Ohio Rev. Code § 1705.081
R.C. § 1705.081
Committee Comment (2012)*
This new section states in division (A) the general principle that relations among or between the members, any managers and the limited liability company are to be governed by the operating agreement. Many provisions of Chapter 1705 set out a default rule that applies when there is no different rule stated in the articles or the operating agreement. That concept is reflected in numerous sections of Chapter 1705 that include language that states specifically that the provisions of that section may be altered by the articles or the operating agreement. This new section makes those words unnecessary even though they have not been removed from each of section of Chapter 1705.
Division (A) also clarifies that a limited liability company is bound by its agreement even if it has not executed the agreement
Division (B) identifies the provisions of Chapter 1705 that may not be altered and the limits that apply when the articles or the operating agreement alters certain other statutory provisions. If the section is not identified in division (B), it may be altered by the articles or the operating agreement. Both divisions (A) and (B) draw on similar provisions of Ohio's partnership law in § 1776.03. These provisions are consistent with the result in McConnell v. Hunt Sports Enterprises, 132 Ohio App.3d 657 (1999) in which the court recognized that a contract can limit the scope of fiduciary duties and held that the provision of an operating agreement permitting members' participation in ventures competitive with the company allowed the members to take actions that would otherwise have been a breach of fiduciary duty. Divisions (A) and (B) are also similar to provisions in Section 110 of the Revised Uniform Limited Liability Company Act (2006) ("RULLCA").
It is also important to recognize that Chapter 1705 defines by statute all the fiduciary duties owed by members and managers. See§§ 1705.281 and 1705.29 and the related Committee Comments (2012). In contrast, RULLCA identifies what the drafters called "major" fiduciary duties, but does not purport to be an exhaustive or exclusive statement of fiduciary duties. Prefatory Note to RULLCA (2006).
*Comments on 129th General Assembly, HB 48, from the Ohio State Bar Association Corporation Law Committee