Amendment of Operating Agreement by Less Than All Members
LLC operating agreements sometimes need to be amended. Members may come and go, more capital may be necessary, or the timing of distributions may need to be changed, for example. If the agreement is to be amended, normal principles of contract law will require that all the members agree.
Sometimes, however, the members will agree in advance that future amendments will require less than unanimity. For example, an operating agreement might provide: “This Agreement may be amended in any respect by the affirmative vote of Members holding a majority of the Units.” Or a supermajority of two-thirds or 80% might be required. This approach is used to provide flexibility, since otherwise a recalcitrant member holding a small ownership percentage could veto necessary change or demand concessions from the company for approving the change.
In some cases a majority-vote provision like the one quoted will include limits on the majority’s ability to amend, such as a prohibition on changing any member’s interest in profits, losses or distributions, without unanimous approval. But what if no limits are included? Are there any limits on the power of the majority to amend the operating agreement?
The California Court of Appeals held last week that there are limits. Abbey v. Fortune Drive Assocs., LLC, No. A124684, 2010 Cal. App. LEXIS 2860 (Cal. Ct. App. Apr. 20, 2010) (unpublished).
Fortune Drive Associates, LLC was a Delaware limited liability company. Brandon Abbey was a member and held a 3% interest. John Sheputis was a member, held a majority interest and was the sole manager. A dispute over a proposed restructuring of the LLC developed between Sheputis and Abbey, and Sheputis concluded it was in the best interest of the members to involuntarily terminate and buy out Abbey’s interest in the LLC.
The LLC’s operating agreement did not authorize the involuntary buyout of a member’s interest. But the operating agreement did provide that it could be amended by a majority vote of the LLC’s member interests. So, Sheputis prepared an amendment that:
- authorized the termination of a member upon the vote of three-fourths of the LLC’s member interests;
- specified the financial terms of the LLC’s buyout of the terminated member’s interest; and
- required that any dispute over the buyout price or any other matter related to the termination be resolved by binding arbitration.
Prior to the amendment, the operating agreement simply provided that any lawsuit relating to the agreement had to be filed in San Francisco.
With no prior notice to Abbey, Sheputis obtained the consent of all members other than Abbey to the amendment and to Abbey’s termination. Abbey filed a lawsuit, the LLC commenced arbitration over the value of Abbey’s interest in the LLC, and Abbey sought a stay of the arbitration and a declaration that he was not bound by the arbitration clause of the amendment.
The court looked to earlier California law on the enforceability of amendments to bank credit card agreements, including Badie v. Bank of America, 79 Cal.Rptr.2d 273 (Cal. Ct. App.1998). Under the prior cases, said the Abbey court, a party with the unilateral right to modify a contract does not have carte blanche to make any kind of change merely by following the prescribed procedure. Abbey, 2010 Cal. App. Unpub. LEXIS 2860, at *13. (The court applied California law because the parties agreed that California law applied to the issue of contract interpretation.)
The court determined that for a non-unanimous amendment to be enforceable against a non-consenting member, the general subject of the amendment must have been anticipated when the agreement was entered into. The court found that three distinct constraints applied: (1) the intent of the parties, (2) whether the terms of the agreement were sufficiently definite, and (3) the implied covenant of good faith and fair dealing.
In analyzing the amendment to Fortune Drive’s operating agreement, the court focused primarily on the intent of the parties. The court noted that although the amendment was written in general terms, it was adopted to deal with the specific situation of Abbey’s termination, limited the types of claims Abbey could bring, and restricted the recovery he could receive. The court found that no member could have had that type of amendment in mind when they agreed that a majority of the member interests could amend the agreement.
While the members might have anticipated adopting arbitration in a manner that was not prejudicial to their individual interests, it is inconceivable [that] any member intended to authorize the majority’s adoption of an arbitration provision that would benefit other members at the expense of his or her own interests. Yet that is what the Third Amendment’s arbitration provision would accomplish in any dispute with Abbey.
Abbey, at *19.
The court concluded that this particular amendment was beyond the intent of the parties when they agreed to majority amendments of the operating agreement, and that therefore it would not be enforced. The court said it did not have to reach the questions of whether the amendment violated the members’ fiduciary duties and the implied covenant of good faith and fair dealing.
Operating agreement provisions that allow amendments by less than all of the members are useful because they allow the LLC to deal with new situations without being held hostage by the demands of a minority member, so long as the necessary majority approves the change. But Abbey shows that there are limits to the kinds of non-unanimous amendment that can be made. An amendment that is targeted at a dispute with a non-consenting member and that significantly disadvantages that member is not likely to be enforceable.
More broadly, amendments that affect all the members in the same way also may be unenforceable if the general subject matter of the amendment was not anticipated when the contract was entered into. That’s a broader constraint, and its limits may be difficult to predict for a particular agreement and amendment.
The Abbey court hung its opinion on the intent of the parties and said it did not have to reach the question of whether the implied covenant of good faith and fair dealing was violated. The obvious unfairness of the Abbey amendment suggests that analyzing the amendment under the implied covenant of good faith and fair dealing would have led to the same result – invalidation of the amendment.
Former LLC Member: Why Does My K-1 Show All This Income?
An LLC member, Mr. Smith, sells his member interest and terminates all connections with the LLC. The sale agreement ends Smith’s rights in the LLC. Smith moves on and doesn’t think much more about the LLC. Many months later, Smith receives a Schedule K-1 from the LLC. >
Schedule K-1 is the form an LLC uses to inform each member of the member’s share of income, losses, deductions, credits and so on. Like almost all LLCs, Smith’s former LLC is taxed as a partnership for federal income tax purposes, and the LLC’s income and losses for each tax year are allocated to its members. The members then each pay taxes on their share of the LLC’s income for that year, or use the losses to shelter other income. (The ability to use losses to shelter other income is subject to various limitations. See my prior post on passive income loss limitations, here.)
Smith is shocked to see that the K-1 shows a whopping allocation of income to him for the last year of his membership in the LLC. He realizes that that income will have to be reported on his own personal tax return and will substantially increase his tax bill, and he didn’t receive any cash distribution from the LLC to cover those extra taxes. Based on what he knows about the LLC’s operations and finances towards the end of his involvement with it, he doesn’t understand how or why so much income was allocated to him. What does he do?
Naturally Smith starts asking questions. He requests copies of the LLC’s financial records so his CPA can evaluate the correctness of the LLC’s allocations. The LLC, however, points out that Smith is no longer a member, so its operating agreement gives him no right to see the records. The LLC also notes that the state LLC Act only allows members, not former members, to access LLC records. In short, he is politely told to go roll his hoop.
The plaintiffs in Abdalla v. Qadorh-Zidan, 913 N.E.2d 280 (Ind. Ct. App. Sept. 10, 2009), were faced with this situation. The Qadorh-Zidans (Zidans) and the Abdallas had formed five LLCs to own and operate apartment properties. Later the Abdallas filed a lawsuit against the Zidans alleging breach of fiduciary duty and usurpation of corporate opportunities. That suit was resolved through a settlement that included a buyout – the Zidans sold their membership interests in the LLCs to the Abdallas in August 2006.
In the fall of 2007 the Zidans received tax returns and K-1 Schedules from the LLCs for the tax year ending on the date of the buyout. The Zidans alleged discrepancies in the K-1s and requested accounting information and records from the LLCs for the time period when they were members. The Abdallas refused, so the Zidans filed a complaint alleging breach of fiduciary duty and seeking declaratory relief to inspect the books and records of the LLCs for the period when they were members. The Zidans sought discovery of the requested information, which was stayed pending a summary judgment motion by the Abdallas. The trial court’s denial of the Abdallas’ motion was appealed.
The Abdallas contended that any fiduciary duties owed to the Zidans terminated when they ceased being members of the LLCs, because the Zidans no longer had any rights under the operating agreements and because their settlement agreement in the first lawsuit included a relinquishment of all of the Zidans’ rights as members. The Zidans maintained that fiduciary duties should remain intact with respect to the resolution of pre-separation business, and that therefore the fiduciary relationship covered the preparation of the tax return which was completed after the Zidans sold out.
The court held that the Abdallas owed a fiduciary duty to the Zidans regarding the preparation of tax returns for the period during which the Zidans were members of the LLCs. Abdalla, 913 N.E.2d at 286. As the court said, “To hold otherwise would give the Abdallas the freedom to allocate tax burdens to the Zidans and retain tax benefits for themselves without allowing the Zidans any recourse to verify or rectify this allocation.” Id.
The court reached a similar result on the question of whether the Zidans had a right of access to the LLCs’ books. Although the Indiana LLC Act only gives members the right to access an LLC’s records, Ind. Code § 23-18-4-8(b), the court held that the Zidans, as former members, had a right to access the records covering the time period while they were still members of the LLCs. Abdalla, 913 N.E.2d at 287.
Many state LLC Acts, like Indiana’s, do not address what inspection rights former LLC members have. For example, the LLC Acts of Washington, Oregon and Delaware are silent on inspection rights for former members. There’s no reason why state statutes can’t address this issue, though. The Illinois LLC Act, for example, provides that former members have a right of access for a proper purpose to LLC records pertaining to the period when they were members. 805 Ill. Comp. Stat. 180/10-15. The Revised Uniform Limited Liability Company Act and the Uniform Limited Partnership Act also have comparable provisions giving former members limited access rights.
When the Zidans resolved their first dispute with the Abdallas through a buyout of the Zidans’ interests in the LLCs, they apparently did not consider the inevitable entanglement resulting from the tax flow-through treatment of the LLCs. In an LLC buyout there will usually be a time lag from the buyout to the computation and allocation of the LLC’s profits and losses, and the distribution of the Schedule K-1s.
There’s a moral here. A member selling its interest in an LLC should consider adding provisions to the buyout agreement for later access to the LLC’s accounting records and for consultation with the LLC’s manager or CPA over the tax allocations and the preparation of tax returns, for the period when the seller was a member. The seller should also consider provisions for notice, access to records and consultation regarding any later amendment to the LLC’s previously filed tax returns, or any IRS contact with the LLC or tax audit for the period before the buyout. These provisions can help the former member avoid unpleasant tax-related surprises, and can give the former member the tools necessary to investigate unexpected tax allocations.
