Chancery Applies Implied Consent to Service Provision of Delaware LLC Act to LLC’s General Counsel and Chief Legal Officer
In re P3 Health Group Holdings, LLC, Consol. C.A. No. 2021-0518-JTL (Del. Ch. Sept. 12, 2022)
The plaintiff, a large unit holder in a Delaware LLC, sued several defendants, including the general counsel and chief legal officer of the LLC, for allegedly breaching her fiduciary duties to the LLC and its members for her role in facilitating a challenged de-SPAC merger. The implied consent provision of Section 18-109 of Delaware’s LLC Act provides that “managers” of Delaware LLCs consent to the service of process in Delaware. The statute defines “managers” as both (1) those formally designated as managers, and (2) those who “participate  materially” in management. Defendant moved to dismiss for lack of personal jurisdiction arguing that Section 18-109 did not apply to her in her role as an officer of the LLC because (1) she was not a designated manager, and (2) she was not acting in a managerial capacity. Plaintiff argued that because the defendant voluntarily assumed the role of a senior officer of the LLC and because, as alleged in the complaint, she acted in a significant managerial capacity with respect to the LLC, the implied consent provision did, in fact, apply. The Court of Chancery agreed with the plaintiff and its decision provides a thorough discussion of the acting manager prong of Section 18-109. The Court reasoned that, at the pleading stage, the customary responsibilities of a general counsel and chief legal officer provided a basis for asserting personal jurisdiction. The specific allegations, in this case, supported a reasonable inference that the defendant acted in a significant managerial capacity in connection with the challenged conduct.