The Business Divorce Law Report

February 13, 2017

Unanimous Consent of LLC Members Not Required to Continue Company

It may take a unanimous action of the members of a limited liability company to dissolve the entity or to change the date on which the company will dissolve according to the terms of its operating agreement. But unless the Operating Agreement specifically requires the members to act unanimous to extend the company, a simple majority may suffice.

That was the holding of the New Hampshire Supreme Court in McDonough v. McDonough, a case in which one of the members of this family business attempted to enforce a dissolution provision in the operating agreement to force the purchase of his shares.

Limited Liability has Limited Term of Existence

February 8, 2017

Good Faith and Fair Dealing Required Disclosure of Conflict

by Jay R. McDaniel, Esq.

Good faith and fair dealing are obligations implied in every contract, including contracts among owners of closely held businesses, and cannot be waived by the language in an operating agreement voiding fiduciary duties.
The duties of good faith and fair dealing require disclosure of conflicts of interest involving controlling LLC members or partners.
Contracts contain obligations that are so ‘obvious’ that they are not included in the written agreement; these obligations fall withing the scope of good faith and fair dealing.

February 7, 2017

Employee Termination Without Cause May Limit Enforceability of Non-Compete Agreement

by Jay R. McDaniel, Esq.

Litigating with a former employee for violation of a restrictive covenant agreement becomes more complicated when the former employee was terminated without good cause. And because we are an at-will employment economy, this becomes an issue more frequently than one might imagine.

As one author notes, it typically is not the underperformer who creates a problem for their former employer. It’s the superstars, of course, that threaten to walk out the door not because they were fired but because they plan on taking a big chunk of business.

Include Poor Performance as Grounds for Termination

February 2, 2017

Company Must Indemnify Former Director for Fees Owed under Oral Agreement

by Jay R. McDaniel, Esq.

The potential liability of a director for attorney’s fees is what determines whether recoverable litigation expenses are due under the indemnification provisions of Delaware law, the Chancery Court holds.

The expenses at issue were incurred in litigation that wound its way through state and federal courts in Illinois for nearly a decade, including a bankruptcy. The Plaintiff in Dore v. Sweports, Ltd, C.A. No. 10513-VCL (Del. Chancery January 31, 2017) was a former director and investor in Sweports, who was ousted in a dispute with the other directors and locked out of the business. A significant component in the lawsuit involved the services of the law firm that was general counsel and also represented the plaintiff in some of the underlying litigation.

Court Awards Expenses Incurred Under Oral Agreement to Defend Counterclaims by Corporation Against Former Director

January 31, 2017

Misappropriation Claim Not Sufficient for Appointment of LLC Receiver

by Jay R. McDaniel, Esq.

A claim that one of the members has misappropriated assets of a limited liability company and ousted the other member from management is a “quintessential breach” of the fiduciary duties that may exist in a closely held business. It is not, however, grounds for the appointment of a receiver.

This decision of the New Supreme Court in Chen v. Dai, Index Co. 653601/2015 (New York County January 18, 2017) holds that the fact that a claim arises from the existence of a contract – in this case an operating agreement – it may also involve duties independent of the contract. The court finds in a decision on a motion dismiss that pleading that the plaintiff was a co-member of two New York limited liability companies is sufficient to state a cause of action.

LLC Member Misappropriation is Breach of Fiduciary Duty

January 27, 2017

Fight Over Transfer of Interests is Grounds to Expel Member of LLC and Partnership

by Jay R. McDaniel, Esq.

An Illinois appellate court affirmed a finding of breach of fiduciary duty and the expulsion of a limited liability company member under a version of the Uniform Limited Liability Company Act. The case is of interest for the way it construes the model partnership and limited liability company acts.

Explusion of LLC Member After Transfer of Interests

The court in Kenny v. Fulton Assocs., LLC, 2016 IL App (1st) 152536 (Ill. App., 2016) holds first that under Illinois’ LLC statute the actual activities of the parties determined their fiduciary duties, not the agreements. The management of the entities were vested in one side as manager, but the day-to-day operations actually handled by the other side. The management of the business creates a fiduciary duty under Illinois law. The other significant holding is that refusing to honor a valid transfer of an interest is not just a breach of contract, but a breach of fiduciary duty. Finally, the court affirms the holding that when one of the principals is a lawyer that represents the firm, his breach of duty as an attorney is also a breach of fiduciary duty as a member or partner.

December 16, 2016

Anti-Reliance Clause in Purchase Agreement Defeats Fraud Claim

by Jay R. McDaniel, Esq.

The parties to a transaction, including a transaction that concludes a business divorce, will often include a provision that states that neither side is relying on verbal representations of the other. Most often, this provision refers to the due diligence that precedes a transaction, but it can also refer to other circumstances including the discovery in an ongoing litigation.

We were recently involved in a case in which one of the parties claimed that it had been fraudulently induced into a transaction, notwithstanding the substantial discovery that had occurred. It wasn’t a successful argument, but it added to the complexity of the case.

More often, however, there is a claim either that there were facts or circumstances that were hidden or that that there were oral representations made that were material to the decision to enter into the transactions. A recent decision of the Delaware Chancery Court in IAC Search, LLC v. Conversant LLC , C.A. No. 11774-CB (Del. Ch. Nov. 30, 2016) demonstrates that an anti-reliance provision in a contract can avoid such a fraud in the inducement claim.

December 15, 2016

What’s in that Buy-Sell Agreement Again? Better Take a Look

by Jay R. McDaniel, Esq.

A business divorce case came into the office a couple of years ago, one of the second-generation owners was looking to force one of the first generation owners — who never came to work anymore — into retiring and selling his interests.

We reviewed the shareholder ledger and the by-laws and the second generation had a clear majority of shares. So at least the majority could terminate the employment of the minority if that was the way they wanted to go, and he would then have the ability to bring a suit to be bought out. Or more likely, once he was fired, he would want to be bought out. So far, so good.

But then the buy-sell agreement. It provided a formula for valuation that was pegged to the equity accounts of the shareholders some 25 years earlier. The books and records for that time period had long since disappeared. In the end, we were able to piece together a guess about the equity accounts and to negotiate a package.

December 14, 2016

Texas Appeals Court Affirms Partnership Dissolution Verdict

by Jay R. McDaniel, Esq.

A partnership has no obligation to complete performance of its executory contracts, the Texas Court of appeals held in affirming a multi-million dollar trial court verdict involving a chain of TGI Fridays in Dallas.

The case involved a joint venture formed with TGI Fridays and several entites that qualified as “disadvantaged.” The joint venture operated restaurants in four Dallas International Airport terminals from 1995, but as a result of changes in FAA regulations and disputes among the joint venture participants, the enterpise began to unravel in 2004.

The case was tried to a jury, which apportioned substantial awards of damages and attorneys fees and found that good cause existed for the dissolution of the business in that it was no longer reasonably practicable to carry on the business in conformity with its governing documents.

December 14, 2016

Seven Business Litigation Best Practices that Address the Lack of Civil Trials

by Jay R. McDaniel, Esq.

Here is the hard reality. The chances that your case, or any case, will get to a real trial on the merits is way less than one in 10. The truth is that only between two and five cases out of 100 will be resolved with a trial.

What does that mean for a party drawn into civil litigation? The statistics point to a group of “best practices” that effective litigation counsel should employ. It is a blend of efficient trial preparation, motion practice, management of discovery and, perhaps most of all, advanced negotiation skills. We review some of those here as a starting point for developing a case strategy.

Civil Trials in Business Litigation is a Rare Event

Limited Liability has Limited Term of Existence

Good faith and fair dealing are obligations implied in every contract, including contracts among owners of closely held businesses, and cannot be waived by the language in an operating agreement voiding fiduciary duties.

The duties of good faith and fair dealing require disclosure of conflicts of interest involving controlling LLC members or partners.

Contracts contain obligations that are so ‘obvious’ that they are not included in the written agreement; these obligations fall withing the scope of good faith and fair dealing.

Include Poor Performance as Grounds for Termination

Court Awards Expenses Incurred Under Oral Agreement to Defend Counterclaims by Corporation Against Former Director

LLC Member Misappropriation is Breach of Fiduciary Duty

Explusion of LLC Member After Transfer of Interests

Civil Trials in Business Litigation is a Rare Event