This decision has big implications. In a line of past decisions, the Court of Chancery has upheld arguments that  an LLC agreement may define what constitutes "good faith" in such a way as to severely limit claims based on the implied duty of good faith and fair dealing.  Of course, that duty under the Delaware LLC Act cannot be eliminated in an LLC agreement.  But, by permitting drafters to define what constituted good faith, the trial courts came close to eliminating that duty.  No more.

Exactly what will constitute a violation of the duty of good faith and fair dealing is also implicated by this decision.  Conduct that may seem permitted by the LLC agreement may now be prohibited if done to take an action that the investors never would have agreed to had they thought of it when the LLC agreement was drafted. Time will have to tell what all this means.

Court Of Chancery Explains Perils Of LLC Agreements

Zimmerman v. Crothall, C.A. 6001-VCP (January 31, 2013)

The Delaware Supreme Court has made it clear that investors in LLCs get what they bargained for in their LLC agreement, but not much more.  That seems attractive to those who manage LLCs because they feel they can limit their liabilities to investors by the terms of the LLC agreement.  Yet, management may be overstating the benefits of the LLC form, as this decision points out.

In this case, very sophisticated counsel advised on how to issue additional interests in the LLC to raise more capital. Unfortunately, and despite being the drafter of the LLC agreement, he got it wrong and failed to follow the terms of the agreement.  This points out that LLC agreements are often so complicated that compliance with their terms is tricky. Each agreement is individually crafted, unlike in a corporation where the statute generally spells out in well understood terms what are the rights and obligations of the investors and managers.  These errors have happened time after time.  Hence, use of the LLC or LLP form needs to be with great caution.

Court Of Chancery Explains Special Committee Standard Of Care

Gerber v. EPE Holdings LLC, C.A. 3543-VCN (January 18, 2013)

It is now common for LLC and LLP agreements to have provisions permitting a "special committee" to approve  transactions with a controller.  What the limits are of that form of protection is the subject of this interesting opinion.  As the Court points out, surely not every committee approval, no matter how onerous, can immunize the transaction from judicial review.  Here, even when the transaction did not get an independent adviser's review and was at a price reflecting a startling run up in value for the underlying assets, the complaint failed to allege facts sufficient to state a claim that the approval was in bad faith.  More was required.

Court Of Chancery Again Upholds Fiduciary Duties In An LLC

Feeley v.  NHAOCG LLC, C.A. 7304-VCL (November 28, 2012)

For years the Court of Chancery has repeatedly held that the controllers of an LLC owe fiduciary duties to the members -  at least absent an express disclaimer of those duties in the LLC Operating Agreement.  Then on November 7, 2012 in the Gatz Properties decision, the Delaware Supreme Court said "not so fast" and indicated in no uncertain terms that the fiduciary duties of an LLC controller were not yet decided under Delaware law.  Well in this decision, the Court of Chancery decided that so long as the Supreme Court continued to not rule on the question,  the Court of Chancery would continue to hold those duties exist.  Maybe this will force the Supreme Court to decide that issue.

This decision is also interesting for its ruling on when a claim must go to arbitration.  If the claim might have been brought even without the contract having the arbitration clause in existence, then it need not be arbitrated.

Supreme Court Cautions Whether LLC Managers Have Fiduciary Duties

Gatz Properties LLC v. Auriga Capital Corporation, C. A. 148, 2012 (November 7, 2012)

In the absence of a provision that excludes fiduciary duties, do the managers of a Delaware LLC have those duties?  The Court of Chancery has long said "yes" but this decision of the Delaware Supreme Court says "not so fast."  Instead, the Supreme Court held that the terms of the LLC agreement in this case imposed fiduciary duties on the manager in a self-dealing transaction. Thus, the Court held, it was premature to also hold, as the Court of Chancery did, that under the LLC statute such fiduciary duties existed absent a renunciation of those duties in the agreement.

Will the Supreme Court ever decide that issue and if it does, how will it come out?  Is it time for the Delaware General Assembly to resolve this issue?  If LLCs are ever to be used for more publicly traded entities, their managers will need to have a fiduciary duty.  Trusting to the LLC agreement to protect investors is to ask too much of drafters of such agreements who cannot anticipate every circumstance that may occur.  That calls for the legislature to act.

Court Of Chancery Discusses Special Conflict Committees

Allen v El Paso Pipeline GP Company LLC , C.A. 7520-CS (November 5, 2012)

This transcript is noteworthy for 2 reasons.  First, it reflects the Court's view that a conflict committee in an LLC must examine all the important aspects of a proposed transaction before a motion to dismiss will be granted based on the committee's approval of the deal under attack.  Second, the transcript shows the Court's respect for the NYSE definition of when a director is "independent."

Court Of Chancery Permits Interested Manager Vote

Feeley v. NHAOCG LLC, C.A. 7304-VCL (October 12, 2012)

At common law, a director who was interested in the outcome of a board of directors vote simply could not vote on the issue before the board.  Her vote was literally void.  That old law was changed by statute in Delaware, under Section 144 of the DGCL.  This decision holds that even absent a similar statute in the LLC Act, a manager may vote on a transaction that he is interested in, absent some restriction in the LLC Operating Agreement.  Of course, merely having the power to vote does not make any vote the right thing to do.

Court Of Chancery Interprets LLC Consent Rights

Paul v. Delaware Coastal Anesthesia, C.A. 7084-VCG (May 29, 2012)

The LLC statute, like the DGCL, permits the operating agreement to bar member action by written consent.  Here the plaintiff argued that such an agreement's fairly common provisions dealing with how members were entitled to vote at a meeting also precluded member action by written consent. The Court held that any such prohibition must be clearly set out in the operating agreement and not merely implied.  Hence, the written consents were upheld.

Court Of Chancery Applies Corporate Law Principles To LLC Dispute

Zimmerman v Crothall, C.A. 6001-VCP (March 5, 2012)

This is an interesting application of corporate law principles to an LLC dispute where the LLC operating agreement defined the managers' duties by language closely following common law duties for directors. Thus, the analysis included determining if they acted with gross negligence, were interested in 2 transactions to invoke the entire fairness test, etc.

Court Of Chancery Explains Role Of Fiduciary Duties

Auriga Capital Corporation v. Gatz Properties LLC, C.A. 4390-CS (January 27, 2012)

It is often the case that a controlling owner wants to eliminate the minority interests.  How to do so and abide by his fiduciary duties is the stuff that makes for litigation.  This is an example.  This decision is particularly important for 2 reasons.  First, it makes clear that even a controlling owner who does not really want to be a seller must consider going through a validly conducted sale process to show that he has been entirely fair with the minority.

Second, it explains the role of fiduciary duties in LLCs, including those LLC agreements that try to modify or eliminate those duties. That is possible to do but needs to be done very explicitly.

Court Of Chancery Limits Implied Duties

Gerber v. Enterprise Products Holdings LLC, C.A. 5989- VCN (January 6, 2012)

This is an important decision because it reaffirms the ability in an LLC agreement to severely limit the right to sue.  Here the LLC agreement first said that if the committee appointed to review conflict of interest decisions did so,  then there was no right to sue for breach of fiduciary duty by the controllers. The Plaintiff tried to argue that the implied duty to act in good faith and fairly still meant the controllers could not have acted in good faith by submitting the conflicted transaction to the committee.  However, the LLC agreement also said that if the controllers acted after receiving expert advice the transaction was fair, then they were conclusively presumed to have acted in good faith. The Court agreed that cut off the claim based on implied duties.

Court Of Chancery Uses Computer Records To Unravel Facts

Phillips v. Hove, C.A. 3644-VCL (September 22, 2011)

This is an interesting decision for its very entertaining explanation of the facts and how the Court decided what was true in the face of false testimony.  Using the computer records to verify when documents were generated, the Court determined which story was most believable.

There are also some key legal determinations, although nothing really new.  For example, even though the LLC Agreement had provisions for dissolution,  the Court,  having concluded those would not work, ordered dissolution.

 

Court Of Chancery Permits Full Transfer Of Membership

Achaian Inc. v. Leemon Family LLC, C.A. 6261-CS (August 9, 2011)

It is often unclear when a member of an LLC may transfer not just her financial interests but her voting rights as well.  The LLC Act leaves that issue to be determined by the LLC operating agreement.  Here the Court closely examines this issue and an LLC agreement and decides that a member's full interest may be transferred by her without the other members' consent.

Court Of Chancery Upholds Fiduciary Duty In An Alternative entity

Paige Capital Management LLC. v. Lerner Master Fund LLC, C.A. 5502-CS (August 8, 2011)

This is an important decision and a lot of fun to read to boot.  The fun is in the all-too-human story it tells of personal ambition frustrated and what happens then.

There are 3 key points in its holding.  First, those who control an LLC owe fiduciary duties to the members unless the LLC Agreement clearly cancels those duties. This may be contrary to the views of at least 1 Supreme Court Justice who favors requiring those duties be spelled out in the agreement.

Second, vesting in a manager the "sole discretion" to decide a matter only means she is the only one who gets to vote on it.  It does not mean she can vote anyway she likes even if that is unfair. Here better drafting is needed.

Third, the Court will decide cases on their legal merits even if the winning party is a jerk.  Of course, here there was a bit of a contest to see who could be the biggest jerk.  Nonetheless, it is reassuring that the Court saw though all that to get to the real merits.

Court of Chancery Interprets Conflict of Interest Provision of LLC Agreement

In re Atlas Energy Resources, LLC Unitholder Litigation, C.A. No. 4589-VCN (October 28, 2010)

This case is another example of the care practitioners must take in drafting LLC agreements. In this decision, Vice Chancellor Noble applied the Kahn v. Lynch entire fairness standard of review to a merger between a publicly traded LLC and its controlling unitholder.  Plaintiffs, LLC unitholders, alleged the controlling unitholder breached its fiduciary duties to minority unitholders by negotiating an unfair merger through an unfair process.  Plaintiffs also alleged that the directors and officers of the LLC breached their fiduciary duties by agreeing to the merger.

The controlling unitholder argued that it was not liable for breach of fiduciary duty because the LLC Agreement provided that if a conflict of interest arose between the LLC and controlling unitholder, it could be resolved by certain actions that had occurred here.  Plaintiffs argued that the conflict of interest at issue was between the controlling stockholder and minority unitholders and thus the LLC Agreement conflict of interest provision was inapplicable. The Court agreed and found the merger between the LLC and its controlling unit holder subject to the entire fairness standard of review.  In the absence of anything in the LLC Agreement addressing a conflict of interest between the controlling unitholders and minority unitholders, the Court saw no reason not to apply the reasoning of Kahn v. Lynch.  As is typical in cases where the entire fairness standard of review applies, the Court denied the controlling unitholder's motion to dismiss.

The Court did, however, grant the motion to dismiss of the LLC directors and officers. The LLC Agreement provided that the directors and officers did not owe fiduciary duties to the LLC or its members. Thus, unlike the provision governing conflicts of interest, this provision of the LLC Agreement expressly eliminated fiduciary duties of directors and officers to members. Under the LLC Agreement, the officers and directors were subject to a subjective good faith standard.  This standard of good faith is narrower than the good faith standard under Delaware law.  Applying this subjective standard of good faith, the Court found that Plaintiffs had failed to state a claim that the directors and officers believed they were acting against the best interests of the LLC's unitholders in negotiating the merger.

Court Of Chancery Orders LLC Dissolved

Vila v. BVWEBTIES LLC , C.A. 4308-VCS (October 1, 2010)

This decision is a variation on the issue of when should a LLC be dissolved when the managers/ members are deadlocked.  Merely because 1 of the managers is able to keep the business functioning at some level is not sufficient to avoid dissolution when its basic purpose is not being fulfilled.

Court Of Chancery Denies Reciever for LLC

Ross Holding and Management Company v Advance Realty Group LLC. , C.A. 4133-VCN (September 2, 2010)

This decision affirms the power of the Court of Chancery under its equitable jurisprudence to appoint a receiver pendente lite for an LLC, even when the LLC agreement does not so provide.  Of course, as here, this drastic remedy is not to be used when the facts are in dispute.

Court Of Chancery Upholds Discretion Not To Invest

Related Westpac LLC v. JER Snowmass LLC, C.A. 5001-VCS (July 23, 2010)

For some reason probably rooted in human nature, parties to LLC agreements seem to think the agreement should provide that all the parties act "fairly" toward one another.  Of course, each party then defines what is "fair" by what they want to get out of the deal.  However, as this decision points out, when an agreement provides that a party has the discretion whether to advance additional funds or not, that is its choice to make.  Whether the choice is "fair" or not is irrelevant and the other parties to the agreement have no basis to complain about that decision.

Court Of Chancery Upholds Nullification Claim

Thor Merritt Square LLC v. Bayview Malls LLC, C.A. 4480-VCP (March 5, 2010)

On occasion, the members of an LLC try to end its life by filing a certificate of cancellation with the Delaware Secretary of State. This is done in the hope that it will provide a defense to suits over the LLC's obligations. Well, that does not work. As this decision explains, a creditor may then file a claim to nullify the certificate of cancellation and to seek a receiver.

Court Of Chancery Interprets Exculpation Clause In LLC Agreement

Kelly v. Blum, C.A. 4516-VCP (February 24, 2010)

It is well known that an LLC agreement may limit the right to sue for breaches of fiduciary duty. What is less well thought out is what language needs to be used to do so. This decision tells you what to say if you want to limit liability.

Court of Chancery Expands Dissolution Remedy

Lola Cars International Limited v. Krohn Racing LLC, C.A. 4479-VCN (November, 12, 2009)

The Delaware Limited Liability Company Act permits the Court of Chancery to dissolve an LLC when it is not "reasonably practicable to carry on the business" of the LLC. The initial decisions under this statute tended to adopt a narrow construction of its terms and dissolution was not ordered just because of a business dispute between the members of the LLC. More recent decisions have expanded the circumstances when dissolution will be ordered, including when there is a management deadlock. This decision expands that trend to permit dissolution when there is serious mismanagement established. While not yet to the point of "no-fault" dissolution, the trend is headed that way, and it remains to be seen exactly how much mismanagement needs to be shown to win a dissolution decree. Probably disloyalty such as self-dealing is still required.

Summary of Amendments to Delaware Alternative Entity Statutes

The Harvard Law School Forum on Corporate Governance and Financial Regulation has posted a useful summary of the recent amendments to Delaware's alternative entity statutes, drafted by Delaware practitioner Louis G. Hering.  The post can be viewed here.

Court of Chancery Orders Dissolution Upon End of Term

In re Nextmedia Investors LLC, C.A. 4067-VCS (May 6, 2009)

This is an interesting case, because it upholds the right of a member of an LLC to have it dissolved at the end of the term set for its existence in the LLC Agreement even when more than 90% of the members want it to continue. In the current recession, many limited purpose investment funds are seeking to extend the term of their existence, because they have not been able to find an investment for their member or stockholders' money. When the LLC agreement or the corporate certificate of incorporation limits how long the entity may exist without making an investment of its funds, management may try to extend the life of the entity by amending its governing instrument. However, at least in the case of an LLC, when the LLC agreement says that all members must consent to extending the entity's existence, the court will uphold that requirement.

This decision reflects the primacy of contract law in the LLC context. The result may have been different for a Delaware corporation where a requirement for unanimous voting by stockholders is probably not valid.

Court of Chancery Upholds Right of "Beneficial" Member to Sue in LLC Case

Mickman v. American International Processing LLC, C.A. No. 3869-VCP (Del. Ch. April 1, 2009)

In the case of an LLC, unlike with a Delaware corporation, the statutory definitions of who may seek court relief have not been broadened. Generally, only a member or manager has those rights, and membership is determined by the LLC operating agreement. This decision holds that a plaintiff may prove she is a member entitled to enforce membership rights by extrinsic evidence, such as a tax return listing her as a member.

Court of Chancery Upholds LLC Dissolution Provision

Spellman v. Katz, C.A. 1838-VCN (Del. Ch. Feb. 6, 2009)

 

In drafting an LLC operating agreement, the key point to remember is that you get what you agreed to even if you later come to regret it. Here, the operating agreement included a provision that the LLC would be dissolved when certain events occurred. When those events occurred, one of the members claimed that he never intended the LLC would then be dissolved. Too bad said the Court and ordered dissolution and winding up.

Court of Chancery Dissolves a Deadlocked LLC

Fisk Ventures, LLC v. Segal, C.A. 3017-CC (Del. Ch. Jan. 13, 2009)

 

It has long been established that a limited partnership may be dissolved when a deadlock makes it impossible to carry on the partnership business. Here the Court of Chancery applied that same law to an LLC as the statute also provides for a judicial dissolution when it is "not reasonably practical to carry on the business" for which the entity was created.

Court of Chancery Interprets LLC Exculpation Clause

Kahn v. Portnoy, C.A. 3515-CC (Del. Ch. Dec. 12, 2008)

 

This important decision illustrates how hard it is to make an LLC agreement cover all future events. While there is a growing school of thought that advocates letting the parties make their own bed in the form of the LLC agreement, that approach fails to appreciate how hard it is to do that well. The failure to successfully do so leaves everyone unhappy, and they would have been better off had they not tried to begin with.

 

Here the parties to an LLC agreement tried to address conflict of interest situations that were sure to occur when the entity would contract with related entities owned by its directors. They did so by a clause that was supposed to limit fiduciary duties in such cases. What happened, and it happens a lot, is that the language they used did not exactly fit the circumstances they later faced. As a result, they proceeded apparently thinking that they were alright only to be followed by the Court correctly pointing out that the language they relied upon did not work as they thought. Now they face liability under fiduciary standards they cannot meet.

 

One answer is better drafting. But given the many times that seems not to have been done, perhaps it is time to give up the effort to speak to all future events. Instead, those transactions that are expected to occur should be addressed directly and specifically. If the directors want their personal company to rent to the LLC, then they should say that is okay at least if the rent is approved by an independent third party. If they do not know what type of transactions they want to enter into, then they should fall back on the extensive fiduciary law under the Delaware corporation law that will tell them how to do a deal safely.

Court of Chancery Refuses To Impose Costs on Proxy Loser

TravelCenters of America v. Brog, C.A. 3751-CC (Del. Ch. Dec. 5, 2008)

 

In this unusual case, the LLC sought to require the loser of a proxy contest to pay the costs. The LLC Agreement had a provision that imposed costs on those members who violated any of their obligations in the agreement. The LLC claimed that when the members put up unqualified candidates for office they should pay the costs of defeating them. The Court held that as the conditions to be a candidate were not obligations of the members, but "conditions," costs would not be imposed.

 

While the opinion does not say so, this may reflect a reluctance to discourage election contests by imposing costs on the loser.

Court of Chancery Applies Statute of Frauds to LLC Agreement

Brian T. Olson v. O. Andreas Halvrosen, C.A. 1884-VCL (Del Ch. Oct. 22, 2008)

 

This decision invalidates a provision in an unsigned LLC agreement for violating the statute of frauds. The Delaware LLC Act permits an oral LLC agreement; however, when the promise in that oral agreement cannot be performed within a year, the promise must be in writing. Given the common existence of oral LLC agreements, this decision sounds a word of caution.

Superior Court Denies SJ, Leaves For Jury Whether Agent Had Authority

Jack J. Morris Assoc. v. Mispillion Street Partners, LLC, 2008 WL 3906755 (Del. Super. Ct. Aug. 26, 2008). 

This decision briefly reviews the three types of authority by which an agent may bind a principal: actual authority, implied authority, and apparent authority.  The principal was a limited liability company, which failed to pay the vendor it purportedly engaged to perform marketing services. 

 

The issue that arose on summary judgment was whether the purported agent, who was removed as the general manager of the LLC two days before signing on behalf of the entity, had authority to bind the entity. The court denied the vendor’s motion for summary judgment, holding that it was up to a jury to determine that question based on the factual circumstances.

Court of Chancery Upholds Waiver of Dissolution and Receiver Rights in LLC

R&R Capital, LLC v. Buck & Doe Run Valley Farms, LLC, C.A. 3803-CC (Del. Ch. Aug. 8, 2008)

This decision upholds provisions in an LLC agreement that waived the rights of members to seek its dissolution or the appointment of a receiver. Thus, once again, the Court has held that the principle of freedom of contract will be enforced in Delaware. The covenant of fair dealing, which cannot be waived by statute, remains as the remedy for abuses.

Court of Chancery Explains How To Defend In A Deadlock

Maitland v. International Registries, LLC, C.A. 3669-CC (Del. Ch. June 6, 2008)

It often occurs in a dispute between the owners of a closely held corporation or LLC that no one has enough votes to decide who should be counsel to the entity in the litigation. This decision explains how to deal with that problem. The answer is for the owner or group of owners who are not the plaintiff to intervene in the litigation to act on behalf of the entity. This avoids the tough issue of who pays the attorneys’ fees for the entity as the intervener pays her own counsel.

Court of Chancery Upholds LLC Agreement Voting Rights

Fisk Ventuers LLC v. Segal, C.A. 3017-CC (Del. Ch. May 7, 2008)

A Delaware LLC is a creature of the members' contract. Here the LLC agreement gave voting rights to a class of members that effectively gave them veto rights over certain actions. When those members exercised those veto rights, the other members sued claiming that constituted a breach of duty. The Chancellor flatly rejected that argument as an attack on the veto rights that were given in the LLC Agreement.

The opinion also holds that a member's consultation with his designated managers on the LLC Board does not give Delaware jurisdiction over that member under the long arm statute's provisions that subject managers to jurisdiction in Delaware.

 

 

District Court Allows Estoppel, Breach of Contract, Fraud Claims Against LLC Member, Dismisses Other Defendants

Christ v. Cormick, 2007 WL 2022053 (D.Del. Jul 10, 2007)

In this action for damages based on promissory estoppel, breach of contract, fraud and civil conspiracy, Plaintiff sued the founding member of a Delaware LLC (“Member Defendant”), as well as various foreign individuals and entities (“other Defendants”) associated with the Member Defendant. Plaintiff’s claim arose out of an alleged agreement with the Member Defendant to invest $350,000 in exchange for a 50% equity interest in a South African investment management corporation and a Delaware LLC which owned certain intellectual property rights. Plaintiff claimed that the Member Defendant accepted $250,000 from Plaintiff, but diverted the money to another entity he was affiliated with. Plaintiff further alleged that the Member Defendant promised to repay Plaintiff the $250,000 that was invested, but did not do so. The Defendants moved to dismiss the action under F.R.C.P. Rule 12(b)(2) for lack of personal jurisdiction. The Defendants also moved for dismissal of the conspiracy claim under F.R.C.P. Rule 12(b)(6) for failure to state a claim, and dismissal of both the fraud and conspiracy claims as being outside the statute of limitations. Finally, the Defendants moved for a stay of the action under principles of comity in favor of Plaintiff’s earlier filed action in South Africa.

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District Court Rejects Defenses to Breach of Contract, Awards Attorneys' Fees

Chase Manhattan Bank v. Iridium Africa Corp., 2007 WL 518440 (D.Del. Feb. 16, 2007)

 

In this breach of contract case, the defendant members of a bankrupt LLC asserted various defenses to their alleged contractual obligation to make capital contributions after the bankruptcy. The plaintiff lender had made an $800 million dollar loan to the LLC, and asserted that the members were contractually obligated to continue capital contributions despite the bankruptcy. The District Court entered summary judgment for the plaintiff on its breach of contract claim, but delayed entering final judgment until the parties could brief remaining “open issues”. The defendants argued that the plaintiff’s alternate theory of recovery should be dismissed as moot prior to a final entry of summary judgment for the plaintiff, that the plaintiff was not entitled to attorneys’ fees, and that the Court’s grant of summary judgment had left unresolved various defenses asserted by the defendants. The Court concluded that the entry of summary judgment was appropriate without addressing the plaintiffs’ alternate theories of recovery and did not leave any defenses unresolved, and that the plaintiff was contractually entitled to attorneys’ fees. The Court therefore found that the entry of final judgment for the plaintiff was appropriate.

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District Court Applies Exception to Tooley Test and Rejects Argument That Exculpatory Provisions Create Contractual Obligations

Shamrock Holdings v. Arenson, C.A. 06-62-SLR, 2006 WL 2802913 (D. Del. Sept. 29, 2006).

This case involved a dispute between the Class A and Class B members of a Delaware LLC called ALH Holdings. The dispute arose after ALH faced financial trouble and the Class A members voted to sell the company over the objections of the Class B members, who eventually threatened to sue.

To preempt such a suit, the Class A members brought an action for a declaratory judgment that, among others, they did not breach their fiduciary duties or the LLC's operating agreement. In response, the Class B members counterclaimed, alleging breaches of the same. Plaintiffs subsequently moved for summary judgment as to four of the counts in their complaint, and they moved to dismiss the defendants' counterclaim. The Court denied the motion to dismiss and denied the motion for judgment on the pleadings in part (and granted it in part).

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Court of Chancery Affirms Application of Delaware Law to LLC

Facchina v. Malley, C.A. No. 783-N, 2006 WL 2328228 (Del. Ch. Aug. 1, 2006).

In this case the Court of Chancery has again affirmed that Delaware law applies to the internal affairs of a Delaware LLC. The LLC was the result of a merger of a California corporation into a Delaware LLC. The California entity had a stockholders' agreement that the defendants wanted to enforce. The Court rejected their arguments because the California entity had ceased to exist in the merger.

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Court of Chancery Upholds Drag Along Rights

Minnesota Invco of RSA #7, Inc. v. Midwest Wireless Holdings LLC, C.A. No. 1887-N, 2006 WL 1596675 (Del. Ch. June 7, 2006).

In this case, the Court of Chancery was required to interpret complex agreements between the members of a Delaware limited liability company. The Court held that the defendant holding company had the right to "drag along" holders of a minority interest in an operating subsidiary of the holding company in connection with the sale of the holding company.

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Court of Chancery Remedies Breach of LLC Agreement

Eureka VIII LLC v. Niagara Falls Holdings LLC C.A. No. 1203-N, 899 A.2d 95 (Del. Ch. June 6, 2006).

This case illustrates the ability of the Court of Chancery to fashion a remedy that is non-traditional and fits the exact circumstances of the case before it. Here the remedy for the breach of a LLC agreement is to hold the breaching party, who is no longer a member in the LLC but only an assignee, with limited rights.

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Court of Chancery Awards Reliance Damages for Promissory Estoppel

Ramone v. Lang, C.A. No. 1592-N, 2006 WL 905347 (Del. Ch. Apr. 3, 2006).

This case involved a dispute between two businessmen who hoped to work together on a project to open a swim and fitness center, but who failed to achieve this despite months of efforts and negotiations. Plaintiff and defendant intended to formalize their relationship in a written LLC agreement. Ultimately, defendant closed on the property for himself, frustrated by his inability to reach a final agreement with plaintiff. Plaintiff sued for breach of contract, breach of fiduciary duty, and promissory estoppel. The Court of Chancery found that there was no contract between the parties and that the parties were not partners, therefore defendant did not owe any fiduciary duties. The court did, however, find that plaintiff had a claim for promissory estoppel and awarded reliance damages.

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District Court Denies Motion to Dismiss Declaratory Judgment Action for Lack of Jurisdiction and Failure to Allege a Controversy of Sufficient Immediacy

Shamrock Holdings of Ca., Inc. v. Arenson, C.A. No. 04-1335-SLR, 2006 U.S. Dist. LEXIS 9835 (D. Del. Mar. 14, 2006).

Plaintiff Shamrock Holdings of Ca., Inc. ("Shamrock") was a Class A member of ALH Holdings, Inc. ("ALH"), a Delaware limited liability company, and the other plaintiffs were employees and/or members of ALH's Supervisory Board (the "Board"). In connection with the failure of ALH's business, and its investors' subsequent loss of their investments, plaintiffs filed an action in the Court of Chancery seeking a declaration that (i) they did not breach ALH's operating agreement; (ii) they did not breach their fiduciary duties as ALH employees, members or Board members; (iii) they had relied in good faith on the advice of experts and professionals in making their decisions; (iv) they were not liable to the defendants under the terms of a consulting agreement; and (v) they were entitled to advan

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The Court of Chancery Determines the Membership and Future of a LLC Using a "Substance over Form" Approach

In re Grupo Dos Chiles, LLC, C.A. No. 1447-N, 2006 WL 668443 (Del. Ch. Mar. 10, 2006).

This case involved a dispute over the membership and future of a Delaware limited liability company. Petitioner sought a reformation of the LLC's certificate of formation to the effect that he and Respondent were members of the LLC. Applying a "substance over form" approach, the Court of Chancery concluded that the petitioners were members of the LLC by interpreting the LLC agreement and turning to documentary evidence regarding the parties' portrayal of their relationship.

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Superior Court Finds "Volunteer" Director of LLC Immune from Suit and Requires Plaintiff to File a More Definite Statement As to Whether Board's Actions Were Void

Gilliland v. St. Joseph's at Providence Creek, C.A. No. 04C-09-042, 2006 WL 258259 (Del. Super. Ct. Jan. 27, 2006).

After the board of directors of an LLC terminated the plaintiff, the plaintiff filed suit, alleging, among other things, that the board's actions were void. The defendants moved to dismiss plaintiff's suit. The court found that one of the directors was immune from suit pursuant to 10 Del. C. § 8133, which grants immunity to an organization's volunteers. Another defendant, the LLC from which plaintiff had been terminated, argued that the claim against it should be dismissed because the board's actions were voidable rather than void. However, there was no indication that the Board had ever ratified the voidable acts. The Court directed the Plaintiff to file a more definite statement as to what it was claiming against that defendant.

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Court Of Chancery Holds That Contractually Agreed Issues Of Substantive Arbitrability Are For Judicial Resolution

Willie Gary LLC. v. James & Jackson LLC., C.A. No. 1781, 2006 WL 75309 (Del. Ch. Jan. 10, 2006), aff'd, (Del. Mar. 14, 2006)(Berger, J.)

Plaintiff sought to enjoin defendant to remedy an alleged breach of the LLC Agreement and to specifically enforce the defendant's alleged promise to guarantee a debt of the LLC. Alternatively, plaintiff sought to dissolve the entity in which he owned 80% of stock because of an alleged decisional deadlock.

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Court of Chancery Finds LLC Member Had Standing To Bring Derivative Claims On Behalf Of LLC, But That Her Claims Were Subject To Arbitration

Ishimaru v. Fung, C.A. No. 929, 2005 WL 2899680 (Del. Ch. Oct. 26, 2005).

Plaintiff, a member of Paradigm Financial Products International LLC, sought to assert a cause of action on behalf of Paradigm against Defendant Ivy Asset Management Corp. for breach of contract. Ivy Asset moved to dismiss for lack of subject matter jurisdiction.

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Court of Chancery Dissolves LLC that is Deadlocked and was Arguably Formed as Part of Scheme to Deceive Investors

In re: Silver Leaf, LLC, C.A. No. 20611, 2005 WL 2045691 (Del. Ch. Aug. 18, 2005).

Plaintiff and the defendants formed Silver Leaf, LLC ("Silver Leaf") to market a new vending machine that was to produce French fries. In connection with the formation of the entity, the parties signed a stock purchase agreement and a sales and marketing agreement with Tasty Fries, which owned the manufacturing rights to the vending machines. After the relationship between the parties deteriorated, Tasty Fries terminated the sales and marketing agreement over a dispute related to the stock purchase agreement.

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Superior Court Dismisses Case Against Member of Limited Liability Company, Finding that Member Was Not Liable for the Actions of the Limited Liability Company

Thomas v. Hobbs, C.A. No. 04C-02-010 RFS, 2005 WL 1653947 (Del. Super. Ct. Apr. 27, 2005).

The Plaintiff brought an action for breach of contract against the defendant limited liability company and against the sole member of that defendant limited liability company personally. The member moved for summary judgment, arguing that she could not be held personally liable for the actions of the defendant limited liability company. The court granted the defendant member's motion.

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