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 History
History: 1993 a. 112.
RIGHTS AND DUTIES OF MEMBERS AND MANAGERS
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(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)(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.
183.0404(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 percent 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 percent 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)(b)
(b) Issue an interest in a limited liability company to any person.
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)(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 percent 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 percent 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 percent 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)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(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.
183.0405 Annotation
Inspection “upon reasonable request" in sub. (2) pertains to the breadth of an inspection request, as well as the timing and form of the inspection. One purpose of the “upon reasonable request" requirement is to protect the company from member inspection requests that impose undue financial burdens on the company. Whether an inspection request is unreasonable requires balancing the statute's bias in favor of member access to records against the costs of the inspection to the company. Kasten v. Doral Dental USA,
2007 WI 76,
301 Wis. 2d 598,
733 N.W.2d 300,
05-0995.
183.0405 Annotation
When applying the balancing test to determine whether a request for records imposes undue financial burdens, a number of factors may be relevant, including: 1) whether the request is restricted by date or subject matter; 2) the reason given, if any, for the request, and whether the request is related to that reason; 3) the importance of the information to the member's interest in the company; and 4) whether the information may be obtained from another source. Kasten v. Doral Dental USA,
2007 WI 76,
301 Wis. 2d 598,
733 N.W.2d 300,
05-0995.
183.0405 Annotation
Sub. (3) establishes a member right to true and full information, without regard to whether that information is recorded and stored as a record or document, but restricted to information affecting the members and to the extent that the circumstances render the provision of the information just and reasonable. “All things affecting the members" means all things affecting the requesting member's financial interest in the company. To the extent records and documents requested contain information affecting a member's financial interest in the company, the information contained in the records or documents must be furnished to the requesting member. Kasten v. Doral Dental USA,
2007 WI 76,
301 Wis. 2d 598,
733 N.W.2d 300,
05-0995.
