Arizona s Fiduciary Duty Requirements For Limited Liability Company Members

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1 Vol. 3 Arizona s Fiduciary Duty Requirements For Limited Liability Company Members Do members in closely held or limited liability companies owe each other fiduciary duties under Arizona law? One of the most difficult aspects in any business relationship is determining what duties and obligations each member of a company owes to the other members. This is especially true in the context of closely held companies, such as limited liability companies. Limited liability companies are often the preferred business entity for individuals seeking to conduct business ventures together. Limited liability companies afford individuals significant freedoms to conduct their business, but are allowed the benefit of corporate advantages. While most business partners often enter the business relationship with the best of intentions, those intentions and courtesies sometimes do not last through the business relationship. The result is often a dispute where one partner accuses another partner or member of breaching various duties, such as fiduciary duties. In limited liability companies, the issue of whether members owe a fiduciary duty to other members is often an issue of contention in business disputes. Under Arizona law, the fiduciary duty standard provides that a fiduciary owes a duty of the utmost good faith, loyalty, and full disclosure. The fiduciary duty may derive from the relevant operating agreement or statute. To Continued on page 2 THIS MONTH S ARTICLES Fiduciary Duty Membership in a limited liability company does not relieve members of their fiduciary duties to other members. Automobile Accident Now What? Protect yourself from potential legal troubles by following some helpful advice. Spousal Maintenance in Arizona Do divorcing spouses pay alimony? Page 1-2 Page 3 Page 4

2 FIDUCIARY DUTY REQUIREMENTS From page 1 Announcements With 2011 quickly coming to a close, Wallin Harrison would like to wish its clients, colleagues and friends a Merry Christmas and look forward to a prosperous 2012! Congratulations to Troy A. Wallin, a partner with Wallin Harrison, PLC, who was appointed to the board of directors for Primavera Online High School, a non-profit organization in November, Troy A. Wallin, a partner with Wallin Harrison, PLC, acted as Arizona counsel on the recent acquisition of the Aventerra at Dobson Ranch lakefront apartment community in Mesa, Arizona for $29.1 million. analyze the breach of duties in a limited liability company, Arizona courts often rely on authorities discussing duties owed in the context of a corporation, because a corporation is an entity analogous to a limited liability company. The fiduciary duties owed by a manager to other members in a corporation are similar to those duties owed by directors of a corporation to its shareholders. In general, members of limited liability companies must deal fairly and in good faith with each other concerning the business and disclose to each other all material facts relating to the company's affairs, or they may be subject to liability for breach of fiduciary duty. While treating members fairly and honestly is certainly one aspect of the manner in which members of a limited liability company should act if the limited liability is to succeed, the fiduciary duty extends beyond a simple act of fairness. Members of limited liability companies are required to exercise the utmost good faith in dealing with each other. Hiding information, retaining In general, members of limited liability companies must deal fairly and in good faith with each other. opportunities to yourself that otherwise fall within the parameters of the limited liability company, or even mismanagement of corporate assets, all fall within potential breaches of the fiduciary duty owed by members of a limited liability company. Courts, however, recognize the ability of members in limited liability companies to more specifically describe the fiduciary duties members owe to each other through a properly drafted operating agreement. Courts routinely recognize that managers or members duties to other members may be expanded or restricted by provisions in a limited liability companies operating agreement. It should be noted, however, that the contractual freedoms members enjoy in preparing operating and governing documents of limited liability companies is an advantage of conducting business through a limited liability company, limited liability companies cannot be used as About the Author Chad A. Hester practices primarily in the area of commercial transactions litigation. He represents small and medium-sized businesses. For more details, contact Chad at 2

3 Automobile Accident Now What??? Remember these helpful steps to protect yourself when you are involved in a car accident. If you live in Arizona the chances are very high that you will be in an automobile accident within the next few years. Three of the top four cities in the nation for the number of accidents per capita are located in Arizona (Mesa, Phoenix and Tucson). The following is a list of the things you should do next time you are involved in an automobile accident: 1. Call the police. Even if the automobile accident is your fault, you need to document the extent of the injuries claimed by the other driver and exactly how the accident occurred. You may believe that you are entirely at fault for the accident, but an investigation by the police department or a better understanding of the rules of the road may support partial or complete fault on the part of the other driver. The only exception to calling the police is if there is extremely very little damage to both vehicles. 2. Do not admit fault. As mentioned above, there may be circumstances under which you believe you are entirely at fault for an accident, but the rules of the road would indicate otherwise. The facts of the case may support comparative fault on the part of the other driver. 3. Do not give a recorded statement. Do not give a recorded statement to the other driver s insurance company without the benefit of legal counsel. Some of the questions may be unfair and ambiguous, and the harm done may be difficult to undo. However, you are required to give a recorded statement to your own insurance company. 4. Do get evaluated by a healthcare professional. If you have anything more than mild pain, seek medical treatment. Frequently individuals injured in an automobile accident believe that the pain will resolve on its own, within a relatively short period of time. However, if the pain does continue, the longer you wait in getting the pain documented and in obtaining a diagnosis and treatment the more difficult it may be to substantiate that you were indeed injured. If you wait several weeks before seeing a healthcare provider the insurance company will invariably believe that your pain was not significant or that the pain actually is related to a different incident or accident which occurred after the original accident. 5. Keep your damages reasonable. Under Arizona law a claimant has an obligation to mitigate his/her damages. This means that the other driver s insurance company is not required to pay for damages, which are excessive or unreasonable. An example of this is taking time off of work; take off the time that is reasonable given the injury suffered. Any time off usually must be confirmed by a healthcare professional. 6. Call your insurance company. If the accident is clearly your fault, or there is reason to believe that you are partly responsible for the circumstances leading up to the accident, within twenty-four (24) hours call your own insurance company. Similarly, if you are served with a copy of a complaint filed in any court, immediately send the complaint and any other documents with which you have been served to your own insurance company. 7. Call an attorney. Any time you are involved in an automobile accident you should speak with an attorney. Our office is always happy to speak with anyone involved in an automobile accident at no cost, so you can better assess your rights and liabilities resulting from your involvement in an auto accident. One more bit of advice: It is disconcerting to realize that twentythree percent (23%) of the drivers in Arizona do not have liability insurance, so be certain that you carry uninsured motorist coverage for your own protection. Steven E. Harrison is a law firm partner at the law firm of Wallin Harrison and practices primarily in the areas of insurance defense, personal injury, medical malpractice and commercial/business litigation. Contact Steven at

4 Vol. 3 Spousal Maintenance in Arizona Do divorcing spouses pay alimony? pay spousal maintenance and still meet his or her own reasonable needs. In divorces in Arizona, community property laws often make the division of marital assets and debts possible without a contentious trial. Likewise, the child support calculator employed by every county in Arizona makes the calculation of child support rather straight-forward. Contrarily, divorcing spouses often have a very difficult time agreeing to the payment of spousal maintenance from one spouse to the other. Where spouses cannot agree, a trial and judge s ruling is necessary. A.R.S sets forth the factors for courts to consider. In determining whether any award is appropriate, judges are to ask the following questions: 1. Can the spouse can meet his or her reasonable needs through appropriate employment? 2. Is the spouse is disabled or otherwise unable to work? 3. Does the spouse have young children, and therefore be allowed to stay home or work part time? 4. Did the spouse contribute to the educational or career opportunities of the other spouse? 5. Did the spouses have a long marriage? 6. Is the requesting spouse of an age which may preclude the possibility of obtaining adequate employment? If spousal maintenance is determined to be appropriate, the amount and duration of Spousal Maintenance payments depends on the following factors: 1. The standard of living during marriage. 2. How long the parties were married. 3. The age, employment history, earning ability, physical and emotional condition of the spouses. 4. Whether the other spouse can 5. Whether one of the spouses makes more money or has more property than the other spouse. 6. Whether one of the spouse contributed toward the other spouse s career opportunities. 7. Whether one of the spouse sacrificed his or her own income or career opportunities for the benefit of the other spouse. 8. The time necessary to acquire sufficient education or training to obtain appropriate employment, and whether this is possible. 9. Whether one of the spouses wasted or hid community assets or property. Each of these factors can be the subject of much discovery and debate. Where one spouse has a significantly higher income than the other spouse and the marriage lasted many years, very significant spousal maintenance awards are common. A very thorough examination of the application of each of the above factors to divorcing spouses circumstances is necessary for a court to enter an appropriate spousal maintenance award. About the Author Richard D. Lyons manages a diverse litigation practice. He s noted for his abilities in the areas of medical malpractice, personal injury, and family law. For more information, contact Richard at 4

5 ATTORNEY DIRECTORY Wallin Harrison is a business and litigation law firm that strives to provide the highest quality legal services for both large and small businesses and individual clients. Our attorneys are committed to satisfying the legal needs of all in the most cost-effective manner possible. Arizona Office: 1425 South Higley Road Suite 104 Gilbert, Arizona T: (480) F: (480) Nevada Office: Park Run Drive Suite 150 Las Vegas, Nevada T: (702) F: (702) Troy A. Wallin Steven E. Harrison Richard D. Lyons N. Patrick Hall Jason P. Thayn Kam H. Brian Chad A. Hester Attorney Position Address Practice Areas Troy A. Wallin Partner Administrative Law Banking Law Business Formation Steven E. Harrison Partner Automotive Accidents Commercial Transaction Litigation Insurance Defense Richard D. Lyons Associate Automotive Accidents Family Law Chad A. Hester Associate Administrative Law Appellate Law N. Patrick Hall Associate Appellate Law Automotive Accidents Healthcare Professionals Advocacy Jason P. Thayn Associate Kam H. Brian Of Counsel Healthcare Professionals Advocacy Labor and Employment Mergers and Acquisitions Real Estate Securities Products Liability Real Estate Litigation Labor and Employment Insurance Defense Labor and Employment Law Products Liability Real Estate Litigation Estate Planning and Probate Real Estate 6

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