The key question in shareholder oppression claims is often whether the complaining shareholder’s expectations were reasonable under the circumstances. A recent decision from Albany County and a recently published article highlight two sides of a debate about how “contractual” the reasonable expectations inquiry should be.
Continue Reading Can a Shareholder Be Oppressed After Ceding Control? Oppression, Reasonable Expectations, and Contractual Formalism
We frequently see a partner’s “fiduciary duties” expressed as the union of the duty of loyalty and the duty of care. The duty of loyalty requires fiduciaries to avoid elevating the interests of any other person or entity (including their own) above the interests entrusted to their care. The duty of care requires fiduciaries to exercise their authority with reasonable diligence and prudence.
Though stated with disarming simplicity, business divorce litigation has a way of exploiting the often-blurry edges of those duties. Consider the “quiet quitting” phenomenon, where an employee does their job, but gives no more effort or enthusiasm than is absolutely necessary. If a partner or LLC manager did the same thing, how long before it rises to a breach of fiduciary duty?
That’s one of several difficult questions that New York County Commercial Division Justice Margaret Chan was called to answer in Metcalf v Safirstein Metcalf, LLP, 2024 NY Slip Op 34380 (NY County 2024), an early-stage summary judgment decision amid (another!) law firm breakup that highlights just how messy—and fact dependent—breach of fiduciary duty claims asserted between business owners can get. Continue Reading When Less Effort Leads to More Trouble: Quiet Quitting and Fiduciary Accountability
November was a whirlwind month for New York LLC litigation. It featured disputes over how to wind up a judicially dissolved LLC, a bitter intra-family emergency indemnification/advancement injunction, and the finale of a decade-long battle over the enforceability of a partially baked operating agreement. Some of these recent cases add clarity to the growing body of New York LLC caselaw. Others add confusion. But all add precedential footholds for future arguments in disputes between members of New York LLCs. Members and their counsel take note.Continue Reading A Leaf Through a Busy November in New York LLC Litigation
The limited liability company is relatively young. Though origin research is always a dubious task, my efforts tell me that the first LLC was created in 1977 in Wyoming, followed by other LLCs in Florida in 1982. The years since then have witnessed the LLC’s rise to the closely held entity of choice among business owners.
One benefit of the LLC’s youthful age is that many of the minds that were most influential in its early-stage development are still teaching, practicing, and studying, all while continuing to lend their expertise on LLC formation, regulation, and litigation. And your best chance of catching all those prominent minds in one place is at the American Bar Association’s annual LLC Institute.
For those interested in learning the intricacies of the LLC laws directly from the experts, I highly recommend attending the two-day conference. While a single-post recap inevitably won’t do justice to the many presentations, panels, and discussions at the Institute, this week’s post attempts to sample some of the best business divorce topics highlighted in the 2024 LLC Institute.Continue Reading Greetings from the American Bar Association’s 2024 LLC Institute
The shareholder oppression claim under BCL 1104-a has a unique relationship with claims for money damages.
A minority shareholder petitioning for dissolution under BCL 1104-a must establish that the majority shareholders have engaged in “illegal, fraudulent or oppressive actions,” or that the “property or assets of the corporation are being looted, wasted, or diverted for non-corporate purposes by its directors, officers or those in control of the corporation.”
Based on that standard, it’s easy to imagine conduct by the majority that both meets the criteria for dissolution and constitutes a separate tort compensable with money damages (for instance, a claim for the majority’s breach of fiduciary duty). For that reason, it’s very common to see a dissolution petition coupled with money damages claims, all arising out of the same conduct.
But where the money damages claims are filed before the dissolution petition, a plaintiff might be forced to litigate those to completion prior to pursuing their dissolution petition. That’s the tough lesson learned by the petitioner of a dissolution proceeding brought under BCL 1104-a, in Ramirez v Issa, 2024 N.Y. Slip Op. 33488[U] [NY County 2024], the subject of this week’s post.Continue Reading Corporate Dissolution Petition Hits Back Burner in Favor of Earlier Filed Claims for Money Damages
While there is tremendous diversity from state to state when it comes to statutory and judge-made law in business divorce cases, business valuation principles are—with a few notable exceptions—far more homogenous. So it makes sense to occasionally venture beyond New York’s borders to see how other courts and experts are addressing the business valuation questions that New York-based business divorces often encounter.
This week’s post looks at several recent decisions across the country concerning valuation principles and discounts. While each case features different applicable rules and agreements, our New York readers would be wise to note the persuasive power of these cases, especially given the sometimes-thin body of New York caselaw on business valuation issues.Continue Reading Cross-Country Valuation Check-Up: Discounts, Buy-Sell Agreements, and Ambiguity Potholes
This week’s post kicks off the fall season with a preview of two cases that should cause an LLC to think twice about what it means to award equity to an employee.
Continue Reading Conditional Grants of Membership Interests Are a Roadway to Courtroom Conflict
A recent decision from New York County Justice Reed inspires a closer look at the circumstances under which a minority LLC owner can compel the majority to make distributions.
Continue Reading Prudent Management or Financial Starvation: Can Minority Members Compel the Majority to Make Distributions?
Just a few weeks ago, I commented on a recent uptick in disputes centered on the breakup of professional services firms. In those disputes, we expect that the demands of the legal, accounting, and medical professions draw individuals with keen attention to detail, focused on documentation, and prepared for all contingencies. Less expected is the irony that many attorneys, accountants, and medical professionals fail to bring those attributes to the table when organizing their business relationships.
The result of that failure is a tinderbox—poorly defined “partnership” relationships, mixed with high profit margins, difficult to value businesses, and type A owners willing to litigate their disputes. The right spark triggers bitter and hotly contested litigation. That part-legal, part-psychological phenomenon explains why business divorces of professional services corporations—especially law firms—can get complicated fast.
Motivated by that uptick, Becky Baek and I were pleased to recently present a CLE on the complexities that arise in the dissolution or breakup of law firms. Here are the highlights.Continue Reading Special Considerations for Law Firm Breakups
It’s not every day that New York’s highest court considers a question impacting the business divorce cases that we typically litigate. But a recent decision from the Court of Appeals requires careful consideration by any owner of a foreign-incorporated entity considering New York litigation.
Continue Reading Court of Appeals Bolsters the Internal Affairs Doctrine, Takes a Stroll Through Scottish Fiduciary Law