On The Elimination Of Fiduciary Duties
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Author | : Andrew S. Gold |
Publisher | : |
Total Pages | : 65 |
Release | : 2012 |
Genre | : |
ISBN | : |
Delaware recently amended its statutes to permit limited liability companies (quot;LLCsquot;) and limited partnerships to eliminate fiduciary duties. At the same time, Delaware law makes clear that the implied contractual duty of good faith and fair dealing may not be eliminated for these business entities. In this context at least, fiduciary duties become contractual defaults. Accordingly, significant issues are raised as to when fiduciary duties have been successfully removed, and how broad any residual duty of good faith should be. Based on existing Delaware law, this is a problem of contract interpretation: courts must resolve the status of intra-firm duties in light of the firm's governing agreement. For a range of reasons, including statutory policy, avoidance of judicial error, and autonomy concerns, this article will suggest that a textualist mode of interpretation is appropriate when courts enforce LLC or limited partnership agreements which have eliminated fiduciary duties.
Author | : Daniel S. Kleinberger |
Publisher | : |
Total Pages | : 0 |
Release | : 2008 |
Genre | : |
ISBN | : |
Prepared as part of the author's work as co-reporter for the Revised Uniform Limited Liability Company Act, this essay argues against legislation that empowers private agreements to eliminate fiduciary duty within a business organization. The essay considers: (i) the venerable role of fiduciary duty within business organizations and the limited predictive powers of those urging radical reform; (ii) the absence of prescience in contract drafters; (iii) the strict construction function of fiduciary law; (iv) the inevitable and inappropriate pressure that elimination would put on the obligation of good faith and fair dealing; (v) the differences in remedy available for fiduciary claims as distinguished from contract claims; (vi) the difference between drafting law for Delaware and drafting a uniform act; and (vii) reasons that public corporation law is different from LLC law and why Delaware law should not dominate the latter context.
Author | : |
Publisher | : |
Total Pages | : |
Release | : 2009 |
Genre | : |
ISBN | : |
This dissertation argues for mandatory fiduciary duties grounded in statute applicable to the American limited liability company. The recommended approach prohibits the contractual elimination of fiduciary duties including the duty of loyalty to act in the LLC's best interests and the duty of care to exercise reasonable care, subject to the business judgment rule, in the management of the LLC. Additionally, the recommended Theory of Mandatory Core Duties would prohibit the LLC operating agreement from displacing those equitable remedies that may be necessary to prevent a controlling member from engaging in unfairly prejudicial conduct - the hallmarks of which typically include the deprivation of financial benefits and/or managerial rights without an offer of fair compensation for the interest. The recommended approach departs substantially from the Delaware provisions that permit the complete elimination of fiduciary duties other than the implied contractual covenant of good faith and fair dealing as well as the indemnification for all claims and demands whatsoever. [Author edited abstract].
Author | : Sandra K Miller |
Publisher | : |
Total Pages | : 774 |
Release | : 2009 |
Genre | : |
ISBN | : |
This dissertation argues for mandatory fiduciary duties grounded in statute applicable to the American limited liability company. The recommended approach prohibits the contractual elimination of fiduciary duties including the duty of loyalty to act in the LLC's best interests and the duty of care to exercise reasonable care, subject to the business judgment rule, in the management of the LLC. Additionally, the recommended Theory of Mandatory Core Duties would prohibit the LLC operating agreement from displacing those equitable remedies that may be necessary to prevent a controlling member from engaging in unfairly prejudicial conduct - the hallmarks of which typically include the deprivation of financial benefits and/or managerial rights without an offer of fair compensation for the interest. The recommended approach departs substantially from the Delaware provisions that permit the complete elimination of fiduciary duties other than the implied contractual covenant of good faith and fair dealing as well as the indemnification for all claims and demands whatsoever. [Author edited abstract].
Author | : Tamar Frankel |
Publisher | : |
Total Pages | : 334 |
Release | : 2011 |
Genre | : Law |
ISBN | : 019539156X |
In Fiduciary Law, Tamar Frankel examines the structure, principles, themes, and objectives of fiduciary law. Fiduciaries, which include corporate managers, money managers, lawyers, and physicians among others, are entrusted with money or power. Frankel explains how fiduciary law is designed to offer protection from abuse of this method of safekeeping. She deals with fiduciaries in general, and identifies situations in which fiduciary law falls short of offering protection. Frankel analyzes fiduciary debates, and argues that greater preventive measures are required. She offers guidelines for determining the boundaries and substance of fiduciary law, and discusses how failure to enforce fiduciary law can contribute to failing financial and economic systems. Frankel offers ideas and explanations for the courts, regulators, and legislatures, as well as the fiduciaries and entrustors. She argues for strong legal protection against abuse of entrustment as a means of encouraging fiduciary services in society. Fiduciary Law can help lawyers and policy makers designing the future law and the systems that it protects.
Author | : Larry E. Ribstein |
Publisher | : |
Total Pages | : 294 |
Release | : 2010 |
Genre | : Business & Economics |
ISBN | : 0195377095 |
The Rise of the Uncorporation covers the history, law, and finance of unincorporated firms. These "uncorporations" including general and limited partnerships and limited liability companies, are now the dominant business form of non-publicly-traded firms. Through private equity and publicly traded partnerships, uncorporations have emerged as a significant force in the governance of a wide range of the biggest firms. This is the first general theoretical and practical overview of alternatives to incorporation, including ancillary concepts connected with the evolution of these firms, and analysis of likely future trends in business organization. The Rise of the Uncorporation provides a clear and easily understandable theoretical and practical background to this important subject.
Author | : Christopher M. Bruner |
Publisher | : |
Total Pages | : 25 |
Release | : 2017 |
Genre | : |
ISBN | : |
This chapter explores the extent of contractual freedom to opt out of fiduciary duties and liabilities in U.S. and U.K. business entities, including the U.S. corporation, general partnership, limited partnership, limited liability partnership, and limited liability company, and the U.K. limited company, general partnership, limited partnership, and limited liability partnership. Discernible commonalities emerge from this comparative analysis. Notably, corporate law readily permits reducing liability exposure for breaches of duty in each jurisdiction, yet provides only quite limited capacity to carve back at the substance of the duties themselves. Meanwhile, unincorporated entities in each jurisdiction offer substantially greater latitude to limit the duties themselves, in some cases resulting in purely contractual business relationships. Yet substantial differences are also apparent. U.S. corporate law permits greater insulation from liability exposure, and U.S. unincorporated entities generally provide clearer and more extensive latitude to eliminate default duties of loyalty and care outright (particularly in Delaware). One cannot comprehensively declare that U.S. law universally deviates further from the "fiduciary" governance paradigm, however, because the U.K. limited liability partnership has gone further by providing an entity form in which no such general default duties apply at all.The analysis raises some complex comparative questions, and the chapter closes with brief reflections on why such trends, commonalities, and divergences may have arisen.
Author | : Frazier, Strauss |
Publisher | : Wolters Kluwer |
Total Pages | : 2020 |
Release | : 2019-11-18 |
Genre | : Limited partnership |
ISBN | : 1543813577 |
Limited Liability Company and Partnership Answer Book
Author | : Robert William Hillman |
Publisher | : |
Total Pages | : 565 |
Release | : 2004 |
Genre | : Limited liability |
ISBN | : 9780314954732 |
Author | : Steven J. Burton |
Publisher | : |
Total Pages | : 504 |
Release | : 1995 |
Genre | : Law |
ISBN | : |