After a long 25-year tenure, Arizona’s Limited Liability Company Act will be retiring soon, to be updated by a comprehensive new law, signed by Governor Ducey this last legislative session. Attorney Andy G. Anderson, and a small group of Arizona business lawyers, spent the last two years drafting this new law, while incorporating comments and feedback from the business and legal community.
Generally, the new Arizona LLC Act (the “Act”) is based upon the Revised Uniform Limited Liability Act produced by the Uniform Laws Commission. Uniform laws are advantageous because they provide a wider body of case law as relevant precedent, considering that the underlying statutory language among the adopting states is the same. They also help reduce the amount of litigation, as potential litigants see the results of how judges decide issues in other states who have adopted the Uniform LLC Act. Uniform laws also allow us to participate in a greater wealth of commentary by lawyers and academics from around the country.
Here are the highlights from the Act’s new innovations:
- Centralized list of what statutory default rules can, and cannot, be changed in an Operating Agreement
- New default rules for member voting
- Statutory indemnification rights for managers
- Standards for fiduciary duties and duty of good faith and fair dealing
- Dissolution procedures for managing creditor claims
- Flexible remedies in derivative actions and institution of Special Litigation Committees to evaluate such claims
- Clarification on treatment of foreign protected series LLCs
The new Act will govern LLCs formed after September 1, 2019, as well as those existing companies who opt-in, and will govern all LLCs after September 1, 2020.
Although your existing Operating Agreements may largely be compliant with the new Act, be mindful that the new Act will impose its default rules to fill any gaps for issues you have not addressed. For example, if you are currently silent on fiduciary duties in your Agreement, then the members and managers in your company will be subject to the statutory recitation of the duty of care and fiduciary duty of loyalty, effective September 1, 2020. Likewise, if you have not considered and expressly denied the opportunity to appoint a special litigation committee to evaluate derivative claims by members, then managers will have that tool available to them.
In sum, the new Act provides a more complete set of default rules for those companies without Operating Agreements, as well as those with very basic agreements that miss out on many issues.
It’s time to dust off your old agreement — or prepare one — so that you are confident that your company continues to operate and be governed as you intended. If you or someone you know has questions about LLCs, Operating Agreements, or any other business matter, please call our office today to schedule a consultation with Andy G. Anderson, Esq.
Andy G. Anderson, Esq. is a business attorney with Provident Law® based in Scottsdale, Arizona. He works with clients on a wide range of corporate and commercial transactions. Mr. Anderson received his Bachelor of Science in finance, summa cum laude, from the W.P. Carey School of Business at Arizona State University in 2006 and his Juris Doctorate from the James E. Rogers College of Law at University of Arizona in 2009. He is a member of the Business Section of the Arizona Bar and the American Bar Association and served on the subcommittee of the Business Section that drafted the Arizona Limited Liability Company Act. He also is a member of the ASU President’s Club and serves as the treasurer of the Phoenix Chapter of the Christian Legal Society. Mr. Anderson was selected to the 2018 Southwest Rising Stars list of Super Lawyers. He can be reached at email@example.com or 480-388-3343.
Christopher J. Charles, Esq. is the Founder and Managing Partner of Provident Law®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS® (the “AAR”). He also serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions. Christopher is a licensed real estate instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at firstname.lastname@example.org or at 480-388-3343.