BLT: January 2016

Business & Corporate

Our Mini-Theme: Limited Liability Companies – Understanding the Dominant Organizational Form

Thomas Rutledge

An introduction to the January 2016 mini-theme on Limited Liability Companies.

Business & Corporate

The Death of an LLC: What’s Trending in LLC Dissolution Law?

Joan MacLeod Heminway

LLC dissolution law represents an interesting and important laboratory for legal experimentation as LLC law continues to innovate and evolve. There are broad areas of convergence among various LLC regimes, but specific rules tend to vary from state to state. Distinct, individualized state experience with LLC law and related policy considerations may underlie these differences among the states.

Business & Corporate

Limited Liability Company Interests as Property of a Debtor’s Estate – Is the Operating Agreement Executory?

Lawrence A. Goldman

This article, and “Limited Liability Company Interests as Property of a Debtor’s Estate – Executory Agreements and the Conundrum of Section 365” together, address the implications of a bankruptcy on a member’s rights under LLC agreements.

Business & Corporate

Limited Liability Company Interests as Property of a Debtor’s Estate – Executory Agreements and the Conundrum of Section 365

In a companion article to “Limited Liability Company Interests as Property of a Debtor’s Estate – Is the Operating Agreement Executory?” this article assumes that the operating agreement governing an LLC interest held by a debtor’s estate is executory and examines the seeming internal inconsistencies of Bankruptcy Code Section 365.

Business & Corporate

XIRR Guessing Games and Distribution Waterfalls

Bradley T. Borden

Distribution waterfalls in partnership and LLC agreements often incorporate IRR hurdles. Many of those agreements define IRR with reference to Microsoft Excel’s XIRR function. That function, if given the correct inputs, can guess an IRR with impressive accuracy. When repurposed to compute IRR hurdles, however, the XIRR function can be considerably less accurate. The function’s failure in this context can turn computing distribution requirements into a guessing game. This article illustrates how the XIRR function can create problems and proposes a better, direct way to define IRR for purposes of computing IRR hurdles.

Taxation

Doing Business in Indian Country: A Primer

Ryan Dreveskracht

The past 15 years have seen tribes emerge as powerful economic, legal, and political forces. And as part of this renaissance, tribes are increasingly partnering with non-Indian businesses that bring proven expertise, brand identity, and new capital to their lands. In this dynamic period, businesses working with tribes – and, most importantly, their attorneys – must have a firm grasp on the nuances of Indian and tribal law. This article offers an introduction to the most important legal principles to be aware of when a client is doing business in with an Indian tribe.

Business & Corporate

The Increasing Importance of EU Competition Law for U.S. Companies

Andre Fiebig

The United States has traditionally served as the world’s antitrust policeman. However, foreign jurisdictions are discovering the benefits of applying their own laws to restraints of competition in global markets. One prominent example is the European Union. As the EU continues to promote private rights of action and U.S. courts continue to reject cases brought in the United States based on antitrust injury outside the United States, the importance of EU competition law for U.S. companies is likely to increase.

Business & Corporate

The Erosion of Lawyer Independence

Donald S. Maurice

A recent decision from a U.S. district court in the Northern District of Georgia allowed the Consumer Financial Protection Bureau to proceed with an enforcement action largely focused on how a law firm prosecuted consumer collection cases in Georgia state courts. This article suggests that the outcome of the enforcement action and resulting consent decree are impermissible attacks on lawyer independence.

Business & Corporate

KEEPING CURRENT: Supreme Court Again Confirms That Class Action Arbitration Waivers Are Valid

The U.S. Supreme Court, in its December decision in DIRECTV, Inc. v. Imburgia, held that a contractual provision incorporating state law did not render a class action waiver unenforceable where the state law that would have voided the waiver was subsequently ruled to be invalid.

Business & Corporate

DELAWARE INSIDER: Rural Metro: Gulping Advisers and Practitioner Guidance

John Legaré Williams

The Delaware Supreme Court decision in Rural Metro imposed liability on a financial adviser for aiding and abetting a breach of fiduciary duty in the context of a sale of company transaction in the form of approval of a merger. The financial adviser was conflicted because they proposed also to provide the financing for the merge. The novel aspects of this liability are analyzed in the context of the Revlon doctrine.

Business & Corporate

Inside Business Law (Jan. 2016)

This month’s “Inside Business Law” highlights upcoming events, including the Business Law Section’s 2016 Spring Meeting to be held from April 7–9, 2016, in Montréal, Québec, and provides summaries of recent CLE programs from In the Know and Business Law Basics as well as several recent committee newsletters, with links to each.