LLC Operating Agreements: Statutory and common law fiduciary duties versus duties set forth in the operating agreement

Brandon M. Schwartz | Schwartz Law Firm

Mr. Schwartz is a Board Certified Civil Specialists by the Minnesota State Bar Association, a Board Certified Civil Trial Advocate and Family Trial Law Advocate by the National Board of Trial Advocacy, and has received recognition from peers and clients alike for his thorough, zealous, and ethical representation. Whether it be resolution at jury trial, court trial, arbitration, mediation, or pre-suit negotiation, Mr. Schwartz has the experience and legal knowledge to effectively advocate for his clients in Minnesota, Wisconsin, Iowa and Arizona.

Mr. Schwartz earned an undergraduate degree cum laude in finance and economics from Michigan Technological University in 2006 while on a full hockey scholarship and earned his Juris Doctor, cum laude and in the top ten students in his class, from the William Mitchell College of Law in 2011. Prior to entering law school in 2008, Mr. Schwartz played professional hockey in the American Hockey League and East Coast Hockey League while employed as a clerk for the Schwartz Law Firm, a job that he kept until his graduation.

I. Statutory and common law fiduciary duties versus duties set forth in the Operating Agreement | 2:00pm – 2:30pm

1. Revised Uniform Limited Liability Company Act
2. Default Provision if no Operating Agreement
3. Statuary Fiduciary Duties
4. Application: Section 409
5. Common Law Fiduciary Duties
6. Duties set forth in the Operating Agreement

II. Modifying Fiduciary Duties | 2:30pm – 2:40pm

1. Act: Section 105(d)(3)

III. Indemnification and defense provisions | 2:40pm – 3:00pm

1. Act: Section 408
2. Operating Agreement Language
3. Indemnification and Defense in Practice

Break | 3:00pm – 3:10pm

IV. How the Fiduciary Provisions Play out in Disputes | 3:10pm – 3:40pm

1. Direct vs. Derivative Actions
2. Oppression Claims
3. Substantive vs. Procedural Obligations

V. Willful Misconduct | 3:40pm – 4:10pm

1. What is it?
2. Implication of such conduct on ability to secure indemnification and defense
3. Implication of such conduct on representation of wrongdoing member and LLC