Operating Agreement

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The New York Court of Appeals heard oral argument this month of an appeal from the Appellate Division, First Department’s split decision in Pappas v. Tzolis pitting fiduciary duty against contractual waiver in the context of an intra-member buy-out of LLC membership interests. This week’s New York Business Divorce provides highlights of the oral argument and links to the argument’s webcast, the parties’ briefs, and other background materials. …
Continue Reading Does Waiver Trump Fiduciary Duty? Court of Appeals Hears Argument in Pappas v. Tzolis

The historic Bulova watchcase factory in picturesque Sag Harbor, NY, is the focus of a legal battle between co-developers that led to a decision earlier this month upholding a merger that left one of the developers in the cold, holding a check for $465.60 for its interest. Read more in this week’s New York Business Divorce. …
Continue Reading Too Late Gets Too Little: LLC Minority Member Fails to Block Merger, Must Accept $465 Buy-Out

Compared to its Business Corporation Law, New York’s LLC Law provides greater latitude to LLC members when it comes to making management decisions without necessity of holding a formal meeting. A recent Delaware Chancery Court decision construing that state’s similar LLC statute sheds light on the interplay between the statutory default rule and operating agreement provisions that set forth voting procedures without mention of the members’ right to take action without a meeting. It’s in this week’s New York Business Divorce.
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Continue Reading When Can LLC Members Act Without Holding a Meeting?

A Manhattan panel of appellate judges last month enforced an LLC operating agreement’s provision giving the manager sole discretion — even at his “whimsy” or “impetuously” said the court — to determine a member’s sharing ratio of the firm’s profits. It’s worth reading in this week’s New York Business Divorce.
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Continue Reading Court Upholds LLC Manager’s Broad Discretion Under Operating Agreement to Determine Member’s Profit Share

A tattoo parlor business is the unusual setting for a decision last week by the Appellate Division, Second Department, affirming the lower court’s post-trial dismissal of an LLC dissolution case brought by a member claiming denial of her co-equal management rights. It’s “inked” in this week’s New York Business Divorce.
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Continue Reading Woe Unto the Undocumented LLC Member Seeking Judicial Dissolution

Delaware decisional law holds that members of a Delaware LLC may eliminate the LLC manager’s default fiduciary duties by explicit disclaimer in the LLC agreement. In its decision last month in Kagan v. HMC-New York, Inc., a divided panel of the Appellate Division, First Department, disagreed whether the wording of a fiduciary disclaimer in an LLC agreement was sufficiently precise to warrant summary dismissal of fiduciary breach claims. Learn more about this important topic in this week’s New York Business Divorce.
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Continue Reading Elimination of LLC Manager’s Fiduciary Duties Divides Appellate Panel

In the first of a two-part series, this week’s New York Business Divorce looks at the Delaware Chancery Court’s important decision last month in Auriga Capital v. Gatz in which Chancellor Leo Strine, Jr. sets forth an analytic framework for imposition of fiduciary duties on managers of Delaware LLCs. Next week’s post will compare the law governing fiduciary duties of New York LLC managers.
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Continue Reading What Does Chancellor Strine’s Auriga Capital Decision Teach Us About Fiduciary Duties of New York LLC Managers? (Part One)

Those interested in the evolving law of LLC dissolution won’t want to miss this week’s New York Business Divorce featuring a case called Mizrahi v. Cohen decided last week by Justice Carolyn Demarest in which she ordered dissolution of a financially failing real estate holding company.
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Continue Reading Court Orders Dissolution of Unprofitable Real Estate LLC

A decision last week by the Appellate Division, First Department, in Lehey v. Goldburt brings to light a bitter dispute between the managing member of a vodka distributor with a gimmicky bottle featuring an LED ticker display, and an investor claiming that his millions in funding have been squandered. Get the story in this week’s New York Business Divorce.
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Continue Reading Appellate Court Reinstates LLC Manager in Dispute with Investor in Vodka Venture

This week’s New York Business Divorce features a pair of recent decisions by New York and Delaware courts addressing disputes between accounting firms and departing partners over entitlement to buy-out payments. Both are highly interesting decisions, especially for anyone involved in drafting agreements for professional firms.
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Continue Reading New York and Delaware Courts Decide Disputes Over Accounting Firm Buyouts