The current newsletter of the ABA's Third-Party Legal Opinion Committee highlights some of the challenges LLCs present for third-party legal opinion givers.
One of the biggest gotcha's with Delaware LLCs is the fact that a "duly formed"opinion cannot be given with respect to a shelf LLC because Delaware LLCs are required to have an LLC agreement. A similar problem exists with Iowa LLCs under the current law because Iowa LLCs must have members in order to exist.
Another problem with rendering an opinion regarding Delaware and Iowa LLCs has to do with opining that a contract has been duly authorized by the LLC. This is generally a problem with interpreting the operating agreement vis a vis the statute. Both must be read and compared carefully, bearing in mind that the operating agreement will control. But is it clear? Are you sure?
By the way, a good place to start when confronted with an LLC opinion is the TriBar Opinion Committee's Third-Party Closing Opinions: Limited Liability Companies, 61 Bus. Law 679 (2006).
-Marc Ward
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