An Examination of the Charging Order Under Kentucky’s LLC and Partnership Acts

This Online Original is available for download (PDF) here (part 1) and here (part 2).

Article | 99 KY. L. J. ONLINE 5 | Nov. 3, 2011

Thomas E. Rutledge & Sarah Sloan Wilson

The rise of the LLC and the recent modernizations of partnership law have contributed to the greater use of charging orders. In addition, the recent economic downturn and the need to collect on judgments have prompted a flurry of interest in charging orders. Consequently, attorneys advising creditors or debtors, as well as the courts issuing and implementing charging orders, need to understand this chimerical remedy. Part I of this Article focuses on state-law issues incident to the charging order, while Part II is devoted to the charging order in other areas of law such as taxation, bankruptcy, and conflicts. In the first section of Part I, the authors state the law of charging orders generally. The second section discusses the reach of the charging order, including the rule of exclusivity and the existence of exemption laws. Finally, section three reviews the implications of the charging order procedure for the parties involved, as well as the company itself.

Download the PDF

An Examination of the Charging Order Under Kentucky’s LLC and Partnership Acts (pt. I) An Examination of the Charging Order Under Kentucky's LLC and Partnership Acts (pt. II)

Citation

Thomas E. Rutledge & Sarah Sloan Wilson, An Examination of the Charging Order Under Kentucky’s LLC and Partnership Acts (pt. I), 99 Ky.L.J. Online 85, http://kentuckylawjournal.org/online-originals-2/charging-orders/. Thomas E. Rutledge & Sarah Sloan Wilson, An Examination of the Charging Order Under Kentucky's LLC and Partnership Acts (pt. II), 99 Ky.L.J. Online 107, http://kentuckylawjournal.org/online-originals-2/charging-orders/.

Permanent Link

http://kentuckylawjournal.org/online-originals-2/charging-orders/

The Impending End of Jural Rights in Kentucky

This Online Original is available for download (PDF) here.

Article | 99 KY. L. J. ONLINE 4 | Nov. 3, 2011

Greg N. Stivers & Scott D. Laufenberg

The jural rights doctrine is a part of the lexicon of Kentucky jurisprudence that many lawyers have heard of but do not fully understand. More significantly, many may not appreciate the genesis of the doctrine, its impact on Kentucky law, and the effect its abolition would have on Kentucky law. Based upon the Supreme Court of Kentucky’s recent decision in Caneyville Volunteer Fire Department v. Green’s Motorcycle Salvage, Inc., in which a plurality of the court supported abandonment of the jural rights doctrine, the doctrine’s days appear to be numbered.

Download the PDF

The Impending End of Jural Rights in Kentucky

Citation

Greg N. Stivers & Scott D. Laufenberg, The Impending End of the Jural Rights Doctrine in Kentucky Jurisprudence, 99 Ky. L.J. Online 50 (2011), http://kentuckylawjournal.org/online-originals-2/end-of-jural-rights/.

Permanent Link

http://kentuckylawjournal.org/online-originals-2/end-of-jural-rights/

Adverse Domination: Tolling the Statute of Limitations in Kentucky Business Organizations

This Online Original is available for download (PDF) here (part 1) and here (part 2).

Article | 99 KY. L. J. ONLINE 3 | Oct. 27, 2011

Mary C. Garris

The doctrine of adverse domination provides that the statute of limitations within which a corporation may bring an action against wrongdoing directors is tolled while those wrongdoers are in control of the corporation. In Wilson v. Paine, a case of first impression, the Supreme Court of Kentucky held that the doctrine of adverse domination would apply to toll the two-year statute of limitations applicable to claims by a corporate plaintiff against directors to recover an impermissible dividend. After an examination of Wilson and a brief review of the rules governing corporate dividends, including the liability imposed upon directors for dividends improperly declared, this Article turns to other issues of corporate and business entity law to which the doctrine may be applied. Specifically, this Article analyzes the possibility of applying adverse domination to the statute of limitations applicable to distribution statutes for other entity forms, as well as applying the doctrine to toll general statutes of limitations. Finally, this Article addresses the use of the doctrine to hold third parties liable where their actions aided the concealment of the directors’ wrongdoing.

Download the PDF

Adverse Domination--Tolling the Statute of Limitations in Kentucky Business Organizations (pt. I)

Citation

Mary C. Garris, Adverse Domination—Tolling the Statute of Limitations in Kentucky Business Organizations (pt. I), 99 Ky.L.J. Online 36 (2011), http://kentuckylawjournal.org/online-originals-2/adverse-domination-pt1/

Permanent Link

http://kentuckylawjournal.org/online-originals-2/adverse-domination-pt1/

Carbon Capture and Storage: Seven Unanswered Questions

This Online Original is available for download (PDF) here.

Article | 99 KY. L. J. ONLINE 2 | Oct. 14, 2011

by David S. Samford

The current level of uncertainty relating to the generation of electricity calls to mind the early struggles between Westinghouse’s alternating current and Thomas Edison’s direct current for industry dominance and the tumultuous conflict between Samuel Insull and the Roosevelt Administration over the 1935 passage of the Public Utility Holding Company Act. Not since the Three Mile Island incident has such a pall hung over as large a segment of the utility industry. Without question, the dominant energy policy question in Washington today is whether a price will be attached to the emission of carbon dioxide (“CO2”). While the policy considerations inherent in that question apply with equal force to both automobile tailpipes and industrial smokestacks, the power industry has been singled out for the greatest regulatory scrutiny. If a price is affixed to carbon emissions, the electric utility industry will be forced to adapt. A leading assumption is that electric utilities operating in a carbon constrained environment will either abandon the use of coal as a primary fuel in electricity generation or engage in a process known as carbon capture and storage (“CCS”), in which carbon emissions are captured as part of the electricity generation process, transported through a pipeline, and subsequently injected and stored within the voids (“pore space”) of large underground geologic formations. The prospect of CCS as a means to continue the widespread combustion of coal in an electric generation process raises a host of technical, financial, and legal issues. These issues have been the subject of frequent discussion both in Washington and in Frankfort for several years. As of yet, however, no prevailing consensus has emerged in either capital as to how CCS should be implemented in the event that CO2 emissions are regulated.

Download the PDF

Carbon Capture and Storage: Seven Unanswered Questions

Citation

David S. Samford, Carbon Capture and Storage—Seven Unanswered Questions, 99 Ky. L.J. Online 23 (2011), http://kentuckylawjournal.org/online-originals-2/carbon-capture/.

Permanent Link

http://kentuckylawjournal.org/online-originals-2/carbon-capture/

The Kentucky Condominium Act

This Online Original is available for download (PDF) here (part 1) and here (part 2).

Article | 99 KY. L. J. ONLINE 1 | Oct. 11, 2011

Scott W. Brinkman

This two-part article summarizes the Kentucky Condominium Act and highlights important aspects of the Act. The Kentucky Condominium Act, which was signed into law by Governor Beshear on April 8, 2010 and has an effective date of January 1, 2011, broadly re-writes Kentucky law governing the condominium form of ownership to create more certainty and clarity with respect to the rights, duties, and obligations of developers of condominiums, unit owners within condominiums, associations that own the common elements of a condominium, and the members and officers of the executive board of the association charged with the responsibility to enforce the rights and discharge the duties of the association. The Act strikes a balance between creating more clarity, transparency, and accountability among the various stakeholders in a condominium project without creating an overly burdensome legislative structure that results in the discouragement of this type of real property ownership.

Download the PDF

The Kentucky Condominium Act, Pt. 1

Citation

Scott W. Brinkman, The Kentucky Condominum Act (Pt. 1), 99 Ky.L.J. Online 1 (2011), http://kentuckylawjournal.org/online-originals-2/kentucky-condo-act-pt1/

Permalink

http://kentuckylawjournal.com/online-originals-2/kentucky-condo-act-pt1/