With passage and signing of 2021 Wis. Act 2581 (the Act or Act 258),Wisconsin has made substantial updates to the state’s business entity statutes.2 Act 258 repealed and recreated Wis. Stat. chapter 179 (Uniform Limited Partnership Act) to reflect the most current version of the Uniform Limited Partnership Act3 promulgated by the Uniform Law Commission (ULC). Act 258 also repealed and recreated Wis. Stat. chapter 183 (limited liability companies) to reflect the ULC’s Uniform Limited Liability Company Act.4 Enactment of Act 258 effectively completed a process of updating Wisconsin’s business entity statutes that began with adoption of Wisconsin’s first limited liability company (LLC) law in 1993 and included adding cross-species-transaction provisions in 2001 and repealing and recreating Wis. Stat. chapter 178 (Uniform Partnership Law) in 2015 to reflect the most current version of the Uniform Partnership Act5 promulgated by the ULC. As described in Joseph Boucher’s “Reflections” column in this issue regarding the history of Wisconsin’s business entity legislation, Act 258 has been a long time coming.
Also appearing in this issue is Adam Tutaj’s article, “Wisconsin’s New LLC Act,” detailing some of the changes to Wis. Stat. chapter 183 relating to LLCs brought about by the Act. In this article, we highlight changes to the other Wisconsin business entity statutes, in particular Wis. Stat. chapter 179.
Wisconsin Uniform Limited Partnership Law
As noted above, Act 258 repealed and recreated Wis. Stat. chapter 179, relating to limited partnerships. To a great extent, the Act’s provisions simply adopt the Revised Uniform Limited Partnership Act (RULPA), which was drafted, approved, and recommended for enactment in all the states by the National Conference of Commissioners on Uniform State Laws (now known as the Uniform Law Commission),6 as adjusted to reflect Wisconsin statutory nomenclature and style. However, as noted in its report, the Partnership Committee recommended deviation from the uniform law in a few circumstances, “to avoid unnecessary disruption to Wisconsin law and practice or to accommodate specific statutory or policy concerns.”7 The Partnership Committee Report details these limited changes and also explains several other situations for which no changes were made, to promote uniformity among the various states adopting the uniform law.
Thomas J. Nichols, Marquette 1979, is president of Meissner Tierney Fisher & Nichols S.C., Milwaukee, practicing in the business and tax areas. He has been active in developing business and tax legislation and policy at the state and federal levels, including substantial involvement with 2021 Wis. Act 258, 1987 Wis. Act 92 (Wisconsin S corporations), 1995 Wis. Act 400 (limited liability companies), 2001 Wis. Act 44 (cross-species business entity transactions), 2015 Wis. Act 295 (Wisconsin Uniform Partnership Law), and 2017 Wis. Act 368 (Wisconsin pass-through entity-level tax election).
Randal J. Brotherhood, Washington Univ. – St. Louis 1981, is a shareholder and member of the executive committee at Meissner Tierney Fisher & Nichols S.C. He primarily practices in corporate and business organization and governance, trade associations and nonprofit tax-exempt organizations and foundations, intellectual property matters, securities regulation, and acquisition transactions. He is a member of the State Bar of Wisconsin and the American and Milwaukee Bar Associations. His State Bar activities include Board of Governors (beginning July 2022); Section Leaders Council chair (beginning July 2022); and Business Law Section past chair, current board advisor, and Corporations Committee chair. He had substantial involvement with the 2021 Wis. Act 258 provisions pertaining to business corporations and nonstock corporations.
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The changes brought about by Act 258 will apply to all Wisconsin limited partnerships formed on or after Jan. 1, 2023, and, subject to certain transition rules discussed below, will also automatically apply to existing limited partnerships as of that date.8 Under these transition rules, prior-law provisions will continue to apply with respect to obligations incurred by existing limited partnerships before the Act becomes applicable to them. Similarly, provisions of a partnership agreement for a partnership that are valid and in effect immediately before the new Act provisions become applicable to the partnership will continue to be valid and applicable to the extent allowed under prior law.9
Act 258 also allows existing limited partnerships to elect earlier application of the Act’s provisions by filing a statement of applicability10 with the Department of Financial Institutions (DFI) before the transition date.11 In addition, to provide flexibility and avoid unnecessarily disrupting existing Wisconsin businesses, the Act also allows an existing limited partnership to continue to be governed by pre-Act law (other than certain DFI procedural provisions) by filing a statement of nonapplicability12 before the Jan. 1, 2023 transition date.13
The remainder of this portion of the article highlights a few of Act 258’s more significant changes to the laws relating to Wisconsin limited partnerships.
Limited Liability Limited Partnerships
In accordance with RULPA, Act 258 specifically confirms that limited partnerships may elect to provide limited liability protection for their general partners,14 the same as general partnerships are allowed to do under specific provisions in Wis. Stat. chapter 178.15 We considered such protection to be available under the prior law,16 but that issue should now be of only academic interest for future debts.
Standards of Conduct
Act 258 imposes separate and independent standards of conduct for general partners in a limited partnership.17 This is not as dramatic of a change as it sounds, because the Wisconsin Uniform Limited Partnership Act has historically incorporated the Wisconsin Uniform Partnership Law’s standards of conduct to determine the rights, powers, and liabilities of general partners in a limited partnership,18 and the Wisconsin Uniform Partnership Law was updated to reflect the ULC’s standards of conduct in 2015.19
These newly enacted standards of conduct for general partners in limited partnerships explicitly mirror those for general partners in general partnerships and members and managers of LLCs under the uniform laws. They include a fiduciary duty of loyalty and a duty of care, as well as “the contractual obligation of good faith and fair dealing” (emphasis added).20
The fiduciary duty of loyalty includes all of the following duties:
(a) The duty to account to the limited partnership and hold as trustee for it any property, profit, or benefit derived by the general partner in or from any of the following:
The conduct or winding up of the partnership’s activities and affairs.
A use by the general partner of the partnership’s property.
The appropriation of a partnership opportunity.
(b) The duty to refrain from dealing with the partnership in the conduct or winding up of the partnership’s activities and affairs as or on behalf of a person having an interest adverse to the partnership.
(c) The duty to refrain from competing with the partnership in the conduct or winding up of the partnership’s activities and affairs.21
The ULC commentary indicates that this list “does not purport to be exhaustive.” For example, there may be a duty to disclose in certain circumstances.22
The ULC duty-of-care standard incorporated by Act 258 does not create a particularly high hurdle for general partners to surmount. It merely requires that general partners “refrain from engaging in grossly negligent or reckless conduct” or in conduct that fails to satisfy the bad-actor standards discussed below.23
The ULC used the language “contractual duty of good faith and fair dealing” (emphasis added) to make clear that this obligation is the same obligation that inheres in all contractual relationships, not a special obligation unique to limited partnerships.24 This restriction seems unlikely to create problems in most circumstances.
The duty-of-loyalty standard is more likely to raise issues in the context of limited partnerships, where general partners often engage in business ventures involving completely different groups of limited partners and regularly provide goods and services back and forth between the general partners and their respective limited partnerships. As noted above, the fiduciary duty of loyalty includes the “duty to refrain from dealing with the partnership … as or on behalf of a person having an interest adverse to the partnership” and the “duty to refrain from competing with the partnership.”
A partnership agreement can mitigate the situation somewhat, but not without limits. In particular, and as long as not “manifestly unreasonable” and subject to the bad-actor limitations discussed below, the partnership agreement can alter, but presumably not eliminate, the duty of care; alter or “eliminate aspects of” the duty of loyalty; and prescribe standards for, but not eliminate, the contractual obligation of good faith and fair dealing.25 Significantly, the determination whether any such mitigation provision is “manifestly unreasonable” is to be made by the court, and such terms are to be invalidated “only if, in light of the purposes and activities and affairs of the limited partnership, it is readily apparent that the objective of the term is unreasonable or that the term is an unreasonable means to achieve the term’s objective.”26 Thus, lawyers drafting such clauses at least know that enforceability will not be subject to the vagaries of a jury determination, and even judges will not have free rein to impose their own independent standards.
In addition, “[a]ll the partners of a limited partnership, or one or more disinterested partners with authority to act in the matter, may authorize or ratify, after full disclosure of all material facts, a specific act or transaction by a general partner that otherwise would violate the duty of loyalty.”27 Moreover, the partnership agreement may “[s]pecify the method by which a specific act or transaction that would otherwise violate the duty of loyalty may be authorized or ratified by one or more disinterested and independent persons after full disclosure of all material facts.”28 However, the requirement of full disclosure of all material facts in these instances might preclude the general partner from procuring the needed consent in advance.
These newly enacted standards of conduct for general
partners in limited partnerships explicitly mirror those for
general partners in general partnerships and members and
managers of LLCs under the uniform laws.
As explained in the Partnership Committee (RUPA) Report for the prior legislation relating to general partnerships29 and the LLC Committee Report,30 one of the significant deviations from the uniform law language has been to substitute the long-standing Wisconsin statutory language that defines the minimum standards of behavior with which all business entity officials, whether corporate, partnership, or LLC, must comply.
In particular, no partnership agreement is allowed to “[r]elieve or exonerate a partner from liability for conduct that constitutes any of the following:
A willful failure to deal fairly with the limited partnership or its partners in connection with a matter in which the partner has a material conflict of interest.
A violation of the criminal law, unless the partner had reasonable cause to believe that the partner’s conduct was lawful or no reasonable cause to believe that the partner’s conduct was unlawful.
A transaction from which the partner derived an improper personal profit.
Elimination of Problematic Limited Partner Liability Language
The original Uniform Limited Partnership Act contained problematic language suggesting that a limited partner could lose limited liability protection if “he or she participates in the control of the business.”32 Since that original statutory formulation, modifications were made to specify numerous situations in which such loss of liability would not occur, but the underlying problem still remained. In short, limited partners could not freely participate in management in the same manner as, for example, officers in a corporation, without risking the loss of their liability protection as limited partners.
The ULC correctly concluded that this concept “had become an anachronism.”33 Accordingly, the new uniform law language incorporated into Act 258 makes clear that “[a] limited partner is not personally liable, directly or indirectly, by way of contribution or otherwise, for a debt, obligation, or other liability of the partnership solely by reason of being or acting as a limited partner, even if the limited partner participates in the management and control of the limited partnership”(emphasis added).34
Corporate Law Changes
As stated above, the primary thrust of Act 258 is to update Wis. Stat. chapters 178, 179, and 183 to reflect the most recent uniform laws pertaining to partnerships, limited partnerships, and LLCs. The Actalso amends Wis. Stat. chapters 180 and 181 to, among other things, harmonize provisions relating to DFI procedures for the types of entities allowed to merge and otherwise engage in “cross-species” transactions under Wisconsin law (general partnerships, limited partnerships, business corporations, nonstock corporations, and LLCs, sometimes referred to in this article as the five types of entities).
Many of the provisions in Act 258 pertaining to Wis. Stat. chapters 180 and 181, including those relating to DFI procedures and cross-species transactions, build upon the current Wis. Stat. chapter 178 provisions relating to general partnerships that were enacted in 2015 Wis. Act 295. Accordingly, it should be noted that, unlike the more substantive updates or restatements of chapters 178, 179, and 183, most of the Act’s revisions to chapters 180 and 181 are intended to conform those chapters with analogous provisions in the other three more substantively revised chapters.
Merger, Interest Exchange, Conversion, and Domestication
The first general area for which harmonizing modifications have been made to Wis. Stat. chapters 180 and 181 is, as stated above, procedural, the primary focus being to harmonize and modernize provisions relating to DFI procedures for the five types of entities allowed to merge and otherwise engage in cross-species transactions.
The changes in Act 258 pertaining to procedures and requirements for cross-species transactions (that is, mergers, interest exchanges, and conversions, as well as domestications, which are now expressly authorized by Act 258) are discussed in greater detail in the Partnership Committee (RUPA) Report, the LLC Committee Report, and the Partnership Committee (RULPA) Report. Additionally, a summary of such provisions common to the five business-entity chapters is in the Cross Species-DFI Provisions Crosswalk summary attached to the last two of those reports.35 These common provisions pertain to, for instance, requirements and procedures (including provisions pertaining to implementing documents, requirements for abandonment, required filings, effective date provisions, agent for service of process for dissenters’ claims, and the like) for mergers,36 interest exchanges,37 conversions,38 and domestications.39
Some additional procedural changes made by Act 258 pertaining to business corporations and nonstock corporations warrant specific mention.
For instance, Act 258 contains new Wis. Stat. sections 181.11055(2)(b), 181.1135(4)(b), and 181.1165(2)(b), which are intended to make clear, in connection with cross-species transactions involving a Wisconsin nonstock corporation, that surviving entities must timely honor provisions that protect nonconsenting members.40 These provisions also add a requirement that articles of merger, interest exchange, conversion, and domestication specify whether Wis. Stat. section 181.1180 (pertaining to nonconsenting interest holders, as more fully described below) applies to the transaction for which such articles are being filed.
Act 258 also creates new Wis. Stat. section 181.1180, which requires a nonstock corporation that engages in a merger, interest exchange, conversion, or domestication transaction to offer to purchase a member’s interest in the corporation if the transaction would have specified material adverse effects on the member and that member does not consent to the transaction. New Wis. Stat. section 181.1180 contains provisions that:
Specify the timing of a written demand,41 the treatment of indebtedness owing to or by the corporation,42 required indemnification,43 and the procedure for when no agreement is reached regarding the price and terms for the purchase;44
Deal with court proceedings, including court discretion regarding the award of attorney fees and other expenses under certain circumstances;45 and
Clarify that a member cannot give a consent for this purpose merely by agreeing to a provision in the corporation’s bylaws.46
New Wis. Stat. section 181.1180 confirms that both the above-described offer to purchase a member’s interest and its acceptance can be conditioned upon consummation of the transaction.47 In addition, section 181.1180 confirms that the remedy with respect to the failure to comply with its provisions is limited to enforcement of the rights provided under the statute, rather than any right to rescind or otherwise undo the transaction.48 In this respect, these rights are similar to dissenters’ rights of shareholders in a business corporation under Wis. Stat. chapter 180.49
Act 258 also adds provisions expressly authorizing domestication transactions, which are found at new Wis. Stat. sections 180.1171 (pertaining to business corporations) and 181.1171 (pertaining to nonstock corporations). These provisions are based on and similar to the domestication provisions of the Delaware General Corporation Law50 and they expand existing Wisconsin business entity law. These provisions define “domestication” transactions differently than in many of the ULC model acts, which generally use the term to refer only to a change of domicile to or from a particular state within the United States. Such a transaction generally is treated as a “conversion” under Wisconsin’s current merger and conversion provisions. Instead, the Act defines a domestication as a transaction whereby an entity can be simultaneously governed by Wisconsin law and by the law applicable in a non-U.S. jurisdiction.51 This definition is based on the analogous definition set forth in the Delaware General Corporation Law.52
Other DFI Procedures
Act 258 establishes other uniform DFI procedures with respect to the five types of entities, in addition to those pertaining to cross-species transactions. These include provisions pertaining to, for instance, permitted names, reservation and registration of names, registered agents and registered office (including changes in registered agent), filing and service fees, annual reports, filing requirements and effective dates for documents, administrative dissolution, and foreign entity registration. References to these pertinent procedural provisions across the five business-entity chapters are in the Crosswalk-DFI Provisions included in the LLC Committee Report and the Partnership Committee (RULLPA) Report.
Internal Corporate Claims
Act 258 adds new Wis. Stat. section 180.0145, which provides that a Wisconsin corporation’s articles of incorporation or bylaws can require that any “internal corporate claims,” such as derivative lawsuits, actions asserting breaches of fiduciary duty, and actions arising pursuant to any provision of the state’s corporation law, must be brought solely and exclusively in Wisconsin courts. This proposed addition is based on its counterpart under Delaware law.53 Act 258 creates a parallel provision applicable to Wisconsin nonstock corporations at Wis. Stat. section 181.0163.
Effective Date of Shareholder, Member, and Director Consents
Act 258 adds new Wis. Stat. sections 180.0704(7) and 180.0821(4), which provide that consent of a shareholder or director of a corporation may, in connection with action taken by shareholders or directors, as the case may be, specify that the consent will be effective at a future time or upon the happening of a future event. A person executing a consent can instead provide for future effectiveness through instructions to an agent, but evidence of that instruction must be provided to the corporation so that it will know when the consent is effective. Shareholder consents are revocable unless otherwise provided. Director consents must be revocable.
Act 258 creates parallel provisions applicable to Wisconsin nonstock corporations at Wis. Stat. sections 181.0704(5) and 181.0821(4).
Chapters 180 and 181 and the Act’s Opt-Out Provisions
Although Act 258 allows existing Wisconsin partnerships, limited partnerships, and LLCs to elect to continue to be governed by the predecessor statutes in effect before the effective date of the Act’s updates to Wis. Stat. chapters 178, 179, and 183, no such election is available regarding the Act’s changes to Wis. Stat. chapters 180 and 181 because of their substantially more limited nature.
Act 258 represents a comprehensive update of chapters 179 and 183 based on their respective Uniform Law Commission model law counterparts, together with harmonizing revisions to the other business entity chapters. Wisconsin now joins dozens of other states, including its border states of Minnesota, Iowa, and Illinois, that have similarly updated their business entity statutes. Act 258 is the culmination of years of work by the State Bar of Wisconsin Business Law Section, the Wisconsin’s Department of Financial Institutions, and key members of the Wisconsin Legislature, all having worked together not only to bring about the enactment of Act 258, but also to ensure that this new legislation does not unnecessarily disrupt current Wisconsin law or practice.
All of this legislation has further enhanced the good business climate we have here in Wisconsin, and specifically Act 258 will facilitate a more conducive environment for limited partnerships, limited liability companies, and other business entities to form and operate in Wisconsin. Harmonizing common provisions among the five major business entity chapters in Wisconsin, as well as adopting uniform laws along with other states, is good for the Wisconsin economy and businesses, promotes stability, and stimulates the free flow of commerce and business between states.
1 The official text of Act 258 is at https://docs.legis.wisconsin.gov/2021/related/acts/258.
2 Senate Bill 566 and Assembly Bill 566 both weighed in at 468 pages. The official text of Senate Bill 566 (with Legislative Reference Bureau Commentary) is at https://docs.legis.wisconsin.gov/2021/related/proposals/sb566.
3 Uniform Limited Partnership Act (2001) (last amended 2013). The Partnership Committee of the State Bar of Wisconsin’s Business Law Section issued a report, dated Sept. 17, 2021, regarding the changes to Wis. Stat. chapter 179 (hereinafter, Partnership Committee (RULPA) Report). For the official text of the Partnership Committee (RULPA) Report, seehttps://tinyurl.com/yckncm3c.
4 Uniform Limited Liability Company Act (2006) (last amended 2013). The Limited Liability Company Committee of the Business Law Section issued a report, dated Sept. 17, 2021, regarding the Act’s changes to Wis. Stat. chapter 183 (hereinafter LLC Committee Report). The Business Law Section’s Corporation Committee issued a report, dated Sept. 17, 2021, regarding the Act’s changes to Wis. Stat. chapters 180 and 181 (hereinafter Corporation Committee Report). For the official text of the LLC Committee Report, see tinyurl.com/yckncm3c. For the official text of the Corporation Committee Report, see https://tinyurl.com/zxemakeb.
5 Uniform Partnership Act (1997) (Last Amended 2013) (RUPA). The Partnership Committee also issued a report, dated Jan. 8, 2016, regarding these changes (hereinafter Partnership Committee (RUPA) Report).
6 For the official text of RULPA, see https://tinyurl.com/yckt7sbf.
7 Partnership Committee (RULPA) Report at p. 3. An appendix to both the Partnership Committee (RULPA) Report issued in connection with the Act and the LLC Committee Report covering the LLC changes made by the Act includes a table, Cross-Species/DFI Provisions Crosswalk, juxtaposing the corresponding provisions of the five business entity chapters (Wis. Stat. chapters 178, 179, 180, 181, and 183).
8 Wis. Stat. § 179.0112(1), (2). Unless otherwise indicated, all citations to Wisconsin’s business entity statutes in this article refer to the new provisions, as amended by the Act. Pre-Act business entity provisions are cited as Wis. Stat. §XXX.XX (2019-20).
9 Wis. Stat. § 179.0112(2)(c), (d).
10 Form 399/599, Statement of Applicability (Apr. 2022), www.wdfi.org/_resources/indexed/site/corporations/dfi-corp-399-599.pdf.
11 Wis. Stat. § 179.0112(2)(a).
12 Form 398/598, Statement of Nonapplicability (Apr. 2022), www.wdfi.org/_resources/indexed/site/corporations/dfi-corp-398-598.pdf.
13 Wis. Stat. § 179.0112(2)(b).
14 Wis. Stat. § 179.0404(3)(a).
15 Wis. Stat. § 178.0306(3).
16 Wis. Stat. §§ 179.10(2), 179.33(2)(a) (2019-20).
17 Wis. Stat. § 179.0409.
18 Wis. Stat. § 179.33(1), (2)(b) (2019-20).
19 Wis. Stat. § 178.0409 (2019-20).
20 Wis. Stat. § 179.0409(1)-(4).
21 Wis. Stat. § 179.0409(2).
22 RULPA comment at p. 128.
23 Wis. Stat. § 179.0409(3).
24 RULPA comment at p. 130.
25 Wis. Stat. § 179.0105(4)(b)3, 1., (3)(g).
26 Wis. Stat. § 179.0105(5).
27 Wis. Stat. § 179.0409(6).
28 Wis. Stat. § 179.0105(4)(a)1.
29 Partnership Committee (RUPA) Report at pp. 6-7.
30 LLC Committee Report at p. 5.
31 Wis. Stat. § 179.0105(3)(h).
32 Wis. Stat. § 179.23(1) (2019-20).
33 RULPA comment at p. 91.
34 Wis. Stat. § 179.0303(1).
35 See appendix (Cross-Species-DFI Provisions Crosswalk) to the Partnership Committee (RULPA) Report and the LLC Committee Report, as more fully described at note 7.
36 See, e.g., Wis. Stat. §§ 178.1121-.1125, 179.1121-.1125, 180.1101-.1106, 181.1101-.11055, 183.1021-.1025.
37 See, e.g., Wis. Stat. §§ 178.1131-.1135, 179.1131-.1135, 180.1102-.1106, 181.1131-.1135, 183.1031-.1035.
38 See, e.g., Wis. Stat. §§ 178.1141-.1145, 179.1141-.1145, 180.1161-.1165, 183.1041-.1045.
39 See, e.g., Wis. Stat. §§ 178.1151-.1154; 179.1151.-.1154; 180.1171-.1174, 181.1171-.1174, 183.1052-.1054.
40 See discussion regarding new Wis. Stat. section 181.1180, below.
41 Wis. Stat. § 181.1180(2).
42 Wis. Stat. § 181.1180(1)(a).
43 Wis. Stat. § 181.1180(3)(c).
44 Wis. Stat. § 181.1180(3)(d).
45 Wis. Stat. § 181.1180(4).
46 Wis. Stat. § 181.1180(5).
47 Wis. Stat. § 181.1180(2).
49 See Wis. Stat. §§ 180.1301-.1331.
50 See Del. Code tit. 8, §§ 388-390.
51 Wis. Stat. § 181.1171.
52 Del. Code tit. 8, § 388(b).
53 See Del. Code tit. 8, § 115.
» Cite this article: 95 Wis. Law. 26-32 (June 2022).