Clinton v. Aspinwall (Concurrence)

Summary

Justice McDonald concurred in the majority's conclusion that the operating agreement did not impose affirmative duties through its exculpatory language, but that its separate best-judgment provision could support a retrial. The concurrence emphasized that the decision should not establish Connecticut law for interpreting Delaware LLC agreements and urged supplemental briefing on whether the plaintiff's implied-covenant claim was improperly stricken. The concurrence also argued that Delaware law recognizes implied-covenant claims involving both contractual gaps and arbitrary or bad-faith exercises of contractual discretion.