LLC Governance — Analyze LLC management structures - Bar Exam Uniform

SECTION 1

Historical Context & Motivation

The limited liability company (LLC) is, historically speaking, a relatively recent entrant into American business law. For centuries, entrepreneurs organized their ventures primarily as general partnerships or corporations, each of which imposed distinct trade-offs between liability protection and governance flexibility. Partnerships offered pass-through taxation and informal management but exposed partners to personal liability for entity debts. Corporations shielded shareholders from personal liability but required rigid governance structures—boards of directors, bylaws, annual meetings, and minutes—and, prior to S-corporation elections and check-the-box regulations, faced double taxation. The LLC emerged as a hybrid form designed to capture the best attributes of both entities: limited liability coupled with partnership-style taxation and contractual governance flexibility.

1977 • Wyoming LLC Act

Wyoming becomes the first state to enact an LLC statute, primarily to attract oil and gas ventures seeking limited liability with pass-through taxation. The statute was modeled partly on a Panama-based entity structure used by Hamilton Brothers Oil Company.

1988 • IRS Revenue Ruling 88-76

The IRS confirms that a Wyoming LLC can be classified as a partnership for federal tax purposes, triggering a wave of LLC legislation across all fifty states as the tax advantages become clear.

1996 • Uniform Limited Liability Company Act (ULLCA)

The Uniform Law Commission promulgates the first ULLCA, establishing a model framework including default rules for member-managed and manager-managed structures, fiduciary duties, and dissociation.

1997 • Check-the-Box Regulations

Treasury Regulations allow unincorporated entities to elect their tax classification, eliminating old Kintner factors analysis and cementing the LLC's tax flexibility.

2013 • Revised ULLCA (RULLCA)

The Revised Uniform Limited Liability Company Act modernizes the original ULLCA, refining default fiduciary duties, clarifying the distinction between member-managed and manager-managed governance, and strengthening transferability provisions. RULLCA becomes the primary bar exam reference framework.

The central question that LLC governance law addresses is this: Who has the authority to bind the LLC, what duties do those persons owe, and to what extent may the operating agreement modify default rules? The answer depends critically on whether the LLC is member-managed or manager-managed—a structural choice that radiates outward to affect apparent authority, fiduciary obligations, voting rights, and third-party reliance. Understanding these management structures is essential not only for bar exam success but for advising clients forming or operating LLCs.

SECTION 2

Core Principles & Definitions

LLC governance rests on a handful of foundational principles drawn from the Revised Uniform Limited Liability Company Act (RULLCA) and widely adopted state statutes. These principles establish the default rules that govern an LLC's internal operations when the operating agreement is silent and define the boundaries within which private ordering is permitted. Grasping these core concepts is prerequisite to analyzing any LLC governance question on the bar exam.

Member-Managed (Default)

Under RULLCA § 407(a), an LLC is member-managed unless the operating agreement expressly designates it as manager-managed. Every member has equal rights in management and possesses apparent authority to bind the LLC in the ordinary course of its activities.

Manager-Managed (Elected Structure)

When designated as manager-managed, management authority is concentrated in one or more managers (who may or may not be members). Non-manager members lack apparent authority to bind the LLC in ordinary course and generally do not owe fiduciary duties.

Operating Agreement Primacy

The operating agreement is the foundational governance document. It may be written, oral, or implied and can modify nearly all default statutory provisions, subject to certain nonwaivable provisions (e.g., the obligation of good faith and fair dealing cannot be entirely eliminated).

Fiduciary Duties

Members in a member-managed LLC and managers in a manager-managed LLC owe fiduciary duties of loyalty and care, along with the contractual obligation of good faith and fair dealing. These duties mirror partnership and corporate law principles but are subject to greater contractual modification.

Voting & Decision-Making

Ordinary matters are decided by a majority of the members (or managers, in a manager-managed LLC). Extraordinary matters—such as amending the operating agreement, admitting new members, or merging—typically require unanimous consent of all members under default rules.

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KEY TAKEAWAY

Think of LLC governance like choosing between a co-piloted aircraft and one with a designated captain. In a member-managed LLC, every member sits in the cockpit with equal authority over the controls—democratic but potentially slow and risky when all can independently bind the entity. In a manager-managed LLC, members designate one or more captains while the remaining members become passengers—they own equity but lack the controls. The operating agreement is the flight manual that can customize who touches what, within regulatory limits.

SECTION 3

Visual Explanation — Management Structure Overview

The following diagram illustrates the two fundamental management structures available to an LLC, showing how authority, fiduciary duties, and apparent authority differ depending on the governance model selected in the operating agreement.

The left panel shows a member-managed LLC where each member has apparent authority and owes fiduciary duties. The right panel shows a manager-managed LLC where authority is concentrated in designated managers, while non-manager members retain only specified extraordinary voting powers.

As the diagram makes clear, the choice between management structures has cascading legal consequences. In the member-managed model, the equal distribution of authority means any member can enter contracts, hire employees, or make operational decisions on behalf of the LLC—analogous to a general partnership. Third parties dealing with a member-managed LLC are entitled to presume that any member they encounter has the authority to act for the entity. Conversely, in the manager-managed model, management centralizes around designated managers, and third parties should not assume non-manager members possess binding authority. This structural distinction is the single most frequently tested LLC governance issue on the Uniform Bar Exam.

SECTION 4

How It Works — Authority, Agency, and the Operating Agreement

Apparent Authority Under RULLCA

The allocation of apparent authority depends entirely on the management designation. Under RULLCA § 301, in a member-managed LLC, each member is an agent of the LLC for purposes of carrying on the LLC's ordinary activities and affairs. A member's act in the ordinary course binds the LLC unless the member had no authority to act and the third party knew or had notice of the lack of authority. In a manager-managed LLC, by contrast, a member is not an agent of the LLC solely by reason of being a member; only managers have the statutory apparent authority to bind the LLC in the ordinary course.

Actual Authority and the Operating Agreement

The operating agreement may confer or restrict actual authority beyond the statutory defaults. For instance, in a member-managed LLC, the operating agreement might require that transactions above a specified dollar threshold receive majority or supermajority member approval, thereby limiting each member's actual authority. Alternatively, a manager-managed LLC's operating agreement might grant a particular member specific actual authority to negotiate contracts in a defined area. Critically, restrictions in the operating agreement limit actual authority but do not automatically limit apparent authority vis-à-vis third parties who lack notice of the restriction. This gap between actual and apparent authority is a fertile ground for bar exam questions.

Fiduciary Duty Framework

Under RULLCA, the fiduciary duties that attach in an LLC are the duty of loyalty and the duty of care. The duty of loyalty includes accounting for profits derived from LLC activities, refraining from adverse dealing, and refraining from competing with the LLC. The duty of care requires refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or knowing violation of law. Additionally, every member and manager owes the contractual obligation of good faith and fair dealing. In a member-managed LLC, all members owe these duties. In a manager-managed LLC, only the managers owe the duties of loyalty and care; non-manager members owe only the obligation of good faith and fair dealing.

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NONWAIVABLE PROVISIONS

RULLCA § 105(c) identifies certain provisions that the operating agreement cannot eliminate. These include: (1) the power of a court to decree dissolution; (2) the obligation of good faith and fair dealing (though it may be shaped, it cannot be eliminated); (3) unreasonably restricting members' access to records; and (4) varying the power to dissociate as a member. On the bar exam, if an operating agreement purports to waive all fiduciary duties, the correct analysis is that the duty of loyalty and care may be reduced but the implied contractual obligation of good faith and fair dealing survives.

SECTION 5

Detailed Breakdown — Authority & Voting Distribution

A granular understanding of how decision-making authority is distributed is essential for bar exam analysis. The following diagram maps the types of decisions to the persons who have authority to make them, distinguishing between ordinary and extraordinary matters under both management structures.

This flowchart traces how a decision is categorized and then routed to the appropriate decision-maker depending on the management structure. Note that extraordinary matters always require all-member consent regardless of whether the LLC is member-managed or manager-managed.

Decision Type	Member-Managed	Manager-Managed
Ordinary business (contracts, hiring)	Any member; disputes resolved by majority vote of members	Manager(s) only; multiple managers decide by majority of managers
Amend operating agreement	Unanimous consent of members	Unanimous consent of members
Admit new member	Unanimous consent of members	Unanimous consent of members
Sale of all/substantially all assets	Unanimous consent of members	Unanimous consent of members
Apparent authority to bind LLC	All members have apparent authority in ordinary course	Only managers have apparent authority; members do not
Fiduciary duties owed	By all members	By managers only; members owe good faith & fair dealing

Comparison of authority allocation under RULLCA default rules

SECTION 6

Worked Example — Analyzing an LLC Governance Fact Pattern

Consider the following bar-exam-style hypothetical, which tests the interplay between management structure, apparent authority, and fiduciary duties.

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FACT PATTERN

Alpha, Beta, and Gamma form Trident LLC to operate a restaurant. The operating agreement designates the LLC as manager-managed and appoints Alpha as the sole manager. The operating agreement provides that no purchase exceeding $10,000 shall be made without the written consent of all three members. Without obtaining consent, Alpha enters into a $25,000 contract with Vendor to purchase kitchen equipment, representing herself as the manager of Trident LLC. Beta and Gamma object and refuse to approve the purchase. Vendor sues Trident LLC for breach of contract. Separately, Beta, without authorization, enters into a lease for a second restaurant location on behalf of Trident LLC.

Analysis: Vendor v. Trident LLC and the Beta Lease

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Step 1 — Identify the Management Structure

The operating agreement expressly designates Trident LLC as manager-managed with Alpha as the sole manager. This means the RULLCA § 407(b)–(c) rules apply. Alpha, as the manager, has apparent authority to bind the LLC in the ordinary course of its activities. Non-manager members Beta and Gamma do not have apparent authority solely by virtue of membership.

Management structure: Manager-managed; Alpha is sole manager.
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Step 2 — Analyze Alpha's Authority (Vendor Contract)

Alpha signed the $25,000 equipment contract. The operating agreement limits purchases over $10,000 to those approved by all members, so Alpha lacked actual authority for this specific transaction. However, the question is whether Alpha had apparent authority. Under RULLCA § 301, a manager in a manager-managed LLC has apparent authority to bind the LLC for acts apparently carrying on the ordinary activities of the LLC. Purchasing kitchen equipment for a restaurant falls squarely within the ordinary course of a restaurant LLC's business. Unless Vendor knew or had notice of the $10,000 spending cap in the operating agreement, Alpha's act binds Trident LLC.

Trident LLC is likely bound. Alpha had apparent authority despite lacking actual authority. Internal restrictions do not protect the LLC against third parties without notice.
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Step 3 — Analyze Beta's Authority (Lease)

Beta is a non-manager member. In a manager-managed LLC, a member is not an agent of the LLC solely by reason of being a member. Beta therefore lacks both actual and apparent authority to enter a lease on behalf of Trident LLC. The landlord cannot rely on Beta's status as a member to establish that the LLC is bound. Unless Beta had been separately granted actual authority (e.g., through a resolution or provision in the operating agreement) or the LLC ratified the lease, Trident LLC is not bound.

Trident LLC is likely NOT bound by Beta's lease. Beta, as a non-manager member, lacks both actual and apparent authority.
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Step 4 — Analyze Alpha's Fiduciary Duty Exposure

Alpha, as manager, owes fiduciary duties of loyalty and care to the LLC and its members. By exceeding the spending authority set forth in the operating agreement, Alpha may have breached the duty of care (if the decision was grossly negligent or reckless) and the obligation of good faith and fair dealing (by deliberately circumventing the consent requirement). Beta and Gamma may have claims against Alpha personally for any damages resulting from the unauthorized purchase, even though the LLC remains bound to Vendor.

Alpha faces potential personal liability to Beta and Gamma for breach of fiduciary duty, separate from the LLC's obligation to Vendor.

SECTION 7

Comparing LLC Governance with Other Entity Structures

Bar exam questions frequently require distinguishing LLC governance from the management structures of other business entities. Understanding these parallels and divergences strengthens both conceptual clarity and exam performance. The following table maps the governance characteristics of LLCs against those of general partnerships, limited partnerships, and corporations.

Feature	General Partnership	Limited Partnership	Corporation	LLC
Default management	All partners equally	General partners only	Board of directors	All members (member-managed is default)
Centralized mgmt option	By agreement only	Inherent (GPs manage)	Mandatory (board structure)	Manager-managed by election in OA
Apparent authority	All partners	General partners only	Officers (as authorized by board)	Depends on mgmt structure
Fiduciary duties owed by	All partners	General partners	Directors and officers	Members (if member-mgd) or managers (if mgr-mgd)
Governance document	Partnership agreement	LP agreement	Articles + bylaws	Operating agreement (may be oral or implied)
Contractual freedom	High	Moderate	Low (mandatory statutory rules)	Very high (broadest freedom to shape governance)

Cross-entity governance comparison

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KEY TAKEAWAY

The LLC occupies a unique position in business entity law: it combines the limited liability of a corporation with the contractual flexibility of a partnership. Think of the member-managed LLC as structurally analogous to a general partnership (with liability protection added), and the manager-managed LLC as structurally analogous to a limited partnership (where managers play the role of general partners and non-manager members resemble limited partners). The corporate analogy is the manager-managed LLC where the manager is an outside professional—much like a board of directors hiring a CEO.

SECTION 8

Connection to Advanced Topics — Fiduciary Duty Modification & Judicial Dissolution

LLC governance analysis on the bar exam extends beyond the basic member-managed versus manager-managed distinction into more sophisticated issues. Two advanced topics merit particular attention: the contractual modification of fiduciary duties and judicial dissolution as a governance remedy. These topics frequently appear as nuances in bar exam fact patterns where a straightforward governance question is complicated by an operating agreement provision or a deadlock situation.

Topic	Basic Rule	Advanced Application
Fiduciary duty modification	RULLCA permits operating agreements to identify specific categories of activities that do not violate the duty of loyalty and to alter the duty of care standard (but not below gross negligence).	Delaware LLC Act § 18-1101(c) goes further, permitting elimination of all fiduciary duties (including loyalty and care), leaving only the implied contractual covenant of good faith and fair dealing. Bar exam questions may test whether a given jurisdiction follows RULLCA or Delaware-style rules.
Judicial dissolution	Under RULLCA § 701, a court may dissolve an LLC when it is not reasonably practicable to carry on the LLC's activities in conformity with the operating agreement.	In deadlocked two-member LLCs or oppressive majority scenarios, judicial dissolution becomes a governance remedy of last resort. Courts may also order buyouts or appoint receivers as equitable alternatives.
Member dissociation	A member may dissociate at any time by express will; however, dissociation may be wrongful if it violates the operating agreement.	Wrongful dissociation triggers potential damages liability but does not prevent the dissociation from being effective. The dissociated member loses governance rights but retains economic interest. This creates a 'zombie member' status tested on the bar.
Transferee rights	A transferee of a member's interest receives only economic rights (distributions) and has no governance, voting, or information rights.	A transferee can become a full member only with consent of all other members (default) or as specified in the operating agreement. This ensures that LLCs remain 'pick your partner' entities, preserving the contractual governance balance.

Basic rules vs. advanced applications in LLC governance

As you encounter more complex bar exam questions, keep in mind that the LLC's governance flexibility is both its greatest strength and a potential source of litigation. The operating agreement is the primary source of governance rules, but it operates within a framework of nonwaivable statutory provisions that protect minority members and third parties. The interplay between contractual freedom and mandatory rules is the conceptual thread that connects nearly every advanced LLC governance issue you may encounter on the exam.

SECTION 9

Practice Problems

Question 1: CONCEPTUAL

Under RULLCA, what is the default management structure of an LLC when the operating agreement is silent on the issue, and what is the practical significance of this default rule for third parties dealing with the LLC?

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Under RULLCA § 407(a), the default management structure is member-managed. This default is significant because it means every member is an agent of the LLC for purposes of carrying on the LLC's ordinary activities. Third parties dealing with the LLC are entitled to presume that any member they encounter has apparent authority to bind the entity in the ordinary course of its business, unless they have notice to the contrary. This default also means that all members owe fiduciary duties of loyalty and care, which would not be the case for non-manager members in a manager-managed LLC.

Question 2: BASIC APPLICATION

Delta LLC is a member-managed LLC with three members: Xavier, Yolanda, and Zara. Xavier proposes hiring a full-time accountant at a salary of $60,000 per year. Yolanda agrees, but Zara objects. Under RULLCA default rules, may the LLC hire the accountant?

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Yes. Under RULLCA, hiring an accountant for a member-managed LLC is an ordinary course business decision. Ordinary matters in a member-managed LLC are resolved by a majority vote of the members, with each member having one vote (per capita). Xavier and Yolanda constitute a two-thirds majority, which is sufficient to approve the hiring. Zara's objection is noted but does not prevent the decision. Had this been an extraordinary matter—such as admending the operating agreement or admitting a new member—unanimous consent would have been required.

Question 3: INTERMEDIATE

Omega LLC is manager-managed with three members (P, Q, R) and one non-member manager (S). The operating agreement states that S may not enter into contracts exceeding $50,000 without prior written approval from all members. S enters into a $75,000 supply contract with Vendor V, who has no knowledge of the spending restriction. P, Q, and R refuse to honor the contract. Is Omega LLC bound? Does S face any personal liability to P, Q, and R?

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Omega LLC is likely bound to Vendor V. Although S lacked actual authority to enter the $75,000 contract due to the spending cap in the operating agreement, S, as the manager of a manager-managed LLC, possessed apparent authority under RULLCA § 301 to bind the LLC in the ordinary course of its activities. Purchasing supplies is presumably within the ordinary course of Omega's business, and Vendor V had no notice of the internal restriction. The gap between actual and apparent authority means that internal restrictions protect members against the manager but not against innocent third parties. As for personal liability, S owes fiduciary duties of loyalty and care to the LLC and its members. By deliberately exceeding the contractual authority limit, S may have breached the duty of care (if the conduct was grossly negligent or reckless) and the obligation of good faith and fair dealing. P, Q, and R would have a claim against S personally for any damages flowing from the unauthorized contract.

Question 4: APPLIED

Founders Alice and Bob form AB Ventures, LLC to invest in tech startups. The operating agreement designates the LLC as manager-managed with Alice as sole manager. The operating agreement also contains a provision stating: 'The manager shall owe no fiduciary duties of any kind to the LLC or its members; the parties' rights and obligations shall be governed solely by this agreement.' Alice subsequently invests $500,000 of LLC funds into a startup founded by her spouse, at an inflated valuation, without disclosing the conflict to Bob. Bob sues Alice for breach of fiduciary duty. Analyze the enforceability of the waiver provision and Bob's likely success.

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Under RULLCA, the operating agreement may identify specific activities that do not violate the duty of loyalty and may alter the standard of the duty of care, but it may not eliminate the obligation of good faith and fair dealing. RULLCA § 105(c)(5) makes this obligation nonwaivable, though it can be shaped by the operating agreement if the modification is not manifestly unreasonable. The blanket waiver of 'all fiduciary duties of any kind' likely exceeds the permissible scope of modification under RULLCA. Even under the more permissive Delaware approach (DLLCA § 18-1101(c)), which allows elimination of fiduciary duties, the implied covenant of good faith and fair dealing survives. Alice's self-dealing transaction—investing at an inflated valuation in her spouse's company without disclosure—appears to violate even a residual good faith standard, as concealing a material conflict of interest undermines the reasonable expectations of the parties to the operating agreement. Bob would likely prevail on a claim that Alice breached the nonwaivable obligation of good faith and fair dealing, even if the court upheld the waiver of loyalty and care duties. In a RULLCA jurisdiction, the waiver itself may be struck down as manifestly unreasonable in scope.

Question 5: CRITICAL THINKING

Consider a two-member LLC (members X and Y, each holding 50% interests) that is member-managed under a sparse operating agreement that tracks RULLCA defaults. X and Y fundamentally disagree on the direction of the business: X wants to expand into new markets while Y wants to liquidate. They cannot agree on any ordinary business decision, and the LLC has effectively ceased operations. Analyze the governance deadlock problem and identify the legal remedies available to each member. Consider whether the outcome would differ if the LLC were manager-managed with X as manager.

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This fact pattern presents the classic two-member LLC deadlock problem. Under RULLCA default rules in a member-managed LLC, ordinary decisions require a majority vote of the members. With equal 50-50 voting power, neither X nor Y can unilaterally act, creating complete operational paralysis. Neither member can compel the other to approve ordinary course decisions, and extraordinary matters (such as dissolution) require unanimous consent, which Y's desire to liquidate would not receive from X. The primary judicial remedy is dissolution under RULLCA § 701(a)(4), which allows a court to dissolve the LLC when 'it is not reasonably practicable to carry on the [LLC's] activities in conformity with the [operating] agreement.' Courts have interpreted this standard to encompass situations of irreconcilable deadlock that prevent the entity from fulfilling its purpose. Either X or Y could petition for judicial dissolution. As an alternative equitable remedy, some courts have ordered buyouts, allowing one member to purchase the other's interest at fair value, thereby preserving the going-concern value of the business. If the LLC were manager-managed with X as manager, the analysis shifts significantly. X would have authority to make ordinary course decisions unilaterally, eliminating the deadlock for day-to-day operations. However, Y would retain the right to vote on extraordinary matters and could still petition for judicial dissolution if X's management deviated substantially from the purpose of the LLC or oppressed Y's legitimate expectations. X's fiduciary duties as manager would also constrain X's unilateral decision-making, providing Y with a cause of action for breach if X managed the LLC in a self-interested manner. The manager-managed structure thus mitigates—but does not eliminate—the deadlock problem.

SUMMARY

Summary — LLC Governance Structures

Summary

LLC governance revolves around the foundational distinction between member-managed and manager-managed structures. Under RULLCA, the default is member-managed, meaning every member has equal management authority and apparent authority to bind the LLC in the ordinary course. When designated as manager-managed, only managers possess management authority and apparent authority; non-manager members retain voting rights only on extraordinary matters such as amending the operating agreement, admitting members, merging, and dissolution.

The operating agreement is the primary governance document and may modify nearly all default statutory rules, but it cannot eliminate the nonwaivable obligation of good faith and fair dealing. Fiduciary duties of loyalty and care are owed by all members in a member-managed LLC and by managers only in a manager-managed LLC. The critical distinction between actual authority and apparent authority means that internal operating agreement restrictions may limit a member's or manager's power inter se without protecting the LLC from third-party claims. For bar exam purposes, always identify the management structure first, then trace authority, fiduciary duties, and voting rights through the applicable rules.