Uniform Protected Series Act (UPSA)
Caution State Law Variances!
SECTION 203. REGISTERED AGENT.
(a) The registered agent in this state for a series limited liability company is the registered agent in this state for each protected series of the company.
Reporter's Comment to Subsection (a) – When a protected series lacks an agent for service of process: (i) perforce under this subsection the company also lacks an agent; (ii) under most limited liability company acts that lack, if uncorrected, will lead to administrative dissolution; and (iii) under section 501(1), that dissolution causes the protected series to dissolve. For how to serve a protected series in that situation, see Section 204(b).
JayNote: The discussion of who should be the registered agent for a protected series took up a substantial amount of the Drafting Committee's discussion. There were suggestions that each protected series should have its own registered agent, but this idea was rejected as too cumbersome, confusing, and fraught with the possibility of fraud in the sense that a creditor might not be able to determine which registered agent should be served with papers.
The position finally settled upon is that of § 203(a) which basically says that the series organization (through its own registered agent) will act as the recipient for service for all of its protected series. This method was thought to have the additional benefit of alerting the series organization as to what was going on with a particular protected series organization that might be in some otherwise undisclosed (read: hidden from the series organization by the protected series) legal difficulty.
The practical difficulties of each protected series having its own registered agent also made that seem like a really bad idea, since such would have required the series organization to maintain a current list of all the registered agents for all the protected series in order to be able to answer potential third-party inquiries or otherwise respond when a plaintiff's lawyer can't figure out which protected series should be liable, and thus (inevitably) carpet-bombs the series organization and all the protected series process in the attempt to get the right one(s).
(b) Before delivering a protected series designation to the [Secretary of State] for filing, a limited liability company shall agree with a registered agent that the agent will serve as the registered agent in this state for both the company and the protected series.
Reporter's Comment to Subsection (b) – This provision refers to a limited liability company rather than a series limited liability company so as to encompass a limited liability company that is preparing to establish its first protected series.
JayNote: Subsection (b) may turn out to be a practical non-sequitur, since the series organization itself would have had to designate a registered agent prior to is formation, and -- unless changed -- would likewise be the registered agent for all the protected series that follow.
(c) A person that signs a protected series designation delivered to the [Secretary of State] for filing affirms as a fact that the limited liability company on whose behalf the designation is delivered has complied with subsection (b).
Reporter's Comment to Subsection (c) – This provision is derived from Uniform Limited Liability Company Act (2006) (Last Amended 2013), Section 203(c): "A person that signs a record as an agent or legal representative affirms as a fact that the person is authorized to sign the record."
(d) A person that ceases to be the registered agent for a series limited liability company ceases to be the registered agent for each protected series of the company.
(e) A person that ceases to be the registered agent for a protected series of a series limited liability company, other than as a result of the termination of the protected series, ceases to be the registered agent of the company and any other protected series of the company.
Reporter's Comment to Subsections (d) and (e) – These provisions follow inevitably from subsection (a) but are included for the avoidance of doubt.
(f) Except as otherwise agreed by a series limited liability company and its registered agent, the agent is not obligated to distinguish between a process, notice, demand, or other record concerning the company and a process, notice, demand, or other record concerning a protected series of the company.
Reporter's Comment to Subsection (f) – The series limited liability company rather than the registered agent must do the sorting unless the company and the agent agree otherwise.
JayNote: Subsection (f) places the burden on the series organization for getting the process to the correct protected series. Note that this creates potential liability for the series organization, since, for example, a protected series that is the object of process that is served on the series organization, but for whatever reason does not timely receive it from the series organization, may be able to assert a cause of action against the series organization for any injury suffered thereby. Whether such liability could be fully exculpated by a waiver or release of liability in the Operating Agreement, by the protected series to the series organization, seems doubtful.
UPSA AND WEBSITE CONTENTS
ARTICLE 1. GENERAL PROVISIONS
SECTION 101. SHORT TITLE. SECTION 102. DEFINITIONS. SECTION 103. NATURE OF PROTECTED SERIES. SECTION 104. POWERS AND DURATION OF PROTECTED SERIES. SECTION 105. GOVERNING LAW. SECTION 106. RELATION OF OPERATING AGREEMENT, THIS ACT, AND LIMITED LIABILITY COMPANY ACT. SECTION 107. ADDITIONAL LIMITATIONS ON OPERATING AGREEMENT. SECTION 108. RULES FOR APPLYING LIMITED LIABILITY COMPANY ACT TO SPECIFIED PROVISIONS OF ACT.
ARTICLE 2. ESTABLISHING PROTECTED SERIES
SECTION 201. PROTECTED SERIES DESIGNATION; AMENDMENT. SECTION 202. NAME. SECTION 203. REGISTERED AGENT. SECTION 204. SERVICE OF PROCESS, NOTICE, DEMAND, OR OTHER RECORD. SECTION 205. CERTIFICATE OF GOOD STANDING FOR PROTECTED SERIES. SECTION 206. INFORMATION REQUIRED IN ANNUAL BIENNIAL REPORT; EFFECT OF FAILURE TO PROVIDE.
ARTICLE 3. ASSOCIATED ASSET; ASSOCIATED MEMBER; PROTECTED-SERIES TRANSFERABLE INTEREST; MANAGEMENT; RIGHT OF INFORMATION
SECTION 301. ASSOCIATED ASSET. SECTION 302. ASSOCIATED MEMBER. SECTION 303. PROTECTED-SERIES TRANSFERABLE INTEREST. SECTION 304. MANAGEMENT. SECTION 305. RIGHT OF PERSON NOT ASSOCIATED MEMBER OF PROTECTED SERIES TO INFORMATION CONCERNING PROTECTED SERIES.
ARTICLE 4. LIMITATION ON LIABILITY AND ENFORCEMENT OF CLAIMS
SECTION 401. LIMITATIONS ON LIABILITY. SECTION 402. CLAIM SEEKING TO DISREGARD LIMITATION OF LIABILITY. SECTION 403. REMEDIES OF JUDGMENT CREDITOR OF ASSOCIATED MEMBER OR PROTECTED-SERIES TRANSFEREE. SECTION 404. ENFORCEMENT AGAINST NON-ASSOCIATED ASSET.
ARTICLE 5. DISSOLUTION AND WINDING UP OF PROTECTED SERIES
SECTION 501. EVENTS CAUSING DISSOLUTION OF PROTECTED SERIES. SECTION 502. WINDING UP DISSOLVED PROTECTED SERIES. SECTION 503. EFFECT OF REINSTATEMENT OF SERIES LIMITED LIABILITY COMPANY OR REVOCATION OF VOLUNTARY DISSOLUTION.
ARTICLE 6. ENTITY TRANSACTIONS RESTRICTED
SECTION 601. DEFINITIONS. SECTION 602. PROTECTED SERIES MAY NOT BE PARTY TO ENTITY TRANSACTION. SECTION 603. RESTRICTION ON ENTITY TRANSACTION INVOLVING PROTECTED SERIES. SECTION 604. MERGER AUTHORIZED; PARTIES RESTRICTED. SECTION 605. PLAN OF MERGER. SECTION 606. STATEMENT OF MERGER. SECTION 607. EFFECT OF MERGER. SECTION 608. APPLICATION OF SECTION 404 AFTER MERGER.
ARTICLE 7. FOREIGN PROTECTED SERIES
SECTION 701. GOVERNING LAW. SECTION 702. NO ATTRIBUTION OF ACTIVITIES CONSTITUTING DOING BUSINESS OR FOR ESTABLISHING JURISDICTION. SECTION 703. REGISTRATION OF FOREIGN PROTECTED SERIES. SECTION 704. DISCLOSURE REQUIRED WHEN FOREIGN SERIES LIMITED LIABILITY COMPANY OR FOREIGN PROTECTED SERIES PARTY TO PROCEEDING.
ARTICLE 8. MISCELLANEOUS PROVISIONS
SECTION 801. UNIFORMITY OF APPLICATION AND CONSTRUCTION. SECTION 802. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. SECTION 803. TRANSITIONAL PROVISIONS. SECTION 804. SAVINGS CLAUSE. SECTION 805. SEVERABILITY CLAUSE. SECTION 806. REPEALS; CONFORMING AMENDMENTS. SECTION 807. EFFECTIVE DATE.
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Protected Series Agreements and Forms -- A list of the "best practices" agreements and records that all protected series structures should have.
SERIES LLC COURT OPINIONS
UPSA COURT OPINIONS
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NON-UPSA COURT OPINIONS
191212 ... Ohio ... Delaware Act .. MSP Recovery Claims, Series LLC v. Phoenix Ins. Co., 2019 WL 6770981 (N.D. Ohio, 2019).
181019 ... Florida ... Delaware Act ... MRS Recovery Claims, Series LLC v. USAA General Indemnity Co., 2018 WL 5112998 (S.D.Fla., Oct. 19, 2018).
SERIES LLC ARTICLES BY JAY ADKISSON
2020.02.16 ... Talisman Casualty Denied Diversity Jurisdiction Of Protected Cell Series LLC In National WW II Museum Case
2019.01.28 ... Understanding The Protected Series Act: Article 8 And Final Thoughts
2018.11.24 ... Understanding The Protected Series Act: Treating Out-Of-State Series
2018.11.18 ... Understanding The Protected Series Act: Mergers
2018.10.29 ... Understanding The Protected Series Act: Dissolution And Winding Up Of Protected Series
2018.10.21 ... Understanding The Protected Series Act: Liability Limitations And Claims
2018.08.30 ... Understanding The Protected Series Act: Assets, Members And Management
2018.08.28 ... Understanding The Protected Series Act: Creating A Protected Series And Service Of Process
2018.07.18 ... Understanding The Protected Series Act: The Framework of UPSA - Part 2 of a Series
2018.06.18 ... Understanding The Protected Series Act: What Is A Protected Series?
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THE CHARGING ORDER PRACTICE GUIDE BY JAY ADKISSON
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