Category: Uncategorized

A Stroll Through Chancellor Chandler’s Magic Kingdom


The decision of the Delaware Supreme Court in In re The Walt Disney Company Derivative Litigation, 906 A.2d 27 (Del. 2006) is notable for its elaboration upon the good faith required of corporate directors, and, yet, Disney is significant, too, for its consideration of corporate minutes. The appropriate level of corporate minutes – minimal minutes that record acts without notes of discussion, minutes that record acts and synopses of debate, and verbatim transcripts of the proceedings – is a subject of longstanding debate amongst lawyers. Disney offers valuable guidance to lawyers in their advice to clients about the best manner in which to record corporate minutes.

Disney Litigation

Disney was a shareholder derivative action brought against Michael Ovitz (“Ovitz”), the former president of The Walt Disney Company (“Disney”), and the Disney directors in office at the time of the execution of an employment agreement between Ovitz and Disney (the “OEA”) pursuant to which,

Written by on July 19, 2023

Traps For The Unwary In The Perfection Of Security Interests In Quirky Collateral


The Uniform Commercial Code¹ (the “UCC”) generally governs the creation and perfection of security interests in collateral. The UCC is, however, subject to preemption or otherwise superseded by statutes, regulations, and treaties of the United States as well as certain state statutes applicable to the creation, priority or enforcement of security interests in specific collateral.² This article will examine the creation and perfection of security interests in certain collateral that implicate traps for the unwary.


The Federal Aviation Act of 1958³ (the “Act”) prompted the establishment of a civil aviation registry maintained by the Federal Aviation Administration (the “FAA”). The civil aviation registry governs the recordation of security interests in (a) an aircraft registered with the FAA,⁴ (b) a specifically identified aircraft engine with at least 550 rated takeoff horsepower or its equivalent, (c) a specifically identified aircraft propeller capable of absorbing at least 750 rated takeoff shaft horsepower, (d) an aircraft engine, propeller, or appliance maintained for installation or use in an aircraft,

Written by on July 19, 2023

Use Of The Annual Exclusion For Transfers Of Interests In Family Entities

The use of business entities—limited partnerships, closelyheld corporations and limited liability companies—offers clients ease of management, protection from creditors and, of course, benefits in the intrafamilial transfer of assets.

However, as utilization of the annual gift tax exclusion is often an important component of intergenerational transfer plans, the decision of the 7th Circuit Court of Appeals in Hackl v. Commissioner obliges practitioners to review the alienation restrictions inserted in governance agreements of entities used for intrafamilial transfers to ensure that the transferred interests are, in fact, present interests under recent judicial guidance.

The use of the annual gift tax exclusion is, subject to certain exceptions, limited to gifts of a present interest. The IRS defines a present interest as “an unrestricted right to the immediate use, possession, or enjoyment of the property or income from the property” and thus excludes other interests or estates that “are limited to commence in use, possession, or enjoyment at some future date or time.”

The IRS approaches intergeneration transfers of limited partnership units,

Written by on July 19, 2023

Member’s Bankruptcy Is No Fiesta For Remaining LLC Members


The disposition of limited liability company (“LLC”) membership interests upon bankruptcy of a member is, in light of recent decisions under the Bankruptcy Code (“the Code”), subject to latent incongruities in the Code, state laws subject to federal preemption, and the variations in administration and governance among LLC operating agreements.

North Carolina Creditor Remedies

The North Carolina Limited Liability Company Act (the “Act”) entitles a judgment creditor of an LLC member to obtain a charging order, which is the right of a judgment creditor to receive, until the payment in full of the judgment, distributions from the LLC otherwise due to the debtor member. Although the Act does not denote the charging order as an exclusive remedy, the Act includes no other provisions or remedies for judgment creditors of LLC members.

The North Carolina Court of Appeals considered the availability of additional remedies in Herring v. Keasler, 150 N.C.App. 598, 600-601, 563 S.E.2d 614,

Written by on July 19, 2023

Restoring The Benefit Of The Bargain

North Carolina Permits Limited Attorneys’ Fees Recovery in Business Contracts

The common law of North Carolina provides that awards of attorneys’ fees by litigants are, notwithstanding any contractual provision, limited to recoveries that are specifically authorized by statute. Our Supreme Court observed that “even in the face of a carefully drafted contractual provision indemnifying a party for such attorneys’ fees as may be necessitated by a successful action on the contract itself, our courts have consistently refused to sustain such an award absent statutory authority therefor.”¹

The traditional rationale for this rule, the application of which has not necessarily been consistent with its intention, was public policy that sought to protect parties with less bargaining power or a lower level of sophistication.² There is, for example, a longstanding statutory exception that validates contractual provisions for reimbursement of attorneys’ fees of the prevailing party in agreements that qualify as a promissory note, conditional sale contract or other “evidence of indebtedness.”³ However,

Written by on July 18, 2023