Attention:

Piercing the Veil of the Single Member Limited Liability Company (“SMLLC”) Including Some Downsides to the Separate Entity for the Sole Proprietor


Level: Advanced
Runtime: 90 minutes
Recorded Date: March 20, 2018
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Agenda

1:00 pm - 2:30 pm
  • Introduction
  • Case Law and Trends
  • Plaintiff Strategies
  • Defendant Strategies
  • Q & A
Runtime: 1 hour and 30 minutes
Recorded: March 20, 2018

Description

Join our expert panel as they discuss the factors that courts consider when trying to pierce or preserve the LLC veil.

Single Member SMLLCs benefit the sole proprietor by protecting the individual from liability for the debts of the company and facilitating a management structure that fits the proprietor's needs and business practices, while avoiding the added tax complexity which ordinarily accompanies "separate entity" status. However, preserving the LLC "veil" requires careful attention to structuring a flexible operation.

Although most believe that the LLC provides protection from personal liability, it can be easily separated as a separate entity for tax purposes and for liability as well. This protection no longer exists if corporate standards are applied by the court-thus clearing the way to pierce the veil.

Panelists will also discuss some problems that arise from separate entity status-e.g., barriers to bringing discrimination claims.

This program was recorded on March 20th, 2018.

Provided By

American Bar Association

Panelists

Thomas E. Rutledge

Member
Stoll Keenon Ogden PLLC

Tom is a Member in Stoll Keenon Ogden’s Louisville office and has been with the firm for nearly 30 years. Drawing on his experience gained from decades of contributions to the Businesses Services practice, coupled with a vibrant academic practice, Tom advises clients on all aspects of business entity organization, including related tax and securities laws, and disputes amongst business owners.

Tom’s work on behalf of his clients and the development of law generally has been oft recognized. In 2004 he was elected to membership in the American Law Institute. In 2016, he was appointed to one of the only twenty-six positions nationwide on the American Bar Association’s Committee on Corporate Laws. In 2017, Tom was named a Best Lawyers in America “Lawyer of the Year” in Corporate Governance Law, and in 2018 he received the Martin I. Lubaroff Award.

Tom is a prolific author on a variety of topics including the organization of limited liability companies, and various of his articles have been cited by courts in Kentucky, Florida, Delaware and by the 6th and the 7th Circuit Courts of Appeal. One of his articles was cited to the United States Supreme Court in an amicus brief filed by a group of business law professors in connection with the Hobby Lobby and Conestoga Wood cases decided in 2014. In 2018 he became a co-author of Ribstein and Keatinge on Limited Liability Companies.

In addition to his work on behalf of clients of Stoll Keenon Ogden, Tom serves as an adjunct professor at the University of Kentucky College of Law and is the Gordon Davidson Fellow at the University of Louisville Louis D. Brandeis School of Law. Business Services: Tom’s practice is substantially concentrated in providing counsel on the structure of various commercial enterprises, helping clients decide whether their ventures should be organized as a corporation, limited liability company, a partnership or other organizational form. Having helped clients make that decision, he prepares the organizational documents for the venture and, as it develops over time, advises and drafts with respect to document amendments.

Jay Adkisson, Esq.

Partner
Riser Adkisson LLP

Mr. Adkisson is currently a partner of the law firm of Riser Adkisson LLP with his offices in Newport Beach, California, and Henderson, Nevada. He is a member in good standing of the Oklahoma Bar Association, 1989-?present; State Bar of Texas, 1993-?present; State Bar of California, 2007-?present; State Bar of Nevada, 2012-present; State Bar of Arizona, 2012-?present; American Bar Association, and admitted to practice before the Supreme Court of Oklahoma, 1989; Supreme Court of Texas, 1993; United States Supreme Court, 1992; United States Fifth Circuit Court of Appeals, 1993; United States Tenth Circuit Court of Appeals, 1989; United States Eleventh Circuit Court of Appeals, 1997, United States Ninth Circuit Court of Appeals, 2007; and various U.S. District Courts. Mr. Adkisson is not certified as a legal specialist in any jurisdiction.

Mr. Adkisson is also the author of "Adkisson's Captive Insurance Companies: An Introduction to Captives, Closely-?Held Insurance Companies and Risk Retention Groups". Mr. Adkisson was a member of a captive insurance consulting firm from 1998 to 2003, and an owner of a licensed captive insurance management firm in the British Virgin Islands from 2001 to 2003. From 2012 to 2014, Mr. Adkisson was Chair the American Bar Association's Committee on Captive Insurance in the Business Law Section, and currently is a Co-Chair of the Committee on Insurance and Financial Services in the Probate, Trust and Estates Section.

Mr. Adkisson's practice is also in the areas of creditor-?debtor law, including creditor-?side collections and debtor-?side representation and asset protection planning, and captive insurance planning. Mr. Adkisson contributed the chapter on Fraudulent Transfers to the American Bar Association publication "Asset Protection Strategies" (2004). Mr. Adkisson has served (from 2013 to 2014) as an American Bar Association-?appointed advisor to the Uniform Law Commission Committee on the Uniform Voidable Transaction Act (formerly, the Uniform Fraudulent Transfers Act). He is currently an American Bar Association-?appointed advisor to the Drafting Committee on the (proposed) Uniform Series of Unincorporated Business Entities.

Mr. Adkisson is the author, along with his law partner, Mr. Chris Riser, of "Asset Protection: Concepts and Strategies" (McGraw-?Hill, 2004), which book is believed to be the only U.S. asset protection work translated into Chinese and sold in China. He is also an Honorary Member of the California Association of Judgment Professionals.

Mr. Adkisson's exploits as a collection lawyer are related in two articles: Clyde Leland's Chasing the Money as published in California Lawyer Magazine, July, 2010; and Eli Sander's The Great West Coast Newspaper War as published by The Seattle Stranger, March 16, 2010. He also served as a Court-appointed Receiver in the case of Gaggero, et al. v. Knapp, Peterson, et al., Sup.Ct.L.A. Case No. BC286925, obtaining 100% recovery on a $2.3 million judgment for the creditors in that case, while marshaling many millions of dollars of real estate assets held in a complex business structure. He is currently serving as the Court-appointed Receiver in the case of Wynn Las Vegas LLC v. Francis, Sup. Ct. L.A. Case No. BS123009.

Mr. Adkisson is the creator of Quatloos.com which is an internationally famous website that exposes various financial and tax scams. Mr. Adkisson has twice testified as an expert witness to the U.S. Senate Finance Committee regarding abusive tax schemes. Mr. Adkisson is also a regular contributor to Forbes Magazine and its website. He also formerly held a FINRA series 4, 7, 63 and 65 and a California Life Agent's license, and was the Director of Private Client Services for Select Portfolio Management in Aliso Viejo, California, from 2005 to 2007.

Mr. Adkisson received his Bachelor of Arts, from the University of Oklahoma in 1986; Juris Doctor, with honors, University of Oklahoma, 1988; and Oklahoma Law Review, 1987-88.

Daniel S. Kleinberger

Professor Emeritus
Mitchell Hamline School of Law

Professor Kleinberger’s scholarship involves business law, particularly the law of business organizations. His books include a leading national treatise on limited liability companies and a popular student treatise on agency, partnerships, and LLCs. His articles sometimes conjoin the conceptual and the practical (e.g., “Respondeat Superior Run Amok” and “A User’s Guide to the New Uniform Limited Partnership Act”) and sometimes take a more theoretical perspective (e.g., “The Closely Held Business through the Entity-Aggregate Prism”).

Professor Kleinberger has been immersed in legislative drafting projects for more than two decades, and his scholarship and drafting work have been recognized by the National Conference of Commissioners on Uniform State Laws, the American Law Institute, the American Bar Association Committee on Limited Liability Companies, Partnerships and Unincorporated Entities, and the Section on Agency, Partnership, LLCs and Unincorporated Associations of the American Association of Law Schools.

Elizabeth S. Fenton

Partner
Saul Ewing LLP

Beth Fenton is a commercial litigator who focuses her practice on cases involving business torts, joint venture dissolutions and corporate governance disputes.

Her experience litigating the boundaries of corporate and LLC limited liability has made Beth a sought-out writer and speaker on piercing the corporate and LLC veils and the doctrine’s interplay with the fiduciary duties of officers, directors and members. She also counsels clients regarding business strategy and compliance with respect to creation of special or single purpose entities.

Beth represents businesses of all sizes before federal and state courts as well as government agencies such as the Department of Justice, the Securities and Exchange Commission, the Commodity Futures Trading Commission, and the Federal Trade Commission. She has experience and knowledge handling issues arising under the Sherman Act, the False Claims Act, the Delaware General Corporation Law, the Foreign Corrupt Practices Act, and fair lending issues under a number of different state and federal statutes such as the Equal Credit Opportunity Act, the Home Mortgage Disclosure Act, and the Pennsylvania Unfair Trade Practices and Consumer Protection Law. She has significant experience in the area of electronic discovery as she has used legal project management tools to oversee large document reviews, monitor document preservation and litigation holds, and resolve cross-border e-discovery issues. In addition, Beth has assisted emerging companies, private businesses and nonprofit entities with governance and transactions in the United States and internationally.

Previously, Beth was a partner in the Wilmington, Delaware and Philadelphia, Pennsylvania offices of Reed Smith where she led the commercial litigation group in Wilmington.

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