Thursday, September 12, 2019
Athenian Forces Defeat Invading Persians at Marathon
Today might be the anniversary of the great battle, fought in 490 at Marathon, at which the forces of Athens defeated the Persian invasion sent by Darius the Great. The exact date of the battle is subject to controversy, although there is something of an alternative consensus on the 21st.
At the time of the battle, the Persian Empire extended from the western boundaries of what is today India across the Middle East, Turkey and to Southwest Europe. Darius had decided that the land we refer to today as Greece, inhabited by a variety of city-states, would be next incorporated into his empire. An invasion fleet landed its troops some 26 miles northeast of Athens at the Bay of Marathon. Working with collaborators in Athens, it was thought that the army could be drawn away and destroyed even as the collaborators led an internal revolt, taking control of the city and making it available to Darius. It would not turn out that way.
At news of the landing, Athens sent word to Sparta seeking its assistance, the Spartan hoplite troops being the strongest force in the region. Famously, the Spartans were unwilling to send their forces in light of an upcoming religious festival. In consequence, Athens would stand alone. The Athenian army, well smaller than the Persian forces, camped facing their enemy for over a week. On the 8th day, seeing that the Persians were re-embarking some troops onto ships and fearing that they intended to launch a direct assault on Athens, the Greek forces attacked. Although outnumbered, by skillful flanking maneuvers the Greeks were able to envelop the Persian forces. While the historical records recite what must be grossly inflated figures, certainly the Persians lost in excess of 6,000 men while the Greeks lost fewer than 200.
Although not recounted in the contemporary historic record, a runner took off to announce the victory to Athens. Just over 26 miles later, he entered the city, announced “nickomen” (“victory”) and dropped dead from exhaustion. Meanwhile, the balance of the Persian army embarked on their ships and set out from the Bay of Marathon with the intent of directly attacking Athens. The Athenian army force-marched itself back to the city, manning its walls as the Persian fleet approached. The Persians decided that another attack was not in their best interest and they withdrew.
A decade later, the Persian forces under Xerces, son of Darius, would again invade Greece. They would ultimately fall victim to the Spartan and allied forces at Thermopylae, the Greek naval forces at Salamis and again the allied forces at Plataea.
Wednesday, September 11, 2019
Tuesday, September 10, 2019
Battle of Thermophylae
Today, by one reckoning, is the anniversary of the climax of the Battle of Thermopylae in 480 B.C. The record is not clear – the battle may be dated to August 7-9, August 18-20 or September 8-10.
Darius, King of the Persians, had invaded Greece in 490 B.C. Meeting an almost exclusively Athenian force at Marathon, his army was decimated while the Athenian force suffered relatively few casualties. A runner (so it is said) took off to announce the victory to the population of Athens. Just over 26 miles later he entered the city, announced “Nikomen” (victory) and dropped dead from exhaustion. Meanwhile, part of the Persian fleet had broken off to attack Athens. The force at Marathon marched back to the city, manning its walls as the fleet approached.
The Persian fleet and army withdrew from Greece.
A decade later Xerces had succeeded Darius as the Persian King, and he resolved to subdue the Greeks. Gathering a huge army (said to be over a million but likely not larger than 100,000), he invaded Greece. A force led by 300 Spartan hoplites (heavy infantry) and several thousand others Greek troops, all under the command of Sparta’s King Leonidas, resolved to block the Persians at Thermopylae.
For two days the Greek forces, taking advantage of the small front, it minimizing the advantage in numbers of the Persian forces, fought them to a standstill while suffering minimal casualties. Those overwhelming numbers were, however, the basis of Dienekes’ boast, as reported by Herodotus, in response to the assertion that the Persian arrows will block out the sun, “Good, then we will fight in the shade.” Ultimately, the Persians were shown how to outflank the Greek forces, but not before two of Xerces’ brother were killed. Most of the Greek forces withdrew while the Spartan forces, along with certain others, stayed as a rear guard to hold off the Persians as long as possible. In the last day of fighting the Spartans were annihilated; some of the other Greek troops surrendered.
Notwithstanding the movie “The 300,” Leonidas did not fight in the final segment – he had already been killed. That is not, however, the largest problem in the popular understanding of the Greco-Persian Wars. The runner to Athens after the Battle of Marathon is not supported in the historic record, and is first recorded in the writings of the Roman Lucian.
Legal Ethics Program at ABA Section of Business Law Annual Meeting
This Thursday morning my law partner A.J. Singleton will be chairing a program at the Annual Meeting of the ABA Section of Business Law. The title of the program is Ethical Issues With Respect To Law Firm Ownership and Ancillary Practice. Presenting with other luminaries in the field including Robert “Bob” Keatinge, this program will consider challenges faced by the legal industry including the question of whether law firms may be owned by non-attorneys and to what degree may attorneys, without running afoul of their ethical rules and obligations, provide non-legal services to their clients?
The Crucial Relationship Between Purpose and Judicial Dissolution
Under Kentucky law, a limited liability company may be dissolved upon a showing that it is not reasonably practicable to operate the company in accordance with the operating agreement. In a case recently decided by the Kentucky Court of Appeals, it was held that as what the company is currently doing, namely holding real property for use as a parking lot, that being one of the purposes listed in the operating agreement, no bases for judicial dissolution was shown. Blue Equity Holdings Kentucky, LLC v. Cobalt Riverfront Properties, LLC, No. 2018-CA-001092-MR, 2019 WL 4127610 (Ky. App. Aug. 30, 2019). While this opinion is itself designated as “Not To Be Published,” this appears to be the first ruling of the Kentucky Court of Appeals with respect to the judicial dissolution of an LLC.
Again, KRS § 275.290(1) provides that an LLC is subject to judicial dissolution when “it is not reasonably practicable to carry on the business of the [LLC] in conformity with the operating agreement.” From there, in this decision, the court focused upon the purpose clause in the operating agreement. It found that the LLC was in fact being operated in conformity therewith. The purpose clause included operating the property as a parking lot, and that is what was being done. On that basis, the application for judicial dissolution was denied, and the Court of Appeals upheld that determination.
Peter Mahler, in his (excellent) blog New York Business Divorce, has reviewed this decision in a posting made on September 9 titled Paved Paradise, Put Up a Purposeful Parking Lot; HERE IS A LINK to his posting. As he has already set forth a well-structured analysis to this decision, I will not attempt to repeat his good work.
That said, purpose clauses are crucial provisions of operating agreements that are often passed over, the agreement reciting only that the LLC “may engage in any lawful activity.” The benefits of greater specificity are a topic I reviewed in an article titled Purpose: If You Don't Know Where You Are Going, How Will You Know If You Have Arrived; HERE IS A LINK to that article.
Monday, September 9, 2019
Operating Agreements from the Minority Perspective
This Thursday morning at the Annual Meeting of the ABA Section of Business Law, I will be moderating a program on operating agreements from the minority perspective. The formal name of the program is Operating Agreements from the Minority Perspective: Rosencrantz and Guildenstern are Dead. With me on the panel will be two leading authorities on these topics, namely Professor Robert Thompson of the Georgetown Law Center and Professor Jim Wheaton of the Boston University Law Startup Law Clinic.
As has been observed by the Delaware Chancery Court, typically the rights of a member in an LLC begin and end with the operating agreement. As between those members in the minority versus those in the majority, the allocation of rights and obligations in the operating agreement is typically zero-sum. The various LLC Acts utilize any number of rules allocating control as to a particular action (e.g., approval of an amendment to the operating agreement, approval of an organic transaction such as a merger) to either the majority owner, a super-majority or all of the members. These rules are typically modified in operating agreements.
Our program will review any number of issues and items that should be scrutinized by the minority member (and their attorney) to understand what control is being granted the majority owners versus what level of control is held back by the minority. Flipping over that coin, these same issues should be on the radar screen of the majority who wants to exercise control so that they can confirm that the operating agreement affords them that control.
Friday, September 6, 2019
An LLC Does Not Have, For Purposes of Diversity Jurisdiction, a Principal Place of Business
In a recent decision from Alabama, there was reiterated the test for what is the citizenship of an LLC. In the course of that review, it was again made express that an LLC’s principal place of business does not impact upon diversity jurisdiction analysis. Glovis Alabama, LLC v. Richway Transportation Services Inc., Civil Action 18-00521-KD-N, 2019 WL 4039626 (S.D. Ala. August 27, 2019).
In this instance, the court had to repeat (it had apparently gone over the same point earlier in the lawsuit) the rules for determining, for purposes of diversity jurisdiction, the citizenship of an LLC. The plaintiff kept looking to where an LLC has its principal place of business. Rather, only the citizenship of the LLC’s members is relevant. In this instance, the sole member of the LLC was a business corporation, and its principal place of business would be attributed to the LLC:
For diversity purposes, Glovis is a California citizen only – not Alabama. This is because the principal place of business of an LLC is irrelevant (LLC citizenship is only determined by the citizenship of the LLC’s members – not the state of the LLC’s incorporation or the LLC’s principal place of business). As such, only the principal place of business of Glovis’ member that is a corporation (Glovis America, Inc. -- Irvine, California) is relevant.
2019 WL 4039626, *6
In support of the above quoted language, there were cited a number of authorities including to Ribstein and Keatinge on Limited Liability Companies §13:6, which was quoted for the proposition that “While an LLC is a citizen of every state in which a member is a citizen, unlike a corporation, it is not a citizen of its state of organization or of its principal place of business for diversity purposes unless a member is a citizen of that state.”