Archives For close corporations

The Religious Freedom Restoration Act (RFRA) subjects government-imposed burdens on religious exercise to strict scrutiny.  In particular, the Act provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government can establish that doing so is the least restrictive means of furthering a “compelling government interest.”

So suppose a for-profit corporation’s stock is owned entirely by evangelical Christians with deeply held religious objections to abortion.  May our federal government force the company to provide abortifacients to its employees?  That’s the central issue in Sebelius v. Hobby Lobby Stores, which the Supreme Court will soon decide.  As is so often the case, resolution of the issue turns on a seemingly mundane matter:  Is a for-profit corporation a “person” for purposes of RFRA?

In an amicus brief filed in the case, a group of forty-four corporate and criminal law professors argued that treating corporations as RFRA persons would contradict basic principles of corporate law.  Specifically, they asserted that corporations are distinct legal entities from their shareholders, who enjoy limited liability behind a corporate veil and cannot infect the corporation with their own personal religious views.  The very nature of a corporation, the scholars argued, precludes shareholders from exercising their religion in corporate form.  Thus, for-profit corporations can’t be “persons” for purposes of RFRA.

In what amounts to an epic takedown of the law professor amici, William & Mary law professors Alan Meese and Nathan Oman have published an article explaining why for-profit corporations are, in fact, RFRA persons.  Their piece in the Harvard Law Review Forum responds methodically to the key points made by the law professor amici and to a few other arguments against granting corporations free exercise rights.

Among the arguments that Meese and Oman ably rebut are:

  • Religious freedom applies only to natural persons.

Corporations are simply instrumentalities by which people act in the world, Meese and Oman observe.  Indeed, they are nothing more than nexuses of contracts, provided in standard form but highly tailorable by those utilizing them.  “When individuals act religiously using corporations they are engaged in religious exercise.  When we regulate corporations, we in fact burden the individuals who use the corporate form to pursue their goals.”

  • Given the essence of a corporation, which separates ownership and control, for-profit corporations can’t exercise religion in accordance with the views of their stockholders.

This claim is simply false.  First, it is possible — pretty easy, in fact — to unite ownership and control in a corporation.  Business planners regularly do so using shareholder agreements, and many states, including Delaware, explicitly allow for shareholder management of close corporations.  Second, scads of for-profit corporations engage in religiously motivated behavior — i.e., religious exercise.  Meese and Oman provide a nice litany of examples (with citations omitted here):

A kosher supermarket owned by Orthodox Jews challenged Massachusetts’ Sunday closing laws in 1960.  For seventy years, the Ukrops Supermarket chain in Virginia closed on Sundays, declined to sell alcohol, and encouraged employees to worship weekly.  A small grocery store in Minneapolis with a Muslim owner prepares halal meat and avoids taking loans that require payment of interest prohibited by Islamic law.  Chick-fil-A, whose mission statement promises to “glorify God,” is closed on Sundays.  A deli that complied with the kosher standards of its Conservative Jewish owners challenged the Orthodox definition of kosher found in New York’s kosher food law, echoing a previous challenge by a different corporation of a similar New Jersey law.  Tyson Foods employs more than 120 chaplains as part of its effort to maintain a “faith-friendly” culture.  New York City is home to many Kosher supermarkets that close two hours before sundown on Friday and do not reopen until Sunday.  A fast-food chain prints citations of biblical verses on its packaging and cups.  A Jewish entrepreneur in Brooklyn runs a gas station and coffee shop that serves only Kosher food.  Hobby Lobby closes on Sundays and plays Christian music in its stores.  The company provides employees with free access to chaplains, spiritual counseling, and religiously themed financial advice.  Moreover, the company does not sell shot glasses, refuses to allow its trucks to “backhaul” beer, and lost $3.3 million after declining to lease an empty building to a liquor store.

As these examples illustrate, the assertion by lower courts that “for-profit, secular corporations cannot engage in religious exercise” is just empirically false.

  • Allowing for-profit corporations to have religious beliefs would create intracorporate conflicts that would reduce the social value of the corporate form of business.

The corporate and criminal law professor amici described a parade of horribles that would occur if corporations were deemed RFRA persons.  They insisted, for example, that RFRA protection would inject religion into a corporation in a way that “could make the raising of capital more challenging, recruitment of employees more difficult, and entrepreneurial energy less likely to flourish.”  In addition, they said, RFRA protection “would invite contentious shareholder meetings, disruptive proxy contests, and expensive litigation regarding whether the corporations should adopt a religion and, if so, which one.”

But actual experience suggests there’s no reason to worry about such speculative harms.  As Meese and Oman observe, we’ve had lots of experience with this sort of thing:  Federal and state laws already allow for-profit corporations to decline to perform or pay for certain medical procedures if they have religious or moral objections.  From the Supreme Court’s 1963 Sherbert decision to its 1990 Smith decision, strict scrutiny applied to governmental infringements on corporations’ religious exercise.  A number of states have enacted their own versions of RFRA, most of which apply to corporations.   Thus, “[f]or over half a century, … there has been no per se bar to free exercise claims by for-profit corporations, and the parade of horribles envisioned by the [law professor amici] has simply not materialized.”  Indeed, “the scholars do not cite a single example of a corporate governance dispute connected to [corporate] decisions [related to religious exercise].”

  • Permitting for-profit corporations to claim protection under RFRA will lead to all sorts of false claims of religious belief in an attempt to evade government regulation.

The law professor amici suggest that affording RFRA protection to for-profit corporations may allow such companies to evade regulatory requirements by manufacturing a religious identity.  They argue that “[c]ompanies suffering a competitive disadvantage [because of a government regulation] will simply claim a ‘Road to Damascus’ conversion.  A company will adopt a board resolution asserting a religious belief inconsistent with whatever regulation they find obnoxious . . . .”

As Meese and Oman explain, however, this problem is not unique to for-profit corporations.  Natural persons may also assert insincere religious claims, and courts may need to assess sincerity to determine if free exercise rights are being violated.  The law professor amici contend that it would be unprecedented for courts to assess whether religious beliefs are asserted in “good faith.”  But the Supreme Court decision the amici cite in support of that proposition, Meese and Oman note, held only that courts lack competence to evaluate the truth of theological assertions or the accuracy of a particular litigant’s interpretation of his faith.  “This task is entirely separate … from the question of whether a litigant’s asserted religious beliefs are sincerely held.  Courts applying RFRA have not infrequently evaluated such sincerity.”


In addition to rebutting the foregoing arguments (and several others) against treating for-profit corporations as RFRA persons, Meese and Oman set forth a convincing affirmative argument based on the plain text of the statute and the Dictionary Act.  I’ll let you read that one on your own.

I’ll also point interested readers to Steve Bainbridge’s fantastic work on this issue.  Here is his critique of the corporate and criminal law professors’  amicus brief.  Here is his proposal for using the corporate law doctrine of reverse veil piercing to assess a for-profit corporation’s religious beliefs.

Read it all before SCOTUS rules!

The literature on the state “market” for LLC law is growing.  Bruce Kobayashi and I published what I would modestly call the leading study (K & R) on jurisdictional competition for LLCs.  There is also an unpublished study to which our article is in part a response by Dammann & Schündeln (D & S). Now there’s a third study, Hausermann, For a Few Dollars Less: Explaining State to State Variation in Limited Liability Company Popularity.  Here’s the abstract:

The limited liability company (LLC) is a much more popular business entity in some U.S. states than in others. This empirical study provides the first detailed analysis of this phenomenon, using a partly original set of cross-sectional state-level data. I find that formation fees, rather than taxes or substantive rules or anything else, explain the variation in LLC popularity best. Differentials between the fees for organizing an LLC and the fees for organizing a corporation explain 17% to 28% of the state-to-state variation in LLC popularity. These formation fee differentials are not very big, but they are highly visible at the moment the business entity is formed. In contrast, the data show no relationship between LLC popularity and differentials in annual fees and state entity-level taxes. I find only weak evidence that the popularity of the LLC is associated with different substantive rules contained in state LLC statutes. However, LLCs are more popular in those states whose LLC statutes expressly uphold the principle of contractual freedom and thus reassure LLC members that courts will not rewrite their contract in the event of a lawsuit. Finally, I found no evidence that LLC popularity is related to different levels of uniformity of LLC statutes, the age of LLC statutes, and other factors.

Note that while K & R and D & S focus on state competition for out-of-state formations, Hausermann looks at the “popularity” of the LLC vs. the corporate form within each state.  Kobayashi and I found that Delaware has won the national competition, the most likely explanation being the quality of its courts.  This contrasts with D & S’s findings “that substantive law matters to the formation state choices of closely held limited liability companies” and that LLCs “appear to be migrating away from states that offer lax norms on minority investor protection.”

Hausermann mostly confirms K & R’s conclusion that the substance of the statutes is not determining parties’ formation choices.  His corporation/LLC comparison finds that the important variable is the difference in each state between the fees for forming an LLC and those for forming a corporation.

A few points to note about Hausermann’s study:

  • Although the author emphasizes K & R and D & S re state competition for LLCs, the closer comparison is with Kobayashi and my study of the state-by-state relative popularity of LLCs and LLPs, which Hausermann also discusses. We found that LLCs beat LLPs despite the expectation from the “network externalities” literature that the LLP’s connection to the “network” of partnership cases and forms would give it an advantage over the LLC.  Similar to Hausermann, we found that the costs of forming the two types of business associations (specifically, entity-level taxes) affected state-to-state differences in their relative popularity.
  • Hausermann finds that even tiny fee differences between corporations and LLCs make a difference in popularity of the two forms and that the parties ignore continuing fees and focus on upfront fees.  This rightly puzzles the author and calls for more theory and data.  I speculate that this reflects incomplete information on the part of many people who are forming LLCs.  This is clearly the case for ignoring continuing fees.  Moreover, since the vast majority of small firms should be LLCs rather than corporations (for more on this, see my Rise of the Uncorporation), making the choice based on tiny differences in upfront fees and ignoring continuing fees likely reflects bad advice and poor information.  In other words, Hausermann’s study arguably suggests the legal services industry is failing small firms.  Perhaps law’s information revolution will fix this.
  • Hausermann shows that freedom of contract regarding fiduciary duties matters to the corporation/LLC choice. This, coupled with the fact that the sheer number of mandatory rules in a statute doesn’t matter, indicates the importance to small firms of certainty that their contract will be enforced by its terms (see Hausermann at p. 36).  The importance of legal certainty is discussed in my and Kobayashi’s recently posted draft on private lawmaking (to be discussed here shortly).

Note what Hausermann finds doesn’t matter to parties’ choice between corporation and LLC:

  • Protection of third-party creditors.  This suggests creditors think they can protect themselves, and that the rise in LLCs vs. corporations is not about avoiding debts.
  • Default rules that members can easily vary by contract.  This is not surprising.  But perhaps default rules would matter if parties had a better and more varied menu of private forms from which to choose. This also relates to Kobayashi and my work on the potential role of private lawmaking.
  • Uniformity in general, and adoption of NCCUSL-promulgated uniform laws in particular.  This casts more doubt on the value of NCCUSL.  My most recent uniform laws article with Kobayashi helps explain why parties aren’t attracted to NCCUSL-drafted laws.

Hausermann rightly suggests the need for further research, including on the effect of overall formation costs, and the role of lawyers in guiding parties to particular forms.

More generally, I would suggest the need not only for more data but also more theory to guide both what kinds of data to get and how to interpret the data that is gotten.  In other words, Rise of the Uncorporation should be required reading for scholars seeking to mine the potentially rich data produced by the leading business law phenomenon of our time — the rapid rise and evolution of the LLC.

In my recent paper, Close Corporation Remedies and the Evolution of the Closely Held Firm, written for a symposium on the famous Massachusetts close corporation case Wilkes v. Springside Nursing, I focused on the LLC alternative to close corporations.  I observed that  

by providing a clearly non-corporate structure of default rules and a variety of state statutes, LLCs make it easier than close corporations for parties to reach agreements that approximate their ex ante expectations.  Courts can then fill in the gaps using the contract and statute as general guidelines rather than having to construct a contract from a whole cloth as in Wilkes. 

Judicial opinions in close corporations tend to proceed from a generalized notion of what the minority shareholder expected from the deal – that is, the ability to get distributions or salary – without regard to the express and implied contract terms.  By contrast, courts in LLC cases increasingly have focused on what parties actually put in their contracts, interpreted in light of the statutory standard form they used as a basis for their business agreement.  Instead of asking what reasonable parties would want if they could contract cheaply, courts now tend to ask what the specific parties actually wanted given what they contracted for.

I noted that Delaware and New York are leading the way in creating a distinct LLC contractual approach to judicial dissolution of closely held firms.  A leading example is New York’s Matter of 1545 Ocean Avenue, LLC v. Crown Royal Ventures, LLC, which I discussed here. My blog post noted four important elements of the 1545 Ocean test:

  • The LLC statute clarifies that the test for dissolving an LLC is distinct from that for a close corporation.
  • The statutory test emphasizes the operating agreement — specifically, whether it is “reasonably practicable” to operate “in conformity with the operating agreement.”  This is consistent with the Delaware judicial dissolution standard I have discussed, e.g., here, here and here, and in my Rise of the Uncorporation, 180-82.
  • The court might dissolve an LLC even when it can continue operating under the agreement, but when it “cannot effectively operate under the operating agreement to meet and achieve the purpose for which it was created.” I noted that the parties therefore “may need to be careful about specifying the purpose of the LLC in the operating agreement.”
  • The LLC generally cannot be dissolved merely because of managerial self-dealing unless the above standard is met.  The remedy for self-dealing is usually a derivative claim. Although my article Litigating in LLCs suggests that dissolution sometimes works better than wasteful litigation, this choice may be a matter for the operating agreement.

Now the ever-helpful Peter Mahler provides an analysis of recent NY cases applying the 1545 Ocean standard. He summarizes three cases reaching three results: 

 that the petitioners failed to show that the LLC “can no longer meet its business purpose regarding the intake of consumer database,” and also fail to make any “showing that the company is financially unfeasible.”  A petitioner “must plead facts reflecting the inability of the entity to carry on its business in accordance with the articles of organization” and may not merely “parrot” the language of LLCL 702.  The “palpable” animosity between the parties, Justice Strauss adds, “alone will not support a petition for dissolution.”

  • Matter of RBR Equities, LLC, Short Form Order, Index No. 40736/10 (Sup Ct Suffolk County Jan. 18, 2011). In a case similar to Mehraban involving a real estate development that had financial difficulties and couldn’t get site plan approval, the court held there were factual issues precluding dissolution. The respondent claimed petitioners approved modified site plans and failed to respond to cash calls. The respondent also argued that the operating agreement’s broad purpose “to engage in any lawful act or activity” “is being achieved and that the development plan for the LLC’s property is extremely close to approval and fruition.” The court reasoned that despite unexpected difficulties:

The records both in support and in opposition to the dissolution present numerous issues of fact as to the operations and purpose of The LLC as well as whether or not, it is reasonably practicable to carry on The LLC.  In addition, attached to the opposition papers, the Respondent has provided copies of letters from 3rd parties, expressing interest in the Subject Property, which may weigh in on the issue of financial feasibility. Therefore, the Court cannot determine as a matter of law, that it is no longer reasonably practicable to carry out the purpose of The LLC and judicial dissolution at this time, is not warranted.

As Mr. Mahler points out, “it’s hard to say whether the result in any of these three cases would have been different in the free-wheeling, pre-1545 Ocean era.   But it does seem clear that the courts are approaching the issue in a uniform fashion guided by the appellate decision’s contract-based analysis.”

The real test will come when the court is faced with a case that is very strong for dissolution on traditional close corporation equitable grounds but where it can find no plausible basis in the operating agreement.

It is interesting to ask whether this New York development is an example of jurisdictional competition with Delaware, which originated this approach as discussed above.

One thing is clear:  the LLC, at least in its NY/Delaware manifestation, now represents a superior technology compared with close corporations in dealing with the dissolution of any firm that has an operating agreement.  If one assumes that contracts should be the basis of closely held firms, then the LLC approach is superior, period.  In any event, the close corporation approach should be regarded as reserved primarily for very informal firms that want limited liability.  The question is whether that should be a null set.  After all, creditors as well as shareholders gain from the predictability and stability that an enforceable agreement provides.

As previously discussed,  I attended and presented a paper at an interesting symposium on the famous close corporation case, Wilkes v. Springside.  Now the paper is available.  Here’s the abstract:

Close Corporation Remedies and the Evolution of the Closely Held Firm

This paper examines the law of closely held firms from an evolutionary perspective. The corporate tax and constraints on the availability of limited liability forced closely held firms to compromise their planning objectives and choose standard forms that did not fully reflect their needs. This forced courts to construct duties and remedies that did not relate to the parties’ contracts. The famous close corporation case of Wilkes v. Springside Nursing Home, Inc. classically illustrates this problem. The advent and spread of the limited liability company significantly increased the availability of suitable standard forms for closely held firms. As a result, courts now can focus on fully effectuating the parties’ contracts rather than creating remedies the parties may not have wanted. This analysis has implications for potential improvements in contracting for closely held firms.

On Friday I’m joining Eric Gouvin, Lyman Johnson, Mark Loewenstein, Bob Thompson, Dan Kleinberger, Benjamin Means, Doug Moll, Deborah DeMott and Massachusetts Justice Francis X. Spina at a Western New England College conference on “Fiduciary Duties in the Closely Held Firm 35 Years after Wilkes v. Springside Nursing.”  Not surprisingly, I’ll be talking about the impact of LLCs on this old law.  Believe it or not, I conclude that LLCs are a better approach.  The article will be online soon.  In the meantime, you can get a feel for my approach by reading the book.

Now that TOTM blog traffic is hitting all-time highs, I thought it would be a good time to share a link to my most recently published paper, Terrorism Finance, Business Associations, and the “Incorporation Transparency Act.” It is highly critical of Senator Levin’s “Incorporation Transparency and Law Enforcement Assistance Act,” over which Senator Levin, Senator Lieberman, and the Obama Treasury Department are currently haggling.

I got the idea to write an article about this Act from reading posts from colleague Ribstein and blog neighbor Bainbridge some time ago.  Senator Carl Levin has been pushing to mandate that states keep open registeries listing the names of all owners of business entities they form.  There are a number of problems with this proposal.  First, it is sold as an anti-terrorism measure.  During the first two rounds of hearings on the bill, officials from the various law enforcement agencies made vague references to the war on terror, which…don’t get me wrong, I support wholeheartedly.

They did not, however, provide any meaningful analysis for why alternative entities stand at the heart of terrorism finance.  To the extent that terrorism has involved intricate finance in the past, it has been through the Hawala system of underground Asian and Middle Eastern bankers.  But hawaladars don’t form alternative entities…they have no reason to.  Why would they need the protection of limited liability when the very nature of their business is, in both the United States and abroad, centrally an illicit enterprise?

Moreover, hawaladars function within a system of cultural and family bonds, with reputational costs as paramount, allowing them to transfer money outside of a sophisticated wire transfer system.  To a hawaladar, protection from personal liability for entity obligations is entirely useless.  But more importantly, the 9/11 Report describes how most international terrorists have been self-financing their activity, both from legal employment and illicit credit card fraud and drug distribution.  Also remember that the 9/11 hijackers did not use LLCs or LLPs in their activities either, and to the extent terrorists continue to use the banking system the Patriot Act already provides an extensive surveillance mechanism that the Levin Bill does precious little to supplement.  Even more ridiculously, the Levin Bill anticipates owners filing their identification with the relevant state of formation, thus we would rely on terrorists to accurately report their ownership information!

The Levin Bill fails to achieve its stated objective.  The truly pernicious part of the bill is the cost that would accompany its implementation.  Business privacy is an important element of business entity use.  Imagine if, instead of acquiring tracts of land in Florida through acquiring shell entities, Roy Disney had to acquire tracts through the Disney company directly?  Making beneficial ownership information public can potentially result in reapportionment of bargaining leverage because it potentially reveals insight about one party’s walk-away point.

The Levin Bill reporting obligations are triggered by ownership.  But what is an owner?  If I am the only creditor of an LLC, and I have all of the LLC’s assets secured as collateral, and the debt covenants provide me with veto power over all LLC decisions, am I an owner?  This part could get very tricky.  The Levin Bill ties in the definition of “ownership” to “control.”  That will get even trickier.  Furthermore, the Bill harms the entire enabling purpose of alternative entities.  One important advantage of using alternative entities is the freedom to design governance structures appropriate for a particular venture.  But where governance structures are arranged to avoid Levin Reporting obligations, rather than to create governance structures appropriate for a particular venture, that benefit of the alternative entity form is lost.

All in all, a very bad bill.  TOTM readers, be sure to write your Congressman.

UPDATE: One reader comments “If you’ve ever done due diligence for fraud, you would support this bill.”  Not true.  I agree completely that due diligence is a vital element of business relationships, so important in fact that I think its a bad idea for due diligence to be managed by the federal government in this context.

Peter Mahler discusses a recent NY close corporation case, Pappas v. Fotinas
which he describes as “a thoughtful, well-reasoned decision that sets forth the competing factual narratives and operative legal principles.” I defer to Mr. Mahler’s overall assessment of the opinion, and refer the reader to his detailed discussion of the case. But in one respect I disagree with the court’s reasoning.

In brief, the court declines to condition dissolution on giving defendants the right to buy out plaintiff as required under the NY statute. This might have been ok given that the parties had stipulated they weren’t seeking a buyout. The problem is that the court went further:

Dissolution here, where one of the three shareholders has died, and another has retired because of injury, is consistent with the real-world similarity between closely-held corporations and partnerships. Indeed, the Court noted in its January 2009 Decision After Hearing that, at the time 577 Baltic Street was purchased and the three shareholders commenced business from the property, Mr. Fotinos and Mr. Pappas described the enterprise to third parties as a partnership. Had Messrs. Pappas, Kalogiannis, and Fotinos chosen to conduct business as a partnership, the result would be clear.

It is “elemental” * * * [citing case] that, in the absence of agreement to the contrary, the death or withdrawal of a partner dissolves the partnership by operation of law, and a right to an accounting accrues to any partner or the partner’s personal representative in connection with the winding up of the partnership’s affairs. * * * That the same result obtains here would not offend the purpose or policies of Business Corporation Law § 1104-a.


Is that clear? If not, let’s do it again:


Got it now?

At one time parties intending partnership nevertheless had to incorporate in order to get limited liability. The courts then had some basis for accommodating what they thought were the parties’ real intentions. Now uncorporations, and particularly the LLC, let the parties to closely held firms choose the business form they want. Indeed, more firms now are organizing as LLCs than as corporations. (For a history of these developments see my Rise of the Uncorporation.)

The upshot is that courts should now respect firms’ choice of form. So if the parties choose to incorporate, a court should not assume that they actually wanted to be anything other than a corporation.

Again, the court may have reached the result in Pappas given the parties’ no-buyout stipulation. But the court’s reasoning perpetuates the “incorporated partnership” confusion that has long infected the close corporation cases.

True, this may hurt some older firms that initially organized as close corporations during the bygone close corporation era and never switched. But ignoring the terms of the applicable statute creates costly unpredictability, particularly in the present age of the LLC.

I soon will be posting a paper that lays all this out. In the meantime, just remember:


Got it?