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1, 1997, (the effective date provision) as an improper and
ineffective “backdating” of that agreement or, alternatively, as
“a draftsman’s error that can be reformed under Georgia law”;
i.e., as a mutual mistake correctable by the introduction of
parol evidence.
C. Respondent’s Position
Respondent argues that the assignment and assumption
agreement was the means of “formalizing” Dr. Joffe’s transfer of
10-percent membership interests in the LLC to Dr. McKernan and
Ms. Moore effective January 1, 1997, and that “[f]rom that time
forward” the division of ownership among the LLC members was 68
percent for Dr. Joffe, 20 percent for Dr. McKernan, and 12
percent for Ms. Moore. In support of his position, respondent
argues that the 1998-2000 cash distributions to those three
individuals “in the approximate ratio of 68/20/12 * * *
demonstrates that the LLC made its cash distributions based upon
the members’ interests, as modified in 1997.”
Respondent also seeks to refute all of petitioners’ attacks
on the effective date provision. He acknowledges the failure to
follow the procedural requirements set forth in the LLC operating
agreement for transfers of membership interests, but he points
out that those requirements were specifically waived by Dr.
Joffe, as manager of the LLC, and by the parties to the
assignment and assumption agreement by their entering into that
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Last modified: November 10, 2007