The process of filing a series LLC is more arduous than that of filing a standard LLC. To establish a protected series, an LLC must first receive an affirmative vote or consent from all LLC members. Upon receiving member approval, a protected series may be created by filing a protected series designation with the secretary of state, signed by the company, stating the company’s name and the protected series to be established.

Similar to a standard LLC counsel should draft an operating agreement to govern the series LLC and each individual protected series. The operating agreement should generally set forth certain fundamental terms, including:

1. Management Structure
   1. The method used to maintain separate and distinct records for each series
   2. The method for adding or dissolving series
   3. A statement that the debts, liabilities, and obligations incurred, contracted for, or otherwise existing with respect to a particular protected series shall be enforceable against the assets of that protected series only, and not against the assets of the series LLC generally
   4. Terms contemplating the death or disability of a member
   5. Indemnification rights (if any) in the event the LLC or a member is sued in connection with the business of the LLC
2. Member Rights and Responsibilities
   1. The authority of members to bind the LLC and participate in day-to-day management
   2. The voting rights, if any, of each member in making certain key decisions
   3. The circumstances under which a member may withdraw from the LLC, and the way in which the member’s economic interest is calculated upon withdrawal
   4. The ability or restrictions of a member to sell or pledge its interest to a third party
   5. The circumstances and terms under which new members may be admitted
3. Profit and Loss Allocation
   1. The ownership percentage of each member, or the way it is calculated at any given time
   2. The manner in which profits, losses, and expenses are allocated, and by whose authority
   3. The circumstances under which the LLC will be liquidated, and the priority of claims among the members upon liquidation

]]> https://www.hartungschroederlaw.com/attorney-home-page/how-do-i-form-an-llc-in-iowa/ Fri, 22 Jul 2022 16:48:27 +0000 https://www.hartungschroederlaw.com/?p=1927 There are several important steps to take when setting up an LLC in Iowa. The first is determining if any sort of licensing or permits are required. While Iowa does not have a general state business license, certain businesses may require specific licenses or permits depending on the LLC’s intended business type of business. The Iowa Business License Information Center should be consulted for information regarding licensing needed for specific business activities. Additionally, an LLC must register with the Iowa Department of Revenue for a separate permit number for sales tax, consumer’s use tax, retailer’s use tax, withholding tax, and water service excise tax. It is also important to note that individual municipalities and subdivisions may have additional licensing, endorsement, and permit requirements. Furthermore, federal licenses may be required for businesses that operate in federally regulated activities.

The next step is deciding the official name of the LLC; there are both required elements and restricted elements to consider when naming an LLC in Iowa.

1. The name of an Iowa LLC must be set forth in its certificate of organization and contain the words “limited liability company” or “limited company” or the abbreviation “L.L.C.”, “LLC”, “L.C.” or “LC.” “Limited” may be abbreviated as “Ltd.”, and “company” may be abbreviated as “Co.”

2. The name of an LLC must be distinguishable from the name of any other entity incorporated, organization, authorized, or reserved to transact business in Iowa.

3. An LLC’s name can be reserved by completing the state of Iowa’s Application for Reservation of Name form provided by the secretary of state. Completed forms, including payment, should be delivered to the Iowa Secretary of State. The fee is $10 for LLCs. A reservation is valid for 120 days.

4. An LLC wishing to do business under any name other than its legal name must complete and file a Fictitious Name Resolution form provided by the secretary of state at the cost of $5 per trade name reserved for use.

After deciding on the name of the LLC, the next step is preparing and filing the necessary formation documents. One or more people may begin by filing a properly executed certificate of organization with the Iowa Secretary of State through its online Fast Track Filing System. The fee for filing a certificate of formation with the Iowa Secretary of State is $50. A member must be admitted as a member of the LLC, and such admission usually occurs when the certificate of organization, filed in the office of the Iowa Secretary of State, becomes effective.

The following components are required within a certificate of organization:
1. The name of the LLC;
2. The address of the company’s registered office;
3. The name and address of the LLC’s registered agent for service of process in Iowa
Iowa Code § 489.201(2).

The date the Secretary of State of Iowa files the certificate of organization is the date the LLC comes into existence. This filing of the certificate by the secretary of state is definitive proof that the person(s) executing the certificate satisfied all formation requirements.

Operating agreements are an essential part of LLCs, and while they are highly recommended, they are not required by Iowa law. Much like a partnership agreement or corporate bylaws, the LLC operating agreement dictates the actions pertaining to the ownership and operation of the LLC. The operating agreement is defined as an agreement of all the members and may be oral, in a record, implied, or any combination thereof. It is highly recommended for individuals to allow counsel to draft an operating agreement when forming an LLC. This agreement can theoretically be contained in more than one document and does not need to be filed with the Iowa Secretary of State or any other public office. It is important to remember that once finalized, unless the agreement itself calls for an expiration date, the operating agreement remains in force until amended or changed by the members’ unanimous consent (or other agreed-upon percentage). There is no incorrect form of operating agreement; agreements should be tailored to fit the individual circumstances and needs of the contracting parties. While there is nothing specifically required in an operating agreement, there are several things it should cover:

1. Management Structure
a. Whether the LLC is member-managed (i.e., managed by its owners) or manager-managed
b. Requirements for voting by quorum, in person, or by proxy, as well as any other matter necessary to exercise the right to vote
c. Procedure for amending the certificate of organization or the operating agreement, including procedures that allow for the amendment of the operating agreement without a vote or approval of the LLC’s members, or certain classes of the LLC’s members
d. Rights and powers of managers, including whether there are multiple classes of managers and the duties and voting powers of each
e. Procedures for electing and removing managers
f. Indemnification of members and managers by the LLC

2. Member Rights and Responsibilities
a. Procedures for admitting and expelling members
b. Initial capital contribution required of members
c. Notice and procedure required for member meetings (and for managers, if applicable), as well as a listing of actions that can be taken by consent without the need for a meeting
d. Management rights and authority of each member, including whether there are different classes of members and the relative rights and responsibilities of each class
e. Voting rights of members and the voting power of each, including the designation of a class or classes of members that hold no voting rights whatsoever

3. Profit and Loss Allocation
a. Allocation of profits, losses, and distributions among members and different classes of members
b. Buy-sell provision

Operating agreements are crucial as they govern the LLC’s actions and behavior. Other than the filing of a certificate of organization, Iowa imposes no organizational formalities on LLCs.

Once the parties have agreed upon the price and entered into a written agreement, the earnest money is typically deposited with the brokerage of the listing agent. The earnest money will be held until the transaction closes. At closing, the earnest money will be applied towards the purchase price of the property. However, if the transaction does not close and one of the parties backs out of the deal, then the parties will need to determine which party will receive the earnest money. Determining which party gets to keep the earnest money will depend largely on the language and provisions included in the purchase agreement.

If you have questions regarding earnest money or purchase agreements, the attorneys at Hartung Schroeder can help.

ABOUT TRAVIS BRENNER

Travis is an associate attorney at Hartung Schroeder. His experience includes real estate and family law, civil litigation, and working with clients to form non-profit organizations and businesses. Travis also holds a Master of Business Administration degree, which allows him to better address the needs of business clients. You can read more about Travis or get in touch with him here.

While most assets (e.g., bank accounts, vehicles, and furniture) can be divided without a court order, retirement plans require a QDRO to be issued in order for the company administering the retirement plan to recognize the right of the alternate payee to receive payments or benefits available under the plan. However, a QDRO cannot require the plan to confer a benefit to the alternate payee that is not already available under the plan.

Typically, the “alternate payee” is the spouse/soon-to-be former spouse of the plan participant. The alternate payee may also be a child or dependent of the plan participant. A QDRO will assign either a specific dollar amount or a percentage of the plan’s benefit to the alternate payee.

Although every QDRO must contain certain information, each QDRO will be different depending on the type of plan and benefits. If you have questions or need assistance with a QDRO, the attorneys at Hartung and Schroeder can help.

ABOUT TRAVIS BRENNER

Travis is an associate attorney at Hartung Schroeder. His experience includes real estate and family law, civil litigation, and working with clients to form non-profit organizations and businesses. Travis also holds a Master of Business Administration degree, which allows him to better address the needs of business clients. You can read more about Travis or get in touch with him here.

NIL knows no boundaries . . . yet!

The NCAA’s “acceptance” of the reality that student-athletes must be allowed to make money from their own NIL (Name, Image and Likeness) has created a huge “gray area” when it comes to what is or is not permissible.

The NCAA’s initial “Interim NIL Policy” is clearly a punt – deferring to state laws which have been promulgated to define the rights and responsibilities of student-athletes when it comes to making money. It is apparent that the NCAA is hoping for uniform Federal Legislation to be passed – largely to eliminate the nightmare of policing fifty different state laws and the impact different rules in different states will have on “fair competition.”

Prior to NIL, the NCAA strictly limited income opportunities in order to preserve the “amateur status” of its student-athletes. However, this position has eroded quickly following the June 21, 2021 United States Supreme Court decision in NCAA v. Alston et. Al – which struck down NCAA rules limiting the education related benefits schools may make available to student-athletes.

In the wake of Alston, student-athletes can now earn money so long as payment is not:

• Contingent upon enrollment at a particular institution
• For athletic participation or achievement
• For work not performed

Unless restricted by State Law – everything else appears to be fair game – for now. Without question, additional rules, regulations, interpretations and limits will soon follow. Otherwise, an unlimited “free market” system will undoubtedly destroy any sense of parity / fair competition that may currently remain in the NCAA.

Without boundaries – the rich will get richer and the NCAA (in its present form) will become obsolete. Until then, if you are a prospect, student athlete, coach or institution, the attorneys at Hartung Schroeder have experience with NCAA Compliance issues and we are available to assist you in navigating these uncharted waters.

ABOUT J.D. HARTUNG

J.D. is a co-founder and partner at the law firm of Hartung and Schroeder. He started the firm with friend and colleague, Brad Schroeder, after working in both boutique and large, multi-state firms. He saw first-hand that a small firm brings definite advantages to clients. Experienced in general litigation, he serves a wide range of clients including those seeking legal counsel for business, family law issues and personal injury. You can read more about him or get in touch here.

Restrictive covenants, aka property covenants, tell you what you can and cannot do with your property.  Two main purposes of covenants are to limit the misuse of property and maintain property values.  Restrictive covenants are often put in place by land developers who are developing a tract of land into a subdivision of homes.  First, the developer creates a list of covenants that restrict the use of the lots being sold in a particular subdivision, then the developer would file those covenants at the county recorder’s office.  After the covenants are filed, they will remain connected to land until the covenants expire or are terminated. Since the covenants are connected to the land, they will pass from seller to purchaser.

Examples of Restrictive Covenants:

• House Requirements: Covenants may require a minimum square footage or house design, such as a one or two story house.
• Design Approval: Covenants may require any new construction plans, renovations, or other improvements to be reviewed and approved by a committee or HOA prior to being initiated.
• Business Usage: Covenants may prohibit homeowners from operating a business out of their home.
• Pet Restrictions: Covenants may limit the number and type of pets that are allowed on your property.
• Other Restrictions: Covenants may restrict home owners from storing trash in their yard, posting signs or billboards on their property, or parking vehicles on their driveways. Covenants may also require homeowners to mow their lawn every so often or upkeep their landscaping in a particular manner.

This is not an exhaustive list of covenants, and it is important to research the covenants you may be subject to before purchasing a new property.  Overall, covenants are designed to maintain continuity and preserve property values within a particular neighborhood, subdivision, or group of properties.  However, some covenants may prevent you from using your property the way you would like. If you have questions or concerns related to property covenants, an experienced real estate attorney at Hartung Schroeder can help.

ABOUT TRAVIS BRENNER

Travis is an associate attorney at Hartung Schroeder. His experience includes real estate and family law, civil litigation, and working with clients to form non-profit organizations and businesses. Travis also holds a Master of Business Administration degree, which allows him to better address the needs of business clients.

Mediation and arbitration are two forms of dispute resolution methods that parties may elect to use.  Additionally, some contracts may contain a mediation or arbitration clause which requires parties to mediate or arbitrate any disputes prior to filing a lawsuit. Although they are both types of dispute resolution, mediation and arbitration have distinct differences.

Mediation is a process that is led by a mediator who will attempt to assist the parties in reaching a fair and mutual agreement.  Although the mediator is usually a lawyer, the mediator will not provide legal advice to the parties.  The mediator’s role is neutral and should avoid taking sides with either party.  Mediation is a non-binding process.  This means that a resolution will only be reached if the parties can mutually agree. The parties cannot be forced to accept a resolution when mediating.  If a settlement is reached between the parties and they execute a settlement agreement, that agreement will become legally binding on the parties.  If no agreement is reached during mediation, the parties retain the option to arbitrate or initiate litigation.

Arbitration is a process that is led by an arbitrator. The arbitrator plays a role similar to a judge in a typical court proceeding. The arbitrator will hear the evidence and legal arguments from each party and decide the outcome of the dispute. Unlike mediation, arbitration is a binding process on the parties.  This means the parties are required to comply with the decision made by the arbitrator.

Mediation and arbitration are attractive alternatives to litigation because the processes are faster and generally less expensive than formal court. If you have questions or concerns regarding mediation or arbitration, the attorneys at Hartung Schroeder are available to help.

NCAA v. Alston

On June 21, 2021, the United States Supreme Court issued the long-awaited opinion for NCAA v. Alston.  After months of anticipation, the Supreme Court issued a unanimous decision that affirmed the Court of Appeals and U.S. District Court’s rulings that held the NCAA rules limiting the amount of education-related benefits an athlete may receive violates the Sherman Antitrust  Act.

Throughout history, the NCAA argued the procompetitive effects of amateurism in college athletics outweighed any anticompetitive effects that resulted in capping compensation to college athletes.  In it’s ruling, the Supreme Court found:  “In any other business or industry, the price fixing or price capping employed by the NCAA would unequivocally be deemed an antitrust violation.”

Prior to the ruling in Alston, there was a long-standing notion that the “amateurism” aspect of college athletics insulated the NCAA from Sherman Antitrust violations.  The Supreme Court in Alston finally discarded the view that amateurism provides the NCAA with a blanket defense to anticompetitive actions.  The Court determined that there are no special characteristics of the NCAA that exempt it from the Sherman Antitrust laws.  In his concurring opinion, Justice Brett Kavanaugh wrote: “The NCAA is not above the law.”

Although the Supreme Court did not squarely address the recent developments of athlete’s rights to capitalize on their own name, image, and likeness (NIL), the Alston decision will provide college athletes with substantially more bargaining power when it deals with paying collegiate athletes. Additionally, the Court’s ruling against the NCAA will likely force the NCAA to be less restrictive in its regulations regarding athlete compensation.

NIL Changes

As of July 1, 2021, the NCAA instituted new rules and regulations which will allow student-athletes to receive compensation for their name, image, and likeness (NIL).  Historically, the NCAA has generally refused to compensate athletes for their athletic services, while the NCAA and member schools have generated massive profits from sporting events and TV deals.  Under the new NIL rules, college athletes will be allowed to earn money from endorsement deals, social media advertising, making personal appearances, signing autographs, and other types of arrangements.

The NCAA enacted these new rules and regulations in response to the growing number of State Legislatures that were enacting their own NIL laws for college athletes. As of today, Alabama, Florida, Georgia, Mississippi, New Mexico, Oklahoma, Nebraska, Texas, Kentucky, Ohio, Oregon, Illinois, Colorado, South Carolina, and Arizona all have NIL laws in effect. Missouri and Connecticut will have NIL laws that will go into effect before year’s end, while Arkansas, Tennessee, Nevada, and Michigan have NIL laws that will go into effect in 2022. Each state’s NIL laws are different, but a majority of the laws contain many similar provisions.

The new NIL rules allow student athletes to benefit from all of the hard work and sacrifices they have made to become a college athlete.  Numerous college athletes around the country have already inked lucrative endorsement deals.  Depending on your state’s NIL laws, college athletes may utilize agents or legal representatives to assist in procuring NIL deals.  The NIL opportunities are just beginning.  If you want to know more about NIL or would like an attorney to assist with NIL opportunities – the attorneys at Hartung Schroeder are available to help.

ABOUT J.D. HARTUNG

J.D. is a co-founder and partner at the law firm of Hartung and Schroeder. He started the firm with friend and colleague, Brad Schroeder, after working in both boutique and large, multi-state firms. He saw first-hand that a small firm brings definite advantages to clients. Experienced in general litigation, he serves a wide range of clients including those seeking legal counsel for business, family law issues and personal injury. You can read more about him or get in touch here.

Yet, traditional divorce tries to keep the emotions on the sideline by focusing on each party’s legal position. Often the court process itself can cause trauma for families. For families, for mothers/fathers, for husbands/wives; the litigation-centered divorce approach is just not natural. The “parties” are two people who, at one point, chose to commit themselves to each other and to build a life together. When most people are first getting married, neither spouse can do wrong; their positives completely outweigh any negatives. When parties are contemplating divorce, it is an entirely different story. Anger and mistrust have taken over, and spouses interpret any action by the other spouse as an intentional slight against them. Often, this reaction is rooted in fear: fear of the future, fear of the unknown, and fear of being taken advantage of. There has to be a better way to “unmarry” these spouses – who were once so in love – without a knock-down-drag-out fight. There has to be a better way to unwind the lives of these two individuals without creating another trauma.

Collaborative Divorce is the better way. Collaborative Divorce keeps families out of court. Each spouse has their own separate attorney, and the two attorneys are there solely for the purpose of reaching an out-of-court agreement. Zero time, zero energy, and zero money go towards preparing for court hearings. The attorneys’ focus is entirely on helping the family move forward. The goal is for the parties to move on with their lives as painlessly as possible. Plain and simple. With Collaborative Divorce, the spouses are bound by a contract, known as a Participation Agreement, that prohibits their Collaborative attorneys from being used in court. On the rare occasion the spouses are unable to reach an agreement and must proceed to court, their Collaborative attorneys would withdraw and the spouses would hire new trial counsel. Incidentally, the majority of spouses going through a Collaborative Divorce reach a full agreement. They are committed to a peaceful process from the beginning, and it shows in their outcomes.

Collaborative Divorce is the better way to help families process the emotions of divorce. Attorneys are equipped to advise and to make arguments for our clients. We aren’t specifically trained to handle the emotional aspects of divorce. However, therapists and mental-health professionals are equipped for this. They specialize in family dynamics, interpersonal communication, and child development. They can help develop a parenting plan – when children are involved – that is developmentally and emotionally tailored to meet your children’s needs. These professionals are brought into the Collaborative Divorce process to cut through the emotional baggage and help spouses reach an agreement. To help you see beyond the past so you can get to your better future. To help you move on. To help you move forward. It is as simple as that.

Collaborative Divorce is also the better way to help families process the financial questions involved in divorce. Attorneys are not specifically trained in the art of financial analysis. Similar to the mental health experts, neutral financial experts can also be brought in to provide – among other things – income projections, budgeting solutions, and retirement projections for spouses involved in the divorce process. In the Collaborative Divorce process, parties agree to provide the financial professional with documentation of all marital assets. They agree to full financial transparency. With this agreement, the financial professional can review the financial documents and help the parties address concerns and jointly plan for the future. Retaining a Collaborative financial professional can also end up saving a family money in their divorce. In Iowa, divorcing spouses are required to exchange mandatory financial information and documents. In traditional court-based divorce, spouses do this through their attorneys. In Collaborative Divorce, both spouses work with one neutral financial expert. The financial expert is just that – an expert. They can work faster and cheaper than the attorneys to collect and analyze the spouses’ financial data. And, because they are working with both spouses, they will not need to request duplicate information for each spouse and there will be no reason to complete the traditional “discovery” process. This often saves clients thousands of dollars when they choose Collaborative divorce.

Collaborative Divorce is a simple and sensible idea based on the concept that families don’t belong in court.  Emotions are not ignored, but rather they are incorporated into the process so that spouses can move forward in their lives.  And families can benefit by a better understanding of their finances so that they can make smarter financial decisions more efficiently. If you are contemplating divorce, Laura Lockwood with Hartung Schroeder is trained in Collaborative Divorce and can assist you through this unique and forward-thinking divorce process.

In today’s employment environment, employees are increasingly being asked to sign “non-compete” agreements.  These types of agreements can take many forms and include a range of different restrictive covenants. For example, they can prohibit and/or restrict:  (a) the use of confidential and/or proprietary information; (b) the solicitation of customers; (c) the solicitation of employees; and (d) general competition within a given industry or field.

Employees often sign agreements containing restrictive covenants without placing much thought or consideration of what the long-term implications of these covenants are.  Employees are often excited about the new opportunity before them and cannot envision a future scenario where these covenants may impact their lives.

Employers, on the other hand, often craft restrictive covenants which are overly broad, unduly burdensome, and as such, unlikely to be enforceable if challenged in court.  Employers are justifiably concerned with protecting the company and/or business they have worked hard to develop and grow, which can result in restrictive covenants that are not reasonable in scope and/or duration.

Regardless of which side of the transaction you are on, employee or employer, a basic understanding of how non-compete agreements are treated under Iowa law is necessary.  Iowa courts have consistently held “‘there is no public policy or rule which condemns or holds in disfavor a fair and reasonable non-compete agreement…such a contract is entitled to the same reasonable construction…accorded to business obligations in general.’”  Thrasher v. Grip-Tite Manufacturing Co., Inc., 536 F. Supp. 2d 937, 943 (S.D. Iowa 2008) (quotingCurtis 1000, Inc. v. Youngblade, 878 F. Supp. 1224, 1259 (N.D. Iowa 1995)).  In determining whether a restrictive covenant is enforceable, Iowa courts consider the following factors:

(1)        whether the restriction is reasonably necessary for the protection of the employer’s business;

• whether it is unreasonably restrictive of the employee’s rights; and
• whether it is prejudicial to the public interest.

Revere Transducers, Inc. v. Deere & Co., 595 N.W.2d 751, 761 (Iowa 1999).

As stated by the Iowa Supreme Court, “[e]ssentially, these rules require us to apply a reasonableness standard in maintaining a proper balance between the interests of the employer and the employee.”  Iowa Glass Depot, Inc. v. Jindrich, 338 N.W.2d 376, 381 (Iowa 1983).  Put another way, “the validity of the contract in each case must be determined on its own facts and a reasonable balance must be maintained between the interests of the employer and the employee.”  Baker v. Starkey, 144 N.W.2d 889, 897-898 (Iowa 1966).

Recognizing the long-term impact a non-compete agreement can have, whether you are an employee signing an overly restrictive agreement or an employer whose agreement may not be not enforceable as drafted, it is important to fully understand your rights and responsibilities relative to a non-compete agreement before it is executed.  A quick review by an experienced business attorney can help avoid unexpected consequences and unnecessary expense related to the future enforcement of a non-compete agreement.

ABOUT JON GARNER

Jon’s caseload often includes matters pertaining to business, family law, civil litigation, criminal matters and mediation. Regardless of the type of case, he believes in helping clients find common ground as they work toward resolution. You can read more about him or get in touch here.