Paul v. Delaware Coastal Anesthesia: Silence of LLC Operating Agreement Activates Statutory Default Provision allowing Voting by Written Consent

In Paul v. Delaware Coastal Anesthesia, LLC, No. 7084-VCG, 2012 WL 1934469 (Del. Ch. May 29, 2012), the Court of Chancery of the State of Delaware granted defendants’ motion to dismiss plaintiff’s breach of contract claim, finding that there was “no conceivable set of facts under which [the plaintiff] could recover.” The court found that the LLC’s operating agreement was silent about the voting method used by members to terminate another member. As a result, section 18-302 of the Delaware Limited Liability Company Act (the “Act”) applied, and the vote by written consent to terminate the plaintiff’s membership was valid.

According to the complaint, the plaintiff, Dr. Leena Paul, held a 25 percent membership in Delaware Coastal Anesthesia, LLC (the “LLC”) while the three defendants each held 25 percent. The defendants agreed by written consent to terminate Plaintiff’s membership in the LLC, without holding a membership meeting or providing notice of the meeting to all the members. Plaintiff contended that the LLC’s operating agreement limited voting of shares to member meetings only, and therefore, the defendants’ vote was invalid. Plaintiff argued that two provisions of the operating agreement established the procedure that members must follow to schedule and provide notice of meetings. In contrast, the defendants asserted that the LLC’s operating agreement contained provisions allowing members to vote on company business through written consent.

The court began its analysis by establishing that the sole question in the case was whether the termination vote was effective under state contract law and the Act. The court acknowledged that the pleading standard for a motion to dismiss was minimal and, following Delaware case law, the court would consider all documents “‘integral to [the p]laintiff’s claim and incorporated into the complaint.’”

To assess the parties’ competing claims, the court evaluated the proper relationship between the Act and an LLC’s operating agreement. The relevant portion of section 18-302 stated that

unless otherwise provided in a limited liability company agreement, on any matter that is to be voted on, consented to or approved by members, the members may take such action without a meeting, without prior notice and without a vote.

The court noted that while Delaware law provided LLCs broad discretion in formulating their policies, the Act was intended to function as a default provision anywhere the agreement is silent or ambiguous. The court also recognized that should a conflict arise between the two, the LLC’s agreement generally prevailed.

Plaintiff’s termination occurred under a section of the operating agreement that allowed termination of an LLC member by a 75 percent vote of company shareholders for any reason. The provision merely required 90 days written notice to that member. Because this provision was silent about the voting method members could use, the statutory default was activated to fill this “gap” in the agreement. Applying section 18-302, the court held that voting by written consent was permissible, and thus, the vote to terminate Dr. Paul’s membership was valid.

The court concluded that the LLC’s operating agreement did not “otherwise provide” for a specific voting method and there was “no conceivable set of facts under which Dr. Paul could recover.” Therefore, the court granted the defendants’ motion to dismiss, upholding Dr. Paul’s termination.

The primary materials for this case may be found on the DU Corporate Governance website.

Jessica Borchers