Keeping Corporate Minutes: Avoid Alter Ego Liability

Managing a business is much like navigating a minefield on the unicycle. To limit risk, entrepreneurs incorporate. There’s some other reasons to include (e.g., documenting a structure having a partner), but covering however the primary reason behind developing an organization. Courts have acknowledged the law “permits the incorporation of the business for that very reason for enabling its keepers to escape personal liability.”

Although not so quick – that protection could be lost when the entrepreneur does not treat the organization like it is a real corporation. You heard right — even though you incorporate, the liability protection may not be there when it’s needed. This is called “alter ego liability” or “piercing the organization veil”. Magazine articles, radio ads, and workshops maybe have you believe that “piercing the organization veil” is some kind of mysterious event that can take everybody unexpectedly if this happens, but that is and not the situation whatsoever. Nearly half a century ago, the California Top Court inside a situation known as Connected Vendors v. Oakland Meat produced an evaluation that paints a really obvious picture of preventing alter ego liability.

The Connected Vendors “test” is really a secret recipe for liability protection. It’s a summary of a few dozen factors. Nobody factor matters more than these, but when as a whole it appears the corporate form wasn’t respected, the shareholder is going to be held liable. A few of the factors include if the corporation was adequately capitalized, whether corporate assets were utilised through the shareholder for private use, and whether there is commingling of corporate and private funds.

Within the day-to-day madness of managing a small business, it’s frequently difficult to avoid a few of these factors. Who has not required to pull some cash from their business banking account to repair a leaky roof or pay their kid’s summer time camp bill? The good thing is that Courts do not require perfection. They simply consider the details and conditions to find out whether on balance, it appears such as the corporate form continues to be respected.

This is exactly why it blows my thoughts after i see small corporations neglect to nail the simple ones out there. Remarkably, probably the most key elements can also be increasingly simple for any small corporation to fulfill – keeping corporate minutes. Whether an organization keeps corporate minutes is really a component that pops up in just about any alter ego situation. Even just in the Connected Vendors situation itself, a legal court declined to pierce the organization veil although the corporation was undercapitalized, since the corporation held “numerous conferences” and stored minutes.

Inside a situation involving a suit on the lease, a 1-person corporation’s insufficient capital wasn’t sufficient to determine alter ego liability in which the corporation conducted annual board conferences and “memorialized the conferences within the corporate minutes.” Despite to be the sole director, the person even went to date regarding call special sessions from the board to authorize important corporate decisions, like the acquisition of an office, and individuals sessions “were also memorialized within the corporate minutes.”

However, in just about any situation in which the corporate veil was pierced, neglecting to keep minutes is a common theme. In a single situation, the shareholders were personally liable in excess of $4.5 million in damages. A Legal Court noted the shareholders “elected to not memorialize [even] the most important occasions within the good reputation for the” corporation within the minutes.

If you’re sued because the “alter ego” of the corporation, you’ll have to create a copy of the corporate minute book. One Court noted (rather clearly) that “it’s just insufficient to possess a minute book if no minutes are stored for the reason that book,” but too many small corporations possess a dusty, faux-leather corporate minute book with no minutes stored within the book. In a single situation involving a DJ, the shareholder occured responsible for $77,000 where he couldn’t create a “single slip of paper” showing he held formal conferences or stored corporate minutes. Having the ability to respond with copies of correctly maintained minutes – a simple job for an organization that frequently holds conferences and keeps minutes – is the easiest method to prevent alter ego liability.

For pretty much 50 years, a large number of cases in each and every major jurisdiction have involved corporate minutes. Sure there’s some other reasons the corporate veil is pierced, however the courts are plainly telling us that “memorializing conferences in corporate minutes” is among the key ingredients of asset protection.


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