Articles Posted in Business Litigation

It is helpful to think of the potential personal liability of members of Tennessee LLC’s falling into two categories. The first category is the personal liability of a member to the LLC itself for the member’s breach of the duty of care, breach of the duty of loyalty, or the breach of the duty of good faith and fair dealing.  The personal liability of a member for breaches of those duties (which duties are set forth in T.C.A.§ 48-249-403) is typically addressed in a derivative proceeding brought by another member of the LLC on behalf of the LLC.  The second category of personal liability of an LLC member involves claims by a non-member third party against a member, individually, for some action or omission related to the business of the LLC. That second category of potential personal liability is the subject of this blog.

The Tennessee Revised Limited Liability Company Act (the “Act”) expressly codifies a rule which limits the personal liability of LLC members related to LLC business (the “Limited Liability Rule”). (See T.C.A. §48-249-114) The Limited Liability Rule is set forth in three subparagraphs which provide, generally, that: (a) The obligations and debts of the LLC, regardless of whether they originate from a contract or from tortious activity, are “solely” the obligation of the LLC; (b) a member has no personal liability for debts of the LLC just because of his or her membership; and (c) a member is not liable for the acts or omissions of other members, or employees or agents of the LLC.

The limited liability rule for LLC members provides broad protection to members. If the LLC fails to pay a creditor, the LLC’s members are not personally responsible to that creditor. If an LLC employee causes a serious personal injury to a third party while doing his or her job for the LLC, the LLC’s members are not personally liable for it.

There are quite a few exceptions, however, to the rule of limited liability for LLC members. The exceptions fall into, at least, the following categories: (1) Where an LLC member commits an intentional tort, such as misrepresentation; (2) where the LLC’s veil is pierced; (3) where the LLC member has engaged in a fraudulent transfer of LLC assets to himself or herself; (4) where the member is held personally liable under the theory that he or she did not disclose that he or she was acting on behalf of the LLC; and (5) where the LLC member has personally guaranteed debts of the LLC.

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A recent construction defect case decided by the Court of Appeals of Tennessee illustrates how both the three-year statute of limitations for injury to real property and the six-year statute of limitations for breach of contract can both apply in a construction defect case. The trial court held that the claims of the Plaintiffs, the homeowners, were barred by the three-year statute of limitations. The court of appeals reversed the trial court holding that some of the Plaintiffs’ claims were subject to the three-year statute, but others were subject to Tennessee’s six-year breach of contract statute.

Here are the basic facts of the case:

• The Plaintiffs bought a newly-constructed home built by Defendants
• The Plaintiffs alleged that the home contained construction defects and substandard materials
• The Plaintiffs asserted several different causes of action including negligence, breach of warranty and breach of contract
• Plaintiffs alleged that Defendant had breached their contract with them in a number of ways, including by employing negligent construction practices, but also, by refusing to honor the warranty made by Defendants to make repairs pursuant to the one-year warranty made by Defendants
• There was no dispute that the Plaintiffs’ claims were filed after the three-year statute of limitations for injuries to real property would bar them
• The Plaintiffs’ claims had been filed such that there was no dispute that they were not barred by the six-year statute of limitations applicable to breach of contract actions

The resolution of the statute of limitations issues in this case, as with many cases, turned on the analysis and application of the “gravamen of the complaint” theory which has been adopted in Tennessee. The court of appeals wrote that the overarching issue in the case was whether the trial court had properly determined that the gravamen of the Plaintiffs’ complaint was injury to real property such that the three-year statute of limitations applied.

The leading modern case on the gravamen of the complaint theory is the Supreme Court of Tennessee’s opinion in Benz-Elliott v. Barrett Enters., LP. The most critical point to understand about the gravamen of the complaint theory is that the applicable statute of limitations is not determined by the cause of action asserted by a plaintiff, but by the type of damage alleged by the plaintiff to have resulted from that cause of action.  Another fundamental factor to keep in mind in applying the gravamen of the complaint theory is that, under Tennessee law, a plaintiff can plead alternative causes of action. That factor, and how it affects the gravamen of the complaint theory, was expounded upon in the Benz-Elliott case.

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In a 2022 case, the Court of Appeals of Tennessee relied heavily on the specialized training the former employer (“Employer”) gave its former employee (“Employee”) in upholding a trial court’s decision that the non-competition agreement signed by the Employee was enforceable. Unlike many cases involving former employers trying to enforce non-compete agreements, in this case, the Employer made no argument that the Employee had become the “face of the company” because the Employer’s customers closely associated its business with  Employee.   The former Employer relied, successfully it turned out, on the specialized training it provided to the former Employee along with the former Employee’s access to trade secrets and proprietary information during his employment.

Many covenant not to compete cases involve facts that make them close calls as to whether the non-compete agreements at issue will be enforced.  The case that is the topic of this blog post is worth a post, among other reasons, because it exemplifies a factual scenario in which, in my opinion, a Tennessee court would always enforce a non-competition agreement, if it followed the law.

Here are the key facts of the case:

• Employer was a staffing company that worked exclusively to provide healthcare information technology (“HIT”) personnel to hospital systems
• Before beginning work for the Employer, Employee had no experience or training in the industry served by Employer
• In 2012, Employee began employment with Employer as a recruiter
• At the time he began employment with Employer, Employee signed a “Confidentiality, Non-Competition and Non-Solicitation Agreement” with Employer
• That agreement contained typical terms including a term prohibiting Employee from working for a competing business for one year after terminating employment
• During his seven years of employment for the Employer, during which Employee advanced in responsibilities and was considered very valuable, Employer provided a substantial amount of training to Employee, including: (1) A week of classroom training on how to recruit HIT personnel; (2) a twelve to fourteen week class at a university, Belmont, regarding the healthcare industry; (3) a seminar in Chicago on leadership; (4) what the court described as “countless” lessons and mentoring from high-level executives at Employer; and (5) a variety of other HIT training
• During his seven years of employment, Employee also had access to a variety of trade secrets, and proprietary and confidential information of Employer, including: (1) client lists; (2) financial information; (3) information about prospective clients; (4) budgets and forecasts; (5) compensation structures; and (6) billing rates for all the personnel placed by Employer
• During his seven years of employment, Employee had also become an expert on unique software utilized by Employer

In 2019, Employee went to work for a direct competitor of Employer. Employer sued to enforce the non-compete agreement. The trial court upheld it. Thereafter, the court of appeals affirmed the trial court.

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When can a member, manager, director, or officer of a Tennessee limited liability company (“LLC”) expect the LLC to pay attorney’s fees when the member, manager, director, or officer becomes a defendant in a lawsuit or arbitration proceeding?  If the individual is ultimately held individually liable in the lawsuit or arbitration proceeding, under what circumstances can he or she expect the LLC to provide indemnity for any judgment?  The answers to those questions can be found in at least one place — §48-249-115 of the Tennessee Revised Limited Liability Company Act (the “Act”). If the LLC has an operating agreement, the answers might also be found in its provisions.

If an LLC has no operating agreement, then a member, manager, director, or officer must look exclusively to §48-249-115 to determine his or her rights to be advanced and reimbursed money for attorney’s fees and to indemnification for liability. If the LLC has an operating agreement that provides terms and conditions for indemnification and for the advancement and reimbursement of attorney’s fees, then those terms will supplant the provisions of the Act. The LLC’s operating agreement might provide terms and conditions that cover some situations, but not others, in which event the terms of the Act might apply along with the terms of the operating agreement.

While LLC members have the absolute right to provide, in an operating agreement, for terms and conditions related to the payment for attorney’s fees and to indemnification for liability which differ from the terms of the Act, the Act provides that an operating agreement can never waive certain provisions of the Act.  The provisions that cannot be waived, T.C.A. §48-249-115(i)(1)(A)(B) and (C), prohibit an LLC from indemnifying a “responsible person” for a judgment which establishes that the responsible person breached a duty of loyalty to the LLC or its members; for a judgment for “acts or omissions not in good faith, or that involve intentional misconduct or a knowing violation of the law;” or for a judgment for an unlawful distribution under T.C.A §48-249-307. “Responsible person” includes a director of a director-managed LLC, a manager of a manager-managed LLC or a member of a member-managed LLC. That term does not include an officer of an LLC.  (Officers’ rights, as distinguished from the rights of members, managers and directors, are discussed below).

The non-waivability of T.C.A. §48-249-115(i)(1)(A)(B) and (C) prevents, among other situations, a majority member who has been found liable in an LLC derivative action from using LLC assets to pay the judgment against him or her. Obviously, the non-waivability of those provisions is a critical protection for minority members.

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When an employer seeks a temporary restraining order (“TRO”) or temporary injunction in a Tennessee federal court against a former employee, or other person or entity with whom it had a non-compete agreement, to succeed, it must show irreparable harm will result to it if the TRO or injunction is not granted.  (For purposes of this post, a non-compete agreement refers to an agreement that prohibits competition, use of confidential information, or solicitation of customers).

To obtain a TRO or temporary injunction, a federal district court in Tennessee must consider four factors: (1) The plaintiff’s likelihood of success as to the merits; (2) whether the plaintiff will suffer irreparable harm or injury if the relief is not granted; (3) whether substantial harm will be caused if the relief is granted; and (4) the effect of the injunctive relief on the interests of the public. The irreparable harm factor is indispensable. While a district court may grant a TRO or temporary injunction even where the plaintiff has not shown that it is substantially probable that the plaintiff will ultimately win the case on the merits, to grant either a TRO or a temporary injunction, a Tennessee federal district court must make specific findings that the plaintiff will suffer irreparable injury.

What is considered irreparable injury by Tennessee federal courts? An injury is irreparable if it cannot be compensated by money damages. In non-compete cases, a former employer or business cannot be compensated for lost revenues: From customers and contracts it can never prove it lost; from confidential information that was used by others to gain customers, sales or otherwise to increase profitability; or from lost customer goodwill. When someone breaches a non-compete agreement, the injured party will not be able to quantify its damages in many, if not most, cases. If it cannot quantify them, it cannot prove them and recover them. Thus, without injunctive relief, the injured plaintiff will suffer irreparable injury.

As a general rule, Tennessee federal courts recognize that irreparable harm occurs when a non-competition agreement is violated. In fact, they have recognized that, when a non-compete agreement is breached, in most cases, irreparable injury will result. The below are summaries of two instructive cases where former employees had signed non-compete agreements with their former employers. Continue reading

Having handled several promissory fraud cases over the years, I would characterize it as a tough tort to prove, but, under the right facts, certainly not impossible.  Promissory fraud was not recognized as a cause of action in Tennessee until relatively recently, and, therefore, there is not nearly the amount of case law discussing promissory fraud in Tennessee as there is discussing other fraud causes of action.

To prove promissory fraud, a plaintiff must prove three of the same elements that must be proven for a fraud claim (fraud is now to be referred to in Tennessee as “intentional misrepresentation”).  First, the plaintiff must prove that the defendant made an intentional misrepresentation of a material fact. Second, the plaintiff must prove that the defendant knew that the fact was false when he stated the fact. Third, the plaintiff must have suffered a loss based on the plaintiff’s reasonable reliance on the material fact at issue. Where the causes of action of intentional misrepresentation and promissory fraud differ are in the fourth element of each tort.

The fourth element of the tort of intentional misrepresentation requires that the plaintiff prove that the misrepresentation related to an existing fact, e.g., that the defendant represented the value of her assets were $2 million on a financial statement presented to the plaintiff when, in fact, they were $1 million.  The fourth element of the tort of promissory fraud requires that the plaintiff prove that the defendant made a promise of future action, but at the time he made it, he had no intention to perform it. For example, let’s assume that the defendant represented to the plaintiff that “if you will sign this royalty contract and allow me to sell your product, I will not terminate it as long as your product is selling.” If the defendant, years later, terminated the contract even though the plaintiff’s product was still selling, a promissory fraud claim might be successful provided that the plaintiff could also provide the type of proof discussed below.

In my estimation, by far, the most critical point to understand about the tort of promissory fraud is that you cannot prove it by relying just on the fact that the defendant subsequently did not keep his promise. See, Farmers & Merchants Bank v. Petty, 664 S.W.2d 77, 80-81 (Tenn. Ct. App. 1983) If the only proof you can muster is that the defendant subsequently did not do what he said he would do, you will likely be on the losing end of a motion for summary judgment, or maybe even a motion to dismiss or a motion for judgment on the pleadings. The plaintiff in Farmers & Merchants Bank alleged that a bank officer had stated that the plaintiff would never have to repay a loan the bank had made to the plaintiff.  The court in that case held that, as a matter of law, such a statement, standing alone, was insufficient to support a claim for promissory fraud since there was “no evidence, circumstantial or otherwise that the representation was false when made.”

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