DRAFTING STANDARD-OF-CARE PROVISIONS IN <BR>OPERATING AGREEMENTS FOR MULTI-MEMBER LLCs
Lawyers of the contractarian school believe that the negotiation and drafting of fiduciary provisions in LLC operating agreements, including provisions covering the two classic duties of care and loyalty, are a waste of time and money—in fact, a bit quaint.
I disagree. I think that well-drafted operating agreement fiduciary provisions can do a lot to encourage sound LLC management and to prevent and remedy mismanagement.
The key issue in drafting duty-of-care provisions is to choose the right standard of care. If you’re representing managers and, as is often the case, these managers want to minimize the risk that members will sue them for negligence, you can eliminate the duty of care altogether under § 18-1101(c) of the Delaware Limited Liability Company Act and under similar provisions of a few other LLC acts. Or if that won’t fly, you can provide that the sole duty of care of the managers will be to avoid gross negligence. Under the relevant case law of Delaware and other states, this generally means that only intentional negligence can trigger manager liability.
However, if you’re representing the members and want good management, you’ll probably want the operating agreement to contain some variant of the “ordinary prudence” standard.
Classically, this means providing that in managing the LLC, “managers shall perform their duties with that degree of care that an ordinarily prudent person in a like position would use under similar circumstances.” This, for example, is the formulation of the ordinary prudence standard in Section 409 of the New York Limited Liability Company Law (under which, as I read it, the standard is mandatory and can’t be reduced or eliminated).
I’m no opponent of the New York formulation. However, I think its focus on prudence as such doesn’t quite take into account the fact that in most LLCs, managers, unlike corporate directors, have not only a prudential role but also a very hands-on one.
Thus, the duty and standard of care in Section 17 of Form 6.2 in my Wolters Kluwer general LLC practice manual and formbook are as follows:
Section 17 MANAGERS’ DUTY OF CARE
17.1 Manager’s Fiduciary Duty of Care; Standard of Care
The managers shall owe a duty of care to the LLC and to the other members. The standard of care shall be competence (as defined in Section 17.2).
17.2 Competence— Definition
The managers shall be deemed to perform their duties under this Agreement competently if they perform them with the knowledge, judgment, skill, diligence, initiative and timeliness that an ordinarily competent person in a like position would use under similar circumstances.
Form 6.2 is the template form in the above book. If you want to view it in its entirety, click here. The above “competence” standard is based on the standard of lawyer competence in the American Bar Association’s Rules of Professional Conduct.
However, there is yet another option in defining the duty of care of LLC managers in an LLC operating agreement that may, in some cases, be the best of all. This is to spell out in the agreement not only the applicable standard of care but also the specific types of management skill and experience managers must possess—e.g., skill and experience in marketing specified types of products and services; in sales; in financial projections; in specified foreign languages or specified software applications.
Finally, if you really want to put the managers’ feet to the fire, you can make them expressly represent in the operating agreement that they possess these skills and this experience.