News & Analysis as of

Limited Liability Company (LLC) Standing

Jones Day

Ability of Creditors' Committees to Prosecute Estate Claims Given a Boost in Delaware Bankruptcy Courts

Jones Day on

The practice of conferring "derivative standing" on official creditors' committees or individual creditors to assert claims on behalf of a bankruptcy estate in cases where the debtor or a bankruptcy trustee is unwilling or...more

Proskauer Rose LLP

Conflict Between Delaware LLC Act and Bankruptcy Code Affects Creditor Toolbox

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As you know from our prior alerts, creditors of borrowers formed as Delaware LLCs (as opposed to corporations) lack standing under Delaware law to sue directors for breaching fiduciary duties even when, to the surprise of...more

Holland & Knight LLP

Delaware Bankruptcy Court Grants Creditors' Committee of Debtor LLC Derivative Standing

Holland & Knight LLP on

In a recent opinion, In re Pack Liquidating, LLC (Pack Liquidating), the U.S. Bankruptcy Court for the District of Delaware held that under Official Committee of Unsecured Creditors of Cybergenics Corp. v. Chinery...more

Mintz - Bankruptcy & Restructuring Viewpoints

Delaware Bankruptcy Court Grants Derivative Standing to Creditors’ Committee to Sue Members and Officers of Delaware LLC

In early February, a Delaware bankruptcy judge set new precedent by granting a creditors’ committee derivative standing to pursue breach of fiduciary duty claims against a Delaware LLC’s members and officers. At least three...more

Farrell Fritz, P.C.

Surrogate’s Court Jurisdiction to Resolve Close Business Owner Disputes

Farrell Fritz, P.C. on

Do New York’s Surrogate’s Courts have jurisdiction to compel an accounting related to a non-party limited liability company in which the decedent’s estate has only a minority interest? ...more

Farrell Fritz, P.C.

Business Divorce, Brooklyn Style

Farrell Fritz, P.C. on

The pictured architectural rendering of the sunlit Kings County Supreme Courthouse at 360 Adams Street, completed in 1957, doesn’t quite capture the reality of its dour, hulking presence in downtown Brooklyn. Its design...more

Patton Sullivan Brodehl LLP

Derivative Claim Standing: Both Contemporaneous And Continuous Membership Required

When an LLC suffers primary harm that also indirectly harms the LLC’s members, the cause of action generally belongs to the LLC, not its members. Only if the LLC (through its duly authorized management) fails to pursue the...more

Patton Sullivan Brodehl LLP

Portrait of a Mangled Business Divorce

Business divorce can be messy, as reflected by many of the cases covered here at The LLC Jungle. Two issues that frequently arise during the dissolution of an LLC are: 1. the statutory buyout procedure, and 2. claims for...more

Fox Rothschild LLP

Supreme Court Rules That Nominal Damages Can Be Quite Valuable…Maybe?

Fox Rothschild LLP on

In March, the concept of nominal damages (often just a single dollar awarded to a plaintiff to represent a defendant’s liability in the absence of actual damages) took center stage at the highest courts of both the country...more

ArentFox Schiff

Creditor Committees of Delaware LLCs Should Take Action to Preserve Derivative Standing

ArentFox Schiff on

Recent decisions and court commentary suggest that a creditors’ committee appointed in a Chapter 11 case should take immediate action to ensure that its rights to pursue derivative standing are preserved, particularly when...more

Dorsey & Whitney LLP

2020 Recap: Corporate Restructuring Review

Dorsey & Whitney LLP on

Amidst a global pandemic, there were plenty of interesting bankruptcy and restructuring events and changes that occurred in 2020. We saw new Bankruptcy Code amendments go into effect (through the Small Business Reorganization...more

Jones Day

Creditors' Committee Denied Standing to Bring Derivative Claims on Behalf of LLC Debtor in Bankruptcy

Jones Day on

The practice of conferring "derivative standing" on official creditors' committees to assert claims on behalf of a bankruptcy estate in cases where the debtor or a bankruptcy trustee is unwilling or unable to do so is a...more

Farrell Fritz, P.C.

First-Impression Decision Recognizes a Cause of Action for Common-Law LLC Dissolution

Farrell Fritz, P.C. on

Five years ago, we wrote about an important decision from the Delaware Chancery Court, In re Carlisle Etcetera, LLC, 114 A3d 592 [2015], in which a court recognized for the first time the existence under Delaware law of a...more

Kramer Levin Naftalis & Frankel LLP

Bankruptcy Court Holds Committee of Unsecured Creditors Cannot Obtain Derivative Standing When Debtor Is a Delaware Limited...

Recently, in In re Dura Automotive Systems, No. 19-12378 (Bankr. D. Del. June 9, 2020), the Bankruptcy Court for the District of Delaware held that granting the Official Committee of Unsecured Creditors (the Committee)...more

White and Williams LLP

Choosing Delaware Law Does Not Mean You Can Litigate In Delaware – The Sequel

White and Williams LLP on

In our August 2017 alert, we cautioned that Delaware choice-of-law provisions standing alone will not confer jurisdiction in Delaware. To best support an argument for litigating in Delaware, we advised that a combination of...more

Farrell Fritz, P.C.

Unauthorized Certificate of Revival Dooms Delaware LLC’s Claims Against Former Managing Members

Farrell Fritz, P.C. on

The proverb “All for the want of a horseshoe nail” aptly describes the possibly mortal blow dealt by the Appellate Division’s recent decision in Favourite Ltd. v Cico, 2020 NY Slip Op 01463 [1st Dept Mar. 3, 2020], to a...more

Farrell Fritz, P.C.

Bending the Rules of Standing: The De Facto Merger Doctrine

Farrell Fritz, P.C. on

Business Divorce 101: To be entitled to an accounting of a closely-held business, the plaintiff or petitioner must demonstrate the existence of a fiduciary relationship giving rise to a duty to account....more

Patton Sullivan Brodehl LLP

Can Derivative Claims be Pursued for a Dissolved or Cancelled LLC?

Today’s post focuses on a thorny issue arising from the LLC Jungle — can derivative claims be pursued on behalf of a dissolved or cancelled LLC? In short, the answer is “yes” — but there are nuances to be aware of....more

Farrell Fritz, P.C.

Court Looks to Partnership Law in Ruling Against Petitioner’s Status as LLC Member

Farrell Fritz, P.C. on

What makes someone a member of an LLC? It’s a question that frequently arises in business divorce cases involving LLCs that have no written operating agreement much less certificated membership interests. ...more

Jackson Walker

When Filing Suit in Federal Court, Don’t Forget the Key to the Courtroom Door

Jackson Walker on

Formalism matters in federal court. One cannot obtain access to the courtroom without presenting the jurisdictional key to the courtroom door. A fundamental principle of subject matter jurisdiction is that parties asserting...more

Kramer Levin Naftalis & Frankel LLP

Creditors of a Limited Partnership or a Limited Liability Company Lack Standing to Sue Derivatively Under Certain State Laws

In Gavin/Solmonese LLC, Liquidation Trustee for the Citadel Creditors’ Grantor Trust, successor to Citadel Watford City Disposal Partners, L.P., et al. v. Citadel Energy Partners, LLC, et al., Ch. 11 Case No. 15-11323; Adv....more

Farrell Fritz, P.C.

Top Ten Business Divorce Cases of 2018

Farrell Fritz, P.C. on

I’m very pleased to present my 11th annual list of this past year’s ten most significant business divorce cases. This year’s list includes four important appellate decisions, including one likely to stand as a landmark...more

Farrell Fritz, P.C.

Outlawing of LLC’s Short-Term Rental Business Brings Long-Term Litigation

Farrell Fritz, P.C. on

After two years, 300+ docket entries, and 12 motions, a lawsuit among members of a Delaware LLC that owned a 5-story apartment building on Manhattan’s Upper East Side (the “UES Building”) acquired to provide short-term...more

Farrell Fritz, P.C.

Stock Pledge Agreement Defeats Minority Shareholder’s Standing to Sue for Statutory But Not Common-Law Dissolution

Farrell Fritz, P.C. on

Last week, this blog wrote about a decision by Manhattan Commercial Division Justice Saliann Scarpulla in the burgeoning Yu family melee, in that case pitting one brother against the other and their sister over dissolution of...more

Bradley Arant Boult Cummings LLP

Impact of Check-the-Box Conformity on State Tax Appeal Procedures – Who’s the Real Taxpayer Here? - SALT Alert: Alabama Edition

In a case of first impression by an Alabama appellate court, the Alabama Court of Civil Appeals recently considered the appeal of the Alabama Department of Revenue (ADOR) of an adverse circuit court ruling involving whether...more

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