Oregon Statutes 63.661 – Grounds for judicial dissolution; finding that limited liability company is shell entity; prima facie showing by Attorney General; effects; affirmative defenses
(1) A circuit court may dissolve a limited liability company:
Terms Used In Oregon Statutes 63.661
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Allegation: something that someone says happened.
- Articles of organization: means the document described in ORS § 63. See Oregon Statutes 63.001
- Entity: means a domestic or foreign limited liability company, corporation, professional corporation, foreign corporation, domestic or foreign nonprofit corporation, domestic or foreign cooperative corporation, profit or nonprofit unincorporated association, business trust, domestic or foreign general or limited partnership, two or more persons that have a joint or common economic interest, any state, the United States, a federally recognized Native American or American Indian tribal government or any foreign government. See Oregon Statutes 63.001
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fraud: Intentional deception resulting in injury to another.
- Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
- Manager: means a person, not necessarily a member, that the members of a manager-managed limited liability company designate to manage the limited liability company's business and affairs. See Oregon Statutes 63.001
- Member: means a person with both an ownership interest in a limited liability company and all the rights and obligations of a member specified under this chapter. See Oregon Statutes 63.001
- Operating agreement: means any valid agreement, written or oral, of the member or members as to the affairs of a limited liability company and the conduct of the limited liability company's business. See Oregon Statutes 63.001
- Person: means an individual or entity. See Oregon Statutes 63.001
- Proceeding: means any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigatory and whether formal or informal. See Oregon Statutes 63.001
- public body: means state government bodies, local government bodies and special government bodies. See Oregon Statutes 174.109
- Service of process: The service of writs or summonses to the appropriate party.
- Shell entity: means an entity that has the characteristics described in ORS § 63. See Oregon Statutes 63.001
(a) In a proceeding by the Attorney General if the court finds that:
(A) The limited liability company filed articles of organization with fraudulent intent, with fraudulent information or in a manner that otherwise indicates fraud;
(B) The limited liability company has continued to exceed or abuse the authority conferred upon the limited liability company by law; or
(C) The limited liability company is a shell entity. For purposes of this subparagraph:
(i) A court may find that a limited liability company is a shell entity if the court determines that the limited liability company was used or organized for an illegal purpose, was used or organized to defraud or deceive a person or a governmental agency or was used or organized to fraudulently conceal any business activity from another person or a governmental agency; and
(ii) The Attorney General may make a prima facie showing that a limited liability company is a shell entity by stating in an affidavit that:
(I) The limited liability company did not provide a name or address required by the Secretary of State, or the name or address the limited liability company provided was false, fraudulent or inadequate;
(II) The limited liability company’s articles of organization, a record the limited liability company must keep under ORS § 63.771 or the limited liability company’s annual report is false, fraudulent or inadequate;
(III) A public body, as defined in ORS § 174.109, attempted to communicate with, or serve legal process upon, the limited liability company at the address or by means of other contact information the limited liability company provided to the Secretary of State, but the limited liability company failed to respond; or
(IV) The Attorney General has other evidence that shows that the limited liability company was used or organized for an illegal purpose, was used or organized to defraud or deceive a person or a governmental agency or was used or organized to fraudulently conceal any business activity from another person or a governmental agency.
(b) In a proceeding by or for a member if the court finds that it is not reasonably practicable to carry on the business of the limited liability company in conformance with the articles of organization or any operating agreement.
(c) In a proceeding by the limited liability company to have the limited liability company’s voluntary dissolution continued under court supervision.
(2) In addition to subjecting a limited liability company to dissolution under subsection (1)(a)(C) of this section, a finding that a limited liability company is a shell entity has the following effects:
(a) A court may rebuttably presume that the limited liability company’s filings with the Secretary of State constitute a false claim, as defined in ORS § 180.750, in any action the Attorney General brings against the limited liability company under ORS § 180.760 and may award to the Attorney General reasonable attorney fees and the costs of investigation, preparation and litigation if the Attorney General prevails in the action; and
(b) A public body, as defined in ORS § 174.109, in any proceeding against the limited liability company, may move to enjoin a member, manager or other person that exercises significant direction or control over the limited liability company from engaging in commercial activity in this state, including but not limited to incorporating or organizing another entity in this state.
(3) A limited liability company may affirmatively defend against an allegation that the limited liability company is a shell entity by showing that the limited liability company, within 60 days after receiving a request to provide or correct a name, address or other information required for a filing or in articles of organization, a record the limited liability company must keep or an annual report, or within 60 days after the date of a request to respond to a communication or service of process, provided or corrected the name, address or other information or responded to the communication or service of process. [1993 c.173 § 66; 2017 c.705 § 24]