The previous post discussed the “secrecy” which a limited liability company (LLC) enjoys. I included a subpoena to a third-party company that sets up LLCs for people. That subpoena requested all of the contact information possessed by the third-party formation agent.
In the last post I said that the subpoena was directed to Harvard Business Services, Inc. You may need to subpoena another formation agent in Delaware or in another state. The basics will be the same and the subpoena I provided can be used as a template.
I included twenty-three (23) production requests. This may seem like a lot but I did not want to miss anything. Also, a lot of the requests to the formation agent in a subpoena will be duplicative but there’s really no way to avoid this.
How did I know exactly what to ask for? I actually went through the process of forming an LLC using Harvard Business Services, Inc. just prior to drafting the subpoena. One of the advantages of having done this was so that I could screencapture the information they require of the person forming the LLC at every single step in the process. I’m pretty sure that if I didn’t do this and just asked for “All information contained in your files regarding the entity Acme, LLC, formed on June 8, 2014,” this would have been sufficient.
However, I would rather not take chances. Also, using the phrase “all information” immediately gives the impression that your request is overbroad. Even if “all information” only amounts to several pages, it just looks like an overbroad request.
Don’t forget that prior to serving this subpoena on your third-party, you have to serve it on all of the other parties. Fed. R. Civ. P. 45(a)(4). The purpose of this rule is so a party will have the opportunity to object or make a motion to quash the subpoena that you’ve made.
So having formed an LLC with Harvard Business Services prior to preparing my subpoena, and having captured screenshots of what they required from me at every step, I knew exactly what to ask for.
The first few production requests (1-7) were based on what was required to be filled out on the “Let’s Get Started” page. They asked for the person’s name, email, phone number, country of residence and the type of company you want to form. I also asked for an internet protocol (IP) address that was logged by Harvard Business Services in connection with activity on this page.
The next batch of requests (9-16) related to the information needed to fill out the webpage entitled “Communications Contact.” The heading at the top of this page states that Delaware law requires the registered agent to have the name and contact information of a natural person. This requirement is codified in Title 6, Chapter 18 of the Delaware Code. Chapter 18 is the “Limited Liability Company Act” (“LLC Act”).
§ 18-104(g) states that the registered agent must have on file the “name, business address and business telephone number of a natural person who is a member, manager, officer, employee or designated agent of the limited liability company, who is then authorized to receive communications from the registered agent. Such person shall be deemed the communications contact for the limited liability company.”
Note that nowhere does the law say the communications contact has to be a member of the LLC. However, Harvard Business Services offers a checkbox if the communications contact happens to also be a member of the LLC.
Then there’s a page which asks you to identify the members or owners of the LLC. This isn’t such a big deal and it doesn’t bind the person whose name is entered. This is because § 18-301(b) of the LLC Act says that upon the consent of all members, new members may be admitted to the LLC. There’s also no requirement that any of this be written down since § 18-101(7) states that a limited liability company agreement may be oral or even implied. So if you are using your brother-in-law as a nominee to conceal your beneficial membership, and your brother-in-law obviously is aware of this, you never need to put it on paper. So even though you’re required to provide a name of at least one member, you can change this at any time after the LLC is formed.
Next Harvard Business Services offers to obtain an Employer Identification Number, also referred to as a Federal Tax Identification Number, for your LLC.
Requests 20-23 are very important because these seek the information entered on the page entitled “Payment Information.” No, you’re not going to get the credit card number of the person who formed the LLC. I don’t even think this stays in the system of Harvard Business Services or any other company after the transaction is completed. But you will get the name of the cardholder, their billing address, shipping address and the email address of the person placing the order for the formation of the LLC.
Other formation agents are not going to have the exact same prompt screens that Harvard Business Services has. However, they will request similar information, as they are required to do by law.
If you have to subpoena another formation agent, you can ask for almost exactly the same things I asked for, just without references to the webpages which contained the prompts. From here, you may have to engage in motion practice to see that your subpoena is enforced. If your adversaries don’t object within the appropriate time period, contact the formation agent and ask for their legal department. Be courteous and polite because this person can decide whether or not to make your life difficult. It’s likely that unless any party successfully quashes your subpoena, the formation agent will comply and provide you with what you need.
In the next post I’ll include a response I received when I had to serve a subpoena like this on a formation agent.