Business Divorce
Representing owners of privately held businesses in disputes with business partners and corporate dissolutions.
All too often, relations among co-owners of privately held businesses deteriorate to the point where they can no longer work together: They need a “business divorce.” Our business divorce group brings together the diverse practice skills and experience required for the myriad challenges presented by private company disputes and to devise solutions that allow clients to achieve their business and personal goals free of the uncertainty and rancor that can accompany a failed business relationship.
We Understand the Intricacies of Business Divorce Law
Our business divorce team includes highly experienced litigators who understand the intricacies of the laws governing the internal affairs of closely held corporations, partnerships, and limited liability companies. Their extensive representation of clients in private company disputes includes:
- Judicial dissolution proceedings on behalf of both majority and minority owners.
- Dissenting shareholder proceedings, derivative suits, books and records proceedings.
- Other litigation among co-owners of companies in a wide variety of industries including real estate, construction, manufacturing, finance, a variety of wholesale and retail operations, auto dealerships, service companies, and more.
A Multidisciplinary Practice
The business divorce group also includes highly experienced corporate and tax attorneys who advise clients and assist in structuring and documenting buy-outs, liquidations, and other forms of business reorganization resulting either from judicial proceedings or negotiated settlements.
Pre-Litigation Resolution
Often the litigation of private company disputes can be avoided by early intervention leading to a favorable out-of-court settlement. Our business divorce team works closely with clients to explore and execute strategies and solutions that can eliminate the distraction, expense, and escalation of hostilities that inevitably accompany litigation. Key to the business divorce group’s record of success in resolving such disputes through early intervention is their reputation and prowess as attorneys well-equipped and unhesitant to seek relief in court when negotiations fail to achieve their clients’ objectives.
Accurate Business Appraisal
The resolution of a business divorce often centers on the valuation of the subject company. Effective legal counseling, therefore, requires a thorough understanding of the principles and legal framework for valuing a business. The business divorce group has extensive experience working in tandem with qualified business and real estate appraisers in connection with buy-out negotiations and appraisal litigation.
Thought Leaders
Members of the business divorce group are acknowledged leaders in their field. Our attorneys frequently lecture on business divorce topics before professional organizations, can be heard interviewing leading academics and experts on the Business Divorce Roundtable podcast, and publish numerous articles on the subject including the widely followed New York Business Divorce blog, which has also been cited in a number of judicial opinions.
Professionals
Recent Blog Posts
Derivative into Direct and Waived into Preserved: The Transformative Power of the Implied Covenant of Good Faith and Fair Dealing
The distinction between direct and derivative claims pervades business divorce litigation. Whether a dissident owner’s claim against his or her…
September 25, 2023
September 25, 2023
A General Partnership in Perpetual Enmity
With the growing prevalence of limited liability companies, notable general partnership decisions become fewer and further between with each passing…
September 18, 2023
September 18, 2023
Eastland Redux: Do Close Corporation Shareholders Have a Direct Claim Against Directors For Taking Disguised Distributions?
Earlier this year, using as a springboard the Maryland intermediate appellate court’s decision in Eastland Food Corp. v Mekhaya, I…
September 11, 2023
September 11, 2023
Strength in Numbers: The Resurgence of the Accounting Claim in Business Divorce Litigation
At the beginning of last year, I wrote a eulogy for the equitable accounting cause of action in business disputes:…
September 05, 2023
September 05, 2023
Surrogate’s Court Jurisdiction to Resolve Close Business Owner Disputes
Do New York’s Surrogate’s Courts have jurisdiction to compel an accounting related to a non-party limited liability company in which…
August 28, 2023
August 28, 2023
When Is It Too Late to Sue for Shareholder Oppression?
Potential client sits down with business divorce lawyer and says, “I’m a minority shareholder in XYZ Corp. I’ve been completely…
August 21, 2023
August 21, 2023
Clash of Valuation Visions: Appraisal Proceeding Over Manhattan Eyeglass Shop Goes the Distance
The authors of this blog have a special affinity for fair value appraisal proceedings. The narrow hearings—where the sole issue…
August 14, 2023
August 14, 2023
Can a Shareholder Suing Derivatively Face Countersuit Individually?
That was the interesting, infrequently-litigated question addressed in a recent decision by Manhattan Commercial Division Justice Melissa A. Crane. Simon…
August 07, 2023
August 07, 2023
Summer Shorts: Equitable Contribution, Stock Redemption, and Other Recent Decisions of Interest
Welcome to the 13th annual edition of Summer Shorts. This year’s edition features brief commentary on five recent decisions by…
July 31, 2023
July 31, 2023
At-Will Employment Agreement Plus Mandatory Redemption Clause Leaves Minority Shareholder-Employees Out in the Cold
MiniCorp has five shareholders, all of whom are employees. Each shareholder’s employment agreement states that they are an at-will employee…
July 24, 2023
July 24, 2023
Legal Déjà Vu: The Law of Preclusion and Re-Litigation of Standing-Based Dismissals
Dismissals for lack of standing are routine in business divorce cases. Examples abound on this blog. Litigation over standing to…
July 17, 2023
July 17, 2023
Can One 50% Shareholder Sue the Other in the Company Name on the Company Dollar? Answer: It Depends
In the menagerie of closely held companies, those owned and controlled by 50/50 business partners pose unique benefits and challenges.…
July 10, 2023
July 10, 2023
Must a Professional Corporation Redeem the Shares of its Retired Shareholders?
I previously wrote that one of the most difficult periods in the lifecycle of a closely held business is the…
July 03, 2023
July 03, 2023
Take the Business Divorce Pop Quiz!
It’s been many years since our last pop quiz for all you business divorce aficionados. Time for another. See how…
June 26, 2023
June 26, 2023
Business Divorce and Restrictive Covenants
Closely-held business owner breakups often defy easy categorization. What seem at first blush to be traditional business divorce cases sometimes…
June 19, 2023
June 19, 2023
Greetings from the American Bar Association’s 2023 LLC Institute
Over its three-decade rise to the closely-held business entity of choice, the Limited Liability Company has won a special place…
June 12, 2023
June 12, 2023
Derivative Standing and the Internal Affairs Doctrine
Choice-of-law questions in shareholder derivative lawsuits venued in New York courts involving out-of-state or international entities can be confoundingly difficult,…
June 05, 2023
June 05, 2023
Recent Decisions Enforce LLC Member’s Right of First Refusal, Restrict Partnership Accounting, and Allow Damages Claim for Breach of Oral Shareholders Agreement
Someday, perhaps, I’ll find the comedic inspiration to come up with a joke that begins, “An LLC, a partnership, and…
May 30, 2023
May 30, 2023
Recent Decisions Enforce LLC Member’s Right of First Refusal, Restrict Partnership Accounting, Invalidate Shareholder’s Post-Mortem Buyout
Someday, perhaps, I’ll find the comedic inspiration to come up with a joke that begins, “An LLC, a partnership, and…
May 29, 2023
May 29, 2023
Second Department Rejects Private Auction for Deadlocked Corporation
Resolving ownership disputes with a buyout at auction has a tempting simplicity. The buyout gives the owners the divorce they…
May 22, 2023
May 22, 2023
Misappropriated Watering Hole Becomes Money Judgment Sinkhole
Occasionally, we come across post-trial decisions with such scathing rebuke of one side that it’s difficult to imagine why the…
May 15, 2023
May 15, 2023
Fair Value Awards: A Matter of Interest
Statutory fair value appraisal proceedings in New York come in two flavors. First, there’s the buy-out appraisal under Business Corporation…
May 08, 2023
May 08, 2023
A Cross-Country Road Trip of Elections to Purchase in Dissolution Proceedings
When a minority shareholder petitions for dissolution of a corporation on the grounds of oppressive or illegal conduct (see BCL…
May 01, 2023
May 01, 2023
Pitfalls for Corporate Counsel in Business Divorce Disputes
No corporate lawyer wants to get drawn into a nasty litigation between an entity’s owners. But the reality is that…
April 24, 2023
April 24, 2023
Operating Agreement Trumps Postnup in High Stakes Battle Over Transfer of LLC Interest
Husband owns 99% membership of manager-managed LLC. Children own remaining 1%. Postnuptial agreement says husband’s “interest” in LLC goes to…
April 17, 2023
April 17, 2023
First Department Recognizes Cause of Action for Specific Performance of LLC Member Voting Agreement
In 1941, two of the three shareholders of Ringling Bros.-Barnum & Bailey Combined Shows, Inc. entered into an agreement stating…
April 10, 2023
April 10, 2023
Faithless Servant in Business Divorce Cases
Litigants assert with growing frequency “faithless servant” claims in business divorce cases. New York’s faithless servant doctrine, and the legal…
April 03, 2023
April 03, 2023
The Pathology of Deadlock Dissolution
It seems a bit exaggerated to liken the deterioration of a relationship between 50/50 business partners to a fatal disease,…
March 27, 2023
March 27, 2023
A Litigation Odyssey
Litigated business breakups are often highly intense and emotional for the participants. The intensity and emotion multiply when the litigants…
March 20, 2023
March 20, 2023
The Corporation is Becoming More Contract Focused, But Don’t Call it an LLC Just Yet
Having spent the better part of my career litigating disputes between minority and majority owners of closely-held businesses, I can…
March 13, 2023
March 13, 2023
When Do Disguised Dividends Add Up to Minority Shareholder Oppression?
De facto dividend. Disguised dividend. Constructive dividend. They all refer to the same thing: monies in excess of reasonable compensation…
March 06, 2023
March 06, 2023
Who Died and Made You a Member? Second Department Resurrects LLC Dissolution Petition Brought by Deceased Member’s Estate.
One of the most difficult periods in the lifecycle of a closely-held company is the period following the death of…
February 27, 2023
February 27, 2023
Winter Case Notes: Punitive Damages Awarded for Breach of Fiduciary Duty and Other Recent Decisions of Interest
Notwithstanding that the pictured snow globe is the only snow I’ve seen in my neck of the woods this balmy…
February 20, 2023
February 20, 2023
The Worst of Both Worlds: Untimely Buyout Election Yields Full Merits Hearing and Huge Bond
Nine months ago, we wrote about a 20% shareholder, Alvin Clayton Fernandes, whose bare bones petition Manhattan Supreme Court Justice…
February 13, 2023
February 13, 2023
Dueling Dissolution Petitions Beget Dissolution Without Consideration of Alternate Remedies
This blog frequently covers cases considering a shareholder’s request to dissolve a corporation under New York’s oppression-based corporate dissolution statute,…
February 06, 2023
February 06, 2023
Do Non-Manager, Minority LLC Owners Owe Fiduciary Duties?
This important question of whether non-manager, minority limited liability company owners owe fiduciary duties continues to bedevil New York litigants…
January 30, 2023
January 30, 2023
Has the Time Come for New York to Follow Delaware and Officially Pronounce Deadlock as Ground for LLC Dissolution?
Since its legislative birthing in New York in 1994, the limited liability company has become the preferred choice of entity…
January 23, 2023
January 23, 2023
Potential Creditor Drags Corporation in Stalled Dissolution Proceeding into Receivership
The dissolution of a company—and the winddown and liquidation that usually follow—often impacts a broad range of stakeholders beyond just…
January 16, 2023
January 16, 2023
Business Divorce in the Divorce Courts
Folks hearing the phrase “business divorce” for the first time tend to focus unconsciously on the word “divorce,” tuning out…
January 09, 2023
January 09, 2023
Top 10 Business Divorce Cases of 2022
I’m delighted to present our 15th annual list of the past year’s ten most significant business divorce cases. This year’s…
January 03, 2023
January 03, 2023
Scrivener’s Error Keeps Sailboat-Owning LLC Afloat
Pictured right is the Nite Cap, a 42’ sailboat known to cruise the New York area waters. As we return…
December 27, 2022
December 27, 2022
The Art of Manager Removal
If there’s anything more contentious than a business divorce between co-owners of closely held firms, it’s a business divorce between…
December 19, 2022
December 19, 2022
Stock Transfer Restrictions and “Annihilation of Property”
One of the pleasures of being a litigator is that we constantly learn. The pleasure multiplies as a law blogger,…
December 12, 2022
December 12, 2022
LLC Forced Buy-Out Pits Fair Value Against Fair Market Value Against Power to Amend Operating Agreement
Let’s see how good you are at predicting the outcome and its rationale in a recently decided case involving the…
December 05, 2022
December 05, 2022
Challenges to Expert Appraisers in Valuation Proceedings
Ask a trial lawyer what he or she would give to have an expert witness as effective as Mona Lisa…
November 28, 2022
November 28, 2022
And a Time to Every Purpose Under . . . the Operating Agreement?
King Solomon, to whom authorship of Ecclesiastes 3 traditionally is attributed, unlikely had in mind the life cycle of limited…
November 21, 2022
November 21, 2022
The “Illegality” Defense to Partnership Formation
Food trucks have become as ubiquitous on the streets of Manhattan as pigeons in Central Park. Unsurprisingly, the New York…
November 14, 2022
November 14, 2022
Federal Courts Wade Into Business Divorce: Recent Decisions of Interest
Our federal courts by and large are not hospitable to business divorce litigation. The two mainstays of the federal courts’…
November 07, 2022
November 07, 2022
The Contract is King: Advancement and Indemnification Under Delaware Law
In last week’s New York Business Divorce, we wrote about an important decision from New York’s highest court, Sage Sys.,…
October 31, 2022
October 31, 2022
Warning: If You Want Legal Fee Advancement or Indemnification, You May Need to Amend Your Partnership, Shareholder, or Operating Agreement
The universe works in mysterious ways. Four days ago, when I sat down to write this article, my plan was…
October 24, 2022
October 24, 2022
Wrongful Dissociation Under RUPA: Toto, We’re Not in New York Anymore
Unlike the vast majority of states, New York hasn’t adopted the Revised Uniform Partnership Act (1997) (“RUPA”). A recent appellate…
October 17, 2022
October 17, 2022
Summary Judgment in Lieu of Complaint Meets Business Divorce
For most business divorce litigants, a dispositive win on the merits, even in a summary proceeding, can take years. Appraisal…
October 10, 2022
October 10, 2022
A Recurring Business Divorce Feature: Usurpation of Corporate Opportunity
One of the earliest signs that a closely-held business is headed for divorce lies in how its owners treat new…
October 03, 2022
October 03, 2022
Contrived LLC Deadlock Doesn’t Cut the Delaware Dissolution Mustard
The statutes authorizing judicial dissolution of Delaware LLCs (LLC Act § 18-802) and New York LLCs (LLC Law § 702)…
September 26, 2022
September 26, 2022
Magic Words Still Matter, and Equitable Defenses Can’t Save a “Void” Transfer
New York’s default rules regarding LLC members’ rights to transfer their interests appear in sections 603 and 604 of the…
September 19, 2022
September 19, 2022
Conflicts of Laws and the Internal Affairs Doctrine
The legal concept of “conflicts of laws” is difficult, to say the least, confounding even seasoned litigators and judges, with…
September 12, 2022
September 12, 2022
Is Loss Sharing an “Indispensable Essential” of Partnership?
What makes a partnership a partnership? What makes a partner a partner? To be clear, I’m referring to partners in…
September 06, 2022
September 06, 2022
The “Conflict of Interest” Defense to Shareholder Derivative Standing
In shareholder derivative litigation, defendants occasionally argue that the plaintiff – who ostensibly sues on behalf of the company and…
August 29, 2022
August 29, 2022
Never the Twain Shall Meet: Damages Claims Do Not Offset the Purchase Price in Buy-Sell Agreements
Nestled between Broadway and Church Street in New York City’s hottest neighborhood is the landmarked, stone-façade building at 66-68 Reade…
August 22, 2022
August 22, 2022
Summer Shorts: LLC Dissolution and Other Recent Decisions of Interest
Welcome to the 12th annual edition of Summer Shorts. This year’s edition features brief commentary on a handful of recent decisions…
August 15, 2022
August 15, 2022
A Fresh Take on Partnership to LLC Conversions
A rarely litigated provision of the New York Limited Liability Company Law (the “LLC Law”), Section 1006, authorizes the conversion…
August 08, 2022
August 08, 2022
Minority Shareholder’s Petition to Dissolve Seltzer Business Loses Its Fizz
In 1950, Sam Hoffman and his two sons, Hyman and Melvin, founded Brooklyn-based Cornell Beverages, Inc. to manufacture and distribute…
August 01, 2022
August 01, 2022
Questions Abound in Parallel Cash-Out Merger Rescission / Fair Value Appraisal Lawsuits
The topic of mergers between two business entities designed to involuntarily extinguish the equity interest of a minority owner in…
July 25, 2022
July 25, 2022
A Lesson In Drafting Capital Call Provisions
Those of us who follow the Delaware Chancery Court’s output are regularly treated to lengthy, detailed, finely crafted opinions sometimes…
July 18, 2022
July 18, 2022
Disputes Abound When Law Firms Dissolve
Some of the most complex and hotly-contested business divorce litigation arises from the dissolution of law firms. Perhaps law firm…
July 11, 2022
July 11, 2022
Business Divorce, Brooklyn Style
The pictured architectural rendering of the sunlit Kings County Supreme Courthouse at 360 Adams Street, completed in 1957, doesn’t quite…
July 05, 2022
July 05, 2022
Three Strikes You’re Out: Sebrow Revisited
A year and a half ago, we blogged about a decision in which Bronx County Supreme Court Justice Llinet M.…
June 27, 2022
June 27, 2022
LLCs, Direct vs. Derivative Claims, and Special Litigation Committees: A Lively Debate
The current issue of The Business Lawyer, a quarterly publication of the ABA’s Business Law Section that rightly bills itself…
June 20, 2022
June 20, 2022
Text Messages Trump Formalities in Ownership Dispute Over Cryptocurrency Business
The emergence of the Limited Liability Company as the preferred form of closely-held business association in New York has spawned…
June 13, 2022
June 13, 2022
A Loan Is a Loan Is a Loan, Except When It’s Equity
Disputes over capital accounts and equity percentages are frequent fodder for business divorce litigation — especially in LLCs without operating…
June 06, 2022
June 06, 2022
Gordon Ramsay’s The Fat Cow: Dishing Up Damages and Dissolution
You know you’re in big trouble if the post-trial decision in a lawsuit you filed begins like this: “The court…
May 31, 2022
May 31, 2022
Principles of Fiduciary Deference: The Business Judgment Rule and Exculpatory Clauses
A number of lawsuits have percolated through New York’s courts over the past five years between Adam Max, son of…
May 23, 2022
May 23, 2022
Equitable Standing in Shareholder Derivative Suit Bows to the Contemporaneous Ownership Rule
In 2008, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery — one of the many intellectual giants…
May 16, 2022
May 16, 2022
The Evidenceless Petition to Dissolve
It’s hard not to feel sorry for the petitioner in Fernandes v Matrix Model Staffing, Inc., Decision and Order, Index…
May 09, 2022
May 09, 2022
Binding Nonsignatories to Arbitration Agreements
Closely-held business owners often hope to avoid the costs and delays of litigation by including arbitration provisions in their partnership,…
April 25, 2022
April 25, 2022
It’s Time to Address Sex Discrimination Against Women Owners of Closely Held Companies, Say These Two Law Professors
Longtime readers of this blog may recall a post I wrote three years ago titled Minority Shareholder Oppression in the…
April 18, 2022
April 18, 2022
A New Stile: First Department Shakes Up the Shareholder Oppression Claim
A watershed moment or a forgettable outlier? It is often difficult to predict how much a novel decision will impact…
April 11, 2022
April 11, 2022
Recent Stock Valuation Decisions Reign “Supreme”
The fair value and fair market value appraisal standards applicable in contested buyout and dissenting shareholder valuations cut across state…
April 04, 2022
April 04, 2022
Appellate Rulings Endorse Courts’ Broad Remedial Powers Over Condo and Co-op Board Elections
Serving dual roles as urban homestead and non-profit business operation, residential condominiums and co-ops occupy a special niche in the…
March 28, 2022
March 28, 2022
But What of the Equitable Accounting?
I can’t say what the number is, but my own experience tells me that a significant percentage of lawsuits by…
March 21, 2022
March 21, 2022
Anti-Dissolution Provisions and Public Policy
In Congel v Malfitano, New York’s highest court wrote that business partners are free to include in partnership contracts practically…
March 14, 2022
March 14, 2022
New York Judge Spares NRA “Corporate Death Penalty”
The National Rifle Association has long been a politically charged topic for its fans and critics. For those of you…
March 07, 2022
March 07, 2022
The Operating Agreement Controls, Unless Public Policy Says Otherwise
Two principles often guide courts’ interpretation and enforcement of contracts. First, courts respect parties’ freedom of contract, mostly. So long…
February 28, 2022
February 28, 2022
General Partner’s Resignation Triggers Nonjudicial Dissolution of Limited Partnership
A limited partnership without a general partner cannot lawfully continue. That’s why it’s critical that the limited partnership agreement thoughtfully…
February 21, 2022
February 21, 2022
Valuation Decision Finds LLC “Worthless, Worthless, Worthless”
The chorus to one of Neil Young’s most sublime songs is “Helpless, helpless, helpless.” If composed in song, the chorus…
February 14, 2022
February 14, 2022
Winter Case Notes: Tax Estoppel (Not) to the Rescue and Other Decisions of Interest
The New York Times yesterday published an article entitled Climate Change Enters the Therapy Room discussing persons suffering from “climate…
February 07, 2022
February 07, 2022
Defendant Dissolves Mid-Lawsuit: What’s the Creditor’s Remedy?
Generally speaking, New York courts respect the corporate form, regarding the liabilities of the entity as separate from and inapplicable…
January 31, 2022
January 31, 2022
A Two-Act Play of LLC Default Rules and Manager Removal
“Except as provided in the operating agreement. . . ” By my count, this phrase and its close relative, “unless…
January 24, 2022
January 24, 2022
The Skinny on Arbitrability of Judicial Dissolution Claims
Are claims for judicial dissolution of business entities arbitrable? It’s a question I’m occasionally asked by business owners and, surprisingly,…
January 17, 2022
January 17, 2022
Justice Platkin’s Primer on Shareholders’ Inspection Rights
The books and records proceeding often is the first time that a dispute between a minority shareholder and the majority…
January 10, 2022
January 10, 2022
Singin’ the Derivative Plaintiff Blues
If you ask me to name the most common skirmishes over the adequacy of pleadings at the outset of business…
January 03, 2022
January 03, 2022
Top 10 Business Divorce Cases of 2021
It’s been another year of important case law developments in business divorce controversies. I’m pleased to present my 14th annual…
December 27, 2021
December 27, 2021
Look Before You Leap: Buy-Sell Agreements Triggered by a Petition for Dissolution
For owners of closely-held businesses, there are few provisions meriting more attention in an owners’ agreement than the buy-sell agreement. …
December 20, 2021
December 20, 2021
LLCs as They Approach the 50-Year Milestone: A Conversation with Professor Susan Pace Hamill
Wyoming enacted the first LLC Act in 1977, creating a hybrid business entity combining partnership features including pass-through taxation with…
December 13, 2021
December 13, 2021
The Outer Limits of LLC Indemnification: Michael Cohen v Trump Organization
Michael D. Cohen, former personal attorney and self-described “fixer” for Donald J. Trump, was ubiquitous in the national news throughout…
December 06, 2021
December 06, 2021
#MeToo and Business Divorce: The Flip Side
Two years ago, Peter Mahler wrote about a dissolution lawsuit by a female minority shareholder alleging that her male co-shareholders condoned…
November 29, 2021
November 29, 2021
The Nutmeg State Out Front on Member Inspection Rights Under RULLCA
For the second time in two years, the Connecticut Supreme Court has ventured into uncharted waters of LLC governance under…
November 22, 2021
November 22, 2021
Disguised Agreements and Dissolution
Appearances can be deceiving. That, essentially, was the argument made in two recently decided cases involving claims for judicial dissolution.…
November 15, 2021
November 15, 2021
Cooked or Raw? Enforceability of Partly Signed Operating Agreements
The harried realities of modern life are such that business entity organizational documents, like LLC operating agreements, sometimes do not…
November 08, 2021
November 08, 2021
Statutory Buyouts and Discounts Under the Fair Market Value Standard: An Awkward Pair?
Valuation discounts can and often do play an outsized role in contested appraisal proceedings involving the valuation of equity interests…
November 01, 2021
November 01, 2021
This Is Not Your Father’s Brady Bunch
If ever there was a ticking time bomb of a family-owned, closely held business more likely to result in business…
October 25, 2021
October 25, 2021
Too Little, Too Late: Court Sides with Ousted Member, but Denies Preliminary Injunction Undoing Termination
We often cover preliminary injunctions on the pages of this blog because they are a powerful tool in the business…
October 18, 2021
October 18, 2021
The Doctrine of Tax Estoppel in Ownership Status Disputes
Ownership status in a closely-held business is the first and most vital box almost every business divorce petitioner must check.…
October 11, 2021
October 11, 2021
Everything You Ever Wanted to Know About Buy-Sell Agreements: A Conversation With Paul Hood
Any shareholder, partnership, or LLC agreement that doesn’t include a well-crafted buy-sell provision triggered by an owner’s death, withdrawal, expulsion,…
October 04, 2021
October 04, 2021
Stay Away Settlement Between Closely-Held Corporation and Dissident Shareholder Goes Away Upon Shareholder’s Death
Business divorce has a way of drawing quick and often lopsided battle lines. Many disputes in closely-held companies feature one…
September 27, 2021
September 27, 2021
Court Cancels Capital Call For Want of a Postage Stamp
Who says email is more efficient and cheaper than regular mail? Not the manager of the McGuire family real estate…
September 20, 2021
September 20, 2021
Court Enjoins Dilution of Brewing Company LLC Membership Interest
Most folks associate beer with pleasure. Beer brings the happy, and many craft brewers will tell you they went into…
September 11, 2021
September 11, 2021
Delaware Declines Subject Matter Jurisdiction Over Judicial Dissolution of Foreign Entities
It’s not surprising that Vice Chancellor Zurn’s recent, first-impression decision in In re Coinmint, LLC, aligning itself with rulings in…
September 07, 2021
September 07, 2021
Summer Shorts: Business Divorce Cases From Across the Country
Welcome to this 11th annual edition of Summer Shorts! This year’s edition features brief commentary on half a dozen business…
August 30, 2021
August 30, 2021
Swing and a Miss: Unopposed LLC Dissolution Claim Denied
In an article from a little over a month ago, we summarized New York’s LLC judicial dissolution statute with the…
August 23, 2021
August 23, 2021
Fueling the DLOM Debate: Control Transfer Restrictions and the Discount for Lack of Marketability
Of all the factors considered by business divorce lawyers and appraisers when valuing an owner’s interest in a closely-held company,…
August 16, 2021
August 16, 2021
When It Comes to Transfers of Ownership Interests, Where There’s a Will There’s Not Always a Way
My partner Frank McRoberts recently posted about two New York cases, one involving an LLC and the other a close…
August 09, 2021
August 09, 2021
Business Divorce Alert: Forum Selection Clauses Do Not Confer Subject Matter Jurisdiction in Foreign Entity Dissolution Cases
As I wrote here, in 2016 the Manhattan-based Appellate Division, First Department decided Raharney Capital LLC v Capital Stack LLC,…
August 02, 2021
August 02, 2021
Stop the Vote: Injunction Halts Shareholders Meeting Pursuant to Courts’ Broad Power to Review Corporate Elections
The right of shareholders to elect a corporation’s directors is one of the most valuable rights attendant to share ownership. …
July 26, 2021
July 26, 2021
Common-Law and Equitable LLC Dissolution: Going, Going, . . .
Recently, we’ve written two articles focusing on the brewing dispute over whether New York law recognizes a viable cause of…
July 19, 2021
July 19, 2021
Betting the Farm On An Oral Partnership Agreement
The Cummins Nursery in upstate New York grows, harvests, plants, and grafts fruit trees — mainly apple trees — which…
July 12, 2021
July 12, 2021
A Bumper Crop: Cannabis Meets Business Divorce
Unless you’ve been living under a rock, you’ve probably heard that a little over two months ago, New York State…
July 06, 2021
July 06, 2021
Managing Members of Realty Holding LLCs Vanquish Self-Dealing Claims
Managing members of manager-managed New York LLCs owe default fiduciary duties of loyalty and care to non-managing members. Those duties…
June 28, 2021
June 28, 2021
To Dissolve to Not to Dissolve, that is the Question. The Answer is Both.
Like the Energizer bunny, some business divorce lawsuits keep going and going and going. Years of protracted litigation, brutal though…
June 21, 2021
June 21, 2021
Judicial Dissolution of LLCs Under RULLCA: Iowa Supreme Court Takes the Stage
Iowa was one of the first states to adopt the 2006 Revised Uniform Limited Liability Company Act. As of this…
June 14, 2021
June 14, 2021
“Intentional” Breach of Fiduciary Duty Defeats Operating Agreement’s Exculpatory Clause
Last week, Peter Mahler blogged about a recent decision holding that a minority shareholder’s claim against its majority co-owners for…
June 07, 2021
June 07, 2021
Appellate Ruling Puts Pappas v. Tzolis to the Test
The New York Court of Appeals’ 2012 opinion in Pappas v Tzolis, decided in the wake and spirit of that…
June 01, 2021
June 01, 2021
Common-Law Dissolution Hits Speed Bumps in Recent Decisions
The heyday of common-law dissolution — if it ever had one — is long past, largely displaced by a statutory…
May 24, 2021
May 24, 2021
Battle of the Estoppels
In an earlier post, we wrote about a fascinating law firm limited liability partnership dispute culminating in a thoughtful post-trial…
May 17, 2021
May 17, 2021
It Was Only a Matter of Time: SPAC Meets Business Divorce
Anyone who keeps up with the public equity markets knows that the volume of IPOs generated by Special Purpose Acquisition…
May 10, 2021
May 10, 2021
Holes in Shotgun Buy-Sell Agreement Keep Deadlock Dissolution Petition Alive
Under both New York and Delaware law, members of an LLC may petition for judicial dissolution on the grounds that…
May 03, 2021
May 03, 2021
Be Careful What You Say. It May Get You Expelled From Your LLC.
Now that I’ve got your attention, relax. At least for New York LLCs, a member can be expelled from an…
April 26, 2021
April 26, 2021
The Money’s There But Out of Reach for the Minority LLC Member
Of late I’ve been ruminating on New York’s membership in the shrinking pool of states that don’t recognize oppression of…
April 19, 2021
April 19, 2021
Unsigned, Non-Final Operating Agreement Trumps Conflicting Testamentary Bequest of LLC Interest
Ten months ago, we wrote about an unusual case involving an LLC member who documented two irreconcilable membership interest transfers…
April 12, 2021
April 12, 2021
On the Menu: Steak and Equitable Dissolution
Fine dining and business divorce crossed paths in a recently decided case featuring a lengthy battle between co-equal ownership factions…
April 05, 2021
April 05, 2021
U.S. Circuit Courts Split on Abstention Doctrine in Dissolution Cases
In 1994, in Friedman v Revenue Management, Inc., the U.S. Court of Appeals for the Second Circuit, covering New York,…
March 29, 2021
March 29, 2021
Civil RICO: A Blunt But Elusive Tool in Business Divorce Cases
What do business divorce litigants have in common with the frill-necked lizard? At the outset of confrontation, they both use…
March 22, 2021
March 22, 2021
The Oral Partnership Operating as a Corporation: Is it a Partnership? A Corporation? Can it be Both?
Oral agreements to form and operate business enterprises are a recurring subject of this blog. We’ve written many times, for…
March 15, 2021
March 15, 2021
“Informal Dissolution” and Individual Liability
Section 1007 of the Business Corporation Law (the “BCL”) has a procedure for dissolved corporations to publish “notice requiring all…
March 08, 2021
March 08, 2021
General Partner Breached Implied Covenants in Partnership Agreement, but Plaintiff’s “Apples-to-Oranges” Calculation Dooms Bid for Damages
In most of the business valuation cases that I’ve litigated, it’s not long before one side accuses the other’s valuation…
March 01, 2021
March 01, 2021
Winter Case Notes: Dissolution of Not-For-Profit Corporation and Other Decisions of Interest
Here in the New York metro area, for the first time in years winter is living up to its name.…
February 22, 2021
February 22, 2021
Who Decides Disputed Valuation Under LLC Agreement’s Buy-Out Provision: Arbitrator or Appraiser?
It’s not unusual to find buy-out provisions in shareholder and operating agreements that commit the pricing of the buy-out to…
February 15, 2021
February 15, 2021
A Shotgun Buy-Sell Agreement and an Email Deal Walk into a Beachside Bar . . .
One of the more attractive features of LLCs as a business organization is that they are, in large part, creatures…
February 08, 2021
February 08, 2021
Re-Revisiting The Duty to Disclose Third-Party Offers Amidst Buy-Out Negotiations
Three weeks ago, I wrote about the Bak v Rostek case in Brooklyn Supreme Court addressing the duty to disclose…
February 01, 2021
February 01, 2021
The Farro Litigation: The Rest of the Story
In last week’s New York Business Divorce, Peter Mahler wrote about an important new decision with far-reaching implications for New…
January 25, 2021
January 25, 2021
Groundbreaking Appellate Ruling Boosts LLC Cash-Out Mergers
For law bloggers, if there’s one thing more satisfying than writing about an important new court decision, it’s writing about…
January 18, 2021
January 18, 2021
The Duty to Disclose Third-Party Offers Amidst Buy-Out Negotiations, Revisited
In 2011 and 2012, the New York Court of Appeals decided a series of difficult cases addressing the circumstances under…
January 11, 2021
January 11, 2021
The Injunction Remedy in Business Divorce Cases
Business divorce clients often arrive in the throes of a crisis, complaining of co-owners siphoning, diverting, depleting, or denying access…
January 04, 2021
January 04, 2021
Top 10 Business Divorce Cases of 2020
I’m very pleased to present my 13th annual list of the past year’s ten most significant business divorce cases. This year’s…
December 28, 2020
December 28, 2020
It Takes Two to Remove a Tiebreaker
“I don’t get no respect” was a famous Rodney Dangerfield comedy routine. It also could be ascribed albeit less comedically…
December 21, 2020
December 21, 2020
An Extreme Case of Petitioner’s Remorse
Many business divorce practitioners are familiar with a phenomenon one might call “petitioner’s remorse” – an often abrupt abandonment of…
December 14, 2020
December 14, 2020
Fee Sharing in LLC Derivative Suits: A Common Law Right and a One Way Street
BCL 626 governs shareholder derivative actions, or suits brought by individual shareholders on behalf of, and for injury to, the…
December 07, 2020
December 07, 2020
Dissenting Shareholders’ Challenge to Appraisal of Famed East End Resort Hits Dead End
Gurney’s Inn is an iconic oceanside resort located in Montauk, New York, on the eastern tip of Long Island’s South…
November 30, 2020
November 30, 2020
Business Divorce on the Menu
The restaurant business is on the skids amid the COVID-19 pandemic. Yelp reports that 60% of closed restaurants won’t re-open.…
November 23, 2020
November 23, 2020
When Estate Plans and Stock Transfer Restrictions Collide
A recent decision from Bronx County Supreme Court Justice Llinet M. Rosado, Sebrow v Sebrow, 2020 NY Slip Op 20269…
November 16, 2020
November 16, 2020
Court Enforces LLC Agreement’s “Naked” Expulsion Clause
Don’t Miss the 2020 LLC Institute Virtual Meeting! It’s that time of year again, when leading experts and practitioners in…
October 26, 2020
October 26, 2020
First-Impression Decision Recognizes a Cause of Action for Common-Law LLC Dissolution
Five years ago, we wrote about an important decision from the Delaware Chancery Court, In re Carlisle Etcetera, LLC, 114…
October 19, 2020
October 19, 2020
Court Bounces Books-and-Records Petition in Feud Over Park Avenue Co-op Board’s Rejection of Prospective Purchasers
Interview with Bob Ambrogi on This Week In Legal Blogging Last week I had the pleasure of being interviewed for…
October 12, 2020
October 12, 2020
Court Rejects Oppressed Shareholder’s Bid for Dissolution or Buy-Out, Finds Money Damages Sufficient
A minority shareholder petitioning for dissolution under BCL § 1104-a must establish, by a preponderance of the evidence, that the…
October 05, 2020
October 05, 2020
The Purposeless Purpose Clause Rides Again
“The Company is formed for any valid business purpose” Nine seemingly benign words in the garden-variety operating agreement of a…
September 28, 2020
September 28, 2020
Two Entities, Two Outcomes: Withdrawal and the Right to an Accounting
In Jacobs v Cartalemi, now the leading case on the subject of LLC member withdrawal (which our firm had the…
September 21, 2020
September 21, 2020
Business Divorce Nation: A Cross-Country Tour of Recent Decisions of Interest
There’s tremendous diversity from state-to-state when it comes to statutory and judge-made law in business divorce cases. The basic fact…
September 14, 2020
September 14, 2020
A Partnership Dissolution in Three Acts Over Fifteen Years and Counting
With apologies to the King James Bible, what the Manhattan real estate market giveth, a poorly conceived partnership agreement taketh…
September 07, 2020
September 07, 2020
Departing LLC Members: Exercise Your Put Option Before Insolvency Approaches
Several weeks ago, I had the pleasure of first appearing on this blog, with a piece about a Delaware Chancery…
August 31, 2020
August 31, 2020
Enforceability of Oral Operating, Shareholder, and Partnership Agreements
Oral agreements – and oral modifications of written agreements – are a constant source of litigation in business divorce cases.…
August 24, 2020
August 24, 2020
Summer Shorts: For-Cause Termination of LLC Member and Other Decisions of Interest
Usually I open my annual Summer Shorts post with some breezy comment about summer vacations, travel, or poolside reading. But…
August 17, 2020
August 17, 2020
Dissolve for Failure to Elect a Board? Better Demand an Election First
New York’s Business Corporation Law (BCL) provides three pathways for non-controlling shareholders to achieve involuntary (judicial) dissolution. The first two…
August 10, 2020
August 10, 2020
A Business Divorce Rarity: The Jury Trial
The mystique of the jury trial is deeply embedded in the social consciousness of our country. Non-lawyers who think of…
August 03, 2020
August 03, 2020
Does an LLC Member Have Absolute Power to Withdraw from the LLC?
Some years ago I had the good fortune to join the ABA Business Law Section’s Committee on LLCs, Partnerships and…
July 27, 2020
July 27, 2020
“Rank Pretext Will Not Do”: Court Enjoins Freeze-Out Merger With No Corporate Benefit
I’ve represented clients on both sides of freeze-out mergers of privately owned business entities, so I’m very familiar with their…
July 20, 2020
July 20, 2020
Disputes Over Member Status Continue to Roil the LLC Waters
I don’t know if empirical studies have been done comparing the relative frequency or ratio of disputes and litigation over…
July 13, 2020
July 13, 2020
The Common-Law Tort of Breach of Fiduciary Duty: The Total Package
In the famous case of Meinhard v Salmon, Justice Benjamin Cardozo wrote in lofty language that lawyers of maltreated business…
July 06, 2020
July 06, 2020
Business Judgment Rule Prevails in Fight Over Liquidation Plan for Dissolved Madoff Feeder Fund
FGLS Equity LLC was one of many feeder funds caught up in the maelstrom that followed the exposure and meltdown…
June 29, 2020
June 29, 2020
Consider Whether Your Buy-Sell Provision is a Call Option Before Pulling the Trigger
This post is authored by Peter J. Sluka, a senior associate in the Manhattan office of Farrell Fritz and a…
June 22, 2020
June 22, 2020
A Trio of Recent Business Divorce Decisions by Manhattan Commercial Division Judges
The COVID-19 pandemic kept New York’s courthouses dark the last few months, but it didn’t slow down the output of…
June 15, 2020
June 15, 2020
How to Resolve Competing Estate Plans of an LLC Owner with a Double Life
Corporate shareholder and LLC operating agreements routinely contain provisions addressing the transfer of equity interests upon the death of an…
June 08, 2020
June 08, 2020
This Single-Appraiser Buy-Sell Agreement Was Asking for Trouble
Was it “an unfortunate attempt to second-guess or even force a ‘do over’ of the appraisal,” as the one side…
June 01, 2020
June 01, 2020
$30 Million Appraisal of Plumbing Fixtures “Marketeer” Goes Down the Drain at Fair Value Hearing
Three shareholders co-own an 8-year old internet-based “marketeer” business that imports Chinese-manufactured sinks, faucets, and related plumbing fixtures that it sells…
May 26, 2020
May 26, 2020
Member Liquidity, Default Rules, and the Corporate-ization of LLCs: A Conversation with Dean Donald J. Weidner
I’m very excited to announce my latest podcast interview featuring Donald J. Weidner, Dean Emeritus of the Florida State University College…
May 18, 2020
May 18, 2020
Will the Pandemic Be a Boon for Future LLC Dissolution Claimants?
The ongoing coronavirus / COVID-19 pandemic has quite literally impacted everyone and everything in New York, including the courts, which…
May 11, 2020
May 11, 2020
When an LLC Manager’s “Sole and Absolute Discretion” is Neither Sole Nor Absolute
If you read most any operating agreement for a manager-managed LLC, chances are you’ll find somewhere in it a grant…
May 04, 2020
May 04, 2020
Buy-Sell Agreements Are Supposed to Deter Litigation, Not Foment It
Two of my pet topics — dysfunctional buy-sell agreements and application of federal court abstention doctrine in private company disputes…
April 27, 2020
April 27, 2020
Turmoil Follows Involuntary Transfers of LLC Membership Interests
LLC enabling legislation swept the country in the late 1980s through the mid 1990s. By the turn of the century…
April 20, 2020
April 20, 2020
Unauthorized Certificate of Revival Dooms Delaware LLC’s Claims Against Former Managing Members
April 06, 2020
No Laughing Matter: Deadlock Dissolution Petition Targets Legendary NYC Comedy Club
The Comic Strip is the oldest stand-up comedy showcase club in New York City. Its co-founders Robert Wachs and Richard Tienken…
March 30, 2020
March 30, 2020
No Double Dipping! Court Denies Post-Valuation Date Distributions in Equitable Buyout of LLC Member
I’m always disappointed by appellate opinions that decide novel or unsettled issues in business divorce cases with little or no…
March 23, 2020
March 23, 2020
Who Is a “Control” Person for Purposes of the Dissolution Statute’s Surcharge Provision?
Section 1104-a of the Business Corporation Law (the BCL) empowers courts to dissolve a corporation if the petitioning shareholder can…
March 16, 2020
March 16, 2020
Forced to Buy Out Law Partner’s Interest In Defunct Firm, Years After Withdrawing? It Can Happen
Article 12 of New York’s Limited Liability Company Law authorizes the formation of professional service limited liability companies (PLLC). Eligible…
March 09, 2020
March 09, 2020
Always Check Provenance Before Taking an Assignment of LLC Interest
Buyers of fine art must investigate the work’s provenance before closing the deal. The same holds true for anyone contemplating…
March 02, 2020
March 02, 2020
Winter Case Notes: Time-Barred Dissolution Petition and Other Decisions of Interest
Welcome to this year’s edition of Winter Case Notes in which I highlight a collection of recent court decisions of interest to business…
February 24, 2020
February 24, 2020
Bending the Rules of Standing: The De Facto Merger Doctrine
Business Divorce 101: To be entitled to an accounting of a closely-held business, the plaintiff or petitioner must demonstrate the…
February 17, 2020
February 17, 2020
Death of Limited Partner Disarms Derivative Action
I’ve yet to see him make a court appearance, and hope I never do, but the Grim Reaper sure has a knack for…
February 10, 2020
February 10, 2020
The Curious Case of the Expelled LLC Member Bound by Operating Agreement He Never Signed
The case of Shapiro v Ettenson ranks as one of the more consequential ones in the realm of New York’s LLC…
February 03, 2020
February 03, 2020
A Case of LLC Withdrawal Symptoms
I was especially drawn to the case I’m about to introduce involving LLC member withdrawal, owing to the Jacobs v…
January 27, 2020
January 27, 2020
Resignation: Antidote for Internal Dissention and Deadlock?
There are countless New York corporations in which the owners are equal 50 / 50 shareholders and co-members of a…
January 20, 2020
January 20, 2020
The Two Worlds of LLCs: A Conversation With Professor Peter Molk (Part Two)
As is my custom, I devote a post on this blog to each new episode of my Business Divorce Roundtable…
January 06, 2020
January 06, 2020
Top Ten Business Divorce Cases of 2019
Imagine staging an Oscars-like award ceremony for business divorce cases: Emcee: And the award for Best Oppressive Conduct Toward a…
December 30, 2019
December 30, 2019
Gull Wing Takes Flight, Pleading Gets Stricken
In litigation, the term “spoliation” generally refers to loss or destruction of evidence. Spoliation can involve physical evidence, paper documents,…
December 22, 2019
December 22, 2019
The Two Worlds of LLCs: A Conversation With Professor Peter Molk (Part One)
After three decades during which it rose from obscurity to become the entity of choice, the limited liability company remains…
December 16, 2019
December 16, 2019
LLC Member’s Petition to Dissolve Boxing Club Dealt First Round KO
In the end, it wasn’t much of a fight. The case of Huggins v Scott, decided last month by Justice W.…
December 09, 2019
December 09, 2019
Can the Company Pay My Legal Fees? – Part Two
My last post on the subject of advancement and indemnification summarized the basic rules by which closely-held business owners, officers,…
November 25, 2019
November 25, 2019
Operating Agreement Spawns Multiple Disputes Between 50/50 Members of Realty Holding LLC
330 West 85th Street is a prime location on Manhattan’s Upper West Side. At that address sits an elegant, pre-war,…
November 11, 2019
November 11, 2019
Advance! Amend! Retreat!
The title of this post describes not an army maneuver, but the outcome of a recent lawsuit in Delaware Chancery…
November 04, 2019
November 04, 2019
LLCs as Nominal Parties in Dissolution Cases: An Uncertain Portal to Federal Court Jurisdiction
It’s Not Too Late to Register for the LLC Institute! The annual LLC Institute is a unique gathering of professionals and academics…
October 21, 2019
October 21, 2019
The Perils of Indeterminate LLC Membership Interests
Here we go again — and again and again. On numerous prior occasions I’ve written about judicial dissolution cases and other infighting among…
October 14, 2019
October 14, 2019
Post-Valuation Date Distributions: Should They Be Credited Against Fair Value Awards?
In my business divorce travels occasionally I encounter instances in which shareholder distributions are made in the period between the valuation date for…
October 07, 2019
October 07, 2019
Lawyer Says, “I’m Not a Partner, No Wait, I am a Partner!” Which is It?
Earlier this year, we wrote about a partnership dispute involving a prominent insurance litigation firm, D’Amato & Lynch, LLP. In…
September 30, 2019
September 30, 2019
Chicken Sh*t Bingo Fans Rejoice: The Dragpipe Saloon Survives a Dissolution Scare
In a moment I’ll explain why you’re looking at a picture of “chicken shit bingo,” but first . . .…
September 23, 2019
September 23, 2019
A Transactional Lawyer’s Approach to Resolving Business Divorce: Podcast Interview with Steve Robinson
Meet Steve Robinson. He’s a 1982 Harvard Law grad who spent the formative years of his legal career practicing corporate securities law at…
September 16, 2019
September 16, 2019
Pave Paradise, Put Up a Purposeful Parking Lot
Parking lots breed partnership disputes. I’ve litigated them and I’ve written about them, most notably the Kassab saga. I suppose it’s…
September 09, 2019
September 09, 2019
Business Divorce in the Surrogate’s Court
Like business divorce, New York trusts and estates litigation (“T&E”) is a highly specialized niche of the law. T&E litigators have their own universe of…
September 03, 2019
September 03, 2019
Court Looks to Partnership Law in Ruling Against Petitioner’s Status as LLC Member
What makes someone a member of an LLC? It’s a question that frequently arises in business divorce cases involving LLCs that…
August 26, 2019
August 26, 2019
Statute Trumps LLC Agreement’s Voting Rights Provision in Dispute Over Manager’s Removal
LLC enabling statutes authorize two types of management structures. The default structure is member-managed in which all members participate in the management of the company’s business affairs.…
August 19, 2019
August 19, 2019
Summer Shorts: LLC Minority Member Oppression and Other Decisions of Interest
It’s that time of year again, when I offer some lighter fare for poolside consumption consisting of summaries of a few recent decisions…
August 12, 2019
August 12, 2019
Court Blocks “End Run” Around Bar to Subject Matter Jurisdiction in Suit to Dissolve Foreign LLC
Many thousands of closely held corporations, limited liability companies, and limited partnerships formed under Delaware law (and, to a much lesser extent,…
July 29, 2019
July 29, 2019
LLC’s Post-Dissolution Receivership is On, is Off, is On
Last week’s post examined an unusual case in which the court appointed a temporary receiver of an LLC pending the…
July 22, 2019
July 22, 2019
Court Appoints Interim Receiver for LLC, But at What Price?
The limited liability company did not exist as a legally recognized business entity in New York when I first began handling business…
July 15, 2019
July 15, 2019
The Demanding Demand Requirement in Shareholder Derivative Actions
Business divorce cases more often than not include claims against the controlling owners for diversion or waste of company assets, usurpation of corporate…
July 01, 2019
July 01, 2019
Siblings Battle Over Spoils from Sale of Family-Owned Business
Normally you don’t associate the lucrative sale of a closely held business with bitter disputes among the co-owners leading to judicial…
June 24, 2019
June 24, 2019
Trouble Down on the Farm: The Importance of Using Experienced Counsel When Forming an LLC
It’s commonly said there are three things that matter with real estate: location, location, location. Likewise, three things matter when choosing a lawyer…
June 17, 2019
June 17, 2019
Can an Arbitrator Order Extra-Judicial Dissolution?
Often business owners enter into arbitration agreements because they hope it will result in a speedier, less expensive resolution than…
June 10, 2019
June 10, 2019
Who Gets to Play the Bankruptcy Card Under Your LLC Agreement?
If you’re a member of a multi-member LLC, and especially if it’s manager-managed, here’s a reason you might want to…
June 03, 2019
June 03, 2019
Ambiguous Advancement Provision Favors Former Officer and Director
I’ve long been intrigued with the frequency of litigation — especially in Delaware Chancery Court — over advancement of legal fees of a corporate…
May 28, 2019
May 28, 2019
Can a Deadlock Resolution Provision Cause Deadlock? This One Did
This is the story of a deadlock resolution provision that backfired. It is a long story — 94 pages long…
May 20, 2019
May 20, 2019
How to Initiate a Fair Value Appraisal Proceeding – a Dissenter’s Checklist
Over the years, we’ve written a lot about limited partnership, corporation, and LLC “fair value” appraisal proceedings. An appraisal proceeding…
May 13, 2019
May 13, 2019
Half-Baked LLC Agreement Yields Improvised Valuation Decision
A Plug for Cunningham on IRC 199A Tax issues always have been an integral factor in valuing closely held business…
May 06, 2019
May 06, 2019
For Want of a Penny: Business Divorce Case Almost Makes it Into Federal Court
“I will not seek or accept an award in excess of $74,999.99, inclusive of punitive damages, attorney’s fees and the…
April 29, 2019
April 29, 2019
Third Time’s Not a Charm in LLC Dissolution Case
As it approaches its sixth anniversary with little sign of letting up, the highly contentious litigation between brothers and business…
April 22, 2019
April 22, 2019
The Law Firm “Partner”- A Rose by Any Other Name . . .
One of the great ironies of New York business divorce litigation is that so much of it involves the breakup of…
April 15, 2019
April 15, 2019
Disclosure of Estate Tax Stock Appraisals in Shareholder Disputes
The discoverability of materials in civil litigation in general resists any hard and fast rules, other than that the scope of discovery…
April 01, 2019
April 01, 2019
Arbitrating Deadlock: A Conversation with Arbitrator Erica Garay
When 50/50 co-owners of a business are deadlocked on a major business decision, unless they have a written agreement in…
March 25, 2019
March 25, 2019
A Pig in a Poke: The Rollercoaster Kadosh Settlement Litigation
Years ago, we wrote about the perils of “impromptu” settlements in business divorce cases – settlements eked out at the…
March 15, 2019
March 15, 2019
A Cross-Country Tour of Five Recent Stock Appraisal Cases
When it comes to business valuation principles in contested appraisal proceedings, I’d say the 50 states have far more in common than…
March 10, 2019
March 10, 2019
Throwing Grenades and Casting Plagues Upon Your Fellow Directors: A Lesson in Fiduciary (Ir)responsibility
This week’s post is by Matthew D. Donovan, a commercial litigation partner and member of Farrell Fritz’s business divorce practice group. There is…
March 04, 2019
March 04, 2019
Judicial Dissolution as the Nuclear Option When Other Means Falter
nu•cle•ar op•tion (noun): the most drastic or extreme response possible to a particular situation The litigation arsenal of business divorce lawyers contains…
February 25, 2019
February 25, 2019
Sue for Dissolution – Get Sued for Defamation?
It’s simply in the nature of things that business divorce litigants tend to accuse one another of all manner of heinous,…
February 19, 2019
February 19, 2019
Winter Case Notes: Oppression of the “Gifted” Minority Shareholder and Other Recent Decisions of Interest
Notwithstanding we’ve had no more than a dusting of snow thus far in my downstate New York neck of the woods, welcome to another…
February 11, 2019
February 11, 2019
The Bad-Faith Petitioner Defense Makes Successful Debut in LLC Dissolution Case
What’s become known as the bad-faith petitioner defense in judicial dissolution proceedings first emerged in Matter of Kemp & Beatley, 64 NY2d…
February 04, 2019
February 04, 2019
Minority Shareholder Oppression in the #MeToo Era
In the last two years, fueled by a series of high profile cases involving media executives, entertainers, and other public…
January 28, 2019
January 28, 2019
A Fresh Take on an Old Doctrine – The “Adequate, Alternative Remedy” to Dissolution
After 35 years, Matter of Kemp & Beatley, Inc. (64 NY2d 63 [1984]), remains the leading authority in New York on oppression-based corporate…
January 22, 2019
January 22, 2019
Another Reason Not to Use Fixed Price Buy-Sell Agreements
As if we need another case illustrating why fixed price buy-sell agreements should be avoided like the plague. Before we get to…
January 14, 2019
January 14, 2019
Business Divorce Epilogues
Over the years I’ve blogged about hundreds of court decisions in business divorce cases. Believe it or not, one of the…
January 07, 2019
January 07, 2019
Top Ten Business Divorce Cases of 2018
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…
December 31, 2018
December 31, 2018
Equitable Accounting vs. Access to Books and Records: Don’t Confuse Them
Raise your hand if you think that a lawsuit for an accounting by the managers of an LLC simply means they…
December 17, 2018
December 17, 2018
Outlawing of LLC’s Short-Term Rental Business Brings Long-Term Litigation
After two years, 300+ docket entries, and 12 motions, a lawsuit among members of a Delaware LLC that owned a…
December 10, 2018
December 10, 2018
IP Disputes Among Private Business Co-Owners Dominate Three Recent Cases
Last month gave us three noteworthy post-trial decisions in three different cases from three different states, all centering on disputes…
December 03, 2018
December 03, 2018
When Dealing in Partnership Owned Real Property, Caveat Emptor
A basic and well-known principle of partnership law is that, absent an agreement to the contrary, general partners have authority to unilaterally bind…
November 26, 2018
November 26, 2018
Is a Schedule K-1 By Itself Enough to Prove LLC Membership?
Let me say up front, I don’t claim to know the answer to the question posed in this post’s title, or pretend…
November 19, 2018
November 19, 2018
Think Twice Before Putting 100% Quorum Requirement in By-Laws or LLC Agreement
It’s no surprise that the quorum requirements found in close corporation by-laws and LLC operating agreements rarely step into the limelight…
November 12, 2018
November 12, 2018
A Deep Dive Into the Election to Purchase in Dissolution Proceedings
When a minority shareholder petitions for judicial dissolution under § 1104-a of the Business Corporation Law based on the majority’s alleged…
November 05, 2018
November 05, 2018
Accounting Unchained: Is the Closely Held Business Owner’s Right to an Accounting Absolute?
Let’s face it. In business divorce, the accounting cause of action doesn’t get a lot of love. It’s not as sexy as the…
October 29, 2018
October 29, 2018
Does an Inactive Member of a Member-Managed LLC Owe Fiduciary Duties?
Consider the following hypothetical: The operating agreement of an LLC vests management authority in its two members. In practice, and…
October 22, 2018
October 22, 2018
Inspection Rights, Oral Operating Agreements, and Other Pop-Diva Delights
Over the last several years, the books-and-records proceeding and its corresponding shareholder rights of inspection seem to have entered a…
October 15, 2018
October 15, 2018
Does This Decision Put the Brakes on Non-Unanimous Amendments to Operating Agreements?
Much digital ink has been spilled on this blog (here, here, here, and here) and elsewhere (Tom Rutledge’s terrific article…
October 08, 2018
October 08, 2018
Stock Pledge Agreement Defeats Minority Shareholder’s Standing to Sue for Statutory But Not Common-Law Dissolution
Last week, this blog wrote about a decision by Manhattan Commercial Division Justice Saliann Scarpulla in the burgeoning Yu family melee, in…
October 01, 2018
October 01, 2018
Judicial Dissolution and the Weaponized LLC
What’s a weaponized LLC? It’s one whose operating agreement gives the controlling majority members the authority to dilute, remove from management, or expel a non-controlling…
September 24, 2018
September 24, 2018
Repeat After Me: You May Not Expel a Member of a New York LLC Unless the Operating Agreement Says So
C’mon, New York lawyers, do you really want to spend your time, your client’s money, and bother the court litigating…
September 17, 2018
September 17, 2018
Past is Prologue: Refusal to Adopt Dividend Policy After Petitioner Resigns Not Ground for Dissolution
In the judicial dissolution case that John (“Jake”) Feldmeier brought after resigning as the highly paid president of the family-owned business, the central…
September 10, 2018
September 10, 2018
Basics of Valuation Proceedings – Litigating an Appraisal from Start to Finish – Part 3
This is the final installment of a three-part series about the basics of contested New York business appraisal proceedings. The first…
September 04, 2018
September 04, 2018
Gymnastics Business Falls Off the Beam in LLC Dissolution Case
Very few and very far between are cases in which the holder of a minority membership interest in a New York LLC — with or without…
August 27, 2018
August 27, 2018
LLC Dissolution Statutes Under the Microscope: Podcast Interview with Professor Douglas Moll
Douglas K. Moll, Professor of Law at the University of Houston Law Center, is well known to business divorce aficionados for…
August 20, 2018
August 20, 2018
Summer Shorts: Partnership Appraisal and Other Recent Decisions of Interest
The dog days of August are upon us, a perfect time as I do each year to offer vacationing readers some lighter…
August 13, 2018
August 13, 2018
Basics of Valuation Proceedings – Litigating an Appraisal from Start to Finish – Part 2
A few weeks ago, this blog – in the first of a three-part series about business valuation proceedings – addressed the various statutory triggers by which…
August 06, 2018
August 06, 2018
49% Shareholder Can’t Seek Deadlock Dissolution Despite Shareholders’ Agreement Granting Co-Equal Control
Shareholders A and B are the sole shareholders of a real estate holding corporation. Their shareholders’ agreement includes provisions that: guarantee each…
July 30, 2018
July 30, 2018
Dissension Follows When Business Owners Don’t Put Their IP House in Order
When you think about protecting a business firm’s intellectual property (IP), usually you think about protecting it from infringement by external actors. But there also…
July 23, 2018
July 23, 2018
Dead Men Tell No Tales of Shareholder Buy-Outs Gone Sour
When three gentlemen in their mid-eighties, one of whom is in a nursing home with failing health and onset dementia, are the key…
July 16, 2018
July 16, 2018
Basics of Valuation Proceedings – Litigating an Appraisal from Start to Finish – Part 1
Last month, seasoned business appraiser Andy Ross of Getty Marcus CPA, P.C., and I made a presentation at the Nassau…
July 09, 2018
July 09, 2018
Lessons From a Trio of Dysfunctional Buy-Sell Agreements
Three recent court decisions from three different states — New York, Pennsylvania, and Alabama — add to the rogue’s gallery…
July 02, 2018
July 02, 2018
Court Denies Second Bite at Dissolution Cherry in Kassab Brothers Business Divorce
The hard-fought business divorce litigation between Nissim Kassab and his brother Avraham has provided plenty of fodder for this blog over the last…
June 25, 2018
June 25, 2018
You Sued for Dissolution, They Elected to Buy You Out, What Else Do You Want?
Article 11 of the Business Corporation Law features multiple provisions giving judges broad authority and discretion to impose interim remedies designed to preserve corporate…
June 18, 2018
June 18, 2018
A Trip Down Business Divorce Lane with Recently Retired Justice Shirley Werner Kornreich
With a genuine sense of loss, we bid adieu to Manhattan Commercial Division Justice Shirley Werner Kornreich, who retired at the…
June 11, 2018
June 11, 2018
Bona Fide Purchaser Avoids Rescission of Minority Shareholder’s Unauthorized Sale of Corporation’s Realty
The Lowbet Realty saga, featuring the dissolution court’s rarely used authority to rescind an unauthorized sale of the corporation’s realty under Business Corporation Law…
June 04, 2018
June 04, 2018
Anyone Think Binding Mediation to Break Deadlock Is a Good Idea?
Mediation, as commonly understood in the context of alternative dispute resolution, employs a neutral third party to facilitate negotiation and voluntary agreement between the parties. Unlike arbitration, the…
May 29, 2018
May 29, 2018
No Prize for Nobel Laureate in Fight for Bigger Stake in Biotech Company
The Nobel Prize symbolizes the apex of human achievement in the arts and sciences. It is no guarantee, however, that…
May 21, 2018
May 21, 2018
Corporate Frankenstein “Partnership to Form a Corporation” Lives Another Day
Lawyers are famous for arguing seemingly inconsistent positions at the same time. We practitioners lovingly refer to the technique as “arguing in the alternative.” The…
May 14, 2018
May 14, 2018
If LLC Agreement Must Be in Writing, Must it Be Signed?
Transactional lawyers who assist clients in the formation and restructuring of business entities, and the litigators who clean up the transactional…
May 07, 2018
May 07, 2018
Court Grants 50% LLC Member Derivative Right to Defend Action Brought by Other 50% Member’s Solely Owned Company
You know there’s something unusual going on in a case involving a dispute between co-members of an LLC — a form of…
April 30, 2018
April 30, 2018
Can LLC Agreement Waive Right to Sue Derivatively? Not in These Two Cases
Recently, in two separate cases, two New York judges construing two LLC agreements of two LLCs formed under the laws of two…
April 23, 2018
April 23, 2018
Operating Agreement Dooms Derivative Claims by Deceased LLC Member’s Estate
In business divorce litigation, petitioners / plaintiffs often want to start the case with a bang. A common tactic is to file a petition…
April 16, 2018
April 16, 2018
Shareholder Oppression Requires More Than Denial of Access to Company Information
“We are poster-boys for why family members should not go into business together.” So says respondent Paul Vaccari in his…
April 09, 2018
April 09, 2018
New York’s High Court Takes Fresh Approach to Wrongful Dissolution, Sustains Valuation Discounts, Limits Damages in Partnership Case
There’s a lot to digest in last week’s decision by the Court of Appeals — New York’s highest court —…
April 02, 2018
April 02, 2018
You Dissented From a Merger. Are You Bound by Your Non-Compete?
New York’s business-entity statutes, like those across the nation, provide minority owners with the right to dissent from a merger…
March 26, 2018
March 26, 2018
The Cash-Out Merger Solution to the Problem Minority Owner
How can majority business owners legally rid themselves of a problematic minority owner? Not by transferring the business’s assets to another entity for no consideration. That…
March 19, 2018
March 19, 2018
Appeals Court Reinstates Derivative Claims Dismissed for Conflict of Interest Where Parties’ Relationship Not “Especially Acrimonious”
Almost always there are elements of acrimony and intense emotion in litigation between co-owners of closely held business entities. The degree…
March 12, 2018
March 12, 2018
One 50% Shareholder Wants to Sell or Liquidate the Business. The Other Wants to Keep It Going. Is That Deadlock?
We call it deadlock dissolution when a 50% shareholder of a close corporation, who claims to be at an impasse…
March 05, 2018
March 05, 2018
LLC Member Expulsion: What Hath Shapiro Wrought?
Unlike the LLC statutes in many other states, New York’s LLC Law does not authorize the LLC or any of its members…
February 26, 2018
February 26, 2018
The LLC Equitable Buyout: Past, Present, Future
Under the right set of facts, New York courts occasionally find remedies for LLC owners not explicitly authorized in the Limited Liability Company Law (“LLC…
February 19, 2018
February 19, 2018
Will Someone Please Re-Name the Implied Covenant of Good Faith and Fair Dealing?
In the annals of business divorce litigation and assorted other disputes between co-owners of closely held business entities, the cause of…
February 12, 2018
February 12, 2018
The Purposeless Purpose Clause Makes a Comeback — Or Does It?
The test for judicial dissolution of LLCs under LLC Law § 702, as laid down in 1545 Ocean Avenue, initially asks whether the…
February 05, 2018
February 05, 2018
Confessions of a Business Appraiser: A Conversation with Chris Mercer
Business valuation contests in court, including those arising out of shareholder and partnership disputes, inevitably boil down to a battle of the appraisal…
January 29, 2018
January 29, 2018
Rare Partnership Dissolution Decision Applies Deadlock Standard to Dissolution Under Partnership Law
As LLCs have become the dominant form of closely-held business in New York, cases involving dissolution of partnerships have become more and more rare. Section…
January 22, 2018
January 22, 2018
Delaware Chancery Court Rulings Address Valuation and Insolvency Disputes
The steady flow and scholarly character of Delaware Chancery Court opinions in company valuation contests provide an important resource and learning tool for…
January 15, 2018
January 15, 2018
Winter Case Notes: LLC Deadlock and Other Recent Decisions of Interest
This winter forever will be remembered in the Northeast as the winter of the “bomb cyclone,” which gets credit for the 6º temperature and…
January 08, 2018
January 08, 2018
Top 10 Business Divorce Cases of 2017
I’m delighted to present my 10th annual list of this past year’s ten most significant business divorce cases. This year’s list includes seven noteworthy…
January 02, 2018
January 02, 2018
Delaware Contractarian Principles Prevail in Appeal Over Deceased Ace Hotel Founder’s LLC Interest
The sudden death of Alexander Calderwood, the brilliant but troubled co-founder of the Ace brand of hotels, resulted in some fierce…
December 26, 2017
December 26, 2017
A River’s Divide: Time for the Manhattan and Brooklyn Appellate Courts to Agree on Marketability Discount in Fair Value Proceedings
The East River and roughly five miles as the pigeon flies separate the equally beautiful courthouses of the Appellate Division, Second…
December 18, 2017
December 18, 2017
Operating Agreement Defeats Statutory Buyout Rights Upon LLC Member’s Withdrawal
When the tsunami of LLC enabling statutes swept the U.S. in the late ’80s and early ’90s, including New York in 1994, many included a…
December 11, 2017
December 11, 2017
Reflections on Ten Years of Blogging
This week marks the tenth anniversary of the launch of this blog. Every Monday morning since, come hell, high water,…
December 04, 2017
December 04, 2017
Surrogate’s Court Declines to Order Demise of Fashion Business
When you want to sue to dissolve a business in New York on behalf of the estate of a deceased…
November 27, 2017
November 27, 2017
Can the Bare Naked Assignee Demand Access to LLC Records?
I wish I could take credit for it, but I can’t. The phrase “bare naked assignee” was coined by the preeminent…
November 20, 2017
November 20, 2017
The (Even More) Elusive Surcharge in Dissolution Proceedings
A year ago I wrote a piece called The Elusive Surcharge in Dissolution Proceedings highlighting the rare appearance in the…
November 13, 2017
November 13, 2017
Divorcing Husband Not Smiling Over Court’s Rejection of Ownership Interest in Wife’s Dental Practice
The self-proclaimed entrepreneur and guiding force behind his soon-to-be ex-wife’s highly successful, multi-office pediatric dental practice known as Kiddsmiles is not smiling after the court…
November 06, 2017
November 06, 2017
“Where’s the Beef?” Says Appeals Court, Reversing LLC Dissolution
A dissolution petitioner received the judicial equivalent of the old quip “Where’s the beef?” in a Brooklyn appeals court decision last…
October 30, 2017
October 30, 2017
Calling an Organization a Partnership Doesn’t Make it One, But Not Calling it a Partnership Doesn’t Make it Not One. Got It?
Did you know there’s such a thing as an “inadvertent partnership”? The basic definition of a partnership, under both the…
October 23, 2017
October 23, 2017
A Member By Any Other Name . . . May Have Access to LLC Books and Records
I’ve seen LLC operating agreements ranging from one page to over 100. Usually there’s a direct relationship between the length of the agreement and the…
October 16, 2017
October 16, 2017
Court Defines “True Deadlock”
Minority shareholder oppression and deadlock are the twin pillars of most business divorce litigation. Both are codified in the vast…
October 09, 2017
October 09, 2017
LLC’s Purpose Being Achieved? Business Doing Fine? Good Luck Getting Judicial Dissolution
New York’s LLC judicial dissolution statute, Section 702 of the Limited Liability Company Law, provides far more limited grounds to dissolve a business than the Business Corporation…
October 02, 2017
October 02, 2017
Read This Case. Slap Your Head. Not Too Hard.
Having read thousands of court opinions during my 30+ years as a litigator, I’ve learned to assume that there are things going…
September 25, 2017
September 25, 2017
Don’t Let the Deal Get Ahead of the Documents
The practical lesson for entrepreneurs of the case I’m about to describe is, never sign complex business agreements without your lawyer,…
September 18, 2017
September 18, 2017
Business Divorce Stories: Podcast Interviews with Business Appraiser Tony Cotrupe and Attorney Jeffrey Eilender
If you haven’t yet listened to prior episodes of the Business Divorce Roundtable (a) it’s time you did and (b)…
September 11, 2017
September 11, 2017
Superstorm Sandy Unable to Wash Away Sin of Contempt
As many judges and lawyers know, Superstorm Sandy has been used in litigation over the years as an excuse for…
September 05, 2017
September 05, 2017
Summer Shorts: Three Must-Read Decisions
Regular readers of this blog know it’s been anything but summer doldrums in the world of business divorce, what with case law developments such…
August 28, 2017
August 28, 2017
Does Your LLC Agreement Have a Purposeless Purpose Clause?
WARNING: Contractarians may find the following post disturbing. Reader discretion is advised. Now that I’ve got your attention, consider this:…
August 21, 2017
August 21, 2017
And the Award For Most Oppressive Conduct By a Majority Shareholder Goes to . . .
Over the years I’ve litigated and observed countless cases of alleged oppression of minority shareholders by the majority. Oppression can take endlessly different forms, some…
August 14, 2017
August 14, 2017
Navigating Rocky Shoals and Safe Harbors When Board Members Fix Their Own Compensation
Board members’ decisions to award compensation packages for themselves can present some thorny issues. In a close corporation, shareholders typically…
August 07, 2017
August 07, 2017
Books and Records Case Illustrates Crucial Importance of Pre-Suit Demand
The third time definitely wasn’t a charm for the plaintiff in Austin v Gould, 2017 NY Slip Op 31494(U) [Sup Ct…
July 31, 2017
July 31, 2017
It’s a Partnership! No, It’s an LLC! No, It’s Both!
In 1981, three partners formed a general partnership to own and operate a rental property. Their partnership agreement fixed a 30-year term, to…
July 24, 2017
July 24, 2017
Interview With Justice Carolyn Demarest (Ret.) on Litigating and Mediating Business Divorce Cases
During her many years as Presiding Justice of the Brooklyn Commercial Division, New York Supreme Court Justice Carolyn E. Demarest (Ret.)…
July 17, 2017
July 17, 2017
Minority Shareholders’ Derivative Suit Foiled by Voiding of Corporation’s Charter for Nonpayment of Taxes
A business’s failure to pay state taxes can be a problem if the entity later wants to bring a lawsuit, or…
July 10, 2017
July 10, 2017
In Dispute Over Partnership’s Conversion to LLC, Court Finds No Duty to “Spoon-Feed” Sophisticated Investor
Pay attention to your K-1s or they may come back to bite you, is the lesson of Bruder v Hillman, Docket No.…
July 03, 2017
July 03, 2017
Appraisers’ Valuations Are Light-Years Apart, But Does That Make Them Hired Guns?
The title of this post notwithstanding, the judge’s decision in the recent, high-stakes stock valuation case I’m about to describe, featuring a clash of…
June 26, 2017
June 26, 2017
Then There Were Two: Court Rejects Minority Shareholder’s Claim of Wrongful Termination Under Founders Agreement
Wanted: Business Divorce Stories Are you a business owner who’s been through a contentious break-up with your business partners and…
June 19, 2017
June 19, 2017
Federal Court No Mecca for Business Divorce Litigants
Civil litigation in federal court can be a luxury experience. The quality of the judiciary is superb. Federal judges often…
June 12, 2017
June 12, 2017
Finding No “Therapeutic” Benefit to Corporation, Court Denies Fee Award in Discontinued Shareholder Derivative Action
At first glance, you might think the plaintiff minority shareholder in Sardis v Sardis, 2017 NY Slip Op 27163 [Sup Ct…
June 05, 2017
June 05, 2017
“Food Fight” Sequel Ends Badly for Ousted Sibling
A little over three years ago I reported on the first round of a fascinating “food fight” among four siblings, each…
May 30, 2017
May 30, 2017
Delaware Ruling Highlights Difference With New York Over Amending LLC Agreements
The common perception among practitioners familiar with the business entity laws of New York and Delaware is that Delaware law…
May 22, 2017
May 22, 2017
Assignment of LLC Interest Defeats Standing Despite Alleged Lack of Consideration
The rules of “standing” in business divorce litigation generally require that the plaintiff have an ownership interest in the business entity at the time of the…
May 15, 2017
May 15, 2017
Aim Carefully Before Pulling Trigger on Shotgun Buy-Sell Agreement
At least on paper, shotgun provisions in shareholder and operating agreements provide an elegant and efficient buy-out solution when business owners…
May 08, 2017
May 08, 2017
Suing on Behalf of People You’re Suing Can Sink a Derivative Lawsuit — Especially If You Have a Litigious Nature
The U.S. reportedly has the world’s highest number of lawyers per capita (1 for every 300 people) and the 5th highest…
May 01, 2017
May 01, 2017
Forensic Analyses in Valuation: Interview With Jaime d’Almeida of Duff & Phelps
Forensics means different things to different people in different contexts. But what does it mean in the context of valuing…
April 24, 2017
April 24, 2017
Withdraw a Dissolution Claim? Not So Fast
Article 11 of the Business Corporation Law governs dissolution of closely held New York business corporations. Article 11 has existed, more…
April 17, 2017
April 17, 2017
Business Divorce Nation: Five States, Five Cases
It’s true that the statutory and common-law rules at play in business divorce cases can vary widely from state to…
April 10, 2017
April 10, 2017
Beware Diversity Trap in Federal Court Business Divorce Cases Involving LLCs
I can count on one hand the number of federal court cases I’ve featured on this blog since I started it almost 10 years…
April 03, 2017
April 03, 2017
A Pair of Unbrotherly Business Altercations Go to Trial
Like most civil cases, the vast majority of business divorce disputes get resolved before trial, which is disappointing for us voyeurs…
March 27, 2017
March 27, 2017
When Love and Business Fails
When a romantic affair evolves into a business relationship, the eventual falling out can be especially messy. Even more so…
March 20, 2017
March 20, 2017
Has New Jersey Gone Off Its DLOM Rocker?
Whenever I contemplate New York’s unusual case law on the discount for lack of marketability (DLOM) in statutory fair value buy-out proceedings, I cast my…
March 13, 2017
March 13, 2017
Mediating Business Valuation Disputes
Mediation continues to grow in popularity as a means of resolving legal disputes in lockstep with the rising costs and delays…
March 06, 2017
March 06, 2017
Business Appraisers Spar Over Tax Rates, Market Approach and Other Key Issues in Fair Value Buy-Out Case
As promised in the postscript to last week’s post about the appellate ruling in the Gould case, affirming Justice Platkin’s…
February 27, 2017
February 27, 2017
An Oppression How-To: Revoke Employment, Profit Sharing and Control
An earlier post on this blog, examining a post-trial decision in Matter of Digeser v Flach, 2015 NY Slip Op 51609(U) [Sup Ct…
February 20, 2017
February 20, 2017
Race to the Exit as Professional Practice Falters
Does a shareholder have a fiduciary duty not to exercise a contractual right under the shareholders’ agreement to resign and demand a…
February 13, 2017
February 13, 2017
Winter Case Notes: De Facto Partnership and Other Recent Decisions of Interest
Welcome to another edition of Winter Case Notes in which I clear out my backlog of recent court decisions of interest to…
February 06, 2017
February 06, 2017
Thinking About Becoming a Minority Member of a New York LLC Without an Operating Agreement? Think Again
An appellate decision last week sounds alarm bells for minority members of New York LLCs that have no operating agreement and for…
January 30, 2017
January 30, 2017
Operating Agreement Trumps Falsified Liquor License Application In Dispute Over LLC Membership
Oh, the things that can happen when the LLC members identified in the company’s operating agreement differ from those identified in…
January 23, 2017
January 23, 2017
Court of Appeals to Decide Controversial Partnership Dissolution Case
In a controversial ruling last year in Congel v Malfitano, the Appellate Division, Second Department, affirmed and modified in part…
January 16, 2017
January 16, 2017
Announcing Must-Have Treatise on Business Divorce Litigation
There’s little doubt in my mind that “business divorce” has achieved name recognition as a distinct subgenre of commercial litigation whose regular practitioners,…
January 09, 2017
January 09, 2017
Limited Partners Take a Licking in Two Delaware Supreme Court Decisions
Notwithstanding the ascendency of the limited liability company, the Delaware limited partnership continues to serve as an important, tax-advantaged vehicle for…
January 02, 2017
January 02, 2017
Top 10 Business Divorce Cases of 2016
I’m pleased to present my 9th annual list of this past year’s ten most significant business divorce cases. The list includes important appellate rulings…
December 26, 2016
December 26, 2016
Sole Owners of Close Corporation and LLC Discover They’re Not So Sole
What makes a shareholder a shareholder? What makes an LLC member a member? The simplicity of the questions belies the…
December 19, 2016
December 19, 2016
Marketability Discount Revisited: Interview With Greg Barber
Yet another voice, that of Greg Barber, CFA, of Barber Analytics in San Francisco, has joined the growing debate in business valuation and legal…
December 12, 2016
December 12, 2016
Another Frozen-Out Minority LLC Member’s Petition for Dissolution Bites the . . . Sushi?
The Japanese word “omakase” translates as “I’ll Ieave it up to you” and is used by patrons of sushi restaurants to leave the…
December 05, 2016
December 05, 2016
Articles & Advisories
Can the Company Pay My Fees? Advancement and Indemnification in Business Divorce Litigation
Litigants must pay their own lawyer fees, even if they win, unless a contract, statute, or court rule provides otherwise.…
July 19, 2023
Business Divorce and Judicial Dissolution Cases of 2022
Last year the Commercial Division rejected the New York Attorney General’s bid to dissolve the National Rifle Association based on…
March 07, 2023
New Partner Spotlight: Peter J. Sluka
In celebration of our newly minted partners, Farrell Fritz is proud to present our “New Partner Spotlight,” a series of…
February 03, 2023
Business Divorce Cases of 2021
Selecting the most noteworthy decisions from a year’s worth of business divorce cases normally is a daunting challenge given the…
February 25, 2022
Business Divorce Cases of 2020
The pace of business divorce litigation has proven impervious to economic busts and booms, and now pandemics as well. The…
March 03, 2021
Business Divorce Cases of 2019
Last year’s most noteworthy business divorce cases are marked by a diversity of subject matter, spanning a gamut of disputes…
March 09, 2020
Business Divorce Cases of 2018
In recent years, most of the new and noteworthy case law developments in the business divorce field predictably have involved…
February 26, 2019
Selling Your Business: Baskets, Deductibles and Caps, Oh My!
By Lyle C. Mahler You’re a business owner and have spent years nurturing and growing your business into a valuable asset,…
May 09, 2018
THE NEW TAX LAW: What Businesses Can Expect
The question we hear most from domestic business owners about the TCJA is, “How much will IRC Section 199A 20…
May 09, 2018
Business Divorce Cases of 2017 Focus On Oppression, Valuation and LLC Issues
New York courts last year decided an impressive array of business divorce cases involving closely held corporations, partnerships, and limited…
February 16, 2018
News
Farrell Fritz elevates five to partner
Farrell Fritz, the law firm headquartered in Uniondale, has elevated five attorneys to partner. Read the full coverage in Long…
January 16, 2023
I set up a company with 3 friends. It has annual sales of $1 million. Two partners hijacked control of the bank accounts, and want to push others out. What can we do?
It’s time to stop trying to be fair, and start getting real. Before you do anything with friends — whether…
August 30, 2022
Cellino & Barnes Battle Ends With Deal To Wind Down Firm
The warring partners who brought Buffalo, New York-based personal injury firm Cellino & Barnes PC national recognition — and massive profits —…
June 17, 2020
In a Business Divorce, Knowing What to Do Is the First Step
Neil Sadaka said it best: “Breaking up is hard to do.” It’s as true in love as it is in…
February 19, 2020
LexBlog Leaders: Peter Mahler Builds an Engine with Zeal
Peter Mahler discusses his impetus for launching the New York Business Divorce blog, how it has contributed to his business success…
September 12, 2016
Understanding the Specifics of a Business Divorce
Breaking up is hard to do, so Uniondale-based law firm Farrell Fritz has set up a practice group to make…
June 30, 2016
Farrell Fritz Counsels Disputing Partners with Business Divorce Practice Group
The attached advertorial, published in the May 27, 2016 issue of Long Island Business News, discusses the launch of Farrell Fritz’s…
June 02, 2016
Press Releases
23 Farrell Fritz Attorneys Recognized as 2023 Leading Lawyers in Their Respective Areas of Practice
Farrell Fritz has a combined total of 23 attorneys selected to the 2023 New York Metro Super Lawyers and New…
September 26, 2023
Farrell Fritz Elevates Five Attorneys to Partner
Farrell Fritz is pleased to announce the promotion of John C. Armentano, Azriel J. Baer, Peter J. Sluka, Lisa M.…
January 03, 2023
Lyle C. Mahler of Farrell Fritz Elected to the Board of Long Island Cares, Inc.
Long Island Cares -The Harry Chapin Regional Food Bank is pleased to announce that Lyle C. Mahler, has been elected…
October 07, 2019
29 Farrell Fritz Attorneys Recognized as 2019 Leading Lawyers in Their Respective Areas of Practice
Farrell Fritz has a combined total of 29 attorneys selected to the 2019 New York Metro Super Lawyers and New…
September 17, 2019
Farrell Fritz Launches Business Divorce Practice Group
Farrell Fritz is pleased to announce the launch of the firm’s Business Divorce practice group. Led by Peter A. Mahler,…
June 06, 2016
Farrell Fritz’s New York Business Divorce Blog Chosen as an ABA Journal Blawg 100 Honoree
Farrell Fritz is pleased to announce that the firm’s New York Business Divorce blog, authored by Peter A. Mahler, was…
November 25, 2015
30 Farrell Fritz Attorneys Recognized as 2015 Leading Lawyers in their Respective Areas of Practice
Farrell Fritz had a combined total of 30 attorneys selected to the 2015 New York Super Lawyers and New York…
September 16, 2015
30 Farrell Fritz Attorneys Recognized as 2014 Leading Lawyers in their Respective Areas of Practice
Farrell Fritz had a combined total of 30 attorneys named to the 2014 New York Super Lawyers and New York…
September 23, 2014
On Demand Webcasts
Deadlock-Breaking Mechanisms in LLCs: Avoiding Litigation and Dissolution When Members and Managers Fail to Agree
January 16, 2020