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Waivers and their Consequences: An Analysis of the Limitations of Fiduciary Duties in Delaware LLC Bankruptcies

American Bankruptcy Law Journal
Winter 2019, R. Stephen McNeill and Alyssa Gerace Frank

Many bankruptcy professionals may not be aware that a limited liability company (“LLC”) formed under Delaware law has the flexibility to eliminate all fiduciary duties owed by its management and members in its operating agreement. Recognizing this flexibility, the Delaware Supreme Court has held that well-established corporate fiduciary law may not always apply to LLCs. This article provides an overview of the structure of these business entities and the fiduciary duties owed in both contexts. From there, the article discusses in detail whether creditor claims for breach of those fiduciary duties may be pursued in bankruptcy cases.

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