Alternative Entities in Delaware - Reintroduction of Fiduciary Concepts by the Backdoor?

Abstract

In the mid-1990s, the Supreme Court of Delaware resoundingly held that “nothing in a contract can override directors’ fiduciary duties,” holding invalid deal protection provisions in a contract between Viacom International and Paramount Pictures. Nearly a decade later, the Delaware Legislature trumped that judicial ruling, at least in cases for what in Delaware are termed “alternative entities” (Limited Liability Companies (LLCs) and Limited Partnerships (LPs)). The legislative enactment did not set draftsperson as free as it might seem, giving absolute priority to freedom of contract. The reason is that the statute makes clear that the implied covenant of good faith and fair dealing still applies to LLC operating and limited partnership agreements. This article explores the question of how much application of the implied covenant results in application of fiduciary like concepts if not fiduciary duties themselves.

Keywords: alternative entities, covenant of good faith, fiduciary duty, business entities, contractarians, limited partnerships, limited liability companies

JEL Classification: K22, K29, M13