martes, 16 de abril de 2013

No hay casos como los norteamericanos: la distinción entre la acción social y la acción individual de responsabilidad

In re Tri-River Trading, LLC provides an interesting, if somewhat atypical, example of that pivotal role.34 The LLC was a river barge trading company composed of two members, a grain company that agreed to provide substantial business to the LLC and an individual who served as the LLC's manager. A manager of the grain company made unsuccessful sexual advances toward the member-manager and then caused the grain company to withdraw its business from the LLC. The member-manager sued and obtained a settlement. In subsequent bankruptcy litigation, it became important to determine to what extent the settlement reflected claims of the LLC (that is, derivative claims) and to what extent claims of the LLC manager as an individual. The bankruptcy appellate panel parsed the claims carefully, and held that, while the claims for breach of contract due to the withdrawal of the grain company's business belonged to the LLC, the counts relating to fraud in the inducement were individual claims. The distinction was worth more than $400,000 to the former manager.
Kleinberger, Daniel S., Direct Versus Derivative and the Law of Limited Liability Companies. Baylor Law Review, Vol. 58, p. 63, 2006; William Mitchell Legal Studies Research Paper No. 47. Available at SSRN:

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