Unsigned Operating Agreement Enforceable
An operating agreement is a contract, or creature of contract, that governs the internal affairs of an LLC. As noted in Florida's Revised Limited Liability Company Act, basic principles of contract law apply to operating agreements. See Fla. Stat. § 605.0111(1) ("It is the intent of this chapter to give the maximum effect to the principle of freedom of contract and to the enforceability of operating agreements, including the purposes of ss. 605.0105-605.0107"). Contracts are usually bilateral in nature, in that the contracting parties bargain for their agreement and come to a meeting of the minds on the terms of [...]
Operating Agreement Saves the Day in Romagnoli
An operating agreement is the governing document of the LLC. It establishes the rules and regulations for LLC operation and provides a roadmap for the members and managers regarding internal affairs. It is based on contract law and is held to apply even if its provisions conflict with Florida's Revised Limited Liability Company Act, save certain enumerated provisions in the Act that cannot be contracted out of. But a company operating agreement does much more than govern—it also serves as proof of ownership of the LLC. In fact, the operating agreement saved the day for Roberto Romagnoli (the "Debtor"). The Operating Agreement [...]
Response to RFE on Ownership and Control of U.S. Entity
For purposes of L-1 Classification, the foreign entity must present evidence of ownership and control of the U.S. Entity in order to prove that a qualifying relationship exists. My client's business immigration attorney received a lengthy Request for Evidence, and I was asked to draft a letter addressing the ownership and control issue, as well as governance and contributions. After all, I created the business structure, so it seemed natural that I was tasked with explaining the parent-subsidiary relationship from a limited liability company law viewpoint. By way of background, my client's structure is as follows: Venezuelan owned foreign entity which [...]
Dissent: LLCs are a legal fiction, nexus of contracts
The emergency suspension without a hearing of an alcoholic beverage license issued by the Department of Business and Professional Regulation (“DBPR”) for alleged violations of Florida’s COVID-19 orders sparked a quick petition to the First District Court of Appeal in Florida for review of DBPR’s non-final agency action, which was accompanied by a motion to stay the suspension of the license. The court denied the motion to stay in an unpublished order, having yet to decide the merits of the petition, and noted that a dissent would be issued at a later date. I thought I would mark the dissent not [...]