Store Legal Drafting Limited Liability Company Operating Agreements, Fourth Edition

Drafting Limited Liability Company Operating Agreements, Fourth Edition

By John M. Cunningham , Vernon R. Proctor,
Edited by Amanda Nelson
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Overview

This essential resource enables you to negotiate, draft, and fine-tune LLC operating agreements for all basic types of LLCs—in every U.S. jurisdiction! It delivers exclusive guidance on all 10 stages of the LLC formation process, and comes with a CD-ROM packed full of valuable material, including complete agreements, forms, and clauses all ready for immediate use.

Newly expanded to two volumes, the Fourth Edition of Drafting Limited Liability Company Operating Agreements is the only limited liability company formbook and practice manual that addresses the entire process of planning, negotiating and drafting LLC operating agreements, and handling LLC formations.

Providing hands-on guidance directly from John M. Cunningham, one of the acknowledged leaders in the field, Drafting Limited Liability Company Operating Agreements, Fourth Edition, ensures that you’re prepared to handle all legal and tax aspects of the LLC formation process for member-managed, manager-managed, single-member, and multi-member LLCs, including:

  • Fiduciary issues and other critical business organization law issues facing the managers of multi-member LLCs
  • Multi-member LLC partnership tax issues
  • The unique legal and tax issues confronting owners of single-member LLCs
  • Hidden issues in drafting articles of organization
  • The complex issues of legal ethics when representing two or more clients in forming multi-member LLCs

Only Drafting Limited Liability Company Operating Agreements, Fourth Edition fully covers:

  • The 10 main stages of the LLC formation process, providing detailed, practice-oriented comments on each
  • “Red flags” spotlighting common pitfalls and risks in LLC formation
  • Key federal tax materials, including the “Check-the-Box Regulations” and the IRS’s guidelines on the application of the Self-Employment Tax to LLC members
  • The current text of the Delaware Limited Liability Company Act

And Drafting Limited Liability Company Operating Agreements, Fourth Edition includes:

  • All of the general-purpose model operating agreements you are likely to need to form both single-member and multi-member LLCs, designed for use in all 50 states and accompanied by line-by-line instructions
  • Guidance through the entire, complex maze of legal, tax, and drafting issues
  • An all-new section on protecting clients’ assets through LLCs
  • Valuable exhibits, including a master table and various subsidiary tables of the Delaware Limited Liability Company Act provisions relevant to LLC formations

Plus! Every clause, form, and complete agreement is on CD-ROM—to speed the formation process and help save you time.

To assist in your LLC formation practice, you’ll also find a comprehensive survey of the rapidly expanding body of federal and state LLC case law—complete with clear summaries of the cases and indexes by both state and subject matter.

Newly updated and expanded, Drafting Limited Liability Company Operating Agreements, Fourth Edition, delivers all the forms, agreements and expert guidance every LLC practitioner should have on hand.

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Last Updated 06/22/2017
Update Frequency Updated semi-annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
ISBN 9781454880493
SKU 10046271-7777
Table of Contents

PART I - INTRODUCTION; LLC LAW

Chapter 1. INTRODUCTION TO THIS BOOK

  • § 1.01 The Purpose and Intended Audience of This Book
  • § 1.02 The Exhibits Tab and CD-ROM in This Book
  • § 1.03 The Emergence and Importance of the LLC Business Organization Form
  • § 1.04 The Parts and Chapters of This Book
  • § 1.05 The Types of Forms in This Book
  • § 1.06 Checklists and Other Practice Materials
  • § 1.07 Self-Tests
  • § 1.08 The Reference LLC Act: The Delaware Limited Liability Company Act
  • Exhibit 1-1 LLC Formation Master Checklist

Chapter 2. LLC LAW—OVERVIEW; THE TWELVE CHIEF STATUTORY CHARACTERISTICS OF LLCs

  • § 2.01 Introduction—The Structure of LLC Statutory Business Organization Law; Its Treatment in This Book
  • § 2.02 The 12 Chief Statutory Characteristics of LLCs, Their Members and Their Managers
  • § 2.03 Series LLCs
  • § 2.04 Self-Test on Chapter 2
  • Exhibit 2-1 The Eleven Chief Statutory Characteristics of Delaware LLCs

Chapter 3. GLOSSARY OF LLC TERMS OF ART

  • § 3.01 Introduction
  • § 3.02 LLC Terms of Art—Definitions

Chapter 4. LLC FREEDOM OF CONTRACT

  • § 4.01 Introduction
  • § 4.02 Contractarianism—The Theoretical Foundation of DLLC Act § 18-1101(b)
  • § 4.03 The Relationship of the Freedom-of-Contract Rule and the Enforceability Rule in § 18-1101(b)
  • § 4.04 The Limits of Contractual Freedom Under § 18-1101(b)
  • § 4.05 Section 18-1101(b) as a Source of Rules for Interpreting the Other Provisions of the DLLC Act
  • § 4.06 The Elf Atochem Case
  • § 4.07 The Delaware Supreme Court’s Rulings in Elf Atochem
  • § 4.08 Conclusion
  • § 4.09 Self-Test on Chapter 4

Chapter 5. PROTECTING LLC ASSETS AND MEMBERSHIP RIGHTS FROM THIRD PARTIES—LLC STATUTORY “PICK-YOUR-PARTNER” PROVISIONS

  • § 5.01 Introduction
  • § 5.02 Definitions of LLC Statutory Terms and Terms of Art Relevant in Understanding Pick-Your-Partner Provisions
  • § 5.03 LLC Statutory Pick-Your-Partner Provisions and Related Provisions—Overview
  • § 5.04 DLLC Act Pick-Your-Partner Provisions
  • § 5.05 Pick-Your-Partner Provisions Probably Are Not Available to Single-Member LLCs Under Most or all LLC Acts
  • § 5.06 Pick-Your-Partner Provisions and Member Bankruptcies
  • § 5.07 Pick-Your-Partner Provisions and Divorce
  • § 5.08 Statutory Conversions of Corporations to LLCs in Order to Obtain Pick-Your-Partner
  • § 5.09 Legal Grounds for Seeking to Overcome Pick-Your-Partner Provisions

Chapter 6. PROTECTING LLC ASSETS AND MEMBERSHIP RIGHTS FROM THIRD PARTIES—LLC STATUTORY CHARGING ORDER PROVISIONS

  • § 6.01 Introduction
  • § 6.02 Definitions of LLC Statutory Terms and Terms of Art Relevant in Understanding Charging Order Provisions
  • § 6.03 LLC Statutory Charging Order Provisions and Related Provisions—Overview
  • § 6.04 DLLC Act Charging Order Provisions; Related Provisions
  • § 6.05 Charging Order Provisions Probably Are Not Available to Single-Member LLCs Under Most or all LLC Acts
  • § 6.06 The Federal Income Tax Consequences of Charging Orders; Consequences for Creditors
  • § 6.07 Charging Order Provisions and Member Bankruptcies
  • § 6.08 When Should Creditors Foreclose on the LLC Interests of Member-Debtors-in-Default?
  • § 6.09 Miscellaneous Planning and Drafting Issues in Addressing Issues Under Charging Order Provisions
  • § 6.10 Statutory Conversions of Corporations to LLCs in Order to Obtain Charging Order Protections for Corporate Shareholders
  • § 6.11 Legal Grounds for Seeking Charging Order Provisions
  • § 6.12 Charging Order Multi-Jurisdictional Issues
  • § 6.13 Bibliography
  • § 6.14 Summary and Conclusions

Chapter 7. NON-DELAWARE LLC CASE LAW

  • § 7.01 LLC Cases in Overview
  • § 7.02 What You Should Know About LLC Case Law
  • § 7.03 Online Resources for Tracking LLC Case Law Developments
  • § 7.04 Professor Miller’s Surveys of LLC Case Law

Chapter 8. DELAWARE LLC CASE LAW

  • § 8.01 The Importance of Delaware Case Law
  • § 8.02 Cases Relevant to Delaware Non-Tax Choice of Entity
  • § 8.03 Cases Relevant to the Handling of Business Organization Law Issues in Delaware LLC Agreements
  • Exhibit 8-1 Delaware and Non-Delaware State and Federal Cases Potentially Relevant to Delaware LLC Formation Practice
  • Exhibit 8-2 Alphabetical Listing of Cases Potentially Relevant in Forming Delaware LLCs

Chapter 9. LLC SECONDARY SOURCES—CURRENT BIBLIOGRAPHY AND GUIDELINES FOR THE USE OF SECONDARY SOURCES IN LLC FORMATIONS

  • § 9.01 Introduction
  • § 9.02 Using LLC Secondary Sources to Develop LLC Formation Expertise
  • § 9.03 Using LLC Secondary Sources to Track LLC Development Potentially Relevant to Your LLC Formation Practice
  • § 9.04 Using LLC Secondary Sources in Handling Specific LLC Formations
  • § 9.05 Using LLC Secondary Sources in Preparing to Teach and Write About LLCs
  • § 9.06 Topics Covered in this Chapter
  • § 9.07 Treatises and Manuals on LLC Law and on Related Topics
  • § 9.08 Law Journal Symposiums on LLCs and Other Unincorporated Business Entities
  • § 9.09 Periodical Publications That Deal Significantly or Exclusively with LLC Issues
  • § 9.10 Topical Index of Periodical Articles and CLE Programs Addressing LLC Legal Issues

Chapter 10. SIGNIFICANT LLC DEVELOPMENTS—MARCH 2010 THROUGH FEBRUARY 2016

  • § 10.01 Introduction—the Importance to LLC Formation Lawyers of Monitoring LLC Legal and Tax Developments
  • § 10.02 Sources of Information About LLC Developments
  • § 10.03 How to Use This Chapter in Your LLC Formation Practice
  • § 10.04 LLC Developments

PART II - HOW TO HANDLE NON-TAX TASKS IN LLC FORMATIONS

Chapter 11. HOW TO HANDLE INITIAL CONTACTS WITH LLC FORMATION CLIENTS

  • § 11.01 Meet Mary Jones, A Hypothetical LLC Formation Client
  • § 11.02 Handling Client Questions
  • Exhibit 11-1 The Sixteen Matters You Should Address in Your Initial Contacts with LLC Formation Clients
  • Exhibit 11-2 The Seven Tax and Non-Tax Tasks That Should Be Provided to Clients Who Want Basic LLC Formation Services
  • Exhibit 11-3 Minimum Hours of Legal Work Likely to Be Required in Order to Provide Comprehensive, Intermediate, and Basic LLC Formation Services in Forming Multi-Member and Single-Member LLCs
  • Exhibit 11-4 Model Engagement Letter for Clients Forming Multi-Member LLCs

Chapter 12. HOW TO HANDLE ISSUES OF PROFESSIONAL ETHICS IN LLC FORMATIONS

  • § 12.01 Introduction
  • § 12.02 When Does an Attorney-Client Relationship Exist in an LL  Formation?
  • § 12.03 Model Rule 1.1—Competence in Forming LLCs
  • § 12.04 Model Rule 1.2—Defining the Scope of Representation
  • § 12.05 Model Rule 1.3—Diligence in Forming LLCs
  • § 12.06 Model Rule 1.4—Communication with Clients
  • § 12.07 Model Rule 1.5—Fees
  • § 12.08 Model Rule 1.6—Confidentiality
  • § 12.09 Model Rule 1.7—Conflicts of Interest—In General
  • § 12.10 Model Rule 1.7—Joint Representations
  • § 12.11 Model Rule 1.8(a)—Accepting Equity Interests in LLCs Instead of Cash as Fees for LLC Formation Services
  • § 12.12 Model Rule 5.5—Unauthorized Practice of Law
  • Exhibit 12-1 American Bar Association Model Rules of Ethics
  • Exhibit 12-2 Memorandum to Clients Concerning Joint Representation

Chapter 13. HOW TO HANDLE NON-TAX CHOICE OF ENTITY

  • § 13.01 Introduction
  • § 13.02 Business Organizations Relevant to Non-Tax Choice of Entity
  • § 13.03 The Principal Factors Relevant to Non-Tax Choice of Entity
  • § 13.04 Non-Tax Choice-of-Entity Hypotheticals
  • Exhibit 13-1 The Four Steps in the Non-Tax Choice-of-Entity Process
  • Exhibit 13-2 The Ten Main Business Organization Law Advantages and the Five Main “Miscellaneous” Advantages Relevant in Non-Tax Choice-of-Entity
  • Exhibit 13-3 Table: Non-Tax Choice of Entity for Single-Owner Businesses Whose Owners Are Individuals
  • Exhibit 13-4 Table: Non-Tax Choice of Entity for Single-Owner Businesses Whose Owners Are Entities
  • Exhibit 13-5 Table: Non-Tax Choice of Entity for Multi-Owner Businesses

Chapter 14. HOW TO USE MULTI-LLC STRUCTURES TO MAXIMIZE BUSINESS ASSET PROTECTION

  • § 14.01 Introduction
  • § 14.02 Determining Whether Clients Need More Than One LLC
  • § 14.03 Determining the Optimal Relationship in a Multi-LLC Structure
  • § 14.04 Determining the Optimal Number and Identities of LLC Members in a Multi-LLC Structure

Chapter 15. HOW TO CHOOSE BETWEEN YOUR HOME-STATE LLC ACT AND THE DELAWARE ACT

  • § 15.01 Introduction
  • § 15.02 Advantages and Disadvantages of the DLLC Act
  • § 15.03 Advantages and Disadvantages of Non-Delaware LLC Acts
  • § 15.04 Hypothetical Case: Choosing Between the DLLC Act and the New York Limited Liability Company Act
  • Exhibit 15-1 The Five-Step Method for Determining Whether Your Clients Should Form Their LLCs Under the DLLC Act or Under a Non-Delaware LLC Act
  • Exhibit 15-2 Nine Potential Advantages of the DLLC Act over Non-Delaware LLC Acts
  • Exhibit 15-3 Eighteen Provisions of the DLLC Act That Offer Advantages to LLC Formation Clients Unavailable Under Many Non-Delaware LLC Acts
  • Exhibit 15-4 Seven Potential Disadvantages of the DLLC Act for LLC Formation Clients and Their Lawyers as Compared with Non-Delaware LLC Acts
  • Exhibit 15-5 Fourteen Potential Advantages of Non-Delaware LLC Acts over the DLLC Act for LLC Formation Clients
  • Exhibit 15-6 Six Potential Disadvantages of Non-Delaware LLC Acts over the DLLC Act for LLC Formation Clients and Their Lawyers

Chapter 16. HOW TO DRAFT LLC ARTICLES OF ORGANIZATION

  • § 16.01 Introduction
  • § 16.02 The Nature and Purpose of Articles of Organization; Their Relationship with Operating Agreements
  • § 16.03 Comparison of Articles of Organization with Articles of Incorporation
  • § 16.04 Drafting Issues in Articles of Organization
  • § 16.05 When Should Articles of Organization Be Filed?
  • § 16.06 Tax Implications of Statements in Articles of Organization

Chapter 17. HOW TO CHOOSE THE RIGHT MODEL OPERATING AGREEMENT FOR AN LLC

  • § 17.01 The Paramount Importance of General-Purpose Forms in LLC Formation Practice
  • § 17.02 Using the “Alteration Factor” to Determine How Many General-Purpose Forms You Need
  • § 17.03 The Three Structures Critical to Understanding and Classifying LLCs
  • § 17.04 Types of Ownership Structures Potentially Useful for Single-Member and Multi-Member LLCs
  • § 17.05 Types of Management Structures Potentially Useful for Single-Member LLCs Whose Members Are Individuals
  • § 17.06 Types of Management Structures Potentially Useful for Single-Member Whose Members Are Entities
  • § 17.07 Types of Management Structures Potentially Useful for Multi-Member LLCs Whose Members Want a General Partnership Management Structure
  • § 17.08 Types of Management Structures Potentially Useful for Multi-Member LLCs Whose Members Want a Limited Partnership Management Structure
  • § 17.09 LLC Corporate Management Structures
  • § 17.10 Types of LLC Federal Tax Structures Potentially Useful for Single-Member and Multi-Member LLCs
  • § 17.11 Using Exhibits 17-1 and 17-2 to Choose the Best General-Purpose Form for an LLC in Formation
  • § 17.12 Self-Test on Chapter 17
  • Exhibit 17-1 The Ten Most Common Types of LLCs and the Number of General-Purpose Model Operating Agreements Required for Each Type—Overview
  • Exhibit 17-2 The Twenty-Eight Main Types of General-Purpose Forms Needed for LLC Formation Practice

Chapter 18. HOW TO DRAFT OPERATING AGREEMENTS—GENERAL GUIDELINES

  • § 18.01 Introduction
  • § 18.02 Twelve Criteria for Evaluating Operating Agreements
  • § 18.03 The 21 Tasks in Exhibit 1-1 Specifically Relevant to Planning, Negotiating, and Drafting LLC Operating Agreements
  • § 18.04 Evaluating Operating Agreements Drafted by Other Lawyers—A Five-Step Method
  • Exhibit 18-1 Twelve Criteria for Evaluating Operating Agreements
  • Exhibit 18-2 Twenty Guidelines for Good English Prose
  • Exhibit 18-3 Thirteen Guidelines for Good Contract Format and Style
  • Exhibit 18-4 The Twenty-One LLC Formation Professional Tasks Specifically Relevant to the Drafting of Operating Agreements
  • Exhibit 18-5 The Five Steps in Evaluating a Draft LLC Agreement Prepared by Another Lawyer

Chapter 19. HOW TO FORM SINGLE-MEMBER LLCs WHOSE MEMBERS ARE INDIVIDUALS

  • § 19.01 Introduction
  • § 19.02 Should Your Client’s LLC Be a Single-Member LLC or a Two-Member LLC?
  • § 19.03 What Is the Best LLC Act for Your Client’s Single-Member LLC?
  • § 19.04 Who Should Be the Member of Your Client’s Single-Member LLC?
  • § 19.05 Should Your Client Form One Entity or Two?
  • § 19.06 On Non-Tax Grounds, Should Your Client’s Business Be a Sole Proprietorship, a Single Shareholder Corporation, or a Single-Member LLC?
  • § 19.07 What Is the Best Management Structure for a Single-Member LLC Whose Member Is an Individual?
  • § 19.08 For Federal Income Tax Purposes, What Is the Best Federal Income Tax Regimen for a Single-Member LLC Whose Member Is an Individual?
  • § 19.09 For Social Security Tax Purposes, What Is the Best Federal Income Tax Regimen for a Single-Member LLC Whose Member Is an Individual?
  • § 19.10 Why Do Single-Member LLCs Whose Members Are Individuals Need Written Operating Agreements?
  • § 19.11 The Forms in This Book for Single-Member LLCs Whose Members Are Individuals
  • § 19.12 Fiduciary Issues in Forms 1.1 Through 1.6
  • § 19.13 Miscellaneous Legal Issues in the Operating Agreements of Single-Member LLCs
  • Exhibit 19-1 Seven Guidelines for Individuals Who Are Members of Single-Member LLCs on How to Avoid LLC Veil Piercing

Chapter 20. HOW TO FORM SINGLE-MEMBER LLCs WHOSE MEMBERS ARE ENTITIES

  • § 20.01 Introduction; Other Parts of This Book Relevant to This Chapter
  • § 20.02 What Is the Best LLC Act Under Which to Form a Single-Member LLC for a Client That Is an Entity?
  • § 20.03 Should Your Client’s Subsidiary Be Formed as a Division, a Single-Shareholder Corporation or a Single-Member LLC?
  • § 20.04 What Is the Best Management Structure for a Single-Member LLC Whose Member Is an Entity?
  • § 20.05 For Federal Income Tax Purposes, What Is the Best Federal Income Tax Regimen for a Single-Member LLC Whose Member Is an Entity?
  • § 20.06 Do Single-Member LLCs Whose Members Are Entities Need Written Operating Agreements?
  • § 20.07 The Forms in This Book for Single-Member LLCs Whose Members Are Entities
  • § 20.08 LLCs Whose Members Are Entities—Miscellaneous Issues

Chapter 21. HOW TO USE PLUG-IN PROVISIONS

  • § 21.01 Replacing and Supplementing the Provisions in the Forms in This Book
  • § 21.02 Other Sources for Plug-In Provisions Exhibit 21-1 Replacement Provisions and Supplemental Provisions for Use with the Model Operating Agreements in This Book
  • Exhibit 21-2 Form 6.2—Cover Page and Summary and Detailed Tables of Contents

Chapter 22. HOW TO UNDERSTAND AND APPLY LLC STATUTES FOR LLC FORMATION PURPOSES

  • § 22.01 What Does It Mean to “Understand” an LLC Act for LLC Formation Purposes?
  • § 22.02 Definitional Provisions
  • § 22.03 Mandatory Provisions
  • § 22.04 Default Provisions
  • § 22.05 Self-Enabling and Non-Self-Enabling Permissive Provisions
  • § 22.06 Statutory Gap Issues in LLC Acts
  • § 22.07 Understanding and Taking into Account the “Off-the-Shelf Operating Agreements” in the LLC Statute Under Which You Practice

Chapter 23. HOW TO EXPLOIT LLC FLEXIBILITY AND AVOID LLC PITFALLS

  • § 23.01 Introduction
  • § 23.02 Flexibility Under the DLLC Act
  • § 23.03 Avoiding DLLC Act Pitfalls
  • § 23.04 Self-Test on Chapter 23
  • Exhibit 23-1 The Twenty Principal Provisions of the DLLC Act Providing for Statutory Flexibility in Drafting LLC Agreements
  • Exhibit 23-2 The Seven Principal Sources of Flexibility in Drafting Delaware LLC Agreements
  • Exhibit 23-3 The Six Principal Sources of Pitfalls in Drafting Delaware LLC Agreements

Chapter 24. DRAFTING OPERATING AGREEMENTS FOR MULTI-MEMBER LLCs—UNDERSTANDING AND MASTERING THE DRAFTING PROCESS

  • § 24.01 Introduction
  • § 24.02 The Definition, Purposes, and Importance of Multi-Member LLC Operating Agreements
  • § 24.03 What Knowledge, Know-How, and Practice Tools Do You Need in Order to Draft Multi-Member LLC Operating Agreements Expertly?
  • § 24.04 The 19 Tasks You Must Perform in Drafting Operating Agreements for Multi-Member LLCs—Annotated Checklist
  • § 24.05 Drafting Multi-Member LLCs—How to Master the Process
  • Exhibit 24-1 Model Memorandum for Clients Concerning the Principal Legal and Tax Issues in Operating Agreements for Multi-Member LLCs
  • Exhibit 24-2 The Nineteen LLC Formation Professional Tasks in Drafting Operating Agreements For Multi-Member LLCs

Chapter 25. SECTION-BY-SECTION AND PROVISION-BY-PROVISION COMMENTARY ON FORM 6.2

  • § 25.01 Introduction
  • § 25.02 Section-by-Section and Provision-by-Provision Commentary on Form 6.2

Chapter 26. LLC FIDUCIARY LAW—DOCTRINAL OVERVIEW FROM AN LLC FORMATION PERSPECTIVE

  • § 26.01 Introduction to LLC Fiduciary Law
  • § 26.02 Managers’ Fiduciary Duties Under §§ 18-1101(b) and 18-1101(c) as Construed Under Elf Atochem
  • § 26.03 The Fiduciary Duty of Care of LLC Managers—the Delaware Case Law Gross Negligence Standard
  • § 26.04 The Impact of the Business Judgment Rule on the Duty of Care of LLC Managers
  • § 26.05 The Fiduciary Duty of Loyalty of LLC Managers—Overview
  • § 26.06 The Duty of Loyalty of LLC Managers Not to Compete Against Their LLCs
  • § 26.07 The Duty of Loyalty of LLC Managers with Respect to LLC Business Opportunities
  • § 26.08 The Duty of Loyalty of LLC Managers in Engaging in Business Transactions with Their LLCs
  • § 26.09 The Duty of Loyalty of LLC Managers to Maintain the Confidentiality of LLC Records and Information
  • § 26.10 The Duty of Loyalty of LLC Managers to Disclose Material Information to LLC Members
  • § 26.11 The Duty of Loyalty of LLC Managers to Avoid Improper Personal Benefits
  • § 26.12 The Duty of Loyalty of LLC Managers to Act in Good Faith
  • § 26.13 The Duty of Loyalty of LLC Managers to Minority Members and to Certain Other Constituencies
  • § 26.14 The Duty of Loyalty of Majority Members of LLCs Toward Minority Members
  • § 26.15 The Duty of LLC Managers to Comply with the Implied Contractual Covenant of Good Faith and Fair Dealing
  • § 26.16 The Right of Members Under DLLC Act § 18-305 to Obtain and Use LLC Records and Information in Claims Against Managers
  • § 26.17 Litigation vs. Alternative Dispute Resolution (“ADR”) as Methods of Resolving Claims by Members Against Managers; Choosing a Litigation Jurisdiction
  • § 26.18 Resolving Member Claims of Manager Misconduct—Derivative Actions vs. Direct Actions; Authorization of LLC Actions Against Managers
  • § 26.19 Statutory and Common Law Defenses Available to LLC Managers in Resisting Member Claims That They Have Breached Their Fiduciary or Other Duties
  • § 26.20 Removal as a Remedy for Breaches by LLC Managers of Their Fiduciary and Other Duties
  • § 26.21 Statutory and Common Law Remedies Other Than Removal for Fiduciary and Non-Fiduciary Breaches by LLC Managers
  • § 26.22 The Exculpation of LLC Managers from Liability for Fiduciary and Other Breaches Under DLLC Act § 18-1101(e)
  • § 26.23 Indemnification of LLC Members and Managers and of Other Persons Under DLLC Act § 18-108
  • § 26.24 Advancement of Dispute Resolution Expenses by LLCs to Their Managers
  • § 26.25 Manager Liability Insurance
  • § 26.26 Miscellaneous Matters Concerning the Duties of LLC Managers

Chapter 27. HOW TO IDENTIFY AND HANDLE MISCELLANEOUS ISSUES

  • § 27.01 Identifying Miscellaneous Issues
  • § 27.02 Hypothetical Examples of Miscellaneous Legal Issues
  • Exhibit 27-1 Areas of Law in Which Miscellaneous Legal Issues May Arise That Are Potentially Relevant in LLC Formations

Chapter 28. HOW TO ADVISE LLC FORMATION CLIENTS ABOUT VEIL PIERCING

  • § 28.01 The Importance of Advising Clients About Veil-Piercing Risks; Basic Concepts Relating to Veil Piercing
  • § 28.02 Guidelines to Minimize the Risk of Veil Piercing
  • § 28.03 Special Anti-Veil-Piercing Guidelines for State-Law Business Corporations
  • § 28.04 Special Anti-Veil-Piercing Rules for General and Limited Partnerships
  • § 28.05 Guidelines for Protecting Holding Companies from Liability for the Actions of Their Subsidiaries
  • Exhibit 28-1 Eight Guidelines for Preventing Plaintiffs from Piercing Your LLC’s Veil
  • Exhibit 28-2 Twenty-Four Factual Criteria Often Applied by the Courts in Veil-Piercing Cases Involving Related Companies

Chapter 29. HOW TO USE PLANNING MEMOS

  • § 29.01 Introduction
  • § 29.02 Benefits of Planning Memos
  • § 29.03 Structure and Content of Planning Memos
  • § 29.04 Objections to the Use of Planning Memos
  • § 29.05 Planning Memos for Entities That Are Forming Wholly Owned Single-Member LLC Subsidiaries
  • § 29.06 Self-Test on Chapter 29
  • Exhibit 29-1 Planning Memo for Cosmic Widgets, LLC

Chapter 30. HOW TO FINISH THE LLC FORMATION PROCESS

  • § 30.01 Introduction
  • § 30.02 Negotiating the Operating Agreement
  • § 30.03 Preparing an LLC Minute Book

Chapter 31. THE LAWYER’S ROLE AS TEACHER

  • § 31.01 Advising, Advocating, Drafting, Teaching
  • § 31.02 What Should We Teach Our LLC Formation Clients?
  • § 31.03 Guidelines for Effective Teaching
  • § 31.04 Using Exhibit 31-1
  • Exhibit 31-1 Questions About LLCs—With Plain-English Responses

Chapter 32 HOW TO RECOGNIZE AND ADDRESS INTELLECTUAL PROPERTY ISSUES IN LLC FORMATIONS—A PRACTICAL INTRODUCTION FOR NON-SPECIALISTS

  • § 32.01 Introduction
  • § 32.02 Copyright
  • § 32.03 Trade Names
  • § 32.04 Trademarks
  • § 32.05 Patents
  • § 32.06 Trade Secrets
  • § 32.07 Common Law Protections of Intellectual Property
  • § 32.08 Licensing of Intellectual Property
  • § 32.09 Bibliography
  • Exhibit 32-1 Intellectual Property Law: Basic Questions and Answers

Chapter 33. FEDERAL AND STATE SECURITIES LAW ISSUES IN LLC FORMATIONS—AN INTRODUCTION FOR THE NON-SPECIALIST

  • § 33.01 Introduction
  • § 33.02 When Is an LLC Membership Interest a Security?
  • § 33.03 Registration vs. Exemptions
  • § 33.04 Exempt Transactions Under Federal Law
  • § 33.05 The Section 4(a)(2) Private Placement Exemption
  • § 33.06 Regulation D and the “Accredited Investor”
  • § 33.07 The Rule 506(b) Exemption
  • § 33.08 The Rule 506(c) Exemption
  • § 33.09 Section 3(a)(11) and Rule 147: Intrastate Offerings
  • § 33.10 Transactional Exemptions Under State Law
  • § 33.11 The Jobs Act and the Crowdfunding Exemption
  • § 33.12 Liability for Violations of the Federal Securities Laws
  • § 33.13 Liability for Violations of State Securities Laws
  • § 33.14 Potential Attorney Liability Under the Securities Laws
  • § 33.15 Sources for Further Research

Chapter 34.  ESTATE PLANNING ISSUES IN LLC FORMATIONS—AN INTRODUCTION FOR NON-SPECIALISTS

  • § 34.01 Introduction
  • § 34.02 General Estate Tax Concepts
  • § 34.03 Intestacy and the Probate Process
  • § 34.04 Non-Probate Property
  • § 34.05 Principal Estate Planning Documents
  • § 34.06 Trusts
  • § 34.07 Relevant Uniform Acts
  • § 34.08 Ten Guidelines for Handling Estate Planning Issues in LLC Formations

PART III - HOW TO HANDLE TAX TASKS IN LLC FORMATIONS

Chapter 35. TAX TASKS IN LLC FORMATIONS—OVERVIEW

  • § 35.01 Introduction
  • § 35.02 Tax Task 1—Choose the Best Federal Income Tax Regimen for Your Client’s LLC for Federal Income Tax Purposes
  • § 35.03 Tax Task 2—Choose the Best Federal Income Tax Regimen for Your Client’s LLC for Social Security and Medicare Tax Purposes
  • § 35.04 Tax Task 3—Reconcile Tasks 1 and 2
  • § 35.05 Tax Task 4—Make a Check-the-Box Regulations Analysis
  • § 35.06 Tax Task 5—Handle State and Multi-State Tax Planning for Your Client’s LLC
  • § 35.07 Tax Task 6—Determine All of the Provisions in the Operating Agreement of Your LLC Formation Clients That Will Be Necessary or Useful to Include in the Agreement Under the Federal Income Tax Regimen of the LLC
  • § 35.08 Tax Task 7—Handle Social Security and Medicare Tax Drafting Issues Relevant to Your Client’s Operating Agreement Not Addressed in the Above Form
  • § 35.09 Tax Task 8—Handle State and Multi-State Tax Issues Relevant to Your Client’s Operating Agreement
  • § 35.10 Self-Test Questionnaire
  • Exhibit 35-1 Tax Tasks in the LLC Formation Master Checklist

Chapter 36. HOW TO CHOOSE THE RIGHT FEDERAL TAX REGIMEN FOR AN LLC ON FEDERAL INCOME TAX GROUNDS

  • § 36.01 Introduction
  • § 36.02 Sole Proprietorship Taxation, Subchapter K, and Subchapter C
  • § 36.03 The Tax Choice-of-Entity Process
  • § 36.04 Key Federal Income Tax Advantages and Disadvantages of Sole Proprietorship Taxation as Compared with Subchapter S
  • § 36.05 Key Federal Income Tax Advantages and Disadvantages of Subchapter K as Compared with Subchapter S
  • § 36.06 Illustration of the Tax Choice-of-Entity Five-Step Process
  • Exhibit 36-1 Principal Federal Income Tax Issues Potentially Relevant in Choosing the Best Federal Income Tax Regimen for a Business Entity for Federal Income Tax Purposes (“Tax Choice of Entity”)
  • Exhibit 36-2 The Eleven Federal Income Tax Issues Most Likely to Be Decisive for a Business Entity in a Tax Choice-of-Entity Analysis
  • Exhibit 36-3 Key Federal Income Tax Advantages and Disadvantages of Sole Proprietorship Federal Income Taxation as Compared with Subchapter S
  • Exhibit 36-4 Principal Federal Income Tax Advantages and Disadvantages of Subchapter K as Compared with Subchapter S

Chapter 37. UNDERSTANDING AND APPLYING THE CHECK-THE-BOX REGULATIONS IN LLC FORMATIONS

  • § 37.01 Introduction to the Check-the-Box Regulations
  • § 37.02 The Importance of the Check-the-Box Regulations
  • § 37.03 LLCs and Non-LLC Entities—Basic Statutory Comparisons
  • § 37.04 The Historical Background of the Check-the-Box Regulations
  • § 37.05 The Check-the-Box Regulations; Key Definitions and Rules
  • § 37.06 “Standard” Check-the-Box Analyses
  • § 37.07 “Reverse” Check-the-Box Analyses
  • § 37.08 The Check-the-Box Regulations and the Need for “Terminological Schizophrenia”
  • § 37.09 Form 8832 and the Form 8832 Instructions
  • § 37.10 The Proposed Federal Tax Classification of LLC Series
  • § 37.11 Rev. Rul. 99-5—Conversions of Disregarded Entities to Partnerships
  • § 37.12 Rev. Rul. 99-6—Conversions of Partnerships to Disregarded Entities
  • § 37.13 Frequently Occurring Check-the-Box Issues and How to Resolve Them
  • § 37.14 Bibliography
  • Exhibit 37-1 U.S. Treasury Department Form 8832 (the “Check-the-Box Regulations” Form) and Instructions
  • Exhibit 37-2 Table of Key Provisions of the Check-the-Box Regulations
  • Exhibit 37-3 Rules for Making “Standard” Check-the-Box Analyses
  • Exhibit 37-4 Rules for Making “Reverse” Check-the-Box Regulations Analyses
  • Exhibit 37-5 Using Business Organization Law Terms and Federal Income Tax Terms Correctly Under the Check-the-Box Regulations

Chapter 38. HOW TO DRAFT FEDERAL INCOME TAX PROVISIONS FOR LLCs TAXABLE AS PARTNERSHIPS

  • § 38.01 Introduction
  • § 38.02 What Economic and Federal Tax Provisions Should be Included in the Operating Agreements of Multi-Member LLCs Taxable as Straight-Up Partnerships?
  • § 38.03 The Section 704(b) “Safe Harbor” Provisions in Form 6.2

Chapter 39. DRAFTING “PLUG-IN” PARTNERSHIP TAX PROVISIONS IN THE OPERATING AGREEMENTS OF MULTI-MEMBER LLCs TAXABLE AS PARTNERSHIPS INTRODUCTION AND OVERVIEW

  • § 39.01 Introduction
  • § 39.02 The 19 Most Common “Plug-In” Partnership Tax Provisions

Chapter 40. DRAFTING CONTRACTUAL SPECIAL ALLOCATION PROVISIONS IN THE OPERATING AGREEMENTS OF MULTI-MEMBER LLCs TAXABLE AS PARTNERSHIPS

  • § 40.01 Introduction
  • § 40.02 Contractual Special Allocations—Examples
  • § 40.03 Ensuring That Contractual Special Allocations Have “Economic Effect” Under the Section 704(b) Safe-Harbor Rules
  • § 40.04 Profits Interests Under Revenue Procedures 93-27 and 2001-43

Chapter 41.  HOW TO DRAFT FEDERAL INCOME TAX PROVISIONS FOR LLCs TAXABLE AS S CORPORATIONS

  • § 41.01 Introduction
  • § 41.02 Key Provisions of Subchapter S Relevant in Drafting Operating Agreements
  • § 41.03 IRS Guidance Concerning S Corporation Provisions in LLC Operating Agreements
  • § 41.04 Guidelines for Drafting Provisions in Operating Agreements for LLCs Taxable as S Corporations
  • Exhibit 41-1 Subchapter S Provisions in General-Purpose Form 4.1

Chapter 42. HOW TO USE PROP. REG. § 1.1402(a)-2 AND SUBCHAPTER S TO PROTECT LLC MEMBERS FROM SOCIAL SECURITY AND MEDICARE TAXES—INTRODUCTION

  • § 42.01 Introduction and Summary
  • § 42.02 Background of Prop. Reg. § 1.1402(a)-2
  • § 42.03 The Four Tests Under the Prop. Reg. for Determining Whether an LLC Member Is a Limited Partner for Purposes of Section 1402(a)(13)
  • § 42.04 The “Single-Class-of-Interest” and “Two-Classes-of-Interest” Rules
  • § 42.05 Choosing Between Subchapter K and Subchapter S to Minimize Social Security and Medicare Tax
  • § 42.06 How CPAs Are Advising LLC Members About LLC SET Issues
  • § 42.07 To What Extent Can Tax Advisers and Their Clients Rely on the Prop. Reg. in Structuring LLCs to Avoid SET?
  • Exhibit 42-1 Illustration of Bifurcation Under Prop. Reg. § 1.1402(a)-2(h)(3) (The “Two-Classes-of Interest Rule”)
  • Exhibit 42-2 Provisions Under Proposed Regulation § 1.1402(a)-2 to Be Included in LLC Operating Agreements for LLCs Taxable Under Subchapter K to Protect Individual Manager-Members from Self-Employment Taxes by “Bifurcating” Their LLC Interests

Chapter 43. HOW TO DRAFT OPERATING AGREEMENT PROVISIONS TO PROTECT LLC MEMBERS FROM SOCIAL SECURITY AND MEDICARE TAXES

  • § 43.01 Introduction
  • § 43.02 Comments on Specific Provisions in Exhibit 43-1
  • Exhibit 43-1 Provisions Under Proposed Regulation § 1.1402(A)-2 to Be Included in LLC Operating Agreements for LLCs Taxable Under Subchapter K to Protect Individual Manager-Members from Self-Employment Taxes by “Bifurcating” Their LLC Interests

Chapter 44. HOW TO HANDLE STATE AND MULTI-STATE TAX ISSUES

  • § 44.01 Introduction
  • § 44.02 Basic Concepts and Planning Techniques
  • § 44.03 Issues Potentially Relevant to LLCs and Their Members
  • § 44.04 Bibliography

PART IV - FORMING LLCs UNDER THE DELAWARE LLC ACT AND OTHER ACTS

Chapter 45. HOW TO FORM LLCs UNDER THE DELAWARE LLC ACT

  • § 45.01 Introduction
  • § 45.02 Understanding the Definitional Provisions of the DLLC Act
  • § 45.03 Understanding the Mandatory Provisions of the DLLC Act
  • § 45.04 Understanding the Default Provisions of the DLLC Act
  • § 45.05 Determining Whether a DLLC Act Provision Is Mandatory or Default Under Elf Atochem
  • § 45.06 Self-Enabling and Non-Self-Enabling Permissive Provisions
  • § 45.07 Understanding DLLC Act Statutory Gap Issues
  • § 45.08 Using Form 11.1
  • Exhibit 45-1 Master Table of Provisions Relevant to LLC Formation Practice Under the Delaware Limited Liability Company Act as Amended Through January 2016
  • Exhibit 45-2 Table of Provisions Relevant to LLC Formation Practice Under the Delaware Limited Liability Company Act as Amended Through January 2016
  • Exhibit 45-3 Table of Mandatory Provisions Relevant to LLC Formation Practice Under the Delaware Limited Liability Company Act
  • Exhibit 45-4 Table of Default Provisions Relevant to LLC Formation Practice Under the Delaware Limited Liability Company Act as Amended Through January 2016
  • Exhibit 45-5 Table of Non-Self-Enabling Permissive Provisions Relevant to LLC Formation Practice Under the Delaware Limited Liability Company Act as Amended Through January 2016
  • Exhibit 45-6 Table of Self-Enabling Permissive Provisions Relevant to LLC Formation Practice Under the Delaware Limited Liability Company Act as Amended Through January 2016
  • Exhibit 45-7 Business Organization Law Statutory Gap Issues in the Delaware Limited Liability Company Act
  • Exhibit 45-8 Organization of the Provisions of the Delaware Limited Liability Company Act Relevant to LLC Formation Practice on the Basis of Form 11.1

Chapter 46. HOW TO FORM LLCs UNDER THE MASSACHUSETTS LLC ACT

  • § 46.01 Introduction
  • § 46.02 The Statutory Characteristics of Massachusetts LLCs
  • § 46.03 The Principal Provisions of the Massachusetts LLC Act Relevant to LLC Formations
  • § 46.04 Cases Relevant to Massachusetts LLC Formation Practice
  • § 46.05 Statutory Gap Issues in the Massachusetts LLC Act
  • § 46.06 Business Organization Law Issues Relevant in Forming Massachusetts LLCs
  • § 46.07 The Impact of Massachusetts LLC Law on LLCs That Lack Operating Agreements (“Informal LLCs”)
  • Exhibit 46-1 Chief Statutory Business Organization Law Characteristics of Massachusetts LLCs and Corporations—A Comparison
  • Exhibit 46-2 Master Table, Dated August 24, 2010, of Provisions Relevant to LLC Formation Practice Under the Massachusetts Limited Liability Company Act (the “Act”)
  • Exhibit 46-3 Table of Definitional Provisions Relevant to LLC Formation Practice Under the Massachusetts Limited Liability Company Act as in Effect on August 24, 2010
  • Exhibit 46-4 Table of Mandatory Provisions Relevant to LLC Formation Practice Under the Massachusetts Limited Liability Company Act as in Effect on August 24, 2010
  • Exhibit 46-5 Table of Default Provisions Relevant to LLC Formation Practice Under the Massachusetts Limited Liability Company Act as in Effect on August 24, 2010
  • Exhibit 46-6 Table of Non-Self-Enabling Permissive Provisions Relevant to LLC Formation Practice Under the Massachusetts Limited Liability Company Act as in Effect on August 14, 2010
  • Exhibit 46-7 Table of Self-Enabling Permissive Provisions Relevant to LLC Formation Practice Under the Massachusetts Limited Liability Company Act as in Effect on August 24, 2010
  • Exhibit 46-8 Table of Contents of Operating Agreement of ABC, LLC
  • Exhibit 46-9 Table of Contents of Operating Agreement of XYZ, LLC
  • Exhibit 46-10 The Impact of Massachusetts LLC Law on Single-Member and Multi-Member LLCs That Lack Operating Agreements

PART V SERIES LLCs AND OTHER MISCELLANEOUS LLC TOPICS

Chapter 47. SERIES LLCs—LAW, TAX, FORMS

  • § 47.01 Introduction to Series and to Series LLCs Under DLLC Act § 18-215
  • § 47.02 Key Provisions of § 18-215 Defining the Nature of Series
  • § 47.03 Are the LLC Series Established Under § 18-215 Entities?
  • § 47.04 Non-Tax Advantages and Disadvantages of LLC Series as Compared with Subsidiary Single-Member LLCs
  • § 47.05 Negligence Suits Against LLC Series in Delaware and Non-Delaware Courts 
  • § 47.06 From a Non-Tax Viewpoint, When Should LLC Series Be Used for the Conduct of a Business or Investment Arrangement; and When Should They Not Be Used?
  • § 47.07 Series LLCs, Their LLC Series, and Their Members Under the Internal Revenue Service’s Proposed New Regulations in Reg-119921-09
  • § 47.08 The Model LLC Agreement for Series LLCs in This Book—Introduction; Comments on Specific Sections
  • Exhibit 47-1 Permissive, Mandatory, and Default Provisions of § 18-215 Providing for Series LLC and Defining Their Statutory Characteristics
  • Exhibit 47-2 Entity Characteristics of Series Under DLLC Act § 18-215
  • Exhibit 47-3 Diagram of “ABC, LLC,” a Hypothetical Delaware Series LLC
  • Exhibit 47-4 Delaware Limited Liability Company Act § 18-215 (Edited to Facilitate Study and Reference)
  • Exhibit 47-5 Certificate of Formation for a Delaware Series LLC
  • Exhibit 47-6 Model Limited Liability Company Agreement for a Simple Delaware Series LLC

Chapter 48. HOW TO RESTRUCTURE LLCs AND OTHER BUSINESS ORGANIZATIONS TO SAVE TAXES AND PROTECT ASSETS

  • § 48.01 Business Organization Restructuring
  • § 48.02 Ensuring the Adequacy of LLC Operating Agreements and of Other Agreements Among Entity Owners
  • § 48.03 Business Organization Conversion Practice
  • § 48.04 Converting Business Corporations to LLCs
  • Exhibit 48-1 Legal Reasons for Converting from Non-LLC Entities to LLCs; Federal Tax Consequences

Chapter 49. XYZ WIDGETS, INC.—THE BUSINESS ENTITY RESTRUCTURING PROCESS AS APPLICABLE TO A HYPOTHETICAL STATE-LAW BUSINESS CORPORATION

  • § 49.01 Introduction; Hypothetical Facts Concerning XYZ, Inc.; Overview of Restructuring Procedures Likely to Be Useful to XYZ, Inc.
  • § 49.02 Using a Single-Member LLC Subsidiary as the Operating Company in a Holding Company/Operating Company Structure—Basic Concepts; Provisions in the Operating Agreement Between XYZ Holding Company and XYZ Operations
  • § 49.03 The Master Intercompany Agreement—General Comments
  • § 49.04 Miscellaneous Points
  • Exhibit 49-1 Operating Agreement Between XYZ Holdings, LLC (“Holdings”) and XYZ Operations, LLC (“Operations”)
  • Exhibit 49-2 Master Agreement Between XYZ Holdings and XYZ Operations

Chapter 50. HOW TO CONVERT CORPORATIONS TO LLCs

  • § 50.01 Introduction
  • § 50.02 LLC and Corporate Statutory Law as Relevant to Statutory Conversions—Key Points of Comparison
  • § 50.03 Statutory Conversion Law—Overview
  • § 50.04 PLR 200528021—Summary of the Ruling; Practical Implications
  • § 50.05 PLR 200548021—Summary of the Ruling; Practical Implications
  • § 50.06 To What Extent Can Corporations Other Than XYZ Rely on Rulings PLR 200528021 and 200548021?
  • § 50.07 Conclusion
  • § 50.08 Self-Test on Chapter 50
  • Exhibit 50-1 Business Organization Law Definitions Useful in Understanding and Planning Statutory Conversions

PART VI - LLC MODEL OPERATING AGREEMENTS—EVALUATION AND USE

Chapter 51. HOW TO EVALUATE AND USE MODEL OPERATING AGREEMENTS

  • § 51.01 Introduction
  • § 51.02 Criteria for Evaluating Individual Model Operating Agreements (“Forms”)
  • § 51.03 Criteria for Evaluating Sets of Model Operating Agreements
  • § 51.04 Comparison of the Forms in This Book with Forms from Other Sources
  • § 51.05 How to Adapt the “Generic” Forms in This Book for Use Under Specific LLC Acts
  • § 51.06 Guidelines for Using the Forms in This Book
  • Exhibit 51-1 Guidelines for Using the Forms in This Book

Chapter 52. HOW TO FORM HUSBAND-WIFE LLCs

  • § 52.01 Introduction
  • § 52.02 Form 4.1 as the Basis for Special-Purpose Form 1-S
  • § 52.03 The Management Structure of a Husband-Wife LLC
  • § 52.04 Choosing the Right Federal Income Tax Regimen
  • § 52.05 Comments on Specific Provisions of Special-Purpose Forms 1-K and 1-S

Chapter 53. HOW TO USE SPECIAL-PURPOSE FORM 2 IN DRAFTING SHORT-FORM OPERATING AGREEMENTS

  • § 53.01 The Importance of Comprehensive Operating Agreements for Multi-Member LLCs
  • § 53.02 Four Situations in Which a Short-Form Operating Agreement May Be More Appropriate for a Multi-Member LLC Than a Comprehensive Operating Agreement
  • § 53.03 General-Purpose Form 3.1 as the Basis for Special-Purpose Form 2
  • § 53.04 What Types of Provisions Are Absolutely Necessary in the Operating Agreements of Multi-Member LLCs?
  • § 53.05 Principal Deletions from General-Purpose Form 3.3 Reflected in Special-Purpose Form 2
  • § 53.06 Comments on Specific Provisions Retained in Special-Purpose Form 2

PART VII - LLC MODEL OPERATING AGREEMENTS—ASSET PROTECTION

Chapter 54. HOW TO USE LLCs TO PROTECT YOUR CLIENTS’ ASSETS—INTRODUCTION

  • § 54.01 Asset Protection—General Introduction
  • § 54.02 The Other Chapters in Part VII of This Book; Other Relevant Chapters in the Book

Chapter 55. ASSET PROTECTION PLANNING—OVERVIEW OF THE FIELD; ASSET PROTECTION LITIGATION

  • § 55.01 Asset Protection Planning Practice as a Field of the Practice of Law—Definition and Brief Description
  • § 55.02 The Four Main Tasks in Asset Protection Practice
  • § 55.03 The Primary Importance of Insurance as an Asset Protection Measure
  • § 55.04 Asset Protection Books, Law Journals, and Websites; the ABA
  • Asset Protection Committee
  • § 55.05 Which Are the Main Types of Individuals and Entities That Are Likely to Benefit from Asset Protection Planning?
  • § 55.06 What Are the Main Types of Creditors from Which Asset Protection Planners Seek to Protect Their Clients?
  • § 55.07 What Are the Main Types of Individual Assets That Asset Protection Planning Seeks to Protect?
  • § 55.08 What Are the Main Types of Business Assets That Asset Protection Planning Seeks to Protect?
  • § 55.09 What Are the Main Techniques Available to Asset Protection Planners to Protect Their Clients’ Assets?
  • § 55.10 Asset Protection Litigation

Chapter 56. STATE AND FEDERAL FRAUDULENT TRANSFER LAW—OVERVIEW

  • § 56.01 Introduction to Fraudulent Transfer Law
  • § 56.02 Key Provisions of the UVTA—Overview
  • § 56.03 Key Provisions of the UFTA—Text and Summary
  • § 56.04 Further Study

Chapter 57. ISSUES OF PERSONAL MORALITY AND LEGAL ETHICS IN ASSET PROTECTION PRACTICE

  • § 57.01 Introduction
  • § 57.02 Moral Issues
  • § 57.03 Issues of Legal Ethics

Chapter 58. USING LLCs TO PROTECT ASSETS: OVERVIEW OF LLC ASSET PROTECTION PRACTICE

  • § 58.01 What Is LLC Practice?
  • § 58.02 Which Are the Main Types of Persons Whose Assets LLC Asset Protection Lawyers Typically Seek to Protect?
  • § 58.03 Which Are the Main Types of Creditors from Whom LLC Lawyers Must Provide Their LLC Formation Clients with Asset Protection?
  • § 58.04 What Are the Main Types of LLC Asset Protection Tasks That LLC Lawyers Should Be Competent to Handle for Their Clients?
  • § 58.05 LLCs vs. Trusts as Asset Protection Vehicles
  • § 58.06 Chief Points of Similarity and Difference Between Generic Asset Protection Planning and LLC Asset Protection Planning
  • Exhibit 58-1 Asset Protection Tasks in the LLC Formation Master Checklist (With Asset Protection-Related Tasks Highlighted in Grey)

Chapter 59. DEALING WITH ASSET PROTECTION ISSUES IN LLC STATUTES

  • § 59.01 What Does it Mean to “Know” an LLC Act for LLC Formation Purposes?
  • § 59.02 Definitions and Examples of the Five Categories of Statutory Provisions Relevant to LLC Formation Practice
  • § 59.03 Statutory Gap Issues in LLC Statutes
  • Exhibit 59-1 Table of Mandatory Provisions of the DLLC Act That Function as Asset Protection Provisions
  • Exhibit 59-2 Table of Principal Default Provisions of the DLLC Act That Function as Asset Protection Provisions
  • Exhibit 59-3 Table of Non-Self-Enabling Permissive Provisions of the DLLC Act That Function as Asset Protection Provisions
  • Exhibit 59-4 Table of Self-Enabling Permissive Provisions of the DLLC Act That Function as Asset Protection Provisions

Chapter 60. DRAFTING OPERATING AGREEMENTS TO MAXIMIZE ASSET PROTECTION

  • § 60.01 Introduction
  • § 60.02 LLC Operating Agreements—Introduction; General Comments About Drafting Asset Protection Provisions in LLC Operating Agreements
  • § 60.03 Drafting Operating Agreements for Single-Member LLCs to Maximize Asset Protection—Basic Guidelines
  • § 60.04 Drafting the Operating Agreements of Multi-Member LLCs to Protect LLC Assets
  • § 60.05 Drafting the Operating Agreements of Multi-Member LLCs to Protect the Personal Assets of One’s Clients
  • § 60.06 Drafting Provisions in the Operating Agreements of Multi-Member LLCs to Protect Your Client’s Assets—Introduction; Types of Participants in LLC Formations Who May Have Asset Protection Needs
  • § 60.07 Protecting the Assets, Including the LLC-Related Assets, of an Individual Who Is the Sole Manager of a Type 6.2 LLC

Index

CD-ROM CONTENTS: ELECTRONIC FILES OF ALL EXHIBITS

MODEL AGREEMENTS, GENERIC, AND SPECIALIZED FOR DE AND MA

  • Model Operating Agreement (Generic) for Member-Managed Single-Member Limited Liability Company (i) Which Has One Member Who is an Individual; (ii) Which is Managed by its Member; and (iii) Which is Taxable as a Sole Proprietorship
  • Model Operating Agreement (Generic) for Manager-Managed Single-Member Limited Liability Company (i) Which Has One Member Who is an Individual; (ii) Which is Managed by its Member and by a Non-Member Assistant Manager; and (iii) Which is Taxable as a Sole Proprietorship
  • Model Operating Agreement (Generic) for Manager-Managed Single-Member Limited Liability Company (i) Which Has One Member Who is an Individual; (ii) Which is Managed by a Third Party; and (iii) Which is Taxable as a Sole Proprietorship
  • Model Operating Agreement (Generic) for Member-Managed Single-Member Limited Liability Company (i) Which Has One Member Who is an Individual; (ii) Which is Managed by its Member; and (iii) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Manager-Managed Single-Member Limited Liability Company (i) Which Has One Member Who is an Individual; (ii) Which is Managed by its Member and by a Non-Member Assistant Manager; and (iii) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Manager-Managed Single-Member Limited Liability Company (i) Which Has One Member Who is an Individual; (ii) Which is Managed by a Third Party; and (iii) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Manager-Managed Single-Member Limited Liability Company (i) Which Has One Member Which is an Entity; (ii) Which is Managed by an Individual; and (iii) Which is Taxable as a Disregarded Entity
  • Model Operating Agreement (Generic) for Manager-Managed Single-Member Limited Liability Company (i) Which Has One Member Who is an Entity; (ii) Which is Managed by Two or More Officers; and (iii) Which is Taxable as a Disregarded Entity
  • Model Operating Agreement (Generic) for Manager-Managed Single-Member Limited Liability Company (i) Which Has One Member Which is an Entity; (ii) Which is Managed by a Board of Directors and Officers; and (iii) Which is Taxable as a Disregarded Entity
  • Model Operating Agreement (Generic) for Member-Managed Multi-Member Limited Liability Company (i) Which Has Two Equal Members; (ii) Which is Managed by its Members Under a Simple General Partnership Management Structure; and (iii) Which is Taxable as a Partnership
  • Model Operating Agreement (Generic) for Member-Managed Multi-Member Limited Liability Company (i) Which Has Two Unequal Members; (ii) Which is Managed by its Members Under A Simple General Partnership Management Structure; and (iii) Which is Taxable as a Partnership
  • Model Operating Agreement (Generic) for Member-Managed Multi-Member Limited Liability Company (i) Which Has Three or More Members; (ii) Which is Managed by its Members Under a Simple General Partnership Management Structure; and (iii) Which is Taxable as a Partnership
  • Model Operating Agreement (Generic) for Member-Managed Multi-Member Limited Liability Company (i) Which Has Two Equal Members; (ii) Which is Managed by its Members Under A Simple General Partnership Management Structure; and (iii) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Member-Managed Multi-Member Limited Liability Company (i) Which Has Two Unequal Members; (ii) Which is Managed by its Members Under a Simple General Partnership Management Structure; and (iii) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Member-Managed Multi-Member Limited Liability Company (i) Which Has Three or More Members; (ii) Which is Managed by its Members Under a Simple General Partnership Management Structure; and (iii) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Member-Managed Multi-Member Limited Liability Company (i) Which Has Seven or More Members; (ii) Which is Managed by its Members Under a Complex General Partnership Management Structure with a Managing Director; and (iii) Which is Taxable as a Partnership
  • Model Operating Agreement (Generic) for Member-Managed Multi-Member Limited Liability Company (i) Which Has Seven or More Members; (ii) Which is Managed by its Members Under a Complex General Partnership Management Structure with a Managing Director; and (iii) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company (i) Which Has Two Members; (ii) Which is Managed by a Manager-Member Under a Simple Limited Partnership Management Structure; (iii) Which is Controlled by its Members; (iv) Which is Taxable as a Partnership; and (v) Which is Not Tailored for Use Under Prop. Reg. §1.1402(a)-2
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company (i) Which Has Three or More Members; (ii) Which is Managed by a Manager-Member Under a Simple Limited Partnership Management Structure; (iii) Which is Controlled by its Members; (iv) Which is Taxable as a Partnership; and (v) Which is Not Tailored for Use Under Prop. Reg. §1.1402(a)-2
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company (i) Which Has Two Members; (ii) Which is Managed by a Manager-Member Under a Simple Limited Partnership Management Structure; (iii) Which is Controlled by its Members; and (iv) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company (i) Which Has Three or More Members; (ii) Which is Managed by a Manager-Member Under a Simple Limited Partnership Management Structure; (iii) Which is Controlled by its Members; and (iv) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company (i) Which Has Two Members; (ii) Which is Managed by a Manager-Member Under A Simple Limited Partnership Management Structure; (iii) Which is Controlled by its Manager; (iv) Which is Taxable as a Partnership; and (v) Which is Not Tailored for Use Under Prop. Reg. §1.1402(a)-2
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company (i) Which Has Three or More Members; (ii) Which is Managed by a Manager-Member Under a Simple Limited Partnership Management Structure; (iii) Which is Controlled by its Manager; (iv) Which is Taxable as a Partnership; and (v) Which is Not Tailored for Use Under Prop. Reg. §1.1402(a)-2
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company (i) Which Has Two Members; (ii) Which is Managed by a Member-Manager Under A Simple Limited Partnership Management Structure; (iii) Which is Controlled by its Manager; and (iv) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company (i) Which Has Three or More Members; (ii) Which is Managed by a Member-Manager Under a Simple Limited Partnership Management Structure; (iii) Which is Controlled by its Manager; and (iv) Which is Subject to Federal Tax Treatment as an S Corporation
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company; (i) Which Has Three or More Members; (ii) Which Has a Corporate Management Structure with a Board of Directors and Officers; and (iii) Which is Taxable as a C Corporation
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company; (i) Which Has Three or More Members; (ii) Which Has a Corporate Management Structure with a Board of Directors and Officers; and (iii) Which is Taxable as a Partnership; and (iv) Which is Not Tailored For Use Under the Prop. Reg. §1.1402(a)-2
  • Model Operating Agreement (Generic) for Manager-Managed Multi-Member Limited Liability Company; (i) Which Has Three or More Members; (ii) Which Has a Corporate Management Structure with a Board of Directors and Officers; and (iii) Which is Taxable as an S Corporation
  • Special-Purpose Form with Limited Partnership Management Structure
  • Bylaws for Use with Form 2.3
  • Model Bylaws for Use with Type 10 Forms
  • Model Employment Agreement for use with General-Purpose Forms 1.3 and 1.6
  • Exhibit B to General-Purpose Forms 5.1 and 5.2
  • Exhibit D to General-Purpose Forms 5.1 and 5.2

 

 

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