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Eliminating Fiduciary Duties In Delaware Llcs
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Book Synopsis Eliminating Fiduciary Duties in Delaware LLCs by : Daniel Buchholz
Download or read book Eliminating Fiduciary Duties in Delaware LLCs written by Daniel Buchholz and published by . This book was released on 2018 with total page 22 pages. Available in PDF, EPUB and Kindle. Book excerpt: Do parties to an alternate business entity are provided sufficient judicial protection during the formation of an operating agreement? On the one hand, the core policy of the Delaware Limited Liability Company Act (“DLLCA”) is “to give the maximum effect to the principle of freedom of contract and to the enforceability of limited liability company agreements.” Thus, parties can provide themselves with adequate protection through the negotiation of the operating agreement. On the other hand, however, parties may not be in a position to negotiate during the drafting of the operating agreement and become unable to back out of the deal. Because the operating agreement does not need to be filed when the LLC is formed, parties may become too invested in the company by the time the operating agreement is drafted, preventing them from finding another business partner and, thereby, removing their bargaining power. Moreover, while the policy of the DLLCA may be to give the maximum effect to the principle of freedom of contract, there is evidence that operating agreements are not highly negotiated and may even be based on form agreements.
Book Synopsis On the Elimination of Fiduciary Duties by : Andrew S. Gold
Download or read book On the Elimination of Fiduciary Duties written by Andrew S. Gold and published by . This book was released on 2012 with total page 65 pages. Available in PDF, EPUB and Kindle. Book excerpt: Delaware recently amended its statutes to permit limited liability companies (quot;LLCsquot;) and limited partnerships to eliminate fiduciary duties. At the same time, Delaware law makes clear that the implied contractual duty of good faith and fair dealing may not be eliminated for these business entities. In this context at least, fiduciary duties become contractual defaults. Accordingly, significant issues are raised as to when fiduciary duties have been successfully removed, and how broad any residual duty of good faith should be. Based on existing Delaware law, this is a problem of contract interpretation: courts must resolve the status of intra-firm duties in light of the firm's governing agreement. For a range of reasons, including statutory policy, avoidance of judicial error, and autonomy concerns, this article will suggest that a textualist mode of interpretation is appropriate when courts enforce LLC or limited partnership agreements which have eliminated fiduciary duties.
Book Synopsis Symonds & O'Toole on Delaware Limited Liability Companies by : Robert L. Symonds
Download or read book Symonds & O'Toole on Delaware Limited Liability Companies written by Robert L. Symonds and published by Wolters Kluwer. This book was released on 2006-10-17 with total page 1664 pages. Available in PDF, EPUB and Kindle. Book excerpt: Symonds & O'Toole on Delaware Limited Liability Companies byrenowned experts Robert L Symonds, Jr. and Matthew J. O'Toole combinespractice-based Delaware LLC insights, completely current coverage, andup-to-date forms presented in logical order, allowing you to confidentlyrepresent your clients from start to finish. Everything you need to know aboutDelaware Limited Liability Companies is included in this one easy-to-usereference, complete with Bonus Delaware LLC Forms CD-ROM.Since the 1988 IRS ruling permitting the advantages of pass-through taxreporting, the number of Delaware Limited Liability Companies formedannually has increased at an explosive rate. Symonds & O'Toole onDelaware Limited Liability Companies provides practical evaluation ofthe Delaware Limited Liability Company, expertly analyzing the mostcurrent Delaware LLC law, as well as the underlying principles andreasoning, allowing you to master the specific issues facing Delaware LLCpractitioners today, and to find workable approaches to potentiallyproblematic Delaware LLC situations.Symonds & O'Toole on Delaware Limited Liability Companies isthe first resource to include complete coverage of all 2006 statutory changesregarding:Filings of Delaware LLC Documents with the Secretary of StateDelaware Limited Liability Company managementFundamental Transactions, including Delaware LLC mergers, conversionand consolidation of other entities into the Delaware LLC (andDelaware LLC into other entities)Everything you need to know about a Delaware Limited Liability Company isfound in this one easy-to-use reference:Expert "how to" guidance on drafting Delaware Limited LiabilityCompany agreementsExtensive Tables covering changes to the Delaware limited Liability CompanyAct and Delaware LLC case lawDelaware LLC Forms for practitioners drafted by experiencedpractitionersReliable In-Depth, Expert Coverage of all 2006 Delaware LLC statutoryamendmentsAbout Authors Robert L. Symonds Jr. and Matthew J. O'Toole:Robert L. Symonds Jr. and Matthew J. O'Toole are shareholders and directors inthe Delaware office of Stevens & LeeP.C. Both have broad experience with the structuring and use ofDelaware business entities. Mr. Symonds is one of the original drafters of theDelaware Limited Liability Company Act, and is a member of the Delaware StateBar Association's committee charged with reviewing and proposing amendments tothe Delaware Statutory Trust Act. Mr. O'Toole is a member of the Council ofthe Corporation Law Section of the Delaware State Bar Association. Mr. Symondsand Mr. O'Toole both serve on the Delaware State Bar Association's committeethat reviews and proposes amendments to Delaware's Limited Liability Companyand Partnership Statutes, and Mr. Symonds is immediate past Chair of thatcommittee.
Book Synopsis Contracting Out of Fiduciary Duties in LLCs by : H. Justin Pace
Download or read book Contracting Out of Fiduciary Duties in LLCs written by H. Justin Pace and published by . This book was released on 2016 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: LLCs statutes ostensibly offer businesspersons far greater ability to contract out of fiduciary duties than the partnership statutes that once would have covered similar businesses. Ribstein and Keatinge on Limited Liability Companies identifies five approaches to contracting out of fiduciary duties. Of these, the approach taken in the Delaware statute is by far the most popular, rivaled only by the approach of the ULLCA. Sixteen other states have adopted the Delaware approach. These include both major LLC states such as Nevada and Delaware and major commercial states such as California and Texas. The Delaware approach allows for complete freedom of contract in contracting out of fiduciary duties (outside of the implied duties of good faith and fair dealing inherent in all contracts). While it is unsurprising that many states would look to Delaware for business association law given the leading role it has traditionally played, it is surprising that they would adopt such a permissive approach to this issue. This paper shows that several courts outside of Delaware have been hostile to waivers of fiduciary duties in LLC operating agreements, permissive LLC statutes notwithstanding. This paper also shows, perhaps more problematically, that courts in only some of the states that follow Delaware's approach have addressed the issue. This paper addresses arguments against enforcing waivers, including arguments rooted in cognitive limitations, and identifies statutory, not common, law as the better path to providing for waiver.
Book Synopsis Seven Points to Explain Why the Law Ought Not Allow the Elimination of Fiduciary Duty Within Closely Held Businesses - Cardozo is Dead by : Daniel S. Kleinberger
Download or read book Seven Points to Explain Why the Law Ought Not Allow the Elimination of Fiduciary Duty Within Closely Held Businesses - Cardozo is Dead written by Daniel S. Kleinberger and published by . This book was released on 2008 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: Prepared as part of the author's work as co-reporter for the Revised Uniform Limited Liability Company Act, this essay argues against legislation that empowers private agreements to eliminate fiduciary duty within a business organization. The essay considers: (i) the venerable role of fiduciary duty within business organizations and the limited predictive powers of those urging radical reform; (ii) the absence of prescience in contract drafters; (iii) the strict construction function of fiduciary law; (iv) the inevitable and inappropriate pressure that elimination would put on the obligation of good faith and fair dealing; (v) the differences in remedy available for fiduciary claims as distinguished from contract claims; (vi) the difference between drafting law for Delaware and drafting a uniform act; and (vii) reasons that public corporation law is different from LLC law and why Delaware law should not dominate the latter context.
Book Synopsis Judicial Scrutiny of Fiduciary Duties in Delaware Limited Partnerships and Limited Liability Companies by : Myron T. Steele
Download or read book Judicial Scrutiny of Fiduciary Duties in Delaware Limited Partnerships and Limited Liability Companies written by Myron T. Steele and published by . This book was released on 2007 with total page 32 pages. Available in PDF, EPUB and Kindle. Book excerpt: Delaware courts have tremendous experience in applying fiduciary duty principles when issues involving corporate governance arise. When the business entity involved is a limited partnership or a limited liability company, however, should the courts draw analogies from common law corporate fiduciary duty principles? In this article, Chief Justice Steele argues that parties forming limited partnerships and limited liability companies should be free to adopt or reject some or all of the fiduciary duties recognized at common law and that courts should look to the parties' agreement and apply a contractual analysis rather than analogizing to traditional notions of corporate governance. Chief Justice Steele also suggests that the application of a contractual analysis would comport with the statutory mandate expressed in the 2004 amendment to Delaware's Limited Partnership Act and would best serve the intent of the parties.
Book Synopsis The Rise of the Uncorporation by : Larry E. Ribstein
Download or read book The Rise of the Uncorporation written by Larry E. Ribstein and published by . This book was released on 2010 with total page 294 pages. Available in PDF, EPUB and Kindle. Book excerpt: The Rise of the Uncorporation covers the history, law, and finance of unincorporated firms. These "uncorporations" including general and limited partnerships and limited liability companies, are now the dominant business form of non-publicly-traded firms. Through private equity and publicly traded partnerships, uncorporations have emerged as a significant force in the governance of a wide range of the biggest firms. This is the first general theoretical and practical overview of alternatives to incorporation, including ancillary concepts connected with the evolution of these firms, and analysis of likely future trends in business organization. The Rise of the Uncorporation provides a clear and easily understandable theoretical and practical background to this important subject.
Book Synopsis Lubaroff and Altman on Delaware Limited Partnerships, 2nd Edition by : Lubaroff, Altman, Novak, Raju
Download or read book Lubaroff and Altman on Delaware Limited Partnerships, 2nd Edition written by Lubaroff, Altman, Novak, Raju and published by Wolters Kluwer. This book was released on 2019-12-17 with total page 1242 pages. Available in PDF, EPUB and Kindle. Book excerpt: Lubaroff and Altman on Delaware Limited Partnerships is the first complete guide containing everything needed to form, operate and dissolve a Delaware limited partnership. Includes forms prepared by the authors, explanations of every statutory section, and analysis of fiduciary duties, protections, reorganization, foreign limited partnerships, derivative actions, and indemnification rights. By Martin I. Lubaroff and Paul M. Altman. The text of every section of the Delaware Revised Uniform Limited Partnership Act, as revised from 1983 through 2011, is set out in full, showing additions and deletions in each version of the act. The explanations of every statutory section cover all practical aspects of forming, operating, and dissolving a limited partnership. Thorough explanations of statutory provisions are integrated with detailed analysis of case law from Delaware. Plus, timely coverage is given to critical legal issues: Fiduciary duties of the partners Protections related to the liability of limited partners Defining the financial aspects of the limited partnership General and limited partners Reorganization of a limited partnership with or into other types of business entities Foreign limited partnerships Derivative actions Indemnification rights that can be granted to partners under a partnership agreement Delaware limited liability companies Previous Edition: Lubaroff and Altman on Delaware Limited Partnerships, ISBN 9781567062885
Download or read book Triple Error written by Allan Vestal and published by . This book was released on 2012 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: In a recent law review article Delaware Chief Justice Myron Steele argues that Delaware courts should interpret Delaware's limited liability company (“LLC”) and limited partnership (“LP”) statutes as not including any default fiduciary duties. Therefore, he argues that the only fiduciary duties in Delaware LLCs and LPs arise from the parties' express contract. Although such thought-piece musings from most state court jurists would not be particularly significant, the fact that Chief Justice Steele writes from a significant business law state means that attention is given to what he says. We argue that Chief Justice Steele is in error in three identifiable ways, which we elaborate in the remainder of this essay.
Book Synopsis Drafting Delaware Limited Liability Company Agreements by : John M. Cunningham
Download or read book Drafting Delaware Limited Liability Company Agreements written by John M. Cunningham and published by Wolters Kluwer. This book was released on 2009-01-01 with total page 1050 pages. Available in PDF, EPUB and Kindle. Book excerpt: Drafting Delaware LLC Agreements: Forms and Practice Manual provides a comprehensive and sophisticated analysis of the Delaware Limited Liability Company Act from an entity formation viewpoint and sets forth extensive practical guidelines for lawyers planning, negotiating and drafting Delaware LLC agreements. Among other features: The book exhaustively identifies the definitional, mandatory, default and permissive provisions critical in forming Delaware LLCs, and it addresses in detail the more important of these provisions. It contains detailed criteria and practical examples for use in choosing among Delaware LLCs and other types of Delaware entities, including limited partnerships and corporations, In business entity formations (“non-tax choice of entity”). To the authors’ knowledge, it provides the most complete analysis of the series LLC provisions of the Delaware Act currently available in LLC literature. It provides in digital form model LLC agreements that address all of the various ownership structures, management structures and tax structures that Delaware LLC formation clients may need—a total of nine agreements for single-member LLC s and 33 for multi-member LLCs. Finally, The book contains plain-English explanations for lawyers who are not tax specialists concerning all principal federal and state tax issues likely to be important to Delaware entity formation clients. A CD containing customizable agreements, For ease of use, along with the full text of the Delaware Limited Liability Company Act is included with your purchase! SPECIAL OFFER… Get the latest monthly edition of Drafting Delaware LLC Agreements: Forms and Practice Manual E-Newsletter. Download your FREE E-Newsletter NOW ! The co-authors of the book and E-Newsletter are John M. Cunningham, The author of Drafting Limited Liability Company Operating Agreements (Aspen Publishers), The leading generic (i.e., non-state specific) LLC form book and practice manual; and Vernon R. Proctor, a partner and co-founder of Proctor Heyman LLP, a Wilmington, Delaware business litigation law firm. Mr. Proctor is a member of the Delaware State Bar Association committee that annually updates the Delaware LLC Act And The other Delaware “alternative entity” statutes .
Book Synopsis The Going-Private Freeze-Out by : Brent J. Horton
Download or read book The Going-Private Freeze-Out written by Brent J. Horton and published by . This book was released on 2013 with total page 50 pages. Available in PDF, EPUB and Kindle. Book excerpt: This Article is the first to empirically examine provisions that limit or eliminate the fiduciary duties of managers (in the case of LLCs) and general partners (in the case of LPs) in the operating agreements of publicly traded non-corporate business associations, and link those findings to a problem faced by investors in such entities, the going-private freeze-out. In a going-private freeze-out, public stockownership is eliminated and the company becomes closely held. This Article is especially timely given the exponential growth of LPs and LLCs over the past fifteen years. In 2011, in Delaware, the state of formation for most publicly traded companies, seventy-five percent of newly formed companies were either LPs or LLCs (up from twenty percent in 1997). This Article begins with an explanation of corporate going-private freeze-outs, and the dissatisfaction that may arise among cashed-out shareholders seeking a fair price. In the corporate context such shareholders are protected by the fiduciary doctrine of entire fairness. The cashed-out shareholders can bring a lawsuit to force a fair price.In contrast, for non-corporate entities, the protection of entire fairness may fail. In Delaware, LPs and LLCs can draft provisions in their operating agreements that eliminate fiduciary duties, including the applicability of entire fairness to going-private freeze-outs. The Author discusses cases where challenges to going-private freeze-outs based on entire fairness were foreclosed by provisions in the applicable operating agreement. Most prominent among these cases are In re Atlas Energy Resources, LLC, and Lonergan v. EPE Holdings, LLC.This Article, The Going-Private Freeze-Out, culminates with an empirical analysis, that is to say, a count of how many publicly traded non-corporate business associations contain provisions like those in Atlas Energy and Lonergan-specifically special approval provisions and fiduciary elimination provisions. The Author concludes that almost ninety percent of publicly traded non-corporate business associations subject their investors to a unique susceptibility (beyond that experienced by investors in publicly traded corporations) to going-private freeze-outs.
Book Synopsis Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations by : Robert W. Hillman
Download or read book Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations written by Robert W. Hillman and published by Edward Elgar Publishing. This book was released on 2015-08-28 with total page 514 pages. Available in PDF, EPUB and Kindle. Book excerpt: While the partnership has been a viable alternative to incorporation for centuries, the much more recent limited liability company (LLC) has increasingly become the business organization of choice for new firms in the United States. This Handbook inclu
Book Synopsis Folk on the Delaware General Corporation Law by : Rodman Ward
Download or read book Folk on the Delaware General Corporation Law written by Rodman Ward and published by Aspen Publishers. This book was released on 2006 with total page 1492 pages. Available in PDF, EPUB and Kindle. Book excerpt: As reporter for the revised Delaware Corporation Law, Ernest L. Folk played the decisive role in the actual drafting of the law. His great subsequent analysis now in its Fourth Edition is organized by code section, with incisive and extensively annotated commentary that includes: Strategies and options for specific business decisions and activities under the statute -- Detailed analysis of the practical applications and effects of each statutory provision and judicial decision -- All the major cases, many of them unreported and unavailable in any other source. You'll find easy-to-follow, ready-to-use guidance on such important matters as: Duties of officers and directors -- Director and officer liability -- The business judgment rule -- Standards of fairness in corporate transactions -- Administrative guidelines on filing Mergers and acquisitions -- The poison pill defense and other takeover tactics -- Contested takeovers, leveraged buyouts, and proxy contests -- Appraisal rights -- Alternative business entities and virtually everything else you'll need to know to solve problems arising under Delaware corporate law.
Book Synopsis Limited Liability Company & Partnership Answer Book, 4th Edition by : Frazier, Strauss
Download or read book Limited Liability Company & Partnership Answer Book, 4th Edition written by Frazier, Strauss and published by Wolters Kluwer. This book was released on 2019-11-18 with total page 2020 pages. Available in PDF, EPUB and Kindle. Book excerpt: Limited Liability Company and Partnership Answer Book
Book Synopsis The Theory of Mandatory Core Duties by :
Download or read book The Theory of Mandatory Core Duties written by and published by . This book was released on 2009 with total page pages. Available in PDF, EPUB and Kindle. Book excerpt: This dissertation argues for mandatory fiduciary duties grounded in statute applicable to the American limited liability company. The recommended approach prohibits the contractual elimination of fiduciary duties including the duty of loyalty to act in the LLC's best interests and the duty of care to exercise reasonable care, subject to the business judgment rule, in the management of the LLC. Additionally, the recommended Theory of Mandatory Core Duties would prohibit the LLC operating agreement from displacing those equitable remedies that may be necessary to prevent a controlling member from engaging in unfairly prejudicial conduct - the hallmarks of which typically include the deprivation of financial benefits and/or managerial rights without an offer of fair compensation for the interest. The recommended approach departs substantially from the Delaware provisions that permit the complete elimination of fiduciary duties other than the implied contractual covenant of good faith and fair dealing as well as the indemnification for all claims and demands whatsoever. [Author edited abstract].
Book Synopsis Fiduciary Duties in Business Entities Revisited by : Webb Hecker
Download or read book Fiduciary Duties in Business Entities Revisited written by Webb Hecker and published by . This book was released on 2013 with total page 59 pages. Available in PDF, EPUB and Kindle. Book excerpt: The trend of Kansas courts looking to Delaware precedent has continued unabated. However, the trend of homogenization of fiduciary duty law as applied to different forms of entity has suffered some setbacks with respect to partnerships and limited liability companies. In addition, the law of corporate directors' and officers' fiduciary duties underwent a major paradigm shift shortly after publication of the original article. Like the original, the modest goal of this Article is to survey generally the law of fiduciary duties with respect to Kansas corporations, partnerships (general and limited liability), limited partnerships, and limited liability companies, and to illustrate the extent to which corporate law concepts and precedents are being applied (or not applied) in the context of these other forms of business organization. Part II considers fiduciary status, Part III the duty of care, and Part IV the duty of loyalty.
Book Synopsis The Delaware State Constitution by : Randy J. Holland
Download or read book The Delaware State Constitution written by Randy J. Holland and published by Oxford University Press. This book was released on 2016-12-13 with total page 355 pages. Available in PDF, EPUB and Kindle. Book excerpt: The Delaware State Constitution is the first state constitution drafted by a convention composed of popularly elected representatives, and it is rich with history and tradition. The Delaware Bill of Rights has remained almost exactly the same since 1792, and it has enacted specific provisions whereby its three branches of government operate differently from the federal system. The Delaware State Constitution provides an outstanding constitutional and historical account of the state's basic governing charter. In it, Judge Randy Holland begins with an overview of Delaware's constitutional history. He then provides an in-depth, section-by-section analysis of the entire constitution, detailing important changes that have been made over the years. Justice Holland's learned treatment, along with the list of cases, index, and bibliography, makes this guide indispensable for students, scholars, and practitioners of Delaware's constitution. This second edition includes all amendments to the Delaware Constitution since 2002 and all significant court decisions interpreting any provision in the Delaware Constitution that have been issued since 2002. The Oxford Commentaries on the State Constitutions of the United States is an important series that reflects a renewed international interest in constitutional history and provides expert insight into each of the 50 state constitutions. Each volume in this innovative series contains a historical overview of the state's constitutional development, a section-by-section analysis of its current constitution, and a comprehensive guide to further research. Under the expert editorship of Professor G. Alan Tarr, Director of the Center on State Constitutional Studies at Rutgers University, this series essential reference tools for understanding state constitutional law. Books in the series can be purchased individually or as part of a complete set, giving readers unmatched access to these important political documents.
