In GMF ELCM Fund L.P. et al v. ELCM HCRE GP LLC et al, C.A. No. 2018-0840-SG (Del. Ch. August 7, 2019), the Delaware Court of Chancery granted a petition for dissolution of a Delaware limited partnership, ELCM Healthcare Real Estate Fund LP (the “Fund”), because the principal of the general partner, Andrew White, was unwilling or unable to conduct the business of the Fund to fulfill the purpose set forth in its limited partnership agreement.Read More
In Triple H Family L.P. v. Jerry Neal , C.A. No. 12294-VCMR (Del. Ch. July 31, 2018), the Delaware Court of Chancery held that the member-manager of Omni Insurance Group, LLC (“Omni”) breached his fiduciary duties to the company when he misled Omni’s largest customer about lapses in the customer’s insurance coverage. Additionally, the court held that although the other member of Omni owed fiduciary duties to Omni as a de facto manager, that member did not breach his fiduciary duties when he directed business away from Omni after the parties had already agreed to dissolve. Finally, the court held that judicial dissolution of Omni was not required because the members had previously agreed to dissolve Omni, and, as such, all that was required was a winding-up of Omni’s business. Read More
By Andrew Skouvakis and Peter C. Seel
In Hampton v. Turner, Vice Chancellor Noble denied a motion for summary judgment in a dispute about whether a limited liability company had properly exercised a redemption option under its operating agreement and tendered the correct purchase price for three members’ limited liability company interests, after such members sought judicial dissolution of the company. In denying summary judgment, Vice Chancellor Noble found that the operating agreement was unambiguous with respect to the application of the redemption option provisions and how those should be interpreted to determine a purchase price.
The Delaware Chancery Court held that the assignor of a limited liability company interest and its assignee, neither of which was a member or manager of the limited liability company, both lacked standing to petition for judicial dissolution of the limited liability company under Section 18-802 of the Delaware Limited Liability Company Act (the “LLC Act”). However, the Court went on to further hold that the assignee nonetheless had standing to seek judicial dissolution of the limited liability company in equity. Subsequent to such decision, the Court later issued an order granting the petitioners’ motion for summary judgment seeking judicial dissolution, representing the first time that a Delaware court has dissolved a limited liability company entirely on equitable grounds.
In In re Carlisle Etcetera, Well Union Capital Limited (“WU Parent”) and Tom James Company (“Tom James”) formed a two member Delaware limited liability company (the “LLC”), adopting a very basic operating agreement, with the intent to later amend and restate the operating agreement. The LLC was managed by a four member board, with each member entitled to appoint two of the board managers, and the entire board designated as the “manager” of the LLC. Additionally, a Tom James executive was appointed by the board as the CEO of the LLC. After formation, WU Parent transferred all of its limited liability company interest in the LLC to its wholly-owned subsidiary (“WU Sub”), of which Tom James was aware, and to which it did not object. The parties later began to negotiate an amended and restated operating agreement, which reflected Tom James and WU Sub as the members of the LLC.
In In re Interstate General Media Holdings, LLC, the managing members of Interstate General Media Holdings, LLC, a Delaware limited liability company (the “Company”), sought judicial dissolution of the Company. Both managing members agreed that the Company was deadlocked and judicial dissolution was necessary, but they disagreed about whether the Company should be sold at a private auction or a public auction. The limited liability company agreement of the Company (the “LLC Agreement”) did not explicitly address how the Company was to be dissolved and liquidated. Nonetheless, one of the managing members argued that the Court of Chancery should look to the intent and provisions of the LLC Agreement for guidance in fashioning an appropriate remedy. The court rejected this argument holding that because the LLC Agreement did not explicitly address the procedures for dissolution and liquidation, it was essentially irrelevant in determining the issue. Further, because the managing members sought judicial dissolution, which was not proscribed by the LLC Agreement, the Company submitted itself to the discretion of the court to determine how the Company was to be dissolved and liquidated. The court ultimately ordered the dissolution of the Company and a sale of the Company via a private auction, finding that this method would maximize the value of the members’ limited liability company interests in the Company.
Huatuco v. Satellite Healthcare is about one member of a Delaware limited liability company (the “Company”) applying for judicial dissolution of the Company pursuant to Section 18-802 of the Delaware Limited Liability Company Act, which permits the Court of Chancery to dissolve a limited liability company when it is not reasonably practicable for the limited liability company to carry on its business in conformity with its limited liability company agreement. In stressing the principle of freedom of contract with respect to limited liability company agreements, the Court of Chancery dismissed the action because the limited liability company agreement of the Company (the “LLC Agreement”) did not permit a member to apply for judicial dissolution. The LLC Agreement expressly provided that, except as required by law, the members were only entitled to the rights expressed in the LLC Agreement. Because the right to judicial dissolution is not required under Delaware law (i.e., the right can be waived) and was not granted in the LLC Agreement, the Court dismissed the action.