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The theory of mandatory core duties
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posted on 10.01.2017by Miller, Sandra K.
This dissertation argues for mandatory fiduciary duties grounded in statute applicable to the American limited liability company. The recommended approach prohibits the contractual elimination of fiduciary duties including the duty of loyalty to act in the LLC’s best interests and the duty of care to exercise reasonable care, subject to the business judgment rule, in the management of the LLC. Additionally, the recommended Theory of Mandatory Core Duties would prohibit the LLC operating agreement from displacing those equitable remedies that may be necessary to prevent a controlling member from engaging in unfairly prejudicial conduct – the hallmarks of which typically include the deprivation of financial benefits and/or managerial rights without an offer of fair compensation for the interest. The recommended approach departs substantially from the Delaware provisions that permit the complete elimination of fiduciary duties other than the implied contractual covenant of good faith and fair dealing as well as the indemnification for all claims and demands whatsoever. [Author edited abstract].