The interaction between an LLC’s operating agreement and a subsequent, informal deal between the members raises difficult questions surrounding the enforceability of either agreement. In a recently-filed Manhattan Commercial Division case, the Court granted the plaintiff a preliminary injunction, signaling to the parties that the plaintiff was likely to succeed on his claim to enforce the informal deal notwithstanding arguably contrary provisions in the operating agreement. The case reminds us that the formality requirements of an LLC operating agreement may give way to an informal agreement when both LLC members manifest their intent to be bound by the informal agreement.
Continue Reading A Shotgun Buy-Sell Agreement and an Email Deal Walk into a Beachside Bar . . .

Defying my recent lamentation on the dearth of cases involving buy-out disputes where the buyer doesn’t disclose to the seller an outside offer for the entity’s assets at a much higher value, this week’s New York Business Divorce examines yet another such case with some interesting twists on the usual fact pattern. …
Continue Reading Re-Revisiting The Duty to Disclose Third-Party Offers Amidst Buy-Out Negotiations

This week’s New York Business Divorce is a follow-up to last week’s article, a piece about the enormously important appellate decision in the Farro case, the first to carefully consider the correct meaning and interpretation of New York’s LLC merger statute and its relation to the analogous corporation merger statute. In this week’s article, learn about the rest of the story in the Farro litigation, addressed in two companion appellate decisions issued the same day.
Continue Reading The Farro Litigation: The Rest of the Story

In a long-awaited decision handed down last week by the Appellate Division, Second Department, the court construed two sections of New York’s LLC Law in a significant boost to the ability of members with voting control to remove minority members by means of a cash-out merger. Learn more in this week’s New York Business Divorce.
Continue Reading Groundbreaking Appellate Ruling Boosts LLC Cash-Out Mergers

This week’s New York Business Divorce examines a recent decision in a lawsuit stemming from a buyout between the two members of a single-asset realty-holding LLC based on a $1.9 million valuation of the LLC’s realty followed one month later by a sale of the realty to a third-party buyer for $2.9 million. …
Continue Reading The Duty to Disclose Third-Party Offers Amidst Buy-Out Negotiations, Revisited

Serving as the tiebreaker on a equally divided board of directors can be a thankless task, which puts it mildly when one faction sues to remove the tiebreaker. This week’s New York Business Divorce highlights a noteworthy case in which a 50% member of a Delaware LLC claimed the right to unilaterally remove the designated tiebreaker.
Continue Reading It Takes Two to Remove a Tiebreaker

In this week’s New York Business Divorce, read about the hurdles one can face when attempting to change course after suing for, or stipulating to, dissolution. The lesson: when suing for dissolution, be prepared to see it through to the bitter end. …
Continue Reading An Extreme Case of Petitioner’s Remorse

In the wild west of LLC derivative lawsuits, the First Department’s recent decision in Bd. of Managers of 28 Cliff St. Condominium v Maguire, 2020 NY Slip Op 06844 [1st Dept Nov. 19, 2020] offers—albeit indirectly—an additional foothold for a successful plaintiff to assert his right to recover his fees from an award in favor of the LLC.
Continue Reading Fee Sharing in LLC Derivative Suits: A Common Law Right and a One Way Street