Articles

2019 Amendments to Delaware’s General Corporation Law and Alternative Entity Statutes

In its 2019 session, the Delaware legislature passed a number of amendments to the Delaware General Corporation Law and the Delaware “alternative entity” statutes—the Delaware Limited Liability Company Act, the Delaware Revised Uniform Limited Partnership Act, and the Delaware Revised Uniform Partnership Act... Continue Reading

2019 Q&A on the Delaware Law Amendments Relating to Registered Series of Limited Liability Companies

The DLLCA is amended annually to ensure that it is the preeminent statute governing LLCs and to ensure that the DLLCA addresses the needs of practitioners and persons using the LLC form, including the needs of M&A practitioners.  The amendments that took effect on August 1, 2019 provide for creation of “registered series” (Amendments), among other things. A registered series is... Continue Reading

Recent Delaware Rulings Highlight Chapter 11’s Inherent Flexibility

Congress designed Chapter 11 to be flexible to promote the twin goals of rehabilitating distressed businesses and maximizing stakeholder returns.1 Several recent decisions from the U.S. Bankruptcy Court and District Court for the District of Delaware highlight how Chapter 11’s inherent flexibility promotes these goals. These decisions include: allowing “horizontal gifting” of an... Continue Reading

“Kaesting” Doubt on the State Fiduciary Income Tax System

The U.S. Supreme Court will soon render a decision that could have a significant impact on the manner in which some states tax income accumulated in nongrantor trusts.  The case pending before the U.S. Supreme Court, North Carolina Dep’t of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust (No. 18-457), involves a North Carolina statute that assesses a tax upon the undistributed income... Continue Reading

Where There’s a Will, There’s Family: Pre-mortem validation and no-contest clauses to the rescue!

In recent years, many states have enacted pre-mortem validation statutes enabling testators or settlors to take proactive steps to avoid will or trust contests. Pre-mortem validation statutes provide a mechanism to be used during the testator’s life to ensure testamentary documents are declared valid and to avoid post-death challenges. Another approach that offers a strong deterrent to will... Continue Reading

Delaware Supreme Court Rules on Minority Members’ Rights in the Sale of LLCs

In Oxbow Carbon & Minerals Holdings, Inc. v. Crestview-Oxbow Acquisition, LLC, the Delaware Supreme Court affirmed in part and reversed in part a decision by the Court of Chancery that used the implied covenant of good faith and fair dealing to permit minority members (the “Minority Members”) of a Delaware limited liability company (the “LLC”) to cause a sale of the LLC despite the... Continue Reading

Q&A on the Delaware Law Amendments Relating to Limited Liability Company Divisions

On August 1, 2018, the Delaware Limited Liability Company Act (DLLCA) was amended to add, among other things, a division statute (Amendments). The Amendments included new Section 18-217 which permits a Delaware limited liability company (LLC) to divide into two or more LLCs (each a Division company). In a division, the LLC effecting the division (the Dividing company) continues its existence or... Continue Reading

If You Can't Beat 'Em, Join 'Em: UDTA and Directed Trust Statutes Come of Age

Over the last decade, trust law has evolved so the role of trustee can better reflect the open architecture that modern families desire. It’s now commonplace for trust settlors to design so-called “directed trusts,” and existing trusts are frequently transferred to new jurisdictions to be modified through the use of techniques such as decanting, non-judicial settlements agreements, consent... Continue Reading

Analysis of the 2018 Amendments to the Delaware General Corporation Law

The 2018 amendments to the Delaware General Corporation Law (the ‘‘DGCL’’) were recently enacted. The amendments update the ratification statute, Section 204, to address recent case law. Nonstock or ‘‘membership’’ corporations are now also permitted to use the statutory ratification provisions to cure corporate defects. With respect to the avail- ability of appraisal rights in... Continue Reading

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