Tuesday, April 3, 2018
Keith Paul Bishop, at the California Corporate and Securities Blog, provides an example of a court that actually pays attention to entity type. As he says, "it is nice to see that some judges do recognize that LLCs are not corporations." It sure is. In the case he cites, D.R. Mason Constr. Co. v. GBOD, LLC, 2018 U.S. Dist. LEXIS 41236, the court gets a lot right:
[A]lthough Plaintiff's Complaint does separately mention the term "shareholder," [*13] the Court will not draw the inference that this term means Plaintiff was promised traditional "stock." This inference would not be reasonable in these circumstances because Plaintiff alleges in its Complaint that Defendant GBOD is a limited liability company, not a corporation. (Compl. ¶ 3.) Under California law, LLCs distribute "membership interests," not shares of stock. See Cal. Corp. Code § 17704.07. Consequently, Plaintiff's pleading indicates the financial instrument at issue is not traditional stock. Moreover, courts tasked with deciding whether LLC membership interests constitute a security under the Exchange Act generally evaluate whether such interests are "investment contracts," not "stocks."
It is nice to see a court that acknowledges the different entity types and frustrating that this is not the norm. As Bishop explains:
Obviously, this case does not stand for the proposition that a membership interest never meets the definition of a "security" under the Exchange Act. Nor does the case deal with the issue of whether a membership interest constitutes a security under state law. It does demonstrate that some courts recognize the fact that LLCs are not corporations.
So, I sincerely hope people don't read to much into this. But I will acknowledge that some courts are getting it right. And thank Bishop for helping further the cause.