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June 23, 2009

Series LLCs & Assumed Names

Delaware, § 18-215(a), Illinois, 805 ILCS 180/37‑40(a), and Texas, Tex. Bus. Org Code § 601.101 (added by Section 45 of SB 12442), all allow the operating agreement (however named) to 'establish" one or more series.  Only Illinois conditions asset and liability partitioning on the filing of a certificate of designation, § 37-40(b), that specifies the name of the series, § 37-40(d).  Also, only llinois expressly provides that

  • a series with asset and liability partitioning may be a separate entity:  "A series with limited liability shall be treated as a separate entity to the extent set forth in the articles of organization."   § 37-40(a).

  • the existence of a series begins when a certificate of designation is filed, § 37-40(d),

But what about assumed name filing requirements?  Presumably, that ought not to be an issue in Illinois--the name is already of record, and would not be an assumed name of the LLC itself.  Or at least, that's the way I'd set it up. 

In Delaware and Texas, not only is establishing an LLC entirely private, but also a series is not formally a separate entity.  The use of a series name would then seem to require a filing under the assumed name statute.  For example, under Tex. Bus. & Commerce Code Section 71.002(2)(H), an LLC's name in its "certificate of formation or comparable document" is not an assumed name. Interestingly, although Section 62 of SB 1442 amended TBCC section 71.002, it did not amend subdivision (2)(H). 

A question for practitioners who are UB readers : how are handling the assumed name issue?

posted by Gary Rosin

June 23, 2009 in Commentary | Permalink

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Comments

Another example of concepts trying to be "half pregnant."

Posted by: Daniel Kleinberger | Jun 26, 2009 5:16:03 AM

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