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LLC Proper Formation
NEED proper cert of formation, filed with sec of state, cert list the LLCS name, registered office, principal place of biz, and purpose of biz. If proper, exists at close of biz day on filing.
association of two or more peeps to carry on as co owners of business for profit. No writing, no filing necessary. Intent of parties controls, but dont need to intend a partnership. Every partner is agent of partnership for purpose of biz. Every partner also agent fo revery other partner individually. Acts within authority actualyl granted to a partner bind parntership and each partner individually.
Agreement to share profits = presumption of partnership
Effect of LLC status?
members have limited personal liability limited to contributions, but entity receives benefit of taxation as a partnership.
LLC Proper management structure
cert of formation can create management strucutre like corp by vesting management in mangers. If management is vensted in managers, individual members are analgous to shareholders. Means have no management powers, are not agents of entity, and vote according to ownership percentage only to elect or remove manages or to admit new members.
Vicarious Liability in LLC between members?
When LLC prop formed, neither members nor managers are personalyl liable for the entity's tort obligations. Under respondeat superior, LLC is liable for torst committed by a member in ordinary course of business. LLC member personally liable for own tort.
where have corporate like structure. only manager can bind LLC. Third parties put on "notice" bc has to be filed in the cert of formation. COMPARE to default, which is member-managed where ALL members have authority to bind the LLC.
who can bind LLC in managed-manager LLC?
Only the manager can bind the LLC to Ks. If member enters into K on behalf of LLC withotu proper autority, that K can be disclaimed, leaving that member solely liable for K obligations. If member enters into K without authority, manager may ratify the K and the LLC will become liable for it.
Withdrawal of Manager?
A member cannot withdraw generally from LLC except as provided in the LLC agreement OR upon unanimous consent of all members.
Dissolving an LLC?
Dissolution is termination of entity's existence. On dissolution, the LLCs affairs are to be wound up. An LLC is dissolved upon unanimous written consent of members, when specified in LLC K, or 90 days after the last member dissociates from the LLC unless thos having rts as assignees of the LLC have voted to admit one or mroe new members by the 90th day.
When a manger withdrawals in manager-managed LLC, members may pick a new manager. Members must designate a new manager or be member-managed by default and refile with the state.
Governing law of partnerships
RUPA - revised uniform partnership act
Partnership - actual and apparent authority
each partner acts as agent and a principal to each other. Each parnter has actual authority to enter into K on behalf of partnership. A partner has apparent authority to enter into K on behalf of partnership if 3rd party reasonably believes he is acting on behalf of partnership
When is there partnership liability
held jointly and severly liable for all partnership debts. partners are personally liable. Creditors must first exhaust partnership assets before collecting from partners.
Duties of partners?
Duty of loyalty, due care, and good faith. Loyalty = no self dealing or secret profits, and acting in best interst of biz. Due care = avoid reckless and gross negligence.
Limited Partnership Formation
NEED to file cert of LP with sec of state and have term limited partnership or LP in name. All parties MUST sign. LP provides limited liability for limited partners (they are liable only up to amount of investment in partnership) while gen partners are subject to personal liability
terminate at will if P not set for definite time. If partner decides to leave, entitled to fair payment of value of his share of partnership.
partners withdraw triggers dissociation. Once a partner dissociates he has no right to manage and may not participate in winding up. Entitled to amount or share of partnership.
After dissociate, still liable for any actions dissociated partner did (like torts), but not held liable for any torts or Ks entered into by partnership after that point. But liable for conduct before you dissociate.
partnership may dissolve after partner dissociates. However, P may decide to continue in operation and not dissolve if remaining partners decide to do so.
if dissolved, winding up is next step. Any partner may conduct winding up as long as she not wrongfully dissociated. Partner who handles winding up entitled to payment for services.
Termination of partnership?
last step in ending. Debts to outside creditors paid, then debts to inside creditors, then return capital contributions, and division of profits/losses between partners
Uniform Limited Partnership Act
Can be anything of value, such as services or property
Limited Partners Fid Duties
Generally, dont owe anything other than general good faith and fair dealing.
LP and dissociation/dissolution
Dissociation of LP doesnt result in dissolution of entire LP unless last gen partner dissociates, the LP dissolves.
Can occur by agreement, or default rule above.
Limited Partnership - default
Default in LP is that profits, losses and distributions will be shared according to amount contributed. But can make it equal sharing.
Limited Partner's Name in Partnership name
Use to not be ok, now there name can be in the name.
Dissolution and LLC
Dissolution = termination of entity. On dissolution, LLCs affairs to wound up. LLC is dissolved upon unanimous written consent of the members, when specified in the K, or 90 days after last member dissocaites from LLC unless those having rights as assignees of the LLC have voted to admit one or more new member by 90th day.
Winding Up LLC
Person winding up MUST make reasonable provisions for all known claims and obligations, including contingent claims and conditional/unmatured claims, to extent of assets available or may be personally liable.
Sale of Goods
Gov by UCC. If sales K in Agency/Partnership ?
Witha ctual authority can bind principle. Actual authority exists if agent reasonably believed based on principles statemetns/conduct that had authority to act. Apparent authority when third party reasonably beleivs, Based on PRINCIPALS statements/conduct, that agent had authority to bind.
Even if act without authority, principal can ratify it.
Agent liability to third parties?
Gen, not liable, unless warranty of agency breach where agents rep to third party that she is acting on behalf of principal is deemed a warrant and breach may lead to liabiity.
Agent can also be liable to principal for binding them
Prima facie case = duty, standard and breach of it, causatioon and damages.
Deviations vs Frloics
Minor deviations from course/scope of employment still bind employer while major deviations or frolics will not
WA LAW AGAINST DISCRIM provides the right to be free from discrim bc of race, creed, color, national origin, or sex. An employer may not refuse to hir any person of age, sex, marital status, sex orientation, race, creed, color, or national origin unless based upon a bona fide qualification.
IIED when pltf suffers severe mental distress, caused by defs intentional or reckless behavior, that is judged extreme and outrageous by pltf and reasonable person (of pltf alone if def knows of vulnerability).
Publication in false light
guilt when attribute statements or conduct to another that he did not say or do and that false light would be objectionable to a reasonable person
intention torts by employees
tend to be outside scope of employment so employer nto liable, but not always.
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