183.0302(2)(a) (a) An admission or representation made by a manager concerning the business of a limited liability company within the scope of the manager's authority as provided under s. 183.0301 may be used as evidence against the limited liability company in any legal proceeding.
183.0302(2)(b) (b) The admission or representation of any member, acting solely in the member's capacity as a member, is not evidence against the limited liability company in any legal proceeding.
183.0302 History History: 1993 a. 112.
183.0303 183.0303 Limited liability company charged with knowledge of or notice to member or manager.
183.0303(1)(1) Except as provided in sub. (2), notice to any member of any matter relating to the business of a limited liability company, and the knowledge of a member acting in the particular matter, acquired while a member or known by the person at the time of becoming a member, and the knowledge of any other member who reasonably could and should have communicated it to the acting member, operate as notice to or knowledge of the limited liability company.
183.0303(2) (2) If management of the limited liability company is vested in one or more managers, all of the following apply:
183.0303(2)(a) (a) Notice to any manager of any matter relating to the business of the limited liability company, and the knowledge of the manager acting in the particular matter, acquired while a manager or known by the person at the time of becoming a manager, and the knowledge of any other manager who reasonably could and should have communicated it to the acting manager, operate as notice to or knowledge of the limited liability company.
183.0303(2)(b) (b) Notice to or knowledge of any member while the member is acting solely in the capacity of a member is not notice to or knowledge of the limited liability company.
183.0303 History History: 1993 a. 112.
183.0304 183.0304 Liability of members to 3rd parties.
183.0304(1) (1) The debts, obligations and liabilities of a limited liability company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the limited liability company. Except as provided in ss. 183.0502 and 183.0608, a member or manager of a limited liability company is not personally liable for any debt, obligation or liability of the limited liability company, except that a member or manager may become personally liable by his or her acts or conduct other than as a member or manager.
183.0304(2) (2) Notwithstanding sub. (1), nothing in this chapter shall preclude a court from ignoring the limited liability company entity under principles of common law of this state that are similar to those applicable to business corporations and shareholders in this state and under circumstances that are not inconsistent with the purposes of this chapter.
183.0304 History History: 1993 a. 112; 1995 a. 400.
183.0304 Annotation Personal Liability for Corporate Debt. Kelley. Wis. Law. Oct. 1994.
183.0304 Annotation When Nonlawyers "Represent" LLCs. Mehl. Wis. Law. March 2009.
183.0305 183.0305 Parties to actions. A member of a limited liability company is not a proper party to a proceeding by or against a limited liability company, solely by reason of being a member of the limited liability company, except if any of the following situations exists:
183.0305(1) (1) The object of the proceeding is to enforce a member's right against or liability to the limited liability company.
183.0305(2) (2) The action is brought by the member under s. 183.1101.
183.0305 History History: 1993 a. 112.
subch. IV of ch. 183 SUBCHAPTER IV
RIGHTS AND DUTIES OF MEMBERS AND MANAGERS
183.0401 183.0401 Management.
183.0401(1)(1) Unless the articles of organization vest management of a limited liability company in one or more managers, management of the limited liability company shall be vested in the members, subject to any provision in an operating agreement or this chapter restricting or enlarging the management rights and duties of any member or group of members.
183.0401(2) (2) If the articles of organization vest management of a limited liability company in one or more managers, management of the business or affairs of the limited liability company shall be vested in the manager or managers, subject to any provisions in an operating agreement or this chapter restricting or enlarging the management rights and duties of any manager or group of managers. Unless otherwise provided in an operating agreement, the manager or managers:
183.0401(2)(a) (a) Shall be designated, appointed, elected, removed or replaced by a vote of the members that meets the requirements under s. 183.0404 (1) (a).
183.0401(2)(b) (b) Need not be members of the limited liability company or individuals.
183.0401(2)(c) (c) Shall hold office until a successor is elected and qualified, or until prior death, resignation or removal.
183.0401 History History: 1993 a. 112; 1995 a. 400.
183.0402 183.0402 Duties of managers and members. Unless otherwise provided in an operating agreement:
183.0402(1) (1) No member or manager shall act or fail to act in a manner that constitutes any of the following:
183.0402(1)(a) (a) A willful failure to deal fairly with the limited liability company or its members in connection with a matter in which the member or manager has a material conflict of interest.
183.0402(1)(b) (b) A violation of criminal law, unless the member or manager had reasonable cause to believe that the person's conduct was lawful or no reasonable cause to believe that the conduct was unlawful.
183.0402(1)(c) (c) A transaction from which the member or manager derived an improper personal profit.
183.0402(1)(d) (d) Willful misconduct.
183.0402(2) (2) Every member and manager shall account to the limited liability company and hold as trustee for it any improper personal profit derived by that member or manager without the consent of a majority of the disinterested members or managers, or other persons participating in the management of the limited liability company, from any of the following:
183.0402(2)(a) (a) A transaction connected with the organization, conduct or winding up of the limited liability company.
183.0402(2)(b) (b) A use by a member or manager of the property of a limited liability company, including confidential or proprietary information or other matters entrusted to the person as a result of the person's status as member or manager.
183.0402(3) (3) An operating agreement may impose duties on its members and managers that are in addition to those provided under sub. (1).
183.0402 History History: 1993 a. 112; 1995 a. 400.
183.0402 Annotation Reading ss. 183.0402 and 183.0404 together, members with a material conflict of interest are not prevented from voting their ownership interest with respect to a given matter. Rather, they are prohibited from acting in a manner that constitutes a willful failure to deal fairly with the LLC or its other members by willfully acting, or failing to act, in a manner that will have the effect of injuring the LLC or its other members. Gottsacker v. Monnier, 2005 WI 69, 281 Wis. 2d 361, 697 N.W.2d 436, 03-0457.
183.0402 Annotation The First LLC Case. Boucher & Kamperschroer. Wis. Law. Sept. 2005.
183.0403 183.0403 Limitation of liability and indemnification of members and managers.
183.0403(1) (1) In this section:
183.0403(1)(a) (a) "Expenses" has the meaning given in s. 180.0850 (3).
183.0403(1)(b) (b) "Liabilities" include the obligation to pay a judgment, settlement, forfeiture, or fine, including an excise tax assessed with respect to an employee benefit plan, plus costs, fees, and surcharges imposed under ch. 814, and reasonable expenses.
183.0403(2) (2) A limited liability company shall indemnify or allow reasonable expenses to and pay liabilities of each member and, if management of the limited liability company is vested in one or more managers, of each manager, incurred with respect to a proceeding if that member or manager was a party to the proceeding in the capacity of a member or manager.
183.0403(3) (3) An operating agreement may alter or provide additional rights to indemnification of liabilities or allowance of expenses to members and managers.
183.0403(4) (4) Notwithstanding subs. (2) and (3), a limited liability company may not indemnify a member or manager for liabilities or permit a member or manager to retain any allowance for expenses provided under those subsections unless it is determined by or on behalf of the limited liability company that the liabilities or expenses did not result from the member's or manager's breach or failure to perform a duty to the limited liability company as provided in s. 183.0402.
183.0403(5) (5) Unless otherwise provided in an operating agreement, all of the following apply:
183.0403(5)(a) (a) A member or manager who is a party to a proceeding because the person is a member or manager shall be conclusively presumed not to have breached or failed to perform a duty to the limited liability company to the extent that the member or manager has been successful on the merits or otherwise in the defense of the proceeding.
183.0403(5)(b) (b) In situations not described in par. (a), the determination of whether a member or manager, who is a party to a proceeding because the person is a member or manager, has breached or failed to perform a duty to the limited liability company, or whether the liability or expenses resulted from the breach or failure, shall be made by the vote of the members that meets the requirements under s. 183.0404 (1) (a), except that the vote of any member who is a party to the same or a related proceeding shall be excluded unless all members are parties.
183.0403 History History: 1993 a. 112; 1995 a. 400; 2003 a. 139.
183.0404 183.0404 Voting.
183.0404(1)(1) Unless otherwise provided in an operating agreement or this chapter, and subject to sub. (2), an affirmative vote, approval or consent as follows shall be required to decide any matter connected with the business of a limited liability company:
183.0404(1)(a) (a) If management of a limited liability company is reserved to the members, an affirmative vote, approval or consent by members whose interests in the limited liability company represent contributions to the limited liability company of more than 50% of the value, as stated in the records required to be kept under s. 183.0405 (1), of the total contributions made to the limited liability company.
183.0404(1)(b) (b) If the management of a limited liability company is vested in one or more managers, the affirmative vote, consent or approval of more than 50% of the managers.
183.0404(2) (2) Unless otherwise provided in an operating agreement or this chapter, the affirmative vote, approval or consent of all members shall be required to do any of the following:
183.0404(2)(a) (a) Amend the articles of organization.
183.0404(2)(b) (b) Issue an interest in a limited liability company to any person.
183.0404(2)(c) (c) Adopt, amend or revoke an operating agreement.
183.0404(2)(d) (d) Allow a limited liability company to accept any additional contribution from a member.
183.0404(2)(e) (e) Allow a partial redemption of an interest in a limited liability company under s. 183.0603.
183.0404(2)(f) (f) Value the contributions of members under s. 183.0501 (2).
183.0404(2)(fm) (fm) Convert to a new form of business entity under s. 183.1207.
183.0404(2)(g) (g) Authorize a manager, member or other person to do any act on behalf of the limited liability company that contravenes an operating agreement, including any provision of the operating agreement that expressly limits the purpose or business of the limited liability company or the conduct of the business of the limited liability company.
183.0404(3) (3) Unless otherwise provided in an operating agreement, if any member is precluded from voting with respect to a given matter, then the value of the contribution represented by the interest in the limited liability company with respect to which the member would otherwise have been entitled to vote shall be excluded from the total contributions made to the limited liability company for purposes of determining the 50% threshold under sub. (1) (a) for that matter.
183.0404(4) (4) Unless otherwise provided in an operating agreement or this chapter, if all or part of an interest in the limited liability company is assigned under s. 183.0704, all of the following apply:
183.0404(4)(a) (a) The assigning member shall be considered the owner of the assigned interest for purposes of determining the 50% threshold under sub. (1) (a) until the assignee of the interest in the limited liability company becomes a member under s. 183.0706.
183.0404(4)(b) (b) If the assigning member ceases to be a member of the limited liability company, and until the assignee of the interest in the limited liability company becomes a member under s. 183.0706, the contribution represented by the assigned interest shall be excluded from the total contributions made to the limited liability company for purposes of determining the 50% threshold under sub. (1) (a).
183.0404 History History: 1993 a. 112; 2001 a. 44.
183.0404 Annotation Reading ss. 183.0402 and 183.0404 together, members with a material conflict of interest are not prevented from voting their ownership interest with respect to a given matter. Rather, they are prohibited from acting in a manner that constitutes a willful failure to deal fairly with the LLC or its other members by willfully acting, or failing to act, in a manner that will have the effect of injuring the LLC or its other members. Gottsacker v. Monnier, 2005 WI 69, 281 Wis. 2d 361, 697 N.W.2d 436, 03-0457.
183.0404 Annotation Chapter 183, unlike ch. 180, does not contain a requirement that approval or consent of members to undertake an action be reduced to written form. Rather, it requires an affirmative vote, approval, or consent to decide any matter connected with the business of an LLC. Sanitary District No. 4 - Town of Brookfield v. City of Brookfield, 2009 WI App 47, 317 Wis. 2d 532, 767 N.W.2d 316, 08-0511.
183.0404 Annotation The First LLC Case. Boucher & Kamperschroer. Wis. Law. Sept. 2005.
183.0405 183.0405 Records and information.
183.0405(1) (1) A limited liability company shall keep at its principal place of business all of the following:
183.0405(1)(a) (a) A list, kept in alphabetical order, of each past and present member and, if applicable, manager. The list shall include the full name and last-known mailing address of each member or manager, the date on which the person became a member or manager and the date, if applicable, on which the person ceased to be a member or manager.
183.0405(1)(b) (b) A copy of the articles of organization and all amendments to the articles.
183.0405(1)(c) (c) Copies of the limited liability company's federal, state and local income or franchise tax returns and financial statements, if any, for the 4 most recent years or, if such returns and statements are not prepared for any reason, copies of the information and statements provided to, or which should have been provided to, the members to enable them to prepare their federal, state and local income tax returns for the 4 most recent years.
183.0405(1)(d) (d) Copies of all operating agreements, all amendments to operating agreements and any operating agreements no longer in effect.
183.0405(1)(e) (e) Unless already set forth in an operating agreement, written records containing all of the following information:
183.0405(1)(e)1. 1. The value of each member's contribution made to the limited liability company as determined under s. 183.0501 (2).
183.0405(1)(e)2. 2. Records of the times at which or the events upon which any additional contributions are agreed to be made by each member.
183.0405(1)(e)3. 3. Any events upon which the limited liability company is to be dissolved and its business wound up.
183.0405(1)(e)4. 4. Other writings as required by an operating agreement.
183.0405(2) (2) Upon reasonable request, a member may, at the member's own expense, inspect and copy during ordinary business hours any limited liability company record required to be kept under sub. (1) and, unless otherwise provided in an operating agreement, any other limited liability company record, wherever the record is located.
183.0405(3) (3) Members or, if the management of the limited liability company is vested in one or more managers, managers shall provide, to the extent that the circumstances render it just and reasonable, true and full information of all things affecting the members to any member or to the legal representative of any member upon reasonable request of the member or the legal representative.
183.0405(4) (4) Failure of a limited liability company to keep or maintain any of the records or information required under this section shall not be grounds for imposing liability on any person for the debts and obligations of the limited liability company.
183.0405 History History: 1993 a. 112; 1995 a. 400.
183.0405 Annotation The scope of a member's right of inspection under sub. (2) is exceptionally broad and hinges on what constitutes an LLC record and the degree and kind of restrictions on access that upon reasonable request may impose. Kasten v. Doral Dental USA, 2007 WI 76, 301 Wis. 2d 598, 733 N.W.2d 300, 05-0995.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 380 and all Supreme Court Orders entered before June 30, 2014. Published and certified under s. 35.18. Changes effective after July 1, 2014 are designated by NOTES. (Published 7-1-14)