BLT: March 2017

Business & Corporate

Our Mini-Theme: LLCs, Partnerships and Unincorporated Business Entities

Thomas E. Rutledge

An introduction to the March 2017 mini-theme on LLCs, Partnerships and Unincorporated Business Entities.

Business & Corporate

S Corporation Limited Liability Companies: Pick Your Paradigm

Daniel J. Sheridan

A limited liability company may choose to be taxed as a subchapter S corporation. This article explores the potential advantages and pitfalls associated with that choice, and offers practical guidance and drafting suggestions to the practitioner who is counseling clients on these subjects.

Business & Corporate

Nonprofit LLCs

LLCs increasingly intersect with the nonprofit sector. This article summarily explores the use of LLCs within the nonprofit sector, including a few words about their use as hybrid for-profit/nonprofit enterprises.

Business & Corporate

Deadlock-Breaking Mechanisms in LLCs—Flipping a Coin Is Not Good Enough, but Is Better Than Dissolution

In this article, the authors provide a framework for addressing the importance of adopting deadlock-breaking mechanisms in limited liability company operating agreements as an alternative to seeking judicial dissolution when a deadlock arises.

Business & Corporate

It’s a Bird, It’s a Plane, No, It’s a Board-Managed LLC!

One of the perceived benefits of the LLC form is the flexibility that exist with respect to inter se management structure. Because of perceived understanding of the corporate governance model, it is sometimes utilized in LCCs — a practice referred to as “corporification.” This article explores the problems and ambiguities that arise when this practice is employed.

Business & Corporate

Delaware Courts Reinforce That Shielding against Fraud Claims Based on Extra-Contractual Statements and Omissions Requires Precise Drafting—But No Magic Words

Ryan M. Murphy

In M&A transactions, the negotiation of contractual provisions intended to protect against claims for fraud based on extra-contractual statements may be contentious. A series of recent decisions from the Delaware Court of Chancery has provided additional insight into the effectiveness of such “anti-reliance” clauses as a tool for establishing the “universe” of information upon which a potential post-closing fraud claim may (or may not) be based.

Business & Corporate

If Clients Are Not the Center of Your World, You Will Be on the Periphery of Theirs

The legal profession is changing. In this article, the authors explore the changing dynamics of the relationships between in-house law departments and their external providers of legal service, including law firms.

Business & Corporate

The Delaware Supreme Court Confirms That New Castle County’s Unified Development Code Is Constitutional

In a recent order, the Delaware Supreme Court affirmed the Superior Court’s opinion finding that, among other things, the New Castle County Unified Development Code did not violate the U.S. Constitution. Specifically, the court found that the county’s use of concurrency laws did not amount to an unconstitutional exaction under the Nollan/Dolan/Koontz trilogy of cases because no demand was made on the developer by the county. Instead, the Delaware Department of Transportation — a state agency with only an advisory role — had entered into discussions and negotiations with the developer, a key distinction from the Nollan/Dolan/Koontz trilogy.

Business & Corporate

KEEPING CURRENT: DOJ Releases Under-the-Radar Paper on “Evaluation of Corporate Compliance Programs”

In February 2017 the DOJ Fraud Section quietly released a short paper entitled “Evaluation of Corporate Compliance Programs,” which sheds more light on how the DOJ’s new compliance expert will differentiate effective compliance programs from those that are superficially pretty.

Business & Corporate

DELAWARE INSIDER: A Fully Informed and Disinterested Stockholder Vote Cleanses Transactions Tainted by Board Conflicts

In re Merge Healthcare Inc is the latest in a series of opinions from the Delaware Court of Chancery in the wake of the Delaware Supreme Court’s decision in Corwin v. KKR Financial Holdings LLC. The decision also helps to clarify some uncertainty created by various decisions of the Court of Chancery as to the effect of Corwin on interested director transactions.

Business & Corporate

FROM THE UNIFORM LAW COMMISSION: In the World of Alternative Entities What Does “Good Faith” Mean?

Daniel S. Kleinberger

With this issue, in cooperation with the Uniform Law Commission, we initiate a column on the law of incorporated entities, principally, limited liability companies. The column will appear every other month and discuss issues as they develop around the country.

Business & Corporate

MEMBER SPOTLIGHT: An Interview with Robert Keatinge

Forty-three years practicing law, Robert Keatinge, of counsel at Holland & Hart LLP and renowned expert in business law, is still having fun. He counsels clients on all stages of operations, teaches law, writes treatises and law review articles, delivers speeches, serves as a consulting or expert witness, and he still has time to pursue his passion — Shakespeare.

Business & Corporate

Inside Business Law (March 2017)

This month’s “Inside Business Law” highlights several upcoming publications from the Business Law Section that will be released in April 2017.