You Cannot Sue Somebody For Not Doing What They Never Agreed To Do

You Cannot Sue Somebody For Not Doing What They Never Agreed To Do

      In a recent decision from the Delaware Court of Chancery, the court considered and rejected a variety of claims brought by a member of an LLC. One of those claims was that the managers of the LLC never sent to the plaintiff certain company books and records. The problem with this aspect of the suit was that the manager never undertook that responsibility. Ross v. Institutional Longevity Assets LLC, Civ. Act. No. 2017-0186-TMR, 2019 WL 960212 (Del. Ch. Feb. 26, 2019).

      The plaintiff, Ross, brought suit against a number of parties who were members in Institutional Pooled Benefits LLC (“IPB”). It is important that at this juncture in the litigation IPB was no longer a defendant. Rather, as matters were here proceeding, Ross asserted that members Institutional Longevity Assets, LLC (“ILA”) and MRB Pooled Benefits, LLC (“MRB”), as well as certain of their individual constituents, violated certain duties arising out of the operating agreement.

      Ross brought a claim couched as breach of contract for failure to send to him certain financial statements. The problem with this complaint was that none of the defendants had undertaken the obligation to provide to Ross those financial statements. Rather, as the Chancery Court would note, “The terms of the Operating Agreement unambiguously refer to IPB as the responsible party, not the Defendants.” 2019 WL 960212, *4.

      On that basis, the claim was dismissed as a matter of law.