New ESG/SDGs Metrics From International Business Council (IBC) of the World Economic Forum (WEF)

The following is a link to a pdf of Measuring Stakeholder Capitalism: Towards Common Metrics and Consistent Reporting of Sustainable Value Creation (a 96 page paper):

The paper, which was published in September 2020, is a project of the International Business Council (IBC) of the World Economic Form (WEF) in collaboration with Deloitte, EY, KPMG and PwC. I believe that this is the first time that the Big 4 have gotten together in an effort to develop ESG and sustainability standards.

The paper defines the finished project as follows: “This work defines a core set of “stakeholder Capitalism Metrics” (SCM) and disclosures that can be used by IBC members to align their mainstream reporting on performance against environmental, social and governance (ESG) indicators and track their contributions towards the SDGs [UN Sustainable Development Goals] on a consistent basis.”

The paper and its ESG metrics are based on four pillars:

Pillar 1: Principles of Governance;

Pillar 2: Planet;

Pillar 3: People; and

Pillar 4: Prosperity.

This paper is a good initial effort to define measurable standards and metrics. In light of the authors and contributors this paper and its further related amendments, tweaks, and discussions will become a direct standard for IBC members, and some parts of it will become indirect or voluntary standards for some other organizations.

Many provisions in the paper are heavily focused on GRI (Global Reporting Initiative) standards. Thus, for example, the paper does not focus on SASB (Sustainability Accounting Standards Board) standards. You might also be aware that the SASB and the IIRC (International Integrated Reporting Council) announced on November 25, their intent to merge into a unified organization “in major step towards simplifying the corporate reporting system.” A lot of significant developments and changes are occurring in the ESG and sustainability areas.

As the IBC/Big-4 paper is heavily focused on GRI standards, and UN Sustainable Development Goals, it is or will be relevant or more relevant for US corporations that operate internationally. The extent, if any, to which select provisions in the paper are made applicable to US corporations and/or other organizations what operate solely or primarily domestically in the US is yet to be seen.

Best to you. David Tate, Esq.

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets.
  • M&A disputes.
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
  • Buy-sell disputes.
  • Funding and share dilution disputes.
  • Accounting, lost profits, and royalty disputes and damages.
  • Insurance coverage and bad faith.
  • Access to corporate and business records disputes.
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations.
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

New From COSO, SCCE, and HCCA – Compliance Risk Management: Applying the COSO ERM Framework

This month (November 2020) COSO (the Committee of Sponsoring Organizations of the Treadway Commission) made available its new publication Compliance Risk Management: Applying the COSO ERM Framework which is authored by the Society of Corporate Compliance and Ethics (SCCE) and the Health Care Compliance Association (HCCA), and is the product of the SCCE & HCCA Working Group on the Application of ERM to Compliance Risk. COSO commissioned the project.

COSO is a private sector initiative that is jointly sponsored and funded by the American Accounting Association, the American Institute of CPAs, Financial Executives International, the Institute of Management Accountants, and the Institute of Internal Auditors.

In and by itself the fact of the publication does not mandate by law that the publication or any part of it must be followed or implemented by any particular organization. Of course, however, licensing or regulatory bodies could mandate the use of the publication or parts thereof, or an organization itself also could by choice decide to use and implement the publication. The publication is noteworthy for its detail and specifics, because of the reputations and followings of the authoring and commissioning organizations, and because its contents, if they are read and implemented, appear to move ERM in the context of compliance significantly forward from earlier materials. The materials are detailed (29 pages of detail and specifics, plus Appendix 1 and Appendix 2).

I wanted to make you aware of these new materials, although it will take me a while to study and discuss them in detail. The Introduction in part states “This publication aims to provide guidance on the application of the COSO ERM framework to the identification, assessment, and management of compliance risks by aligning it with the C&E program framework, creating a powerful tool that integrates the concepts underlying each of these valuable frameworks.” For the purpose of the publication the “C&E program framework” is described in Appendix 1 Elements of an Effective Compliance and Ethics Program.

The following is a link to a pdf of Compliance Risk Management: Applying the COSO ERM Framework, from the coso.org website:

That’s all for now. More to follow.

Best to you. David Tate, Esq.

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets.
  • M&A disputes.
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
  • Buy-sell disputes.
  • Funding and share dilution disputes.
  • Accounting, lost profits, and royalty disputes and damages.
  • Insurance coverage and bad faith.
  • Access to corporate and business records disputes.
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations.
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

Designing and Implementing Your Organization’s ESG (Environmental, Social and Governance)

At the bottom of this post I have included a link to an article in Forbes that I find worthwhile for beginning the steps toward your design and implementation of ESG.

One of the current difficulties with starting to design and implement ESG for your organization is that there continues to be no single definition or list of criteria for exactly what ESG is, and, thus, what is included in ESG. Perhaps related, but really a different issue, is that there is no agreed upon standard or process for how to audit or even evaluate ESG from one organization to the next. For example, the following are some of the various standards that have been developed for ESG standards and evaluating ESG, and which contain their various respective criteria and components including for example SASB (Sustainability Accounting Standards Board), GRI (Global Reporting Initiative), UN SDGs (UN Sustainable Development Goals), MSCI, ISS ESG, and Sustainalytics (Morningstar), to name some.

However, stepping back a few steps from the above paragraph, it can also be argued that the lack of one or two definitive standards might also be a benefit for the majority of organizations that want to start designing and implementing their ESG. I say that because while a significant focus has been directed toward ESG in public companies and possible required regulations, all of which takes time and has taken time and regulations and legal requirements whatever they are and whatever they might become will in any event be a progression of starts and stops, the fact is that the great, great majority of organizations are nonpublic, nonprofit and governmental to which legal requirements for public companies will not apply, or only might at some point become relevant but typically not in a legal required sense.

There is in fact no obstruction to any organization, whether public, nonpublic, nonprofit or governmental, designing, implementing, and even reporting ESG. That having been said, however, depending on the type of organization “reporting” and what the organization says or represents about its ESG will require consideration from a legal perspective, but that also is true about everything that the organization reports or says or represents about its operations, policies, conduct, governance, etc.

I have written about ESG several times (including six posts in 2019 and 2020 in which ESG is part of the title), see for example NASDAQ snapshot https://wp.me/p75iWX-jw, SEC Commissioner comments https://wp.me/p75iWX-gH, CAQ calls for ESG standards https://wp.me/p75iWX-xH, from Protiviti https://wp.me/p75iWX-qU, and What if California Government, Nonprofits and Education are Leaders https://wp.me/p75iWX-hi.

Looking more at specific design and implementation of ESG, the following is a link to an article in Forbes that I find worthwhile for beginning the steps toward your design and implementation of ESG: “How to Operationalize ESG” https://www.forbes.com/sites/betsyatkins/2020/05/08/how-to-operationalize-esg/?sh=601883294835. One of the points is that the organization has the ability, and even for public companies at least in part the ability, to design and implement its own ESG and can start small, limited or specifically focused and can then grow from there, keeping in mind, of course, that what the organization reports or says or represents about its ESG will require consideration from a legal perspective.

Best to you. David Tate, Esq.

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets.
  • M&A disputes.
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
  • Buy-sell disputes.
  • Funding and share dilution disputes.
  • Accounting, lost profits, and royalty disputes and damages.
  • Insurance coverage and bad faith.
  • Access to corporate and business records disputes.
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations.
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

What is an “accounting,” and what does it tell you . . . . well, it depends . . . .

“Accountings” are everywhere. Really, they are everywhere. But what an accounting is, and what it does or does not tell you depends on the facts of the situation. For example, for investors and potential investors a public company must submit financial statements that are prepared pursuant to GAAP (generally accepted accounting principles) and that are audited pursuant to GAAS (generally accepted auditing standards). But those statements, or that reporting, includes or should include notes to the financial statements, there might be MD&A (management discussion and analysis) depending on the circumstances, the auditor is required to discuss certain matters with management, and the audit committee or the board, the reporting might include non-GAAP financial measures, and now we have CAMs (critical audit matters), to name a few of the additional areas or topics of information that are or that might be provided. And still there is ongoing angst that these financial statements, or accountings, fail to provide investors with some of the important information that they need or that would be or might be helpful for purposes of evaluating the organization, such as, for example, possibly a discussion about or an evaluation of the organization’s ESG (environmental, social and governance).

Now . . . I am going to make my CPA friends cringe, and yes, as I also practiced as a CPA, I am also aware that what I am going to say next is not technically correct in the strict sense, but as an accountant or auditor might be engaged to perform an audit of financial statements that are prepared pursuant to GAAP and that are audited pursuant to GAAS, or some other engagement such as a review, or a compilation, or something less than those, or some other measure or procedure, some people might consider each of those to also be an “accounting” in the context of their situation.

As another example, almost each of my trust, estate, and conservatorship cases also involves an accounting. In the context of a trust or an estate or a conservatorship, in California an “accounting” has a legal definition as defined pursuant to the various pertinent Probate Code sections and local rules of court; however, beneficiaries, for example, also sometimes are willing to accept a summary accounting or account that contains less than full information, or in part different information, or that is in a different format because it suits their purposes.

And then, every business and organization undoubtedly will have various “accountings” that are prepared for internal and management purposes.  

Thus, an “accounting” that has strict requirements might be required. Or an “accounting” might contain some other information or be in some other format.

Obviously, the above discussion is intended to be only for introductory purposes and it only touches the surface. I last updated my detailed discussions about these topics in 2017 in Tate’s Excellent Audit Committee Guide. Any discussion about what an audit, review, compilation, or some other measure or procedure is or involves and the information that it provides or doesn’t provide would be a detailed discussion.

The following are a few discussions from court cases that have viewed what an accounting is and accounting duties in the broad sense, i.e., where there isn’t necessarily a document or an agreement (such in a LLC operating agreement, or a partnership agreement) that more specifically describes or mandates the preparation, contents and processes of the accounting. Thus, first evaluate whether what the accounting is, what it includes, and how it is prepared are described or mandated. And if the described or specified mandated requirements are not sufficient, consider the definition of an accounting in the more broad sense.  

“Accounting” usually means the striking of a balance between debits and credits, showing a balance due, if any. Peoples Finance & Thrift Co. of Visalia v. Bowman (1943) 58 Cal. App. 2d 729, 734. An action for an accounting, which usually invokes the equity powers of the court, is a proceeding for obtaining a judicial settlement of the accounts of the parties (Verdier v. Superior Court in and for City and County of San Francisco, (1948) 88 Cal. App. 2d 527, 530), and is an action where a party seeks an amount that cannot be determined or fixed without an accounting. The books of the partnership should properly be considered in ascertaining the state of the account. Freeman v. Donohoe (1923) 65 Cal. App. 65, 87. An accounting action “is a proceeding in equity for the purpose of obtaining a judicial settlement of the accounts of the parties in which proceeding the court will adjudicate the amount due, administer full relief and render complete justice.” Flores v. EMC Mortg. Co. (E.D. Cal. 2014) 997 F. Supp. 2d 1088, 1119–20.

And although the following are a few discussions from a couple of partnership accounting cases, remember that in the context of a LLC for example, some of the legal duties between the members or between the manager and the members have been defined by courts as being the same or similar to some of those same duties between partners in a partnership.  

In the context of a partnership dissolution, an accounting is an action to determine the rights and liabilities of partners and the one great occasion for comprehensive and effective settlement of all partnership affairs. All claims and demands arising between partners should be settled upon such accounting. Thus, when an accounting is ordered, it should include a complete adjustment of all partnership accounts and partnership affairs as between the partners even though this involves items accruing after the commencement of the suit or before the execution of the written partnership agreement. Alechoff v. Edwards (1921) 55 Cal. App. 277, 279. In a partnership accounting, “it would be inequitable in a partnership accounting case, to require that some partners pay the claims of other partners before their own offsetting claims are adjudicated. The proper procedure is to resolve all of the competing claims, and then render a net judgment, after offsets, in favor of the partners with the greater claims.” Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal. App. 3d 1035, 1049.

Best to you. David Tate, Esq.

——————————————————————–

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets.
  • M&A disputes.
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
  • Buy-sell disputes.
  • Funding and share dilution disputes.
  • Accounting, lost profits, and royalty disputes and damages.
  • Insurance coverage and bad faith.
  • Access to corporate and business records disputes.
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations.
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

California LLC Member and Manager Duties to the LLC and to Each Other – Duty of Loyalty, Duty of Care Including Good Faith and Fair Dealing, and Fiduciary Duties

The following is a discussion that I have posted previously. In this post I have added additional citations and discussions about good faith and fair dealing and fiduciary duties.

In a member-managed LLC, each member owes a duty of loyalty and a duty of care to the LLC and to the other members. See, e.g., California Corporations Code §17704.09, Although §17704.09(e) suggests that those duties are limited, and in fact states that a member does not violate 17704.09 “merely because the member’s conduct furthers the member’s own interest,” subsection (e) should be read cautiously and should not be read to allow the member to otherwise ignore or breach the responsibilities that are specified in §17704.09.

In a manager-managed LLC, each manager owes a duty of loyalty and a duty of care to the LLC and to the members. Members who are not managers do not owe the duty of loyalty or the duty of care.

Note however that you also must read (and understand) the operating agreement to determine if any of these duties are expanded; to determine if any of these duties are reduced or purportedly eliminated (they cannot be eliminated); and, in a member-managed LLC, to determine if any of these duties are shifted from one member to one or more other members.

Issues, questions and disputes about legal responsibilities/duties and rights pursuant to these duties usually don’t arise or usually are relatively uncomplicated while the LLC members and managers are dealing with each other honestly, openly, and fully, as in most businesses and situations. In my practice I handle situations and represent clients where legal responsibilities and rights and the actions and inactions of the people who are involved are seriously at issue. And you can see from the wording and definitions in these materials that there can be significant uncertainty and vagueness about exactly what the responsibilities and rights are and can be in different situations.

Duty of Loyalty. The duty of loyalty is limited to the following unless the operating agreement provides otherwise (again, you must read and understand the operating agreement):

Account and Accounting. An LLC member in a member-managed LLC, or a manager in a manger-managed LLC must account to the LLC and hold as a trustee any property, profit, or benefit, that the member or manager, respectively, derives in the conduct of the LLC or in the winding up of the LLC’s activities, or from the use of the LLC’s property including but not limited to the appropriation of an LLC opportunity.  Also take note whether a specific member or a specific manager is tasked with the function of accounting for the LLC.

Adverse Interest. Each member (in a member-managed LLC) and each manager (in a manager-managed LLC) must not deal with the LLC, or on behalf of a person with respect to the LLC, as an interest adverse to the LLC.

Competing with the LLC. Each member (in a member-managed LLC) and each manager (in a manager-managed LLC) must not compete with the LLC in the conduct of the LLC or in the winding up of the LLC’s activities.

Duty of Care. The duty of care in the conduct of the LLC or in the winding up of the LLC’s activities is limited to not committing gross negligence or reckless conduct, intentional misconduct, or a knowing violation of law. However, you must read and understand the operating agreement as it is permissible for the agreement to expand the standard of culpability to ordinary or simple negligence.

Duty of Good Faith and Fair Dealing. In both a member-managed and in a manager-managed LLC, members and managers have a duty of good faith and fair dealing to the LLC and to the other members – for example, to not obtain an advantage or benefit by any misrepresentation or concealment or other means. And this is true whether the duties arise under the California Revised Uniform Limited Liability Company Act (CRULLCA) or the LLC’s operating agreement. A duty of good faith and fair dealing is a duty of care; however, you can also see that it is a duty of care that is separate from the culpability standards.

In relevant part, California Corporations Code §17704.09(d) states as follows: “(d) A member shall discharge the duties to a limited liability company and the other members under this title or under the operating agreement and exercise any rights consistent with the obligation of good faith and fair dealing.” The questions then arise, in the context of an LLC what does it mean to “exercise any rights consistent with the obligation of good faith and fair dealing,” and, in a related sense, what does it mean at law when a manager or a member is considered to be a fiduciary with fiduciary duties? In that regard, Feresi v. The Livery, LLC (2014) 232 Cal. App. 4th 419, states as follows (note: Hartley is the president and managing member of the LLC):

“Hartley’s Duties as a Fiduciary.

[2]The manager of an LLC has a fiduciary duty and owes to the members of the LLC the same duties of loyalty and good faith as a partner owes to the partnership and its partners. (§ 3307; Corp. Code, former § 17153, repealed by Stats. 2012, now § 17704.09.) Thus, Hartley is obligated to act with the utmost loyalty and in the highest good faith when dealing with any member of the LLC, including Feresi. He may not obtain any advantage over Feresi (or any other member of the LLC) by even the slightest misrepresentation or concealment. (Enea v. Superior Court (2005) 132 Cal.App.4th 1559, 1564, 34 Cal.Rptr.3d 513; Yeomans v. Lysfjord (1958) 162 Cal.App.2d 357, 361–362, 327 P.2d 957.)

[3]The animating principle of a fiduciary’s duties to his charges is unfaltering loyalty and honesty. “Many forms of conduct permissible in a *426 workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions [citation]. Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd.” (Meinhard v. Salmon (1928) 249 N.Y. 458, 464, 164 N.E. 545.)

Hartley Breached the Duty of Good Faith and Fair Dealing He Owed to Feresi.

[4]Substantial evidence supports the trial court’s conclusion that Hartley breached his fiduciary duty to Feresi by destroying the value of her security interest in Mesa’s ownership share in the LLC to advance his own.”

As you can see, the duty of good faith and fair dealing and fiduciary duties are quite demanding, but, frankly, those duties are situationally and factually dependent such that the conduct that they require and the conduct that they prohibit really depend on the facts of the particular situation, and ultimately as the situation might be viewed after the fact by a trier of fact (i.e., by a jury, or a judge or an arbitrator). It is definite, however, that the fiduciary duty and the duty of good faith and fair dealing should be taken seriously, in addition to the other duties that are stated in §17704.09, and in the operating agreement, and in other applicable and relevant statues, cases, and authorities.

Best to you. David Tate, Esq.

——————————————————————–

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets.
  • M&A disputes.
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
  • Buy-sell disputes.
  • Funding and share dilution disputes.
  • Accounting, lost profits, and royalty disputes and damages.
  • Insurance coverage and bad faith.
  • Access to corporate and business records disputes.
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations.
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

Forwarding From Hedley Lawson / Aligned Growth – The Need For Boards To Remake Their Committee Structure – The Organization Committee

I have provided below a link to Hedley Lawson’s blog post on the Aligned Growth blog in which Hedley discusses the need for boards to remake their committee structure. I have also provided a link below to a separate article that Hedley wrote on the same subject. Hedley argues for the addition of a new board committee: the Organization Committee.

To be sure, and as noted, the initial reaction to a new additional board committee might well be hesitancy. However, you should read Hedley’s article and post. I believe that it is fair to say that most boards and most directors might not be particularly good at or comfortable with oversight of employer/employee and workplace matters, human capital, organizational communications, organizational trust, reputation, and culture, safety and well-being, diversity, equality, engagement and inclusion, and talent acquisition and retention issues. And yet, exactly those issues are regularly in the news. And they are issues that are important to the operational health and well-being of the organization and are also important as to how the organization is viewed internally and by the public. I believe that we are seeing and will continue to see a renewed focus on these issues and topics.

Here is a link to the pdf of Hedley’s article: 2020 Boards Need a Remake of their Committee Structure

Here is the link to Hedley’s blog post on the Aligned Growth blog: https://alignedgrowth.com/the-need-for-boards-to-remake-their-committee-structure/

In the recent past other of my posts on this blog have discussed ESG, culture, and sustainability. See posts in 2016, 2017, 2018, and 2019 discussing culture. See posts in 2019 and 2020 discussing ESG. And see posts beginning in 2016 discussing aspects of sustainability. Hedley’s argument for a board-level Organization Committee fits well within all three, ESG, culture, and sustainability, including sustainability standards written by the Sustainability Accounting Standards Board. “Culture” was a hot board-level topic not too long ago. As I wrote then, the questions are: where will that discussion go in the future, will the discussion even continue, and what actions will be taken as a result? Hedley’s argument fits well within the “E,” “S” and the “G” of ESG. And, if you look at the SASB standards you will find considerable focus on many of the areas that Hedley discusses (and that are listed above in the paragraph that is above the links that I have provided in this post).

Perhaps the Organization Committee might also be viewed as the “Human” or “People” Committee of the organization. Some businesses have already created officer or senior or mid-level management titles and positions for people who are tasked with dealing with and addressing some of these issues and topics.

I am sure that these issues and topics will continue to be in the news for organizations, boards, and the public, and that there will be additional related focus and expectations as a result. You might also find that for some organizations these issues and topics fall under risk management, or perhaps with the audit committee; however, in my view if these issues and topics are really to be addressed at the board-level the issues, topics, expectations and goals, and tasks must be specifically identified, defined, described, and evaluated, and the oversight of such must be specifically assigned.

Best to you. David Tate, Esq.

——————————————————————–

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets.
  • M&A disputes.
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
  • Buy-sell disputes.
  • Funding and share dilution disputes.
  • Accounting, lost profits, and royalty disputes and damages.
  • Insurance coverage and bad faith.
  • Access to corporate and business records disputes.
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations.
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

The Private Directors Association – A Worthwhile Association – Take A Look, You Might Find It Interesting

I have become a member of the Private Directors Association and the San Francisco Chapter in which I am participating. The following is a link to the webpage for the San Francisco Chapter: https://www.privatedirectorsassociation.org/chapters/san-francisco-chapter/, and you can view the organization as a whole at http://www.privatedirectorsassociation.org. As you might be aware, the great majority of businesses and organizations are private (i.e., non-public entities). The PDA is a very active organization nationally and locally with many multiple state chapters, and with new chapters in progress – in my view you should take a look.

Best to you. David Tate, Esq.

——————————————————————–

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs: Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets.
  • M&A disputes.
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
  • Buy-sell disputes.
  • Funding and share dilution disputes.
  • Accounting, lost profits, and royalty disputes and damages.
  • Insurance coverage and bad faith.
  • Access to corporate and business records disputes.
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations.
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *  

Read your business interruption policy wording carefully – a recent federal case – your policy may include COVID-19 COVERAGE – forwarding from Weintraub Tobin

I am forwarding below a link to a recent September 22, 2020, well-written post by Weintraub Tobin (Josiah Prendergast and Mark Ellinghouse) discussing how one federal court read the wording of a business interruption policy to preliminarily include coverage for COVID-19. The Court discussed the word “or” in the policy. As you might be aware, insurance coverage is significantly based on the words that are used in the policy and the interpretation of those words and the policy as a whole based on multiple factors. Every policy is different, although different policies might use some of the same standard language for various of the provisions. Read your policy carefully – whereas it is not uncommon for an insurer to deny coverage for COVID-19, depending on the circumstances you might have coverage. Here is the link to the article: https://www.weintraub.com/blogs/articles/recent-federal-decision-regarding-business-interruption-insurance-could-mark-a-turning-point-for-covid-affected-businesses

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes, Mediator & Governance: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs:

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

  • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

  • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
  • Misappropriation of trade secrets.
  • M&A disputes.
  • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
  • Buy-sell disputes.
  • Funding and share dilution disputes.
  • Accounting, lost profits, and royalty disputes and damages.
  • Insurance coverage and bad faith.
  • Access to corporate and business records disputes.
  • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

  • Corporate, business, nonprofit and governmental internal investigations.
  • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

A simple nine point risk management and ERM process – a short video

Below I have provided a link to a short video on youtube in which I discuss a simple nine point risk management and ERM process. Please do feel free to also pass this information to anyone else who might be interested.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing as a lawyer in California only

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes & Mediator: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs:

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *

Governance and a definition of the term “governance” a short video

Below I have inserted a short video in which I discuss governance and the term “governance.” Please do feel free to pass this information to anyone else who might be interested.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing as a lawyer in California only

 

———————————————————————-

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation.

Thank you for reading this post. I ask that you also pass it along to other people who would be interested as it is through collaboration that great things and success occur more quickly. And please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

Best to you, David Tate, Esq. (and inactive California CPA) – practicing in California only

Litigation, Disputes & Mediator: Business, Trust/Probate, Real Property, Governance, Elder Abuse, Investigations, Other Areas

Blogs:

Trust, estate/probate, power of attorney, conservatorship, elder and dependent adult abuse, nursing home and care, disability, discrimination, personal injury, responsibilities and rights, and other related litigation, and contentious administrations http://californiaestatetrust.com

Business, D&O, board, director, audit committee, shareholder, founder, owner, and investor litigation, governance and governance committee, responsibilities and rights, compliance, investigations, and risk management  http://auditcommitteeupdate.com

My law practice primarily involves the following areas and issues:

Trust, Estate, Probate Court, Elder and Dependent Adult, and Disability Disputes and Litigation

      • Trust and estate disputes and litigation, and contentious administrations representing fiduciaries, beneficiaries and families; elder abuse; power of attorney disputes; elder care and nursing home abuse; conservatorships; claims to real and personal property; and other related disputes and litigation.

Business, Business-Related, and Workplace Disputes and Litigation: Private, Closely Held, and Family Businesses; Public Companies; Nonprofit Entities; and Governmental Entities

      • Business v. business disputes including breach of contract; unlawful, unfair and fraudulent business practices; fraud, deceit and misrepresentation; unfair competition; licensing agreements, breach of the covenant of good faith and fair dealing; etc.
      • Misappropriation of trade secrets.
      • M&A disputes.
      • Founder, officer, director and board, investor, shareholder, creditor, VC, control, governance, decision making, fiduciary duty, conflict of interest, independence, voting, etc., disputes.
      • Buy-sell disputes.
      • Funding and share dilution disputes.
      • Accounting, lost profits, and royalty disputes and damages.
      • Insurance coverage and bad faith.
      • Access to corporate and business records disputes.
      • Employee, employer and workplace disputes and processes, discrimination, whistleblower and retaliation, harassment, defamation, etc.

Investigations, Governance, and Responsibilities and Rights

      • Corporate, business, nonprofit and governmental internal investigations.
      • Board, audit committee, governance committee, and special committee governance and processes, disputes, conflicts of interest, independence, culture, ethics, etc.; and advising audit committees, governance committees, officers, directors, and boards.

Mediator Services and Conflict Resolution

* * * * *