Category: Operating agreements

LEGALZOOM

By , June 17, 2015 8:09 am

Under the link below is an excellent post by Peter Mahler on LegalZoom LLC operating agreements. If your clients are debating whether to use your services in drafting their operating agreements or, instead, to use a LegalZoom agreement, Peter’s post will give you some good ideas about how to discuss this issue with your clients.

Here’s the link:

http://www.nybusinessdivorce.com/2015/06/articles/llcs/legalzoom-llc-agreement-bargain-or-blunder/

WHAT IS THE PURPOSE OF AN LLC?

By , June 12, 2015 9:12 am

Among the more important provisions in any operating agreement is the one that defines the LLC’s purpose.  There is very little in LLC literature about the issue of defining an LLC’s purpose in operating agreements.  A new blog post from Peter Mahler discusses what happens when the courts address this issue.  Here’s the link:

http://www.nybusinessdivorce.com/2015/06/articles/grounds-for-dissolution/finding-purpose-outside-the-llc-agreement/

JUDICIAL RULES FOR INTERPRETING LLC OPERATING AGREEMENTS

By , May 4, 2015 9:58 am

Not only in representing clients in post-formation disputes under LLC operating agreements but also in drafting these agreements, it is important to have a clear understanding of the rules that sophisticated courts are likely to apply in construing operating agreement  provisions when the parties disagree about their meaning.  As noted in the attached post in the Morris James Delaware Business Litigation Report blog, the April 29, 2015 decision of the Delaware Court of Chancery in Hampton v. Turner provides a good catalogue of these rules as applied to the facts in that case and, more specifically, to the relevant provisions of the governing limited liability company agreement (the term for “operating agreement” under the Delaware Limited Liability Company Act).  The link to the post is:

http://www.delawarebusinesslitigation.com/2015/04/articles/case-summaries/llc-agreements/court-of-chancery-explains-llc-agreement/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+DelawareBusinessLitigationReport+%28Delaware+Business+Litigation+Report%29

PROVISIONS IN LLC OPERATING AGREEMENTS EXPANDING OR RESTRICTING THE RIGHT OF MEMBERS TO INSPECT LLC BOOKS AND RECORDS (“B & R” PROVISIONS)

By , March 27, 2015 10:13 am

The link below provides a good brief introduction to the above provisions.  The key is:  You need to ask you LLC formation clients what “B&R” rights they want (or don’t want) in the governing operating agreement, and you need to do your best to include just those rights in that agreement.  Passive members will often want to have expansive rights.  Some managers and investment promoters will want members to have narrow rights or none at all.  (However, I doubt a Delaware court would uphold a complete elimination of these rights.)

Here’s the link:

http://delawarechancery.foxrothschild.com/books-and-records-demand-2/the-importance-of-a-books-and-records-inspection-clause-in-an-llc-operating-agreement/?utm_source=Fox+Rothschild+-+Delaware+Court+of+Chancery+Practice+Blog&utm_campaign=c07387329c-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_86821ff155-c07387329c-70733165

NEW DECISION BY DEL. S. CT. ON IMPLIED COVENANT AND OTHER CONTRACT INTERPRETATION ISSUES

By , March 24, 2015 9:13 am

Below is the link to a fine blog post in the Delaware Commercial Litigation Blog about a recent decision in a case called Nationwide Emerging Managers, LLC v. Northpointe Holdings, LLC, No. 441, 2014 (Del. Supr., Mar. 18, 2015).  The case provides, among other things, an excellent discussion of the implied contractual covenant of good faith and fair dealing, a key doctrine in negotiating and drafting LLC agreements.

Here’s the link:

http://www.delawarelitigation.com/2015/03/articles/delaware-supreme-court-updates/delaware-supreme-courts-latest-iteration-of-implied-covenant-of-good-faith-and-fair-dealing/

NEW YORK CASE INVOLVING BITTER FAMILY BUSINESS DIVORCE

By , March 23, 2015 9:45 am

Peter Mahler has deftly summarized in his latest blog post a truly horrific and still ongoing New York family business divorce.  The single most important purpose of LLC operating agreements for family businesses is, to the extent humanly possible, to anticipate and prevent family feuds like this one, or, at the very least, to provide a civil means of resolving them.

http://www.nybusinessdivorce.com/2015/03/articles/llcs/court-denies-mandatory-injunctive-relief-in-battle-for-control-of-family-business/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NewYorkBusinessDivorce+%28New+York+Business+Divorce%29.

INDEMNIFICATION PROVISIONS

By , March 19, 2015 8:21 am

Indemnification provisions are useful in many types of agreements, including operating agreements.  Indeed, prospective LLC managers often insist on indemnification provisions in the operating agreements of LLCs they will manage.  Below is a link to an excellent blog post by Ken Adams on the subject of indemnification provisions, plus a very good model provision.

http://www.adamsdrafting.com/my-indemnification-language/

ENFORCEABILITY OF ORAL OPERATING AGREEMENTS

By , March 4, 2015 12:06 pm

The very recent decision of the Delaware Court of Chancery in Pulieri v. Boardwalk Properties, LLC, C.A. No. 9886-CB (Del. Ch. Feb. 18, 2015) illustrates how important it is that LLCs with significant financial stakes have written (not oral) operating agreements.  Click here for a cite of the case and for a transcript and excellent summary of it:

http://www.delawarelitigation.com/2015/02/articles/chancery-court-updates/chancery-rejects-request-for-specific-performance-of-oral-agreement/.

NONDISCLOSURE PROVISIONS IN LLC OPERATING AGREEMENTS

By , February 27, 2015 12:43 pm

The blog post under the DLA Piper law firm under the link below deals with nondisclosure agreements as such, but the excellent discussion in the post applies equally to nondisclosure and confidentiality provisions in LLC operating agreements.  Here’s the link:

http://www.lexology.com/library/detail.aspx?g=b43a7ecd-9d89-4509-bd8d-ea5cc022268f&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2015-02-25&utm_term=

IMPLIED COVENANT VS. “COMMERCIAL REASONABLENESS”

By , February 3, 2015 9:13 am

The implied contractual covenant of good faith and fair dealing (the “Implied Covenant”) is implicit in every type of contract, including LLC operating agreements, and it cannot be validly waived.  Thus, it constantly looms as a wild card whenever disputes arise among LLC members and managers that are not clearly resolved in the provisions of the governing operating agreement, and you always have to be thinking about its possible impact when you’re planning, negotiating and drafting LLC operating agreements for your clients.

In general, under the Implied Covenant, the courts will decide a dispute of the kind described above by determining what the parties would reasonably have expected, despite their contractual silence, when they signed the agreement.  With regard to the the LLC operating agreement in question in Fortis Advisors, decided on January 30, 2015, the Delaware Court of Chancery held, in effect, that a provision in the governing agreement that the parties would implement the agreement in a “commercially reasonable” manner overrode, effectively, the implied contractual covenant of good faith and fair dealing.  You may find in many LLC deals that this “commercial reasonableness” standard may significantly reduce any Implied Covenant risk for your clients.

For a brief discussion of the Fortis Advisors case and a link to the text of the case, click here.