July 2, 06

NEWS / Legislation Affecting Publication by Limited Liability Companies, Limited Partnerships and Limited

Chapter 767 of the Laws of 2005 includes amendments to the Limited Liability Company Law and Partnership Law regarding the publication required upon the formation or authorization of domestic and foreign limited liability companies, limited partnerships and limited liability partnerships (hereinafter referred to as "limited liability entities"). The law becomes effective on June 1, 2006.

Chapter 44 of the Laws of 2006, also effective June 1, 2006, provides further amendments to the Limited Liability Company Law and Partnership Law regarding publication requirements for limited liability entities. The amendments provided by both laws related to filing the proof of publication with the Department of State are outlined below.

The Limited Liability Company Law and the Partnership Law may be found on the New York State Senate’s website at www.senate.state.ny.us.
Existing Limited Liability Entities

• Limited liability entities which were formed or authorized prior to June 1, 2006, are deemed to have complied with the publication and filing requirements in effect prior to June 1, 2006 if:

(i) the entity was formed or authorized on or after January 1, 1999 and prior to June 1, 2006 and the entity filed at least one affidavit of the printer or publisher of a newspaper with the Department of State at any time prior to June 1, 2006, or

(ii) the entity was formed or authorized prior to January 1, 1999.

• Limited liability entities formed or authorized to do business in New York prior to June 1, 2006, that have not been deemed to be in compliance with the publication and filing requirements, are statutorily required to fulfill the publication requirements in the manner required by law prior to June 1, 2006. Failure to complete such publication requirements within 12 months of the effective date of the law will result in the suspension of the limited liability entity’s authority to carry on, conduct or transact any business.
Limited Liability Entities Formed or Authorized on or after June 1, 2006

• The Limited Liability Company Law and the Partnership Law now include additional provisions regarding the selection of the correct county in which to publish. The applicable statutory provisions should be consulted prior to publishing.

• Notices published by limited liability entities now must include information regarding the address, if any, of the "principal business location" of the limited liability entity.

• Notices must still be published in two newspapers, once each week, for six consecutive weeks.

• The requirement that the newspapers for publication be designated by the county clerk is continued. However, one newspaper must be "printed daily" and the other "printed weekly."

• Limited liability entities that are formed or authorized to do business in New York after June 1, 2006, which fail to comply with the publication requirements within 120 days after their formation or qualification will have their authority to carry on, conduct or transact any business suspended.
Filing Requirements Applicable to all Limited Liability Entities

• Effective June 1, 2006, all Affidavits of Publication submitted to the Department of State for filing must include a Certificate of Publication. The two Affidavits of Publication of the newspapers must be attached to the Certificate of Publication. The Department of State has prepared sample forms for the filing of Certificates of Publication.

• The fee for filing a Certificate of Publication along with the two Affidavits of Publication will be $50.

• The format for the newspaper’s Affidavits of Publication is now provided in the Limited Liability Company Law and Partnership Law.

• The Department must decline to file any document that impairs the Department’s ability to make an official record.

• Please note the following regarding Certificates of Publication and Affidavits of Publication:

1. An Affidavit of Publication must not include the actual clipping of the newspaper publication. A photocopy of the newspaper clipping may be attached to the Affidavit of Publication if it is of sufficient size and otherwise suitable for microfilming or other imaging technology. Please note that the applicable statutes do not require the actual clipping of the newspaper publication to be attached to the Affidavit of Publication. The statutes only require that the text of the publication be in or annexed to the Affidavit of Publication.

2. The Department recommends that newspapers print the text of the publication on white paper to be attached to the Affidavit of Publication or include the text of the publication in the Affidavit of Publication.

3. Small font size is not permitted. The Department recommends that a font size of 10 or larger be used.

4. The Affidavit of Publication and attached copy of the publication, if applicable, must be on 8 ½ x 11 paper.

5. An Affidavit of Publication may include only one copy of the text of the publication. The applicable statutes do not require a copy of each week’s publication.

• A limited liability company that is a theatrical production company is exempt from the publication requirements provided the words "limited liability company" appear in its name (See Section 23.03 of the Arts and Cultural Affairs Law).

The Department of State is not in a position to provide legal advice regarding publication or the changes in the law. Persons interested in publication by limited liability companies, limited partnerships or limited liability partnerships should consult a private attorney.

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