Here’s another recent Ken Adams post in his blog on contract drafting that applies powerfully to the drafting of LLC operating agreements: http://www.adamsdrafting.com/why-its-important-to-police-your-defined-terms/.
Category: Operating agreements
Here’s another good recent post by Ken Adam in his blog on contract drafting: http://www.adamsdrafting.com/clear-drafting-doesnt-involve-dumbing-down/. The post applies as much to LLC operating agreements as to all other types of contracts.
As I’ve written previously in posts to this listserv, by far the best blog I know of on how to draft legal prose, including contract prose, is Ken Adams’ blog. Here is a link to his recent post on a “may/shall/unless” conundrum that arises from time to time in drafting LLC operating agreements (and many other types of contracts): http://www.adamsdrafting.com/shall-not-unless-versus-may-only-if/.
About 70 percent of all LLCs are single-member LLCs owned by individual. About 25 percent are two-member LLCs. Only about 5% of all LLCs have three or more members.
The biggest risk for two-member LLCs are (i) deadlock between the members and (ii) serious misconduct by one of the members. The latter risk is addressed in this terrific recent blog post by Peter Mahler.
When you form two-member LLCs for your clients, you’ve got to address the above two risks forcefully in your clients’ operating agreements. Failure to do so would be a clear violation of the duty of competence under Rule 1.1 of the ABA Model Code of Professional Conduct as in effect in most states, and could lead to a well-deserved malpractice claim.
The Delaware Limited Liability Company Act is “everybody’s second choice” for LLCs with members from two or more different states, and it is the first choice for many sophisticated businesses. The Delaware Court of Chancery’s new decision in the Seaport Village case, summarized and cited in the attached post in the Delaware Business Litigation Report blog website, simply repeats the DLLC Act statutory rule that Delaware operating agreements may be valid even if the parties don’t sign them. If you form or ever will form Delaware LLCs, you should know this rule.
In the attached post in his “Business Divorce” blog, Peter Mahler lists what he believes to be the seven hottest current issues in business divorce law. As you’ll see if you visit his blog, the first four of these issues are LLC issues. Those of us who draft LLC operating agreements should draft them so as to address these issues. If you draft LLC operating agreements (or plan to in the future), read Peter’s post!
When a member of an LLC becomes bankrupt, the other members normally don’t want the trustee in bankruptcy to become a substituted member. They can prevent this result if they can prove in bankruptcy court that the LLC’s operating agreement is an executory contract and that the bankrupt member has material duties under this agreement that are as yet unperformed. A brief but good article about this critical issue in LLC bankruptcy law may be found in the September 2014 Real Estate Law Report, published by Thomson Reuters.
The May 2014 issue of the ABA Business Lawyer contains forms, drafted by the LLCs, Partnerships and Unincorporated Entities Committee of the ABA Section of Business Law, for single-member LLCs whose members are entities and for single-member LLCs whose members are individuals, with explanatory articles about each of these forms. When my schedule permits, I intend to study all of these materials carefully, and I will share my thoughts about them in this listserv.
The Utah RULLCA case discussed in this recent post by Doug Batey illustrates the great importance of drafting LLC operating agreements to make crystal-clear when a manager’s actions will bind the LLC and when they will not.
Of all the issues New Hampshire business people should address when forming LLCs, the most important, but also the most neglected, is the issue of what to do when one or more members come to believe that one or more other members are breaching their LLC duties. A very common situation of this kind is when LLC minority members claim they’re being “oppressed” (the technical term for “treated unfairly”) by the majority.
The New Hampshire Revised Limited Liability Company Act (the “Revised Act”) does a much better job in providing for oppression claims than the old act, but it doesn’t provide a magic bullet.
- The old act provided that the minority would have to make its oppression claim in a “derivative action” against the majority—i.e., in a lawsuit not in the minority’s own name but in the name of the LLC itself. The rules governing derivative actions are complex, they are expensive to comply with, and they’ve never made the slightest sense for small, informal LLCs—namely, for 95% of all New Hampshire LLCs.
- The Revised Act didn’t eliminate the right of the minority to bring derivative actions, since, among other considerations, if these actions succeed, the minority will be entitled to reimbursement of their attorneys’ fees—a result otherwise difficult to achieve in New Hampshire courts. However, in new Section 190, the Revised Act also permits minorities to bring “direct actions”—i.e., lawsuits in their own name. In direct actions, successful plaintiffs won’t normally get reimbursement of their attorneys’ fees. But they may get other forms of relief—e.g., generous money damages—that will make their lawsuits worthwhile.
However, direct actions, like derivative actions, have a problem that, for many LLC plaintiffs, can be very serious—namely, that they have to be brought in court. It happens that in New Hampshire, we have a first-rate business court—technically, the “Business Docket” of the New Hampshire Superior Court. This court is fair, smart, fast and reasonably affordable. However, by definition, lawsuits in the Superior Court are public. So they often involve a painful airing of an LLC’s dirty laundry.
So, in their operating agreements, how should New Hampshire business people address the possibility of eventual claims between minority and majority members of their LLCs?
The Revised Act provides the members with four main options for drafting these provisions. Each of these options has major advantages and major disadvantages. I’ve already discussed the main advantages and disadvantages of the first two options—namely, provisions for derivative and for direct actions. The third and fourth options—namely, provisions for mediation and arbitration—aren’t expressly addressed in the Revised Act, but they are unquestionably permitted by it.
- In mediation provisions, the members agree that if they have claims against one another, they must hire a mediator to resolve them. Skilled mediators can work miracles. But mediators can only mediate LLC disputes; they can’t decide them. And often disputes among LLC members are so serious and so bitter that even the most skilled mediators can’t find solutions for them. So mediation provisions in LLC operating agreements, valuable as they may be, should always be accompanied either by provisions for derivative or direct actions, as discussed above, or by arbitration provisions.
- Arbitration provisions in operating agreements usually provide that if members make claims against other members that they can’t resolve among themselves and that mediators can’t resolve, these claims will be finally resolved, without any access to court appeal, by a single arbitrator. In effect, this arbitrator will be a paid private judge for the members. The operating agreement should provide comprehensive rules governing arbitration among the members—for example, rules as to the degree of discretion of the arbitrator in deciding what evidence to admit and what to address in writing arbitration orders.
If these arbitration rules are well drafted, arbitration can often be faster and cheaper than any possible litigation. Furthermore, as in Las Vegas, what happens in arbitration stays in arbitration. Arbitration, like litigation in court, can get very ugly. But at least it will be confidential.