AB566: Bill Text

LRB-2890/3

ARG:amn

2021 - 2022 LEGISLATURE

2021 Assembly BILL 566

September 17, 2021 - Introduced by Representatives Tusler, Brooks, Cabral-Guevara, Dittrich, Goyke, Hebl, Knodl, Macco, Rozar and Skowronski, cosponsored by Senators Wimberger and L. Taylor. Referred to Committee on Financial Institutions.

AB566,7,13 An Act to repeal 178.0105 (3) (b), 178.1123 (3) (b), 178.1133 (3) (b), 178.1143 (3) (b), 178.1153 (3) (b), 178.1161 (2) (a), 180.0122 (1) (z), 180.0125 (4) (b), 180.0401 (2) (a) 5., 6., 7. and 8., 180.0502 (1) (c), 180.0502 (2), 180.1101 (3) (a), 180.1103 (title), 180.1103 (6), 180.1105 (1) (h), 180.1161 (5) (a), (b) and (c), 180.1506 (2) (a) 5., 6., 7. and 8., 180.1508 (1) (a) and (b), 180.1508 (1) (f), 181.0120, 181.0121 (1) (a) 4., 181.0122, 181.0124, 181.0125, 181.0126, 181.0128 (1) (title), 181.0128 (2) (title), 181.0128 (3) (title), 181.0128 (4), 181.0128 (5) (title), 181.0128 (6) (title), 181.0141 (5), 181.0401 (2) (a) 6., 7. and 8., 181.0402 (1) (title), 181.0402 (2) (title), 181.0501 (1) (title), 181.0501 (2) (title), 181.0501 (3) (title), 181.0502 (2), 181.0502 (3) (title), 181.0503 (1) (title), 181.0503 (1) (d) and (e), 181.0503 (2), 181.0503 (3) (title), 181.0504 (1) (title), 181.0504 (2) (title), 181.0504 (3) (title), 181.1101 (1) (title), 181.1101 (2), 181.1101 (3), 181.1104, 181.1105, 181.1106, 181.1107, 181.1161 (1) (b), 181.1161 (2) (b), 181.1161 (3) (e), (f) and (g), 181.1161 (4), (5) and (6), 181.1420 (5), 181.1506 (2) (a) 6., 7. and 8., 181.1507 (1) (title), 181.1507 (2) (title), 181.1507 (3) (title), 181.1509 (1) (title), 181.1509 (1) (d) and (e), 181.1509 (2), 181.1509 (3) (title), 181.1510 (1) (title), 181.1510 (2) (title), 181.1510 (3) (title), 181.1510 (4) (title), 181.1533, 181.1622 (1), 181.1622 (2) (title), 181.1622 (3) (title), 181.1622 (4) (title), 181.1622 (5) and 612.22 (2) (a), (b), (c) and (d); to renumber 178.0104, 178.0806 (7), 180.0122 (1) (a) to (ym), 180.1100 (1), 180.1103 (4) (intro.) and (a), 180.1103 (5) (title) and (a), 181.0128 (3), 181.0128 (6), 181.1100 (1), 181.1103 (5), 181.1103 (6), 181.1161 (3) (c), 181.1622 (title) and 613.13 (3); to renumber and amend 180.0122 (1) (intro.), 180.0122 (1) (yr), 180.0124 (1), 180.0125 (2) (b), 180.0501, 180.0502 (3), 180.1101 (2), 180.1102 (2), 180.1102 (3), 180.1102 (4), 180.1103 (1), 180.1103 (2), 180.1103 (3), 180.1103 (4) (b), 180.1103 (5) (b), 180.1105 (1) (i), 180.1106 (1) (am) 1., 180.1106 (1) (e), 180.1161 (5) (intro.), 180.1507, 180.1508 (2), 180.1531 (2) (c) 2., 181.0123, 181.0128 (title), 181.0128 (1), 181.0128 (2), 181.0128 (5), 181.0501 (intro.), 181.0501 (1), 181.0501 (2), 181.0501 (3), 181.0502 (3), 181.1103 (1), 181.1103 (2), 181.1103 (3), 181.1103 (4), 181.1161 (1) (a), 181.1161 (2) (a), 181.1161 (3) (intro.), (a) and (b), 181.1161 (3) (d), 181.1507 (intro.), 181.1507 (1), 181.1507 (2), 181.1507 (3), 181.1622 (2), 181.1622 (3), 181.1622 (4) and 612.22 (2) (intro.); to consolidate, renumber and amend 178.1161 (2) (intro.) and (b), 180.0125 (4) (intro.) and (a) and 180.1101 (3) (intro.) and (b); to amend 11.0101 (9), 13.69 (1), 44.03 (3), 71.80 (21), 71.80 (21m), 71.80 (22), 71.80 (22m), 73.03 (58), 77.25 (6m), 77.25 (6q), 77.25 (6t), 77.61 (15), 97.605 (4) (a) 1., 97.67 (2) (c) (intro.), 108.025 (1) (b), 139.34 (9), 157.62 (1) (b) and (2) (b) 1., 2. and 7., 165.68 (5) (f) 1., 178.0102 (11), 178.0102 (14), 178.0105 (3) (a), 178.0105 (3) (d), 178.0105 (3) (f), 178.0105 (3) (h) (intro.), 178.0105 (3) (n), 178.0105 (4) (c) (intro.), 178.0110 (2) (b), 178.0120 (1), 178.0121 (title), 178.0121 (2) (a), 178.0121 (2) (b) 1., 178.0121 (2) (b) 2., 178.0121 (2) (b) 3., 178.0121 (2) (b) 4., 178.0121 (2) (c), 178.0301 (1), 178.0303 (1) (b) 2., 178.0303 (1) (b) 3., 178.0303 (2) (b), 178.0303 (2) (c), 178.0303 (2m) (a) 2., 178.0303 (2m) (a) 3., 178.0401 (3), 178.0401 (5), 178.0402 (2) (a), 178.0405 (3), 178.0409 (3), 178.0601 (4) (c) 2., 178.0701 (5), 178.0701 (7) (d), 178.0701 (9), 178.0804 (1) (intro.), 178.0806 (3) (a), 178.0807 (2) (c), 178.0807 (3) (b) 1. and 2., 178.0807 (4), 178.0808 (title), 178.0808 (1), 178.0808 (2) (a), 178.0809 (1), 178.0901 (3) (c), 178.0902 (1), 178.0902 (2), 178.0902 (5), 178.09032 (5), 178.0905 (2), 178.0908 (2), 178.0911 (1) (intro.), 178.0911 (1) (b), 178.0911 (1) (c), 178.0912 (1), 178.0913 (1) (b), 178.1003 (5), 178.1004 (intro.), 178.1004 (1), 178.1004 (4), 178.1006 (1), 178.1006 (2), 178.1009 (1) (c), 178.1009 (1) (f), 178.10101 (1) (d), 178.10102 (1), 178.10102 (2) (b), 178.1011 (1) (c), 178.1101 (16) (b), 178.1101 (16) (h), 178.1101 (18) (b), 178.1101 (18) (i), 178.1102 (2), 178.1123 (2), 178.1124 (1) (d) 2., 178.1124 (1) (f), 178.1125 (1) (f), 178.1125 (2) (a), 178.1125 (2) (b), 178.1133 (1), 178.1133 (2), 178.1134 (1) (d), 178.1134 (1) (f), 178.1135 (1) (a), 178.1135 (5) (a), 178.1135 (5) (b), 178.1141 (1), 178.1142 (1) (f), 178.1143 (1), 178.1143 (2), 178.1144 (1) (a), 178.1144 (1) (d), 178.1144 (1) (f), 178.1145 (1) (f), 178.1145 (2), 178.1153 (2), 178.1154 (1) (d), 178.1154 (1) (f), 178.1155 (1) (e), 178.1155 (1) (f), 178.1161 (1) (intro.), 180.0103 (5), 180.0103 (8), 180.0103 (9), 180.0103 (11m), 180.0120 (1) (intro.), 180.0120 (1) (g), 180.0120 (3) (a) (intro.), 180.0121 (1) (a) 4., 180.0122 (4), 180.0122 (5), 180.0123 (title), 180.0123 (1) (a) (intro.), 180.0125 (1), 180.0125 (4) (c), 180.0128 (2) (b) 5., 180.0141 (5) (a) (intro.), 180.0202 (1) (h), 180.0401 (2) (a) 2., 180.0401 (2) (a) 9., 180.0401 (3) (a), 180.0401 (4) (intro.), (a) and (b), 180.0402, 180.0403 (title), 180.0403 (1) (a), 180.0403 (1) (c), 180.0502 (1) (intro.), 180.0503 (1) (intro.), (a), (b), (c) and (d), 180.0504 (2) (intro.), (a) and (c), 180.0504 (3), 180.0624, subchapter XI (title) of chapter 180 [precedes 180.1100], 180.1100 (2) and (3), 180.1101 (title), 180.1101 (1), 180.1102 (title), 180.1102 (1), 180.1104 (1), 180.1104 (2) (intro.) and (b), 180.1104 (3), 180.1104 (4), 180.11045 (1) (a), 180.1105 (title), 180.1105 (1) (intro.), 180.1105 (1) (am), 180.1105 (1) (bm), 180.1105 (1) (cm), 180.1105 (1) (dm), 180.1105 (1) (e), 180.1105 (1) (f), 180.1105 (1) (g), 180.1105 (2), 180.1106 (title), 180.1106 (1) (intro.), 180.1106 (1) (a), 180.1106 (1) (am) 2., 180.1106 (1) (b), 180.1106 (1) (c), 180.1106 (1) (d), 180.1106 (1) (f), 180.1106 (2), 180.1106 (3), 180.1130 (2) (a), 180.1130 (3) (a) (intro.), 180.1130 (3) (a) 2., 180.1140 (4) (a) (intro.), 180.1140 (4) (a) 2., 180.1140 (4) (e) 3., 180.1150 (3) (e), 180.1150 (4) (f), 180.1161 (1), 180.1161 (2), 180.1161 (3) (intro.), (a), (b), (d) and (e), 180.1161 (4) (intro.) and (a) 1., 180.1161 (4) (b), (c) and (d), 180.1161 (6), 180.1301 (2), 180.1302 (1) (a) 1., 180.1302 (1) (a) 3. c., 180.1302 (1) (a) 3. d., 180.1302 (1) (b), 180.1330 (2), 180.1407 (1) (intro.) and (b), 180.1421 (1), 180.1421 (2), 180.1421 (2m) (a), 180.1422 (3), 180.1423 (2), 180.1503 (1) (e), 180.1506 (2) (a) 2., 180.1506 (2) (a) 9., 180.1506 (2) (b), 180.1506 (3) (a), 180.1506 (4) (intro.), (a) and (b), 180.1508 (1) (intro.), 180.1508 (1) (d), 180.1509 (1) (intro.), (a), (b), (c) and (d), 180.1510 (4) (a) (intro.), 180.1520 (2) (c), 180.1530 (1) (a), (d), (e) and (f), 180.1531 (1), 180.1531 (2) (a), 180.1531 (2) (b), 180.1531 (2) (c) 1. (intro.), 180.1531 (2m) (a), 180.1532 (1), 180.1622 (1) (intro.), (b), (c) and (d), 180.1622 (2), 180.1706 (1), 180.1706 (2) (intro.), 180.1707 (1), 180.1708 (5), 180.1805 (5), 180.1813 (title), 180.1813 (1), 181.0103 (5), 181.0103 (12), 181.0103 (13), 181.0103 (19), 181.0121 (1) (a) 3., 181.0121 (1) (b), 181.0141 (4), subchapter II (title) of chapter 181 [precedes 181.0201], 181.0202 (1) (d), 181.0203 (1), 181.0401 (1) (a) 1., 181.0401 (2) (a) 3., 181.0401 (2) (a) 9., 181.0401 (3) (a), 181.0401 (4) (intro.), (a) and (b), 181.0402 (title), 181.0402 (1), 181.0402 (2), 181.0403 (title), 181.0403 (1) (a), 181.0403 (1) (c), 181.0501 (title), 181.0502 (title), 181.0503 (1) (intro.), (a) and (b), 181.0503 (1) (c), 181.0503 (3) (intro.), 181.0504 (title), 181.0504 (1), 181.0504 (2) (intro.), (a) and (c), 181.0504 (3), 181.0670 (2) (d), 181.0705 (2), 181.0705 (3) (b), 181.0809 (2) (c), subchapter XI (title) of chapter 181 [precedes 181.1100], 181.1100 (2), 181.1100 (3), 181.1101 (1), 181.1161 (title), 181.1421 (1), 181.1421 (4), 181.1422 (3), 181.1423 (2), 181.1503 (1) (e), 181.1506 (2) (a) 3., 181.1506 (2) (a) 9., 181.1506 (3) (a), 181.1506 (4) (intro.), (a) and (b), 181.1509 (1) (intro.), (a) and (b), 181.1509 (1) (c), 181.1509 (3) (intro.), 181.1510 (title), 181.1510 (1), 181.1510 (4) (a) (intro.), 1. and 3., 181.1510 (4) (b), 181.1520 (2) (c), 181.1601 (5) (g), 182.01 (3) (intro.), 185.045, 190.01 (2), 196.205 (1) (c), 196.485 (1) (dv), 196.485 (1) (fe), 196.485 (3m) (c) (intro.), 204.104 (2), 221.0701, 234.03 (28), 340.01 (6u), 440.92 (6) (b) 1., 611.72 (1) and (2), 611.73 (1) (a), 613.13 (2) (intro.), 613.13 (3) (title), 613.13 (4), 766.51 (10), 766.70 (4) (c), 799.06 (2), 800.035 (1) and 857.015; to repeal and recreate 178.0120 (2) (a), 178.0120 (2) (b), chapter 179, 180.0141 (title), (1), (2) and (3), 180.0141 (5) (a) 4., 180.0401 (2) (a) 1., 180.0403 (1) (b), 180.0502 (1) (a), 180.0502 (1) (b), 180.0504 (1), 180.0504 (4), 180.1161 (3) (f) and (g), 180.1161 (4) (a) 2., 180.1506 (2) (a) 1., 181.0401 (2) (a) 1., 181.0403 (1) (b), 181.0502 (1), 181.0504 (4), 181.1101 (title), 181.1103 (title), 181.1506 (2) (a) 1., 181.1508, 181.1510 (5) and chapter 183; and to create 44.03 (3m), 178.0103 (6) (d), 178.0104 (2m) and (3m), 178.0105 (3) (np), 178.0401 (11m), 178.09032 (6), 178.1124 (1) (g), 178.1125 (3), 178.1132 (1) (f), 178.1135 (6), 178.1144 (1) (g), 178.1145 (3), 178.1154 (1) (g), 178.1161 (3), (4) and (5), 180.0103 (3m), 180.0103 (7d), 180.0103 (8r), 180.0103 (9m) and (9r), 180.0103 (11g) and (11i), 180.0103 (12g), 180.0103 (12r), 180.0103 (13m), 180.0103 (16m), 180.0103 (17g), 180.0105, 180.0112, 180.0120 (3) (am), 180.0120 (5) and (6), 180.0122 (1g), 180.0124 (1) (c), 180.0124 (2) (d), 180.0125 (2) (b) 1. to 19., 180.0125 (4) (am), 180.0141 (6) and (7), 180.0143, 180.0144, 180.0145, 180.0401 (1) (a) 3., 180.0401 (3m), 180.0501 (2m) and (3m), 180.0502 (1m) and (1r), 180.0502 (3) (a), (b) and (c), 180.0502 (5), 180.0503 (4) and (5), 180.0504 (3m), 180.0704 (7), 180.0821 (4), 180.1100 (1c) and (1e), 180.1100 (1j), (1m), (1o), (1q), (1s), (1u) and (1w), 180.1100 (4) to (14), 180.11001, 180.11002, 180.11003, 180.11004, 180.1101 (2m), 180.11012 (title), 180.11012 (1) (d), (e) and (f), 180.1102 (1m), 180.1102 (2m), 180.11021 (title), 180.11021 (1) (d) and (e), 180.11031, 180.11032 (title), 180.1105 (1) (em) and (er), 180.1105 (1g), 180.1106 (1) (am) 1g., 180.1106 (1) (e) 2., 180.1106 (1) (g), 180.1106 (1m), 180.1161 (3m), 180.1161 (4) (f), (g) and (h), 180.1161 (5) (am) 1., 2., 3., 4., 5. and 6., (bm) and (cm), 180.1161 (7), 180.1161 (8), 180.1171, 180.1172, 180.1173, 180.1174, 180.1175, 180.1421 (5), 180.1422 (4), 180.1506 (3m), 180.1507 (2m) and (3m), 180.1508 (1) (e), 180.1508 (1g), 180.1508 (1m) and (1r), 180.1508 (2) (a), (b) and (c), 180.1508 (4), 180.1509 (4) and (5), 180.1531 (2) (c) 1m., 180.1531 (2) (c) 2. (intro.) and b., 180.1622 (6), 181.0103 (10g), 181.0103 (12g), 181.0103 (13g) and (13m), 181.0103 (14g) and (14m), 181.0103 (18m), 181.0103 (20m) and (20r), 181.0103 (21m), 181.0103 (23m), 181.0103 (24m), 181.0105, 181.0107, 181.0162, 181.0163, 181.0208, 181.0210, 181.0211, 181.0212, 181.0214 (1), 181.0214 (5), 181.0401 (1) (a) 3., 181.0401 (3m), 181.0403 (1) (e), 181.0501 (3m) and (4m), 181.0502 (1m) and (1r), 181.0502 (3) (a), (b) and (c), 181.0502 (5), 181.0503 (1) (bm), 181.0503 (4), (5) and (6), 181.0504 (3m), 181.0505, 181.0506, 181.0507, 181.0704 (5), 181.0821 (4), 181.1100 (1c), (1e), (1j), (1m), (1o), (1q), (1s), (1u) and (1w), 181.1100 (4) to (14), 181.11001, 181.11002, 181.11003, 181.11004, 181.1101 (2m), 181.1102, 181.1103 (1m) (title), 181.1103 (1m) (a), 181.1103 (2m), (3m) and (4m), 181.11045, 181.11055, 181.1131, 181.1132, 181.1133, 181.1134, 181.1135, 181.1162 (title), 181.1162 (1) (e) and (f), 181.1162 (2), 181.1163, 181.1164, 181.1165, 181.1171, 181.1172, 181.1173, 181.1174, 181.1175, 181.1180, 181.1421 (7), 181.1422 (4), 181.1506 (3m), 181.1507 (3m) and (4m), 181.1509 (1) (bm), 181.1509 (4), (5) and (6), 181.1510 (4m), 613.13 (3) (a) and 613.51 (3m) of the statutes; relating to: adopting revisions to the state's uniform limited partnership law and the state's limited liability company law; making modifications to the state's uniform partnership law; procedures applicable to business corporations and nonstock corporations; certificates of authority of service insurance corporations; providing an exemption from emergency rule procedures; granting rule-making authority; and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill adopts, with modifications, the most recent versions of the Uniform Limited Partnership Act and Uniform Limited Liability Company Act. The bill also makes changes to the state's partnership law and to the law governing business corporations and nonstock corporations.

LIMITED PARTNERSHIPS

Background

In 1916, the National Conference of Commissioners on Uniform State Laws, now called the Uniform Law Commission (ULC), promulgated the Uniform Limited Partnership Act. In 1976, the ULC adopted a Revised Uniform Limited Partnership Act and, in 1985, adopted amendments to this act. The revised act was again revised in 2001. In 2013, the ULC amended the Revised Uniform Limited Partnership Act (2001).

This state has, by statute, recognized limited partnerships since the 1850s. This state first adopted the Uniform Limited Partnership Act in 1919. In 1983 Wisconsin Act 173, this state adopted, with modifications, the Revised Uniform Limited Partnership Act (1976). In 1989 Wisconsin Act 232, this state adopted, with modifications, the 1985 amendments to the Revised Uniform Limited Partnership Act (1976). Current law, therefore, reflects the Revised Uniform Limited Partnership Act (1976), as amended in 1985, subject to various modifications.

This bill repeals and recreates Wisconsin's limited partnership law to adopt the Revised Uniform Limited Partnership Act (2001), as last amended in 2013 (RULPA), subject to certain modifications. Many provisions of RULPA and current law are similar, including the following: A limited partnership is a legal entity separate from its partners, and the filing of a certificate of limited partnership is required to form a limited partnership. A limited partnership is distinguished from a general partnership by the presence of limited partners. A limited partnership must have at least one general partner and at least one limited partner. The limited partnership generally is managed by general partners, and limited partners primarily provide capital for the limited partnership. A partnership agreement usually provides rules of governance for the limited partnership, and, in many instances, statutory provisions are default rules that govern the limited partnership only in the absence of applicable terms in the partnership agreement. However, in some instances, the terms of the partnership agreement may not vary from statutory requirements. Unless stated otherwise in the partnership agreement, a limited partnership interest (a partner's right to receive distributions from the limited partnership) is transferable, but the recipient of the transfer (transferee) generally is entitled to receive only partnership distributions and does not gain the voting and other rights of a partner. Yet there are significant changes to current law made by RULPA, as adopted under this bill, which are discussed below.

Formation and partnership agreement

Current law defines “limited partnership" as a partnership formed under applicable state law by two or more persons and having one or more general partners and one or more limited partners. To form a limited partnership, a certificate of limited partnership, containing certain information, must be filed with the Department of Financial Institutions. The limited partnership is formed upon the filing of the certificate of limited partnership or, if a later date is specified in the certificate of limited partnership, on that later date.

Under this bill, a certificate of limited partnership containing specified information must still be filed with DFI to form a limited partnership. However, the limited partnership is not formed until the certificate of limited partnership is filed and becomes effective and the limited partnership, which must have at least two partners, has at least one general partner and at least one limited partner. The bill also eliminates as required information in the certificate of limited partnership a statement of duration of the limited partnership (when the limited partnership must dissolve). Instead, the bill specifies that a limited partnership has perpetual duration, although this may be modified by the partnership agreement.

The bill clarifies that a person may be both a general partner and a limited partner and that the rights, powers, duties, and obligations of such a person are determined by the capacity in which the person acts.

The bill includes provisions related to permissible names for a limited partnership. The bill eliminates a provision of current law that, with exceptions, prohibits a limited partner's name from appearing in the limited partnership's name. The bill also changes the standard for permissible limited partnership names. Under current law, a limited partnership's name may not be the same as or “deceptively similar" to the names of certain other businesses. Under the bill, a limited partnership's name must be “distinguishable" from the names of certain other businesses.

Current law defines “partnership agreement" as any valid agreement of the partners (limited partners and general partners) as to the affairs of a limited partnership and the conduct of its business. Certain provisions of current law relating to rights and duties of and restrictions on a partner in a limited partnership apply only if there is no contrary provision in the partnership agreement.

This bill provides more specific guidance, in comparison with current law, as to when the provisions of a partnership agreement override contrary statutory provisions and when they do not. Under the bill, “partnership agreement" means the agreement, whether oral, implied, written, or recorded in a tangible or electronic medium, of all the general and limited partners of a limited partnership concerning: 1) relations among the partners and between the partners and the limited partnership; 2) the activities and affairs of the limited partnership and the conduct of those activities and affairs; 3) the means and conditions for amending the partnership agreement; and 4) mergers and other reorganizations involving the limited partnership. As to these matters, statutory provisions govern only in the absence of an applicable provision in the partnership agreement. However, the bill also imposes restrictions on the terms of a partnership agreement. Among these restrictions, a partnership agreement may not vary from certain statutory provisions relating to the following: the power of a person to dissociate as a general partner, except with respect to a limited liability limited partnership (LLLP) (discussed further below); the grounds for expulsion of a general partner by judicial order because of certain conduct by the general partner; the causes of dissolution; requirements for winding up the limited partnership's activities and affairs; requirements for DFI filings or for a limited partnership's registered agent; lawsuits by and against partners and the limited partnership; records and information required to be kept by the limited partnership and a partner's right of access to the records and information; a partner's fiduciary and other duties (discussed further below); and the applicable law governing a limited partnership's internal affairs and the liability of its partners. The partnership agreement also governs the obligations of the limited partnership and its partners to a person dissociated as a partner (discussed further below) and to a transferee of a partner's interest, but an amendment to the partnership agreement after a person has dissociated as a partner cannot impose a new obligation on the person.

Partner liability and limited liability limited partnerships

Under current law, a general partner of a limited partnership has the same liabilities as a partner in a partnership without limited partners (general partnership). In general, all partners in a general partnership are jointly and severally liable for all debts, obligations, and other liabilities of the general partnership. In contrast, a limited partner is generally not liable for the obligations of the limited partnership. However, there are exceptions if the limited partner is also a general partner or if the limited partner participates in the control of the business and a person who transacts business with the limited partnership reasonably believes that the limited partner is a general partner.

Under this bill, general partners are, with exceptions, liable jointly and severally for all debts, obligations, and other liabilities of the limited partnership. The bill also eliminates the “control" exception under current law to a limited partner's exemption from liability. Under the bill, a limited partner is not personally liable for a debt, obligation, or other liability of the limited 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.

Under current law, a general partnership may form as or become a limited liability partnership (LLP), and a partner in an LLP is not personally liable for any debt, obligation, or liability of the LLP, except that under some circumstances the partner may be liable for the partner's own actions or the actions of a person under the partner's supervision and control.

This bill allows a limited partnership to form as or become an LLLP by including a statement to this effect in the certificate of limited partnership. If a limited partnership is an LLLP, a general partner is not personally liable for a debt, obligation, or other liability of the LLLP solely by reason of being or acting as a general partner. Instead, a debt, obligation, or other liability incurred by the LLLP is solely that of the LLLP.

Fiduciary and other duties of partners

Under current law, except as provided in the partnership agreement, a general partner of a limited partnership generally has the rights and powers, and is subject to the restrictions, of a partner in a general partnership. In general, a partner in a general partnership owes to the partnership and to the other partners duties of loyalty and care and must discharge the partner's duties and obligations consistently with the contractual obligation of good faith and fair dealing. Except as provided in the partnership agreement, a general partner or limited partner may lend money to and transact other business with the limited partnership.

This bill more directly specifies a general partner's duties to the limited partnership and to other partners and also specifies the extent to which these statutory duties may be overridden by the partnership agreement. The bill also specifies a limited partner's duties. Under the bill, unless the duty is permissibly modified in the partnership agreement (as discussed below), a general partner owes to the limited partnership, and to the other general and limited partners, duties of loyalty and care, as described below. A general partner must also discharge its duties and obligations, whether statutory or arising under the partnership agreement, and exercise its rights, consistently with the contractual obligation of good faith and fair dealing. However, a general partner does not violate a duty or obligation solely because the general partner's conduct furthers the general partner's own interest.

Under the bill, a general partner owes a fiduciary duty of loyalty that includes the duty 1) to account to the limited partnership and hold as trustee for it any property, profit, or benefit derived by the general partner in the conduct or winding up of the partnership's activities and affairs, from use of the partnership's property, or from the appropriation of a partnership opportunity; 2) to refrain from dealing with the partnership, in the conduct or winding up of the partnership's activities and affairs, adversely or on behalf of a person having an adverse interest; and 3) to refrain from competing with the partnership in the conduct of the partnership's activities and affairs. However, all the general and limited partners, or those disinterested partners with authority to act, may authorize or ratify, after disclosure of all material facts, a specific act or transaction by a general partner that otherwise would violate the duty of loyalty. Also, it is a defense to a claim of dealing adversely with the limited partnership (item 2 above) that the transaction was fair to the limited partnership.

Under the bill, a general partner also owes a duty of care, in the conduct or winding up of the limited partnership's activities and affairs, to refrain from 1) grossly negligent or reckless conduct; 2) willfully failing to deal fairly with the limited partnership or its partners when the partner has a material conflict of interest; 3) violating the criminal law; 4) engaging in a transaction in which the partner derives an improper personal profit; or 5) engaging in willful misconduct.

Under the bill, in contrast to general partners, limited partners have minimal duties to the limited partnership. A limited partner must exercise any rights under the statutes or the partnership agreement and discharge any duties under the partnership agreement consistently with the contractual obligation of good faith and fair dealing. A limited partner does not have any other duty to the limited partnership or to any other partner solely by reason of acting as a limited partner.

Under the bill, the partnership agreement of a limited partnership may not do any of the following: alter or eliminate, or restrict remedies for the breach of, the duty of loyalty or the duty of care owed by a general partner, except as described below; eliminate a general partner's or limited partner's contractual obligation of good faith and fair dealing, but may, if not manifestly unreasonable, prescribe standards by which performance of the obligation is measured or restrict remedies for breach of the obligation; or relieve a partner from liability for conduct that violates the duty of care (described above). However, the partnership agreement may specify the method by which an act or transaction that would otherwise violate the duty of loyalty may be authorized or ratified after the disclosure of all material facts. If not manifestly unreasonable, the partnership agreement may also alter or eliminate, or restrict remedies with respect to, certain aspects of the duty of loyalty; identify specific types or categories of activities that do not violate the duty of loyalty or the contractual obligation of good faith and fair dealing; otherwise alter the duty of care; or alter or eliminate any other fiduciary duty. A court determines, as a matter of law, whether a term of a partnership agreement is manifestly unreasonable.

Under the bill, if a general partner acts in compliance with the general partner's fiduciary and other duties, the limited partnership must reimburse the general partner for any payment made by the general partner in the course of the general partner's activities on behalf of the partnership and must indemnify the general partner with respect to third-party claims. The limited partnership may also advance reasonable litigation expenses to the general partner. A general partner is also entitled to reimbursement from the limited partnership for advances to the partnership beyond the amount of capital the general partner agreed to contribute, which advances are considered loans.

The bill also allows a limited partnership to file with DFI a statement of partnership authority. This statement may recognize or limit, for purposes of a third party dealing with the limited partnership, the authority of a person to act for or enter into transactions on behalf of the limited partnership. In this statement, the limited partnership may identify the authority, or limitations on the authority, of any person or position (which covers all persons holding that position). The statement of authority is effective for five years from its original date or its most recent amendment or renewal, and the statement affects only the power of a person to bind the limited partnership to persons that are not partners. All persons are deemed to know of a statement of authority recorded with the register of deeds that limits a person's authority to transfer real property on behalf of the limited partnership. The bill also allows any person named in a statement of authority to file with DFI a statement of denial of authority.

Operating requirements

Current law requires a limited partnership to maintain in this state a record office where specified limited partnership records are kept. This bill continues to require a limited partnership to maintain specified records and information and requires the limited partnership to maintain a registered office in this state. The bill also retains the current law requirement that the limited partnership maintain a registered agent for service of process in this state.

This bill requires limited partnerships to file with DFI annual reports containing specified information. This requirement also applies to registered foreign limited partnerships, which are limited partnerships governed by the law of another jurisdiction and authorized to do business in this state.

Under current law, a general partner or limited partner has the right to inspect and copy any of the partnership records required to be maintained by the limited partnership and also has certain rights to other information.

As under current law, this bill provides general partners and limited partners with certain rights to inspect and copy records maintained by the limited partnership, although the details of these rights in the bill differ from current law. The bill specifies records and information that the limited partnership must furnish to general partners and limited partners without demand, as well as information that the limited partnership must furnish to partners on demand. The duty to furnish information also applies to each general partner on whom a demand is made, not just to the limited partnership. The bill also specifies the rights to information of a person dissociated as a general partner or limited partner. The bill allows a limited partnership to impose reasonable restrictions and conditions on access to and use of information furnished by the partnership.

Dissociation of partners

Current law specifies the circumstances under which a general partner or limited partner may withdraw from a limited partnership. With a narrow exception, a limited partner may withdraw from a limited partnership only at the time or upon the occurrence of an event specified in the partnership agreement. In contrast, a general partner may withdraw from a limited partnership at any time by giving notice to the other partners, but if the withdrawal violates the partnership agreement, the limited partnership may recover damages from the withdrawing general partner for breaching the partnership agreement. Current law also specifies events that, absent consent of all partners, cause a person to cease to be a general partner of the limited partnership, including that the general partner: 1) is removed as a general partner in accordance with the partnership agreement; 2) assigns all his or her partnership interest to another; 3) files for bankruptcy; or 4) dies or is adjudicated incompetent.

This bill adopts the term “dissociation" in connection with the voluntary or involuntary withdrawal of a general partner or limited partner from a limited partnership and modifies the bases under which a partner's dissociation from the limited partnership occurs. Among other events causing dissociation, a general partner is dissociated when 1) the partner withdraws from the partnership or is expelled from the partnership; 2) an event occurs that, under the terms of the partnership agreement, results in the partner's dissociation; 3) the partner becomes a debtor in bankruptcy, dies, has a guardian or conservator appointed, or is adjudged to be incapable of performing his or her duties under the partnership agreement; or 4) the partnership dissolves and completes winding up. A general partner has the power to dissociate from a limited partnership at any time, rightfully or wrongfully, by expressly withdrawing, but the dissociation is wrongful if it breaches the partnership agreement or if it occurs before the winding up of the limited partnership and the general partner withdraws by express will, is expelled by judicial order, files for bankruptcy, or dissolves or terminates. A general partner that wrongfully dissociates is liable to the limited partnership and the other partners for damages caused by the dissociation.

Under this bill, in contrast to a general partner, a limited partner does not have a right to dissociate before the winding up of the limited partnership. The bill specifies that, among the events causing dissociation, a limited partner is dissociated when 1) the partner withdraws from the partnership or is expelled from the partnership; 2) an event occurs that, under the terms of the partnership agreement, results in the partner's dissociation; 3) the partner dies or, if an entity, its existence terminates; or 4) the partnership dissolves and completes winding up.

The bill provides more specific information, in comparison with current law, about the effects of a general partner's or limited partner's dissociation from a limited partnership. Among these effects, a dissociated general partner has no right to participate in the management and conduct of the partnership activities and affairs; a dissociated partner's interest takes on the status of a transferee's interest rather than a partner's interest; and certain obligations terminate as to future events but may continue to apply to past events.

Under current law, a partner that withdraws from a limited partnership is entitled to receive, within a reasonable time after withdrawal, the fair value of the partner's interest in the limited partnership as of the date of withdrawal, unless the partnership agreement provides otherwise.

Under this bill, unless the partnership agreement provides otherwise, a partner has no right to a distribution before the dissolution and winding up of the limited partnership, and any earlier distribution to a dissociated partner is discretionary with the limited partnership.

Dissolution and winding up

This bill modifies some of the grounds under which a limited partnership is dissolved and its activities and affairs must be wound up. Under current law, among the grounds for dissolution, a limited partnership may be voluntarily dissolved on the written consent of all general partners and limited partners.

Under the bill, a limited partnership may be voluntarily dissolved on the consent of all general partners and of limited partners owning a majority of the rights to receive distributions, whether as a general partner, limited partner, or both.

Under current law, if any general partner withdraws or otherwise ceases to be a general partner, the limited partnership is dissolved unless: 1) the partnership agreement allows the limited partnership to continue and there is at least one remaining general partner that continues the partnership's business; or 2) within 90 days, all partners agree to continue the business of the limited partnership and to appoint one or more additional general partners if necessary.

Under this bill, there is no presumptive dissolution of the limited partnership upon dissociation of a general partner. Instead, upon dissociation of a general partner, the limited partnership is dissolved only if: 1) the partnership has at least one remaining general partner and partners owning a majority interest consent, within 90 days, to dissolve the partnership; or 2) the partnership does not have any remaining general partner and 90 days pass without both of the following occurring: a majority (by interest) of limited partners consenting to continue the partnership; and, at least one general partner being admitted.

Under current law, a limited partnership must file a certificate of cancellation upon dissolution or at any other time that there are no limited partners.

The bill provides that a limited partnership is dissolved if: 1) 90 consecutive days pass after the dissociation of the partnership's last limited partner without the partnership admitting at least one limited partner; or 2) 90 consecutive days pass during which the limited partnership has only one partner or does not have both a general partner and a limited partner. The bill, which does not require a certificate of limited partnership to include a statement of duration, also eliminates the automatic dissolution under current law of a limited partnership upon expiration of its stated duration.

Under this bill, a dissolved limited partnership, in winding up its activities and affairs, may amend its certificate of limited partnership to state that the partnership is dissolved and may also file a statement of termination with DFI. With exceptions, a limited partnership that initiates dissolution may also rescind its dissolution and continue carrying on its activities and affairs as if dissolution had never been initiated.

The bill also provides DFI with authority to administratively dissolve a limited partnership. Under the bill, DFI may commence a proceeding to dissolve a limited partnership administratively if the limited partnership does not pay a required fee or penalty or file an annual report within one year after the fee or penalty or report is due or is without a registered agent or registered office in this state for at least one year. The bill establishes a procedure for these proceedings and allows an administratively dissolved limited partnership to apply to DFI for reinstatement. The bill also provides a process for appeal and court review of DFI's denial of an application for reinstatement.

Mergers, conversions, and other business combinations

This bill makes significant changes with respect to mergers, conversions, and other business-combination transactions involving domestic or foreign limited partnerships. Under current law, one or more domestic limited partnerships may merge with or into one or more other domestic or foreign business entities (business corporations, nonprofit or nonstock corporations, limited liability companies, or limited partnerships) if the merger satisfies certain requirements. Current law also allows a domestic limited partnership to convert to another form of domestic or foreign business entity if the conversion satisfies certain requirements.

This bill significantly changes the requirements applicable to a merger or conversion involving a limited partnership and also allows a limited partnership to undertake transactions in the form of an interest exchange or domestication. In an interest exchange, a limited partnership acquires interests of another domestic or foreign business entity, or has its own interests acquired by another domestic or foreign business entity. In a domestication, an entity governed by the law of a foreign country (a non-U.S. entity) may domesticate as a domestic limited partnership under Wisconsin law while continuing to be subject to the foreign country's law and a domestic limited partnership may domesticate as a non-U.S. entity subject to a foreign country's law while continuing to be a domestic limited partnership. The bill allows mergers, conversions, interest exchanges, and domestications to involve a diverse array of business entities, including business corporations, nonprofit or nonstock corporations, limited liability companies, limited partnerships, LLPs, cooperative associations, and unincorporated associations. Certain requirements apply to these business-structure transactions, including approval of a plan of merger, conversion, interest exchange, or domestication and filing with DFI articles of merger, conversion, interest exchange, or domestication, although the terms of the partnership agreement generally govern mergers, conversions, interest exchanges, and domestications. When the merger, conversion, interest exchange, or domestication becomes effective, certain results occur automatically, as a matter of law, with respect to such matters as assets, obligations, continued existence, and organizational documents of the parties involved in the transaction. The bill also eliminates a provision of current law that requires a surviving foreign business entity in a merger to pay dissenting owners of merged domestic business entities for their interests, but creates new dissenter's rights for a partner in a business-structure transaction if the transaction materially increases the partner's obligation or liability or treats the partner's interest different from that of other partners.

Other changes

Under current law, on application to the circuit court by a creditor that has obtained a judgment against a general partner or limited partner, the court may charge the partnership interest of the partner with payment of the unsatisfied amount of the judgment. To the extent charged, the judgment creditor has only the rights of an assignee of the partnership interest.

This bill expands on provisions of current law under which a creditor of a general partner or limited partner may seek from a court a charging order against the partner's interest in the limited partnership to satisfy the unpaid amount of the creditor's judgment. Under the bill, a charging order is available against the interest of either a partner or a transferee of a partner. A charging order constitutes a lien on the partner's or transferee's interest and requires the limited partnership to pay over to the creditor any distribution that otherwise would be paid to the partner or transferee. Under certain circumstances, the court may foreclose the lien and order the sale of the partner's or transferee's interest in the limited partnership. The purchaser of the interest at the foreclosure sale obtains only the interest and does not thereby become a partner or gain any right to participate in the activities and affairs of the limited partnership.

Under current law, a limited partner may bring an action on behalf of a limited partnership (derivative action) to recover a judgment in its favor if general partners with authority to do so have refused to bring the action or if an effort to cause those general partners to bring the action is not likely to succeed.

This bill continues to allow a limited partner to bring a derivative action and also allows a general partner to bring a derivative action. However, under the bill, the limited partnership may appoint a special litigation committee to investigate the claims in the derivative action and to determine whether pursuing the action is in the best interests of the limited partnership. The special litigation committee must be composed of disinterested and independent individuals, who may be partners. If the limited partnership appoints a special litigation committee, the court must, on motion of the committee, stay discovery for the time reasonably necessary to permit the committee to make its investigation, unless there is good cause shown for the court to deny the stay. After appropriate investigation, the special litigation committee may determine that it is in the best interests of the limited partnership for the proceeding to continue under the control of the plaintiff; for the proceeding to continue under the control of the committee; for the proceeding to be settled on terms approved by the committee; or for the proceeding to be dismissed. After making its determination, the special litigation committee must submit its determination to the court and, if the court determines that certain requirements are satisfied, the court must follow and enforce the committee's recommendation. If the court finds the applicable requirements are not satisfied, the court must dissolve the stay of discovery and allow the plaintiff to continue the action.

The bill provides a procedure and specifies grounds for DFI to terminate authority of a foreign limited partnership to do business in this state.

The bill includes many changes relating to procedures applicable to limited partnerships and foreign limited partnerships, including changes related to registered agents, service of process, and permissible names. The bill also provides a procedure for DFI to issue a certificate of status for a limited partnership or foreign limited partnership.

This bill includes provisions specifying when a person is considered to have notice or knowledge of a fact. The bill also specifies when a person is considered to have given another person notice of a fact. The bill also allows DFI to provide written notice to a limited partnership or foreign limited partnership solely by e-mail to its registered agent.

The bill includes numerous other substantive and stylistic changes from current law. The bill also includes some modifications from, or additions to, the model language of RULPA. For example, the bill includes provisions relating to DFI fees that are not included in RULPA.

Phase-in

The changes in this bill apply to a limited partnership formed on or after January 1, 2023, and apply on January 1, 2023, to a limited partnership formed before that date unless 1) the limited partnership elects to be governed earlier by the new provisions of the bill, or 2) the limited partnership elects to be governed by the existing law applicable before enactment of the bill.

PARTNERSHIPS

In enacting 2015 Wisconsin Act 295, this state repealed and recreated Wisconsin's partnership law to adopt, with modifications, the Revised Uniform Partnership Act (RUPA), as last amended in 2013. This state's law was previously based on an earlier version of the Uniform Partnership Act. With a limited exception, a partnership formed on or after January 1, 2018, is subject to the new statutory provisions of RUPA.

This bill makes modifications to the state's partnership law as recreated in Act 295, including changes relating to 1) a partnership's governing law; 2) prohibited provisions in a partnership agreement; 3) DFI's fees for partnership-related filings; 4) consent to partnership action without a meeting of the partners; 5) a partner's duty of care in the conduct or winding up of the partnership business; 6) compensating a dissociated partner; 7) claims against a dissolved limited liability partnership; 8) business-structure transactions involving partnerships, including dissenter's rights for a partner; and 9) the method by which DFI may provide written notice to a partnership.

LIMITED LIABILITY COMPANIES