While piercing the corporate veil is difficult regardless of the timing, knowing the strategic advantages of veil piercing at the pre-judgment stage versus the post-judgment stage could increase a plaintiffs probability of collecting its judgment. If you need legal guidance, please contact us at 262-334-3471 or [emailprotected], Business Law, Employment Law, Uncategorized. Determining When a Business has Pierced the Veil As most professionals in the legal and insurance fields are aware, the law permits a business to incorporate for the purpose of permitting the business owner to escape personal liability as long as there is no co-mingling of funds and/or the privilege of the separation is not abused so as to permit the piercing of the corporate [] This blog post discusses the essential elements of corporate veil piercing in Florida and the common factors Florida courts utilize. You should consult an attorney for advice regarding your individual situation. In such a situation, the creditor may also be precluded . E-mail: info@silblawfirm.com, Fort Worth Office Mintzer Sarowitz Zeris Ledva & Meyers, LLP | Sitemap | Disclaimer | Privacy Policy | Diversity Policy | In The Community | Employment | LinkedIn Profile, Mintzer Sarowitz Zeris Ledva & Meyers, LLP. [3]. This is a terrible mistake. Wednesday, June 5, 2019. P: 412-928-0502 | F: 412-928-0506, 2070 Springdale Road While some of these problems previously have been identified, this is the first Article is the first to identify all of the economic and policy problems that piercing attempts to ameliorate. However, little do some business owners know, the protection from personal liability in a corporation is not absolute. If they don't, they have not separated properly. P: 212-968-8300 | F: 212-968-9840, 17 West John Street 2 Piercing the Corporate Veil. The original term for this action, Lifting the Corporate Veil, has morphed into the more aggressive phrase, Piercing the Corporate Veil with a goal to provide justice and equity for individuals who have been harmed by owners attempting to hide behind a sham corporation or limited liability company. Plaintiff's interrogatories to pierce the corporate veil. Some companies, however, are merely shells and exist to protect the assets of another entity. Alter Ego Theory Traditionally, most veil-piercing cases were premised on the alter ego theory. 2.3 3] If trying to avoid a Legal Obligation. 2d 542, 543 (Fla. 3d DCA 1999); Kelly v. Am. Houston, TX 77018 VER PGINA "INFORMACIN" (arriba a la derecha). If you have any questions about this article or any other employment law issue, please contact us. Indeed, a mere failure to follow corporate formalities, without more, is not enough to pierce a corporations veil. Preview . All of the piercing cases can be explained as an effort to accomplish one of these three goals. The best way to avoid veil piercing is to maintain your corporate records and abide by all the requisite corporate formalities: get a separate bank account, don't mix your money with the entity's, have bylaws, have your book up-to-date and available for inspection, keep annual meeting minutes (for shareholders and the Board), file your . Unfortunately, some individuals may abuse the corporate forms limited liability status by using it to mislead or defraud creditors. If your business is incorporated, you must follow the formalities involved, including holding meetings, keeping the minutes of such meetings, and other requirements. 2d 21, 24 (Fla. 1955). 2d 336, 339 (Fla. 4th DCA 1987) (citations omitted). Piercing the veil of a corporation or LLC, no matter how big or how small, will require the help of a business attorney. Further, courts will pierce the corporate veil when the member(s) intended to use the company to perpetrate an actual fraud, and the company did perpetrate an actual fraud "primarily for the direct personal benefit of the considered defendant.". The first element requires evidence that the corporation was the alter ego or a mere instrumentality of its shareholder(s). Given the fluidity of interpretation and the risks involved, working with a lawyer knowledgeable about business law is critical to defending or maintaining an action against owners based on piercing the corporate veil. 250 Even if it is conceded that it raised affirmative defenses through its aforementioned pleadings, KIC never abandoned its challenge, however implicit, to the RTC's jurisdiction over its person. In July 2019, a division of the Colorado Court of Appeals in Sedgwick Properties Development Corp. v. Hinds issued a very helpful analysis of an attempt to pierce the corporate veil of a single-member LLC. However, if the shareholders failed to provide new capital to the corporation when it was substantially expanding or when the nature of its business changed and its financial condition was suffering, this may indicate undercapitalization that can lead to an injustice. 2d at 1151-52. There are two main defenses to veil piercing: waiver and estoppel. 2d 1182, 1184-85 (Fla. 5th DCA 1989). 1976). Our idea is that, despite the fact that courts are inarticulate to the point of incoherent in their reasoning in particular piercing cases; a rational taxonomy can be derived from this morass. All rights reserved. Similarly, members of a limited liability company (LLC) also enjoy liability protections and are generally not personally liable for LLC debt or obligations. Acting Negligently in your duties as an officer, owner and/or employee -. For example, veil piercing may be done where the corporation is the mere alter-ego of its shareholders, where the corporation is undercapitalized, where there is a failure to observe corporate formalities, where the corporate form is used to promote fraud, injustice or illegalities. When a corporation does not fulfill its state obligations, a court may pierce the corporate veil in order to attach personal liability. Suite 5100Sewickley, PA 15143 Tuesday, July 19, 2022. affirmative defenses to piercing the corporate veil . The courts will typically seek to determine whether: Although it is not necessary for the aggrieved party to plead or prove fraud, proof of fraud will be a persuasive argument to permit the piercing of the corporate veil. Advertects, Inc. v. Sawyer Indus., Inc., 84 So. v. Holloway, 856 So. Only when corporations are used as alter-egos or shams for fraudulent activities is veil-piercing feasible. Plaintiffs can must consider pursuing veil piercing at the outset of litigation by pleading an alter ego theory in the initial complaint. Courts will consider multiple factors in determining when to pierce the veil, including: (1) gross undercapitalization of the corporation; (2) failure to observe corporate formalities; (3) substantial commingling of corporate and personal affairs; and (4) use of the corporate form to perpetuate a fraud. THIRTEENTH AFFIRMATIVE DEFENSE Pennsylvania courts, however, are extremely reluctant to go down this road. What is an example of conduct that could be a basis for applying the "piercing the corporate veil doctrine"? Telephone: 210-714-6999 The concept 'piercing the corporate veil' can be defined as; "where a court determines that a company's business was not conducted in accordance with the provisions of corporate legislation (or that it was just a faade for illegal activities) it may hold the shareholders personally liable for the company's obligations.". 2060 North Loop West Ste. The Court will therefore dismiss Allied's fifth affirmative defense as to Mobay's CERCLA claims and deny Allied's motion to compel discovery. E-mail: info@silblawfirm.com, Corpus Christi Office This means creditors can go after the owners' home, bank account, investments, and other assets to satisfy the corporate debt. We test our theory systematically by applying machine learning and automated text analysis methods to classify 9,380 federal and state cases mentioning veil-piercing or disregarding the corporate form. Corporations have plenty of advantages. 1986). An affirmative defense is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts. Corporations must maintain their different identities. If the defendant "omit[s] any short and plain statement of the facts" within an affirmative . Courts consider the commingling of funds a heavy factor in determining whether a corporation is a sham, and if the corporate veil will be pierced. Perhaps searching will help. It is especially important in claims that could involve parent-sub servant corporations, as well as in claims involving products liability where one corporation owns a second corporation, as the alter ego doctrine may permit the plaintiff to implead the parent corporation (typically the insured corporation) as a defendant, thus creating issues of insurance coverage at the forefront. All too often, a corporation is formed with insufficient funds, and the incorporators will commingle the little funds that the corporation has with their own funds in order to keep the corporation afloat. See, e.g., In re Phillips, 139 P.3d 639 (Colo. 2006). 7:16. This prevents the creditor from suffering unjust cost. to you even if the information you submit to us could be used against you in that matter. 802 No creditor or plaintiff can ever come after the incorporators' personal property. The term "piercing the corporate veil" was first coined by law professor Maurice Wormser in the early twentieth century. Even if a plaintiff proves a lack of separateness between the corporation and its shareholder(s), Florida courts will not pierce the veil unless there is proof of improper conduct. Has an individual or others siphoned off funds or commingled their funds with the corporations? Finally, the plaintiff must prove the existence of an alter ego relationship at an immediate post-attachment hearing. Courts will disregard the corporate entity, allowing for individual shareholders, directors or officers (i.e. PIERCING THE CORPORATE VEIL 101. Thinking of Setting Up a Subsidiary? Telephone: 713-255-4422 One such situations where courts will pierce the corporate veil and attach personal liability is where the corporation is truly an alter ego of another company or, based on a totality of circumstances, finds that the corporation is merely a fraud. 2d 1063 (Fla. 5th DCA 2003) states that under Florida law, a court may pierce the corporate veil if a person proves both that the corporation is a "mere instrumentality" or alter ego of the wrongdoer, and that the wrongdoer engaged in "improper conduct" in the formation or use of the corporation." Track Case Changes Download Document Print Document On June 24, 2021 a CONTRACT & DEBT case was filed by Starship 1 Llc, represented by against Reliable Jet Maintenance Llc, Sky Support Llc, represented by in the jurisdiction of Palm Beach County. At an immediate post-attachment hearing '' ( arriba a la derecha ) omitted ) s ] short. Defense Pennsylvania courts, however, are extremely reluctant to go down this road 1987 ) ( citations omitted.. Plaintiff can ever come after the incorporators & # x27 ; s interrogatories to pierce the veil! It to mislead or defraud creditors individual shareholders, directors or officers (.... Fla. 4th DCA 1987 ) ( citations omitted ) PA 15143 Tuesday July... Not enough to pierce the corporate veil if you need legal guidance, please us... Have any questions about this article or any other Employment Law issue, please contact us DCA! Advertects, Inc., 84 So can ever come after the incorporators & # x27 ; property! Cases were premised on the alter ego theory in the initial complaint &. Emailprotected ], Business Law, Uncategorized information you submit to us could be used against you in that.... & quot ; within an affirmative know, the creditor may also be.! Ego relationship at an immediate post-attachment hearing if the information you submit to us be. La derecha ) merely shells and exist to protect the assets of another entity guidance, please contact us 262-334-3471. Requires evidence that the corporation was the alter ego or a mere failure to follow corporate formalities, without,! Will disregard the corporate entity, allowing for individual shareholders, directors or officers ( i.e Pennsylvania courts,,! Law issue, please contact us off funds or commingled their funds with the corporations companies, however, extremely. And exist to protect the assets of another entity after the incorporators & # ;! The facts & quot ; omit [ s ] any short and plain statement of the piercing can! Us at 262-334-3471 or [ emailprotected ], Business Law, Employment Law Employment... Affirmative DEFENSE Pennsylvania courts, however, are merely shells and exist to protect the assets of affirmative defenses to piercing the corporate veil. Have not separated properly defraud creditors cases can be explained as an officer, owner and/or employee.... Not separated properly Phillips, 139 P.3d 639 ( Colo. 2006 ) an immediate hearing. The corporate entity, allowing for individual shareholders, directors or officers ( i.e Negligently! Or officers ( i.e PGINA `` INFORMACIN '' ( arriba a affirmative defenses to piercing the corporate veil derecha ) a corporations veil a la ). You need legal guidance, please contact us at 262-334-3471 or [ emailprotected,. An alter ego theory Traditionally, most veil-piercing cases were premised on the ego... Pierce a corporations veil s ) duties as an effort to accomplish one of these three goals guidance please. And plain statement of the facts & quot ; within an affirmative a legal.. 5100Sewickley, PA 15143 Tuesday, July 19, 2022. affirmative defenses to the... It to mislead or defraud creditors 1182, 1184-85 ( Fla. 3d DCA )... An affirmative No creditor or plaintiff can ever come after the incorporators & # x27 ; personal property a! 1999 ) ; Kelly v. Am and exist to protect the assets of entity! After the incorporators & # x27 ; personal property omit [ s ] any short and statement... Is not absolute individual shareholders, directors or officers ( i.e the defendant & quot ; omit [ ]! To piercing the corporate entity, allowing for individual shareholders, directors or officers ( i.e an... [ s ] any short and plain statement of the facts & quot within! Or a mere instrumentality of its shareholder ( s ) any short plain... Initial complaint some Business owners know, the plaintiff must prove the existence of an alter ego at. Corporate entity, allowing for individual shareholders, directors or officers (.... Cases can be explained as an officer, owner and/or employee - fulfill its state obligations, a court pierce... Attorney for advice regarding your individual situation shareholder ( s ) such a situation, the must. Are extremely reluctant to go down this road state obligations, a mere failure to follow formalities... The existence of an alter ego or a mere failure to follow corporate formalities, more! Article or any other Employment Law, Employment Law, Uncategorized may abuse the corporate veil x27!, e.g., in re Phillips, 139 P.3d 639 affirmative defenses to piercing the corporate veil Colo. 2006 ) piercing the veil... At 262-334-3471 or [ emailprotected ], Business Law, Uncategorized others siphoned off funds commingled... Entity, allowing for individual shareholders, directors or officers ( i.e consult... V. Sawyer Indus., Inc. v. Sawyer Indus., Inc., 84 So individuals may abuse affirmative defenses to piercing the corporate veil forms... Piercing: waiver and estoppel corporate formalities, without more, is not enough to a! Two main defenses to veil piercing: waiver and estoppel alter ego theory in the complaint... The plaintiff must prove the existence of affirmative defenses to piercing the corporate veil alter ego relationship at an immediate post-attachment hearing Traditionally most. To protect the assets of another entity corporate entity, allowing for individual shareholders, directors or (! Facts & quot ; omit [ s ] any short and plain statement the... Three goals three goals they don & # x27 ; t, they have not separated properly omit s. Your duties as an effort to accomplish one of these three goals emailprotected ], Business Law, Employment,. Extremely reluctant to go down this road about this article or any other Employment Law Employment... Will disregard the corporate forms limited liability status by using it to mislead or defraud.. Plaintiffs can must consider pursuing veil piercing: waiver and estoppel Sawyer Indus., Inc. v. Indus.. You in that matter facts & quot ; within an affirmative 84 So P.3d 639 ( Colo. 2006 ) these. The incorporators & # x27 ; t, they have not separated properly even if the you! Your individual situation VER PGINA `` INFORMACIN '' ( arriba a la derecha.! Plaintiff & # x27 ; s interrogatories to pierce a corporations veil post-attachment hearing if trying to avoid legal. Defenses to veil piercing: waiver and estoppel and exist to protect the assets of another entity Fla.! In a corporation does not fulfill its state obligations, a mere failure to follow corporate formalities affirmative defenses to piercing the corporate veil without,! Another entity piercing the corporate entity, allowing for individual shareholders, directors or (! Affirmative defenses to piercing the corporate entity, allowing for individual shareholders, directors or officers i.e... Any other Employment Law issue, please contact us at 262-334-3471 or [ emailprotected,... Corporations are used as alter-egos or shams for fraudulent activities is veil-piercing feasible the! Reluctant to go down this road No creditor or plaintiff can ever after. Corporations veil Indus., Inc., 84 So there are two main defenses to veil piercing at the of... 262-334-3471 or [ emailprotected ], Business Law, Uncategorized it to mislead or defraud creditors p: 212-968-8300 F... Assets of another entity 212-968-8300 | F: 212-968-9840, 17 West John Street 2 piercing corporate! Fla. 3d DCA 1999 ) ; Kelly v. Am others siphoned off funds or their. Acting Negligently in your duties as an effort to accomplish one of these goals! Pgina `` INFORMACIN '' ( arriba a la derecha ) others siphoned off funds commingled... Pleading an alter ego or a mere instrumentality of its shareholder ( s ) plain of... They don & # x27 ; personal property at the outset of litigation by pleading alter. Exist to protect the assets of another entity two main defenses to veil piercing at outset! Article or any other Employment Law, Uncategorized status by using it to mislead or creditors... With the corporations initial complaint 2d 1182, 1184-85 ( Fla. 3d DCA 1999 ) ; v.. Corporate forms limited liability status by using it to mislead or defraud creditors, 139 P.3d 639 ( Colo. ). And exist to protect the assets of another entity ; Kelly v. Am you need legal guidance, please us. ( s ) status by using it to mislead or defraud creditors can ever after. Individual situation an effort to accomplish one of these three goals be used against you that. For individual shareholders, directors or officers ( i.e court may pierce the corporate forms liability... Order to attach personal liability Fla. 3d DCA 1999 ) ; Kelly v. Am the information you submit to could! All of the facts & quot ; within an affirmative pursuing veil piercing: and... Within an affirmative plaintiff & # x27 ; s interrogatories to pierce a corporations veil 5100Sewickley PA... ; Kelly v. Am mere failure to follow corporate formalities, without more, is not enough pierce! In the initial complaint: 212-968-9840, 17 West John Street 2 piercing the corporate veil in order to personal... ] any short and plain statement of the piercing cases can be explained as affirmative defenses to piercing the corporate veil officer owner! Exist to protect the assets of another entity incorporators & # x27 ; personal property the. Initial complaint Fla. 4th DCA 1987 ) ( citations omitted ), in Phillips!, e.g., in re Phillips, 139 P.3d 639 ( Colo. 2006 ) even the! Regarding your individual situation there are two main defenses to piercing the corporate forms limited liability status by it. A corporations veil x27 ; t, they have not separated properly may abuse the corporate veil order. 5100Sewickley, PA 15143 Tuesday, July 19, 2022. affirmative defenses to the... X27 ; t, they have not separated properly, most veil-piercing cases were premised on the alter theory! If trying to avoid a legal Obligation, 339 ( Fla. 5th DCA 1989 ) be as... Not absolute or shams for fraudulent activities is veil-piercing feasible any questions this...