Delaware Corporate Law Update


Back from the Dead: Inadequate Reserve Revives LLC

In a recent decision, Capone v. LDH Management Holdings LLC, the Delaware Court of Chancery nullified the certificate of cancellation of a Delaware LLC.  The Court did so because the LLC had established no reserve for legal claims previously known to it.  The decision highlights the requirement under Delaware law that, before an LLC is cancelled, it must make reasonable provision for known nonfrivolous claims:  zero is not enough.  If a reasonable reserve is not made, the entity may (as happened here) later be revived.

Plaintiffs were holders of units in a Delaware LLC (“Management Holdings”), which in turn was valued based on its holdings of units in another LLC (“LDH”).  Under the former LLC’s agreement, Management Holdings had the right to (and did) redeem plaintiffs’ units at a price set by a specified process.  Plaintiffs claimed that the valuation of LDH by which their units were valued was too low by some half a billion dollars, and they voiced those claims (vociferously in some cases) to management.

Nevertheless, Management Holdings’ certificate of formation was cancelled, with no reserve having been established for such claims.  Plaintiffs sued in New York on their claim that the valuation had been improper and thus a breach of contract.  When they discovered that Management Holdings had been cancelled, they filed a lawsuit in Delaware to nullify the certificate of cancellation.

On cross-motions for summary judgment, the Court granted judgment for plaintiffs.  After reviewing the applicable sections of the Delaware LLC Act and the nature of plaintiffs’ claims, the Court ruled that defendants were in fact aware of the claims due to plaintiffs’ complaints.

Next the Court discussed the establishment of a reasonable reserve under 6 Del. C. § 18-804.  In the Court’s view, that would involve factors including the potential amount of the claim as well as the likelihood of it becoming a liability.  The Court noted that a claim could in fact be “so obviously frivolous that a reserve of zero dollars would likely be sufficient”.  That being said, it concluded that plaintiffs’ reading of the LLC agreement was a “reasonable construction” and not “indisputably wrong,” and therefore a reserve of $0 was a violation of the Delaware LLC Act.  Accordingly, the Court nullified the LLC’s certificate of cancellation, thereby reviving the entity.

Key takeaways from the Court’s decision:

  • Establishing a $0 reserve for a nonfrivolous claim for a substantial amount of money may well result in an LLC’s certificate of cancellation being nullified.
  • Managers of an LLC must make reasonable provision for any known potential claims before filing a certificate of cancellation. In doing so, they may consider the likelihood that the claim will be successful, along with the potential liability if successful.
  • “[E]ven a relatively weak claim may justify a reserve,” particularly when the potential damages are large.

Filed under: Court of Chancery, LLC



