I had a plan to write on something else today, but I got a note from Keith Bishop sharing his blog post, which he was right to think I would appreciated. In his post, Bishop discusses a California case:
The LLC May Well Be The Platypus Of Business Organizations
What happens to the attorney-client privilege when a corporation dissolves? Magistrate Judge Sallie Kim recently answered that question in Virtue Global Holdings Ltd. v. Rearden LLC, 2016 U.S. Dist. LEXIS 53076 (N.D. Cal. April 5, 2016):
When a corporation ceases to exist, “the corporate powers, rights and privileges of the corporation shall cease.” Cal. Corp. Code §1905(b). In that case, no entity holds the attorney-client privilege for Original MO2. City of Rialto, 492 F.Supp.2d at 1197 (“a dissolved corporation is not entitled to assert the attorney-client privilege”).
I am somewhat baffled by the ruling because the entity asserting the privilege in the case was not a corporation at all (Section 1905 is in the General Corporation Law). The entity attempting to claim the privilege was, according to the information provided in the opinion, indubitably a California limited liability company. Thus, the court should be citing the California Revised Uniform Limited Liability Company Act, not the General Corporation Law.
California, like many others states, seems to make the error relatively often.
Today, though, I will pick on the news. A Google News search of "limited liability corporation" for the past twenty-four hours provides a few such instances. (Note for new readers, an LLC is a "limited liability company," not corporation.)
I'll highlight two. According to one news outlet, the University of Illinois just extended a $2 million line of credit to an entity do research in Singapore.
To set up shop in another country, the university created a limited liability corporation, Singapore Research LLC. The LLC then established a private entity in Singapore which allows the center to compete legally for government grants.
Oops. Next, another news outlet reports:
A Nevada energy company said it wants to purchase an unfinished nuclear power plant from the Tennessee Valley Authority (TVA) and use the site in northeast Alabama to produce electricity with new technology.
Michael Dooley, managing partner of Phoenix Energy of Nevada, told the Associated Press his company wants to use the mothballed Bellefonte Nuclear Plant site as the base for a new, non-nuclear generation method.
. . .
Phoenix Energy of Nevada describes itself as a privately-held Nevada limited liability corporation, incorporated in October 2010, Kallanish Energy learns.
This time, though, the report is right. Phoenix Energy of Nevada, LLC (PENV) says on its web page it "is a Veteran owned closely and privately held viable early stage mid-market Nevada State Limited Liability Corporation (LLC) Small Business Company founded and incorporated in October 2010." Nope. It's an LLC.
I know I complain about this a lot, but there is value in getting it right. Reporters should get it right, and those who own the entity really should get it right. One of these days some court will find that an LLC didn't follow the corporate formalities required of a "limited liability corporation" and they won't even know to object.
I concede when one writes things like "company" and "corporation" a lot, a mistake may occur from time to time, especially when the distinction is not, on its face, crucial. My concern is less that people make mistakes. It's more that they don't know they are making one. That's where I come in.
On the plus side, I am about halfway through grading my Business Organizations exams, and not one person has called an LLC a corporation.