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2018 NJSBA Annual Meeting LLC Veil Piercing and Reverse Veil Piercing Co-Sponsored by the Business Law Section Moderator/Speaker: Jeffrey M. Shapiro, Esq. Lowenstein Sandler, LLP, Roseland Speakers: Hon. Katie A. Gummer, JSC Monmouth County Superior Court Stuart L. Pachman, Esq. Brach Eichler LLC, Roseland Christopher Porrino, Esq. Lowenstein Sandler LLP, Roseland MAY 18, 2018 PROGRAM SOME RECENT CASES INVOLVING PIERCING AND REVERSE PIERCING LIMITED LIABILITY COMPANIES By: Stuart L. Pachman Brach Eichler LLC 101 Eisenhower Parkway Roseland, NJ 07068 Tele. No. 973-228-5700 Email: [email protected] 1. An early New Jersey case: Stockton v. Central R.R. Co. of N.J., 50 N.J. Eq. 52, 76 (Ch. 1892) 2. A leading case on New Jersey piercing law: State, Dept. of Environ. Protect. v. Ventron Corp., 94 N.J. 473 (1983) 3. Some recent piercing cases: A.G. Dillard, Inc. v. Stonehaus Construction, L.L.C., 2016 WL 3213630 (Va. 2016). LLC pierced to reach member’s assets; then other LLCs owned by the member pierced to reach their assets. McBeth v. Porges, 2016 WL 1092692, ___ F.Supp.3d ___ (S.D.N.Y. 2016). Fulmer v. Hurt, 515 S.W.3d 129 (Ark. Ct. App. 2017), Piercing claim NOT sustained. Benzakry v. Patel, 77 N.E.3d 1116 (Ill. App. 2017). Jury verdict of piercing affirmed. Southern Shores v. Miller, 796 S.E.2d 340 (N.C. Ct. App. 2017). Evidence sufficient to pierce veil. Grigsby v. Francabandiero, 152 A.D.3d 1195 (N.Y. App. Div. 2017). This was a close case which also posed this question: Can the plaintiff reach the personal fortune of a former member as an “equitable owner”? Roscoe v. Angelucci Acoustical, Inc., 512 S.W.3d 730 (Ky. Ct. App. 2017). State ex rel. Family Support Division v. Steak’m Take’m LLC, 2017 WL 3136424 (Mo. Ct. App. 2017). A.V.L.L.A., Inc. v. Estate of Marilyn Monroe, LLC, 241 F.Supp.3d 461 (S.A.N.Y. 2017). Piercing action not sustained. Curci Investments v. Baldwin, 14 Cal. App. 5th 214 (Cal. App. 2017). BE:9516671.1/BEO002-107008 iPayment, Inc. v. 1st American, Inc. , 2017 WL 727538 (S,D,N.Y. 2017), involves piercing the corporate (as distinguished from LLC) veil. It is included for two reasons. First because the court described it as “a textbook case for application of veil piercing.” Second because of the unusual fact that it arose from an arbitration proceeding and the corporate principals were not parties to the agreements requiring arbitration. Sky Cable, LLC v. Massanutten Resort, LC, ____F.3d____(4th Cir. 2018). A textbook like treatise on the law of piercing and related issues including the single economic interest theory and jurisdiction. 4. Cases discussing conflict of laws issues affecting piercing: First Nat’l City Bank v. Banco Para El Comercio de Cuba, 462 U.S. 611, 621 (1983) Ademiluyi v. PennyNac Mortgage Investment Trust Holdings I, LLC, 929 F, Supp. 2d 502 (D. Md. 2013) Hildreth v. Tidewater Equipment Co., Inc., 838 A.2d 1204 (Md. 2003) (New Jersey corporation veil pierced under Maryland law.) BE:9516671.1/BEO002-107008 - 2 - Stuart L. Pachman is a Member of Brach Eichler LLC in Roseland, New Jersey, where he concentrates his practice in counseling businesses and non-profit corporations; drafting complex and unusual agreements that memorialize the business deal reached by the parties; structuring transactions; guiding business formations and breakups; and advising executives on day to day issues including those involving employees, borrowings and litigation at both the trial and appellate level. He is a former Trustee of the New Jersey State Bar Association, a Director Emeritus and former Chair of the Association’s Business Law Section, and also serves on the Equity Jurisprudence Committee. Mr. Pachman helped draft Title 15A, the New Jersey Nonprofit Corporation Act, chaired the committee to amend the Revised Uniform Limited Partnership Law, and is the author of Title 14A Corporations (Gann Law Books) as well as law review and other articles on business law issues. He was the recipient of the first New Jersey Law Journal Lifetime Achievement Award in 2015, and also received the New Jersey State Bar Association Distinguished Legislative Services Award in 2010. Mr. Pachman received his B.A. from the University of Virginia and his LL.B, cum laude, from Harvard Law School. Jeffrey M. Shapiro Partner, Mergers & Acquisitions, Governance E: [email protected] T: 973.597.2470 F: 973.597.2471 Best known for his experience as a transactional and business lawyer, Jeffrey gives his clients practical, actionable advice on a complete range of transactions and issues, including mergers and acquisitions, proxy contests, stockholder and member rights, governance, reorganizations, LLC formations, commercial transactions, and corporate law matters. Jeffrey regularly represents stockholders and issuers in all aspects of governance related issues including proxy contests and consent solicitations. He also has extensive experience counseling clients on stockholder and member disputes, oppression claims, and business divorce matters. Public and private companies call on Jeffrey for advice on Hart-Scott-Rodino Act antitrust issues in mergers and acquisitions and investment transactions. Jeffrey is co-author of the definitive book on New Jersey corporate law and practice, New Jersey Corporations and Other Business Entities . He has also published numerous articles on Hart-Scott-Rodino Act issues, corporate law developments and securities matters, and frequently speaks about corporate governance topics. Experience ° Special Situation Fund's proxy contest with Response Genetics, Inc. ° TDI Power's proxy contest ° Cerberus Capital Management's $1.1 billion acquisition of Tower Automotive out of bankruptcy ° Oliver Press Partners' proxy contest with Emageon Inc. ° Lucent Technologies' $295 million acquisition of Telica ° Oliver Press Partners' proxy contest with The Phoenix Companies, Inc. ° Winebow, Inc. in its strategic transaction with Freeman Spogli & Co. ° Oliver Press Partners' board nominations to, and settlement with, Coherent, Inc. ° The Newark Group's $175 million offering of senior subordinated notes ° Anadigic's $100 million offering of convertible notes ° Oliver Press Partners' solicitation involving Comverse Technology ° Palisade Capital's $20 million investment in Kroll Inc. ° Elite Pharmaceuticals' proxy contest Professional and Community Activities ° Chair, Board of Directors of the Business Law Section of the New Jersey State Bar Association ° Co-Chair of the Contractual Governance of Business Entities Joint Task Force, Committee on Corporate Governance of the ABA Business Law Section ° Past Co-Chair of the Governance of Private and Family-Controlled Entities Subcommittee, Committee on Corporate Governance of the ABA Business Law Section ° Counsel to the New Jersey Corporation and Business Law Study Commission Education ° Washington University School of Law (J.D. 1992) ° Hamilton College (A.B. 1987) Bar Admissions ° New Jersey Christopher Porrino Partner Chair, Litigation Department New York New Jersey T: +1 212.419.5880 / +1 973.597.6314 | F: +1 973.597.6315 [email protected] Chris returned to Lowenstein Sandler in 2018 after serving as the 60th Attorney General of New Jersey. A seasoned trial lawyer, negotiator, and crisis manager, he possesses a rare combination of real-world pragmatism and strategic problem-solving skills forged in courtrooms, in the halls of government, and in the glare of the national media spotlight. As Chair of the firm’s Litigation department, Chris helps Fortune 500 clients achieve critical goals and defend against seemingly insurmountable challenges. He advises and represents businesses and individuals in civil, criminal, and regulatory matters involving securities, consumer fraud, banking, insurance, tax, antitrust, real estate, and the environment, among others. He also conducts internal investigations for clients faced with allegations of wrongdoing or suspected wrongdoing by insiders. As head of one of the most powerful Attorney General Offices in the country, Chris indicted and convicted the former mayor of New Jersey’s third-largest city. He oversaw the implementation of bail reform, the most significant reform of New Jersey’s criminal justice system in its history, via a model that is now being replicated nationally. He took action against antisemitism and other forms of discrimination, and pioneered the country’s strictest opioid prescribing rules, paving the way for an almost immediate and very steep reduction in the number of opioid painkillers prescribed by physicians in New Jersey. In addition, Chris worked to improve trust between police and the communities they serve, and led the planned closure of a Civil War-era youth prison in one of the most significant reforms in the history of the state’s juvenile justice system. Chris first entered public service in 2012 as Director of the Division of Law within the New Jersey Attorney General's Office. In that post, he led a team of 500 civil lawyers, overseeing thousands of litigation matters and dozens of trials on behalf of the state's various departments and agencies, including the Departments of Environmental Protection, Banking and Insurance, and Transportation, as well as the Division of Consumer Affairs. As Director, he personally handled and argued some of the state’s most sensitive and important cases, both at the trial court level and in the New Jersey Supreme Court. Chris served as Governor Christie's Chief Counsel beginning on the day that the widely reported “Bridgegate” scandal broke in the media. He guided the administration through that crisis and its aftermath. As one of only two direct reports to the Governor, Chris also had broad responsibility for judicial appointments, legislative matters, and all state authorities, including the Port Authority of New York and New Jersey. Before his government service, from 2004 until 2012, Chris was a partner and Vice Chair of Lowenstein Sandler's Litigation department, where he focused on criminal and civil trial practice. Earlier in his career, he served as a law clerk to then-Magistrate Judge Freda L.
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