Uniform Protected Series Act (UPSA)
Caution State Law Variances!
SECTION 703. REGISTRATION OF FOREIGN PROTECTED SERIES.
JayNote: If a foreign protected series seeks to register to conduct business in a UPSA state, then § 703 will govern that registration.
(a) Except as otherwise provided in this section and subject to Sections 402 and 404, the law of this state governing the registration of a foreign limited liability company to do business in this state, including the consequences of not complying with that law, applies to a foreign protected series of a foreign series limited liability company as if the foreign protected series were a foreign limited liability company formed separately from the foreign series limited liability company and distinct from the foreign series limited liability company and any other foreign protected series of the foreign series limited liability company.
JayNote: Paragraph (a) of Section 703 is another extrapolation provision, which basically says that a foreign protected series should be treated like a foreign LLC for purposes of registering to do in-state business, including the consequences of not registering if it should register. As happened with § 701(4), there are again exceptions to this extrapolated rule, those exceptions being § 402 (alter ego and veil piercing) and § 404 (non-associated assets).
(b) An application by a foreign protected series of a foreign series limited liability company for registration to do business in this state must include:
(1) the name and jurisdiction of formation of the foreign series limited liability company; and
(2) if the company has other foreign protected series, the name and street and mailing address of an individual who knows the name and street and mailing address of:
(A) each other foreign protected series of the foreign series limited liability company; and
(B) the foreign protected-series manager of and agent for service of process for each other foreign protected series of the foreign series limited liability company.
Reporter's Comment to Subsection (b)(2) – The information the individual is required to know parallels the information required to be disclosed under Section 704(a) (requiring disclosure in the early course of litigation).
JayNote: Under ¶ (b)(1) of § 703, the application for registration of a foreign protected series must include its name and identify the jurisdiction where it was formed. Common enough. But we find a unique requirement in ¶ (b)(2) of that section, which additionally requires the registration to include the name of some individual (i.e., not another company) who knows both the name, street address, mailing address, manager, and service of process agent for each and every other foreign protected series of that same series organization.
(c) The name of a foreign protected series applying for registration or registered to do business in this state must comply with Section 202 and may do so using [cite this state's fictitious name statute], if the [fictitious] name complies with Section 202.
JayNote: Section 703(c) says that the name the foreign protected series uses to register to do business in-state must also comply with § 202, but can use a fictitious business name (popular known as a "d/b/a") so long as that name complies with § 202.
(d) The requirement in [cite to the provision of this state's limited liability company act pertaining to updating registration information] to amend a statement of registration to update information applies to the information required by subsection (b).
Reporter's Comment to Subsection (d) – A state that has enacted Uniform Limited Liability Company Act (2006) (Last Amended 2013) would cite Section 904.
JayNote: Paragraph (d) of § 703 is another extrapolation provision which basically says that a state's ULLCA controls amendments to registrations by a foreign protected series.
Legislative Note: Under the Uniform Limited Liability Company Act (2006) (Last Amended 2013), Section 903, a foreign registration statement does not include a certificate of good standing from the filing office of the foreign limited liability company's jurisdiction of formation. Accordingly, this act does not refer to any analogous certificate pertaining to a foreign protected series. If an enacting state's limited liability company act does require a certificate of good standing at the limited liability company level, the state should consider an analogous requirement at the foreign protected series level. An enacting state that imposes an analogous requirement will have to decide how to deal with a would-be registrant established under the law of a jurisdiction in which a protected series is established without the filing of any public record pertaining to the protected series.
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?
More articles on Series LLCs by Jay Adkisson click here
THE CHARGING ORDER PRACTICE GUIDE BY JAY ADKISSON
The Charging Order Practice Guide: Understanding Judgment Creditor Rights Against LLC Members, by Jay D. Adkisson (2018), published by the LLCs, Partnerships and Unincorporated Entities Committee of the Business Law Section of the American Bar Association
Now available for purchase at https://goo.gl/faZzY6
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