Delaware Business Litigation Report

Chancery Applies Implied Consent to Service Provision of Delaware LLC Act to Individual Without Any Formal Role at the LLC

In Re P3 Health Grp. Hldgs., LLC, Consol. C.A. No. 2021-0518-JTL (Del. Ch. Oct. 26, 2022)
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. Disputes over whether an individual not falling in the first category falls in the second often focus on individuals with some formal role at the LLC.  As this decision illustrates, however, an individual without any formal role at the LLC, but who otherwise participates materially in the LLC’s management, may also be found to be a manager, and thus have consented to service and jurisdiction in Delaware. Facts relevant to the Court of Chancery’s finding of an adequately alleged acting management, in this case, included the defendant’s direction of the company’s managers, control of the company’s advisors, involvement in legal decisions, and access to information.

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