Comerica Bank v. Global Payments Direct, Inc., C.A. No. 9707-CB (Aug. 1, 2014) (Bouchard, C.)
By Scott Waxman and Zack Sager
This case involves the unfriendly winding up of a two-member Delaware limited liability company (the “LLC”). One of the issues raised in this case was whether “cause” existed for the Court of Chancery to intervene and wind up the LLC’s affairs and appoint a liquidating trustee under Section 18-803(a) of the Delaware Limited Liability Company Act (the “LLC Act”). One of the members of the LLC (“Global”) argued that the Court did not have cause because a deadlock did not exist among the parties entitled to wind up the LLC. Global argued that because it was the 51% owner of the LLC and had the right to make any decisions necessary to wind up the LLC, no deadlock existed.
In rejecting Global’s argument, the Court stated that nothing in the LLC Act “requires a finding of deadlock as a prerequisite to this Court assuming control of the wind up process of a Delaware LLC and/or appointing a liquidating trustee.” According to the Court, ample cause existed because Global was unwilling to wind up the LLC in an orderly and timely manner and took a confrontational approach that was contradictory to its obligation to wind up the LLC promptly so as to maximize the value of the property distributed to the members. Chancellor Bouchard noted that although the “contours of [default fiduciary duties] may be different after dissolution of an LLC during the wind up period, they continue to encompass, in my view, an obligation to distribute the assets of the company promptly consistent with maximizing their value.”