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petitioner argues that Times Mirror, as manager of the LLC, had
fiduciary obligations that precluded unlimited use of the LLC’s
cash and prevented a conclusion that TMD or Times Mirror realized
the proceeds of a sale of Bender. Respondent contends that Times
Mirror’s only fiduciary obligation under the management agreement
was to itself. The LLC agreement dated July 28, 1998, contained
provisions including the following:
9. Management.
a. The Manager shall have the sole right to
manage the business of the Company and shall have all
powers and rights necessary, appropriate or advisable
to effectuate and carry out the purposes and business
of the Company, and no Member or other person other
than the Manager shall have any authority to act for or
bind the Company or to vote on or approve any of the
actions to be taken by the Company (unless otherwise
expressly required by the Act or other applicable law).
Notwithstanding the foregoing, the Initial Manager
shall not take any action in respect of or on behalf of
the Company, other than the opening of one or more bank
accounts in the name of the Company, the appointment of
an agent for service of process for the Company and the
performance of other ministerial duties in connection
with the organization and formation of the Company.
Accordingly, as of the Effective Time of the Merger,
the Company shall have no liabilities or obligations
other than pursuant to this Agreement.
* * * * * * *
e. Without limiting the generality of the
foregoing, to the fullest extent permitted by law,
including Section 18-1101(c) of the [Delaware Limited
Liability Company] Act, and without creating any duties
or obligations of the Manager by implication or
otherwise, it is expressly acknowledged and agreed that
to the extent the Manager owes any fiduciary duties or
similar obligations to the Initial Member [MB Parent]
under any principles of law or equity or otherwise,
such duties and obligations shall be owed solely to the
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