IN THE SUPREME COURT OF FLORIDA. CASE No.: L.T. Nos.: MOTION FOR LEAVE TO FILE AND FOR EXTENSION OF TIME TO SERVE BRIEF OF AMICUS CURIAE

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1 IN THE SUPREME COURT OF FLORIDA Shaun Olmstead, et ai., Appellant, v. Federal Trade Commission, Appellee. CASE No.: L.T. Nos.: SC08-l009',' DD, ,~CV,~T~.17..,TMB MOTION FOR LEAVE TO FILE AND FOR EXTENSION OF TIME TO SERVE BRIEF OF AMICUS CURIAE Pursuant to Rules and 9.300(a) of the Florida Rules of Appellate Procedure, Zimmerman, Kiser & Sutcliffe, P.A. ("Movant") moves for leave to file an Amicus Curiae brief in connection with this matter and for an extension of time for serving the same. In support of this motion, Movant states as follows: 1. Movant is a full service law firm located in Central Florida, representing individuals, nonprofit institutions, banks, corporations, limited liability companies, partnerships, and large and small businesses in Florida and across the United States. Among other things, Movant has a substantial corporate practice which includes the provision of legal advice relating to asset protection planning, commercial lending, estate planning, tax planning and other matters pertinent to the issues involved in this matter. Interest ofmovant 2. In 1998, the Florida legislature amended the Florida Limited Liability Company Act, Chapter 608, Florida Statutes, to enable the creation of single member limited liability companies. During the ten year time period since such amendment, Movant has rendered legal advice concerning single member LLCs to hundreds if not thousands of clients.

2 3. The certified question to be addressed by the Court is whether, pursuant to Fla. Stat (4), a court may order a judgment-debtor to surrender all "right, title, and interest" in the debtor's single member limited liability company to satisfy an outstanding judgment. 4. The foregoing statute has remained substantially unchanged since its inception and Movant and its attorneys have counseled hundreds, if not thousands, of clients in reliance on this statute. 5. If the certified question is answered in the affirmative, members of single member limited liability companies will no longer be afforded the asset protection benefits that were believed to be mandated by the existing statute. Similarly, creditors of single member limited liability companies will find that the anti-assignment provisions contained in single member limited liability company operating agreements are ineffective to prevent a creditor of a member from taking control of the assets of the limited liability company. Given that a creditor of a member may have no incentive to act in the best interest of the limited liability company, many lenders, including the clients of Movant, will find that the value of their collateral is not what they thought it to be when extending credit to single member limited liability companies. 6. If the certified question is answered in the affirmative, judgment creditors of members of single member limited liability companies are substantially likely to take swift action to take control over the entity's assets, and many of Movant's clients are likely to be affected in their capacity as debtor, creditor and/or lender. 7. Many of Movant's clients may be forced to modify their existing corporate structures so as to take into account the lack of asset protection afforded by single member limited liability companies.

3 Movant Can Assist in the Disposition of this Case 8. After reviewing the opinions rendered by the federal courts, as well as the briefs of the parties, Movant believes it can assist the Court by providing a complete analysis of the statutory language contained in the Florida Limited Liability Company Act, which interpretation harmonizes the provisions at issue in this matter. A copy of Movant's proposed Amicus Curiae Brief is attached hereto as Exhibit "A." In light of the briefs of the parties and the opinions of the federal courts, it appears that these issues would not be briefed or argued if Movant is not authorized to file the attached brief. 9. Neither the federal courts nor the parties in this matter seem to have addressed certain aspects of the Florida Limited Liability Company Act in analyzing the statute at issue and Movant believes it can assist the Court in this regard. Consent of the Filing of an Amicus Curiae Brief 10. Movant certifies that Appellant and Appellee have both consented to the filing of an Amicus Curiae brief by Movant. Extension of Time to Serve Amicus Curiae Brief 11. In accordance with Rules 9.370(c) and 1.090, Florida Rules of Appellate Procedure, dealing with timeliness of service, based on Movant's interpretation of the foregoing rules, Movant believes the deadline for service of the Amicus Curiae brief to be August 5, Appellee questions the possible timeliness of service. 13. To the extent the Court finds that service is untimely, Movant requests an extension of time to properly serve its Amicus Curiae brief immediately upon the granting of this Motion for Leave to File and for Extension of Time to Serve Brief of Amicus Curiae.

4 14. If service is deemed untimely, no party will be prejudiced by the granting of an extension of time for Movant to serve its Amicus Curiae brief. WHEREFORE, Movant respectfully requests that the Court grant Movant leave to file an Amicus Curiae brief on behalf of Appellant and to extend the time for serving such brief until the Court has granted Movant's Motion for Leave to File Brief of Amicus Curiae in Support of Appellant. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by facsimile and u.s. Mail to Thomas C. Little, Esq., 2123 N.E. Coachman Road, Clearwater, FL and John Andrew Singer, Esq., Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Room H-582, Washington, D.C on August 5,2008. Respectfully submitted, Jeremy S. Sloane, Esq. Florida Bar No Carnesha J. Craft, Esq. Florida Bar No Zimmerman, Kiser, & Sutcliffe, P.A. 315 E. Robinson Street, Suite 600 Orlando, FL (407) Phone (407) Facsimile j sloane@zkslawfirm.com ccraft@zkslawfirm.conl

5 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC L.T. NOs.: DD, CV-T-17-TBM SHAUN OLMSTEAD, et al., Appellant,. v. FEDERAL TRADE COMMISSION, Appellee. On Discretionary Review from the United States Court of Appeals for the Eleventh Circuit AMICUS CURIAE BRIEF of ZIMMERMAN, KISER & SUTCLIFFE, P.A. in support of the Appellant Jeremy S. Sloane, Esq. Florida Bar No Carnesha J. Craft, Esq. Florida Bar No Zimmerman, Kiser, & Sutcliffe, P.A. 315 E. Robinson Street, Suite 600 Orlando, FL (407) Phone (407) Facsimile EXHIBIT ''A "

6 TABLE OF CONTENTS TABLE OF CITATIONS 111 STATEMENT OF IDENTITY AND INTEREST SUMMARY OF ARGUMENT v vii ARGUMENT 1 I. THE CLEAR AND UNAMBIGUOUS LANGUAGE OF FLA. STAT (4) LIMITS THE REMEDY OF A JUDGMENT CREDITOR TO A CHARGING ORDER AGAINST A JUDGMENT DEBTOR'S LLC INTEREST IN BOTH SINGLE MEMBER AND MULTIPLE MEMBER LLCS 1 A. The legislative history of the LLC Act does not support the notion that the remedy limitations were not intended to apply to SMLLCs 2 B. Where the Florida Legislature has made distinctions between the applicability of particular provisions of the Florida LLC Act in the context of a single member limited liability company and a multiple member limited liability company, it has expressly done so 4 C. Section (4), Florida Statutes, is clear on its face and requires no statutory construction to determine whether the remedy of a judgment creditor is limited as provided therein 6 11& IN RE ALBRIGHT IS INAPPLICABLE TO THIS CASE, IN THAT COL. REV. STAT IS MATERIALLY DIFFERENT FROM FLORIDA STATUTE CONCLUSION 15 CERTIFICATE OF COMPLIANCE 16 CERTIFICATE OF SERVICE 16 11

7 TABLE OF CITATIONS Cases Exposito v. State, 891 So. 2d 525, 528 (Fla. 2004) 1 Hayes v. State, 750 So. 2d 1,4 (Fla. 1999) 2 Holmes County School Bd. v. Duffell, 651 So. 2d 1176, 1179 (Fla. 1995) 5 In re Albright, 291 B.R. 538 (Bankr. Col. 2003) Prof'l Plastering & Stucco, Inc. v. Bridgeport Strasberg Joint Venture, 940 So. 2d 444, 449 (Fla. 5th DCA 2006) 7 Ruggio v. Vining, 755 So.2d 792 (Fla. 2d DCA 2000) 3 Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001) 2 Unruh v. State, 669 So. 2d 242, 245 (Fla. 1969) 7 Williams v. Jones, 326 So. 2d 425 (Fla. 1975)) 5 Statutes Col. Rev. Stat (2006) 12, , et seq., Fla. Stat. (2006) (23), Fla. Stat. (2006) , Fla. Stat. (1993) , Fla. Stat. (1998) (1), Fla. Stat. (1998) ou uo (2), Fla. Stat. (1999) 4 111

8 (1), Fla. Stat. (2006) ~ (1)(a), Fla. Stat. (2006) (2)(c), Fla. Stat. (1999) (2)(c), Fla. Stat. (2006) , Fla. Stat. (2006) 5,7,13, (1), Fla. Stat. (2006) 8, (2), Fla. Stat. (2006) 08 & (4), Fla. Stat. (1993) (4), Fla. Stat. (2006) passim (2), Fla. Stat. (1999) (2), Fla. Stat. (2006) (1), Fla. Stat. (1999) (3), Fla. Stat. (2002) , Fla. Stat. (1992) 5 Other 1998 S.B. 704 (March 30, 1998) 3 Fla. Staff. An., 1999 H.B (1999 Reg. Sess.) ~ 2,3,8,11 IV

9 STATEMENT OF IDENTITY AND INTEREST Amicus Curiae Zimmerman, Kiser & Sutcliffe, P.A. ("ZKS") is a full service law firm located in Central Florida, representing individuals, nonprofit institutions, banks, corporations, limited liability companies, partnerships, and large and small businesses in Florida and across the United States. Also, among other things, ZKS has a substantial corporate practice which includes the provision of legal advice relating to asset protection planning, commercial lending, estate planning, tax planning and other matters pertinent to the issues involved in this mattere Since the creation of single member limited liability companies ("LLC" or "LLCs") in 1998, ZKS has rendered legal advice concerning single member LLCs to hundreds if not thousands of clients. Similarly, Fla. Stat (4) has remained substantially unchanged since its inception and ZKS and its attorneys have counseled hundreds, if not thousands, of clients in reliance on this statute. If the certified question is answered in the affirmative, members of single member LLCs will no longer be afforded the asset protection benefits that were believed to be mandated by the existing statute. Similarly, creditors of single member LLCs will find that the anti-assignment provisions contained in single member LLC operating agreements are ineffective to prevent a creditor of a member from taking control of the assets of the LLC. Given that a creditor of a member may have no incentive to act in the best interest of the LLC, many lenders, v

10 including the clients of ZKS, will find that the value of their collateral is not what they thought it to be when extending credit to single member LLCs. Additionally, if the certified question is answered in the affirmative, judgment creditors of members of single member LLCs are substantially likely to take swift action to take control over the entity's assets, and many of ZKS's clients are likely to be affected in their capacity as debtor, creditor and/or lender. Many of ZKS's clients may be forced to modify their existing corporate structures so as to take into account the lack of asset protection afforded by single member LLCs. After reviewing the opinions rendered by the federal courts, as well as the briefs of the parties, ZKS believes it can assist the Court by providing a complete analysis of the statutory language contained in the Florida LLC Act, which interpretation harmonizes the provisions at issue in this matter. In light of the briefs of the parties and the opinions of the federal courts, it appears that, absent this Amicus Curiae brief, these issues would not be afforded this essential opportunity to be briefed or analyzed. Neither the federal courts nor the parties in this matter seem to have addressed certain aspects of the Florida LLC Act in analyzing the statute at issue and ZKS believes it can assist the Court in this regard. VI

11 SUMMARY OF ARGUMENT Fla. Stat (4) is clear on its face in that it limits a judgment creditor to the remedy of a charging order against a judgment debtor's LLC interest in both single member LLCs and multiple member LLCs. The notion that Fla. Stat (4) does not apply to single member LLCs is not supported by the LLC Act and its legislative history. Specifically, where the Florida Legislature has intended to distinguish single member LLCs from multiple member LLCs within the LLC Act, the Legislature has expressly distinguished between them within the pertinent statutes. Therefore, the complete lack of any distinction contained in Fla. Stat (4) reflects the Florida Legislature's intent that the limitation of rights and remedies of judgment creditors apply whether the limited liability company is a single member LLC or a multiple member LLC. Additionally, because Fla. Stat (4) is clear on its face, there is no need for statutory construction. Instead, Fla. Stat (4) and its "closely related provisions" should be read as being harmoniously with each other and construed as a cohesive whole. Furthermore, pursuant to Fla. Stat , a member's LLC interest is composed of an economic interest and the management interest. As such, the language of Fla. Stat (1)(a), (2)(c), (1), and (4) requires that a judgment creditor be limited to a charging order and obtain only the rights of an assignee of the economic portion of vii

12 a member's LLC interest (and not an assignee of the entirety of the interest), whether or not the LLC is a single member LLC or a multiple member LLC. Essentially, the effect of the plain and ordinary meaning of the language of the foregoing statutes is that the judgment debtor will retain its management interest in the LLC, along with retaining the membership itself, and the judgment creditor is limited to a lien on the economic interest in the LLC. Consequently, the LLC is not deemed memberless, upon the issuance of a charging order, neither is the LLC required to dissolve in accordance with Fla. Stat (2). Similarly, In re Albright is inapplicable to this case in that Col. Rev. Stat , upon which In re Albright was decided, is materially different than Fla. Stat Additionally, In re Albright, unlike this case, involved a transfer of "the entire membership interest" to the bankruptcy estate of the single member. With respect to this case, however, a charging order results only in a lien and therefore an assignment of only the economic interest of the member. Therefore, the analysis employed in the In re Albright case is inapplicable to this matter and should not be relied upon. Accordingly, the Florida Supreme Court should answer the certified question in the negative and find that, pursuant to Fla. Stat (4), a court may not order a judgment debtor to surrender all "right, title, and interest" in the debtor's single member LLC to satisfy an outstanding judgment. VIII

13 ARGUMENT The United States Court of Appeals for the Eleventh Circuit certified the following question to the Florida Supreme Court: Whether, pursuant to Fla. Stat (4), a court may order a judgment-debtor to surrender all "right, title, and interest" in the debtor's single member limited liability company to satisfy an outstanding judgment. The Florida Supreme Court should answer the certified question in the negative and find that, pursuant to Fla. Stat (4), a court may not order a judgmentdebtor to surrender all "right, title, and interest" in the debtor's single member limited liability company to satisfy an outstanding judgment. I. THE CLEAR AND UNAMBIGUOUS LANGUAGE OF FLA. STAT (4) LIMITS THE REMEDY OF A JUDGMENT CREDITOR TO A CHARGING ORDER AGAINST A JUDGMENT DEBTOR'S LLC INTEREST IN BOTH SINGLE MEMBER AND MULTIPLE MEMBER LLCS. Section (4), Florida Statutes, provides: "[o]n application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the limited liability company membership interest of the member with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of any assignee of such interest. This chapter does not deprive any member of the benefit of any exemption laws applicable to the member's interest." It is axiomatic that "[i]n constructing this statute, this Court must give the 'statutory language its plain and ordinary meaning'...and is not 'at liberty to add words...that were not placed there by the Legislature.'" Exposito v. State, 891 So. 1

14 2d 525, 528 (Fla. 2004) (quoting Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001); and Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999)). The plain and ordinary meaning of the statute at issue that a judgment creditor has only the rights of an assignee - mandates that a judgment creditor be limited to a charging order whether the LLC is a single member limited liability company ("SMLLC" or "SMLLCs") or a multiple member limited liability company ("MMLLC" or "MMLLCs"). A. The legislative history of the LLC Act does not support the notion that the remedy limitations were not intended to apply to SMLLCs. Where the Florida legislature has intended to distinguish SMLLCs from MMLLCs within the Florida LLC Act, Chapter 608, Florida Statutes (the "LLC Act"), the Legislature has expressly distinguished between them within the pertinent statutes. The complete lack of any distinction contained in Fla. Stat (4) reflects the Florida Legislature's intent that the limitation of rights and remedies of judgment creditors apply whether the limited liability company ("LLC") is an SMLLC or an MMLLC. Florida first authorized the formation of limited liability companies in 1982, becoming the second state in the union to authorize their creation. See Fla. Staffe An., 1999 H.B (1999 Reg. Sess.). The current version of the LLC Act was modeled after Florida's corporation and partnership statutes, primarily because the LLC was viewed to be a hybrid entity possessing characteristics of both 2

15 partnerships and corporations. See id.; see also Ruggio v. Vining, 755 So.2d 792 (Fla. 2d DCA 2000) (noting the hybrid nature ofllcs). In 1998, the LLC Act was amended to enable the creation of LLCs by "one or more persons," which was previously prohibited by the language of , Fla. Stat. (1993), which required two or more persons to form an LLC. Cf , Fla. Stat. (1998). The 1998 Amendments to the LLC Act also amended the requisite requirements for filing documents needed for formation, changing references to "two members" within the statute to references to "one member." (1), Fla. Stat. (1998). Notwithstanding the adoption of the LLC Act many years before, LLCs were seldom used in Florida until the 1999 Amendments to the LLC Act, which exempted LLCs from state income tax and largely conformed the LLC Act to the National Conference of Commissioners on Uniform State Laws' Uniform Limited Liability Company Act ("ULLCA") and the laws of certain model states such as Delaware. See Fla. Staff. An., 1999 H.B (1999 Reg. Sess.). Recognizing that the LLC Act needed to be further revamped in order to fully enable the creation of SMLLCs, the Florida Legislature adopted the 1999 Amendments to the LLC Act. See generally 1998 S.B. 704 (March 30, 1998). The 1999 Amendments (1) modified the prior statute of the LLC Act requiring dissolution of an LLC with less than two members to provide for continuation of 3

16 an LLC with one member, (2), Fla. Stat. (1999); (2) added a statute to identify the procedure for approving transactions with respect to which members, managers, and/or managing members have a conflict of interest, expressly stating that a conflict transaction may not be approved by a "single manager of a managermanaged company or a single managing member of a member-managed company, unless the company is a single member limited liability company," (2), Fla. Stat. (1999); and (3) expressly recognized that SMLLCs would be disregarded as separate entities for state income tax purposes where they were disregarded as separate entities for federal income tax purposes, (1), Fla. Stat. (1999). In the 2002 amendments, the Florida Legislature mandated that SMLLCs be treated as separate legal entities for non-income-tax purposes (3), Fla. Stat. (2002). Counsel was unable to find any reference whatsoever in the legislative history to support the notion that the charging order limitations were to apply to MMLLCs, yet not to SMLLCs. There is no legislative history to support the Federal Trade Commission's ("FTC") position, while the repeated revision of the LLC Act to distinguish between SMLLCs and MMLLCs affirmatively indicates the Florida Legislature knew that the charging order limitations would apply in both contexts, yet had no intention of dictating any other result. While one can argue with whether it is the "right" result to limit the remedy of a judgment 4

17 creditor to a charging order in the context of an SMLLC, there is no indication whatsoever that the Florida Legislature intended any other result and it is not within the province of the courts to strip the statute of its meaning. B. Where the Florida Legislature has made distinctions between the applicability of particular provisions of the Florida LLC Act in the context of a single member limited liability company and a multiple member limited liability company, it has expressly done so. Long standing and well established principles of statutory construction dictate that the Legislature is presumed to know the existing law when it enacts a statute. See Holmes County School Bd. v. Duffell, 651 So. 2d 1176, 1179 (Fla. 1995) (citing Williams v. Jones, 326 So. 2d 425 (Fla. 1975)). Despite the numerous revisions to the LLC Act distinguishing between SMLLCs and MMLLCs, most of which were to address perceived "glitches" in the existing statutes, the Florida Legislature has repeatedly refused to make any material modifications to Fla. Stat (4) since its inception. See , Fla. Stat. (2006); cf (4), Fla. Stat. (1993). Section (4), Florida Statutes, was originally added to the LLC Act in 1993 and was nearly identical to Fla. Stat , the statute limiting the remedy of a judgment creditor of a [limited] partner to a charging order. See (4), Fla. Stat. (1993); Cf , Fla. Stat. (1992). Section (4), Florida Statutes, remains substantially unchanged today, despite numerous interim revisions to identify particular provisions that do and do not apply to SMLLCs and MMLLCs. 5

18 To date, the Florida Legislature has chosen to explicitly reference either "single member limited liability companies" or "one or more members...," in reference to SMLLCs, in less than eight separate provisions throughout the entire LLC Act. See et seq., Fla. Stat. (2006). Given the substantial scrutiny of the LLC Act over the course of the past ten (10) years, and the numerous revisions to the LLC Act occurring over that time period, it defies logic to assert that the Florida Legislature intended that the provisions of Fla. Stat (4) apply only to MMLLCs, yet adopted contrary language within the statute itself and other provisions of the LLC Act. To conclude otherwise is to attribute to the Florida Legislature an intent not anywhere reflected in the legislative history or statutes themselves, and to add language to the statute that does not appear within the statute itself. C. Section (4), Florida Statutes, is clear on its face and requires no statutory construction to determine whether the remedy of a judgment creditor is limited as provided therein. Statutory interpretation must begin with the statute at issue, and the express language (4), Florida Statutes, mandates that a judgment creditor be limited to a charging order irrespective of whether the LLC has a single member or multiple members. To conclude otherwise is to conclude that the statute does not mean what it says. 6

19 It is well established that related statutory provisions which create an overall scheme of regulation should be construed harmoniously with each other as a cohesive whole. See generally Unruh v. State, 669 So. 2d 242, 245 (Fla. 1969); Prof'l Plastering & Stucco, Inc. v. Bridgeport Strasberg Joint Venture, 940 So. 2d 444, 449 (Fla. 5th DCA 2006). A complete analysis of the statutory provisions referenced in the briefs of the parties submitted below indicates that it is the FTC's construction of the statutes that creates disharmony, and that there is no reason to conclude that the charging order limitations apply only to MMLLCs. Section , Florida Statutes, entitled "Right of Assignee to Become Member," first deals with the circumstances under which an assignee of a limited liability company "interest" may become a member, then goes on to address the rights of the assignee, the liability of the assignor member, and, finally, the remedy of a judgment creditor of a member , Fla. Stat. (2006). The term "interest" is defined by the LLC Act to mean "a member's share of the profits and losses of the limited liability company, the right to receive distributions of the limited liability company's assets, voting rights, management rights, or any other rights under this chapter or the articles of organization or operating agreement." (23), Fla. Stat. (2006). (emphasis added) As evidenced by the foregoing language, as well as the other provisions of the LLC Act, the statutes recognize that a limited liability company interest 7

20 consists of both an economic interest and a voting/management interest and that an assignee can be the recipient of an assignment of one or both. See, e.g., Fla. Staff. An., 1999 H.B (1999 Reg. Sess.) (recognizing this fact); see also (1), Fla. Stat. (2006), (2), Fla. Stat. (2006) (recognizing that an assignee becoming a member has, to the extent assigned, the rights and powers of the assigning member), and (4), Fla. Stat. (2006). (noting that to the extent so charged, a judgment creditor has only the rights of an assignee of such interest). The default rule mandated by the LLC Act is that an assignee of the economic interest gains no management rights (1) & (2), Fla. Stat. (2006). Nevertheless, the FTC reads the foregoing statute to mean that an assignee judgment creditor obtains greater rights when the LLC is an SMLLC than when it is a MMLLC, i.e. it obtains the entirety of the interest in the LLC, despite express language to the contrary. Neither party seems to dispute the fact that the express language of Fla. Stat (4) does not distinguish between SMLLCs and MMLLCs. However, Appellant, Federal Trade Commission ("FTC"), argues that application of Fla. Stat (4) to SMLLCs leads to the conclusion that a charging order is a senseless remedy for a judgment creditor, relying on certain "closely related provisions" of the LLC Act in support of its argument. (Pl. Br. at 12). Those provisions, however, do not support the FTC argument. 8

21 The FTC first relies on Fla. Stat (1)(a) and (1), arguing that these provisions make no sense when applied to an SMLLC and create an "unreasonable and ridiculous result." (Pl. Br. at 13). This argument fails to recognize that an "interest" is assignable in whole or in part, except as otherwise provided in the articles of organization or operating agreement, and that an assignee of an interest possesses no management rights except (1) as provided in the articles of organization or operating agreement, and (2) upon either (a) approval of the members other than the assignor member, or (b) compliance with any procedure provided in the articles of organization or operating agreement. The foregoing statute is a default rule, providing that the assignee has no management rights "except as provided in the articles of organization." Fla. Stat (1)(a). The statute then goes on to require that one of two additional conditions be satisfied before the assignee will succeed to management rights. Id. While the FTC focuses only on the first of those two additional conditions, the requirement for obtaining the consent of members other than the assignor, doing so materially alters the meaning of the language because the statute also permits satisfaction of an alternative condition, namely compliance with the procedure set forth in the governing documents of the LLC. See ide Since an assignee could become a member of an SMLLC by complying with the procedures set forth in the governing documents of the SMLLC, there is no need to resort to 9

22 the provision governing consent of the members other than the assignor and that provision can easily be harmonized in that it would not apply in the context of an SMLLC, where there is only one member. Similarly, Fla. Stat (1) likewise is a default rule, requiring the consent of members other than the assignor member to enable an assignee to become a member, "unless otherwise provided in the articles of organization or operating agreement." Neither statute, therefore, requires that the consent of members other than the assignor member be obtained as a precondition to an assignee becoming a member where the other conditions set forth therein are satisfied. To assert otherwise is to ignore the statutory language. Second, the FTC relies on Fla. Stat (2), asserting that an assignment of an interest by a member of a SMLLC results in the SMLLC not having any members. To the contrary, however, Section (2), Florida Statutes, provides: "[u]nless otherwise provided in the articles of organization or operating agreement... a member ceases to be a member and to have the power to exercise any rights or powers of a member upon assignment of all of the membership interest of such member. Unless otherwise provided in the articles of organization or operating agreement, the pledge of, or granting of a security interest, lien, or other encumbrance in or against, any or all of the membership interest of a member shall not cause the member to cease to be a member or to have the power to exercise any rights or powers of a member." (emphasis added) The last sentence of Fla. Stat (2)(c) was added in the 1999 Amendments 10

23

24 (2)(c), Fla. Stat. (2006); see also (4), Fla. Stat. (2006), (recognizing that to the extent of the charging order, the judgment creditor has only the rights of an assignee); see also Givens v. National Loan Investors, L.P., 724 So.2d 610 (Fla. 5th DCA 1999) (holding that in the context of the Florida Revised Uniform Limited Partnership Act, the language "only the rights of an assignee of the partnership interest" is straightforward, and means what it says -- that the judgment creditor cannot foreclose on the charged interest). Therefore, the issuance of the charging order does not leave the SMLLC without a member and require dissolution of the SMLLC as suggested by the FTC. See (2), Fla. Stat. (2006) (mandating dissolution only when there are "no members."). The language of Fla. Stat (1)(a), (2)(c), (1), and (4) requires that a judgment creditor be limited to a charging order and obtain only the rights of an assignee of the economic portion of a member's LLC interest (and not an assignee of the entirety of the interest), whether or not the LLC is a SMLLC or a MMLLC. If an alternative interpretation were adopted, these provisions would be rendered meaningless for all SMLLCs, a result contrary to the express language of the statutes and contrary to the legislative history associated with the LLC Act. II. IN RE ALBRIGHT IS INAPPLICABLE TO THIS CASE, IN THAT COL. REV. STAT IS MATERIALLY DIFFERENT FROM FLORIDA STATUTE

25 In re Albright, 291 B.R. 538 (Bankr. Col. 2003), should not be used to divine Florida's legislative intent with regards to the LLC Act. The FTC contends that Col. Rev. Stat , upon which In re Albright was decided, and Fla. Stat are "materially identical." (Pl. Br. at 15). This assertion is not supported by the plain language of the statutes. Fla. Stat (2)(c) expressly states the default rule with respect to assignments of interest in the form of security interests, liens, or other temporary encumbrances (a charging order being a lien) the member whose interest has been assigned retains his voting and management powers, as well as the membership itself. There is no such analogous provision present in Col. Rev. Stat. 7-08~ 702 and therefore the referenced statutes are not only not identical, they are at odds. In addition, unlike Fla. Stat and , Col. Rev. Stat does not permit the assignor judgment creditor to become a member by satisfying conditions other than obtaining the consent of the "other members." The LLC Act provides that consent of the "members other than the member assigning the interest" is required only where (i) the operating agreement and articles of organization do not provide otherwise, and (ii) either (1) the other members have approved the assignment or (2) the procedures in the operating agreement and articles of organization have been complied with. Furthermore, Col. Rev. Stat expressly provided that a judgment creditor had only the rights of an 13

26 assignee "except as provided in this section." That section, in turn, provided that a charging order could be foreclosed upon and the membership interest redeemed. Id. No such language exists in the LLC Act. Finally, In re Albright involved a transfer of "the entire membership interest" to the bankruptcy estate of the single member. 291 B.R. 538 (Bankr. Col. 2003). However, a charging order results only in a lien and therefore an assignment of only the economic interest of the member. See and , Fla. Stat. (2006). Therefore, the analysis employed in the In re Albright case is inapplicable to this matter and should not be relied upon. 14

27 CONCLUSION Fla. Stat (4) is clear on its face in that a judgment creditor has only the rights of an assignee of the economic interest of a judgment debtor's LLC member interest, regardless of whether such interest is in a SMLLC or MMLLC. Moreover, it is well established that Florida courts will not add words to statutes that were not placed there by the Legislature. Instead, the courts will give the language of the statute its plain and ordinary meaning. Additionally, to the extent this Court looks beyond Fla. Stat (4) and onto the "closely related provisions," such provisions should be construed as harmonious with Fla. Stat (4) and seen as a cohesive whole. In conclusion, as evidenced by the plain language of Fla. Stat (4) and the "closely related provisions," the Florida legislature has clearly intended to limit the remedy of a judgment creditor to a charging order against the judgment debtor's LLC interest in both SMLLCs andmmllcs. WHEREFORE, Amicus Curiae Zimmerman, Kiser & Sutcliffe, P.A. respectfully requests that this Court answer the certified question in the negative, finding that, pursuant to Fla. Stat (4), a court may not order a judgmentdebtor to surrender all "right, title, and interest" in the debtor's single member limited liability company to satisfy an outstanding judgment. 15

28 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and corrected copy of the foregoing was furnished by facsimile and U.S. Mail to Thomas C. Little, Esq., 2123 N.E. Coachman Road, Clearwater, FL and John Andrew Singer, Esq., Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Room H-582, Washington, D.C on August 5, Respectfully submitted, Jere y S. Slo ne, Esq. Florida Bar No Carnesha J. Craft, Esq. Florida Bar No Zimmerman, Kiser, & Sutcliffe, P.A~ 315 E. Robinson Street, Suite 600 Orlando, FL (407) Phone (407) Facsimile CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the font requirements of Florida Rules of Appellate Procedure 9.210(a) have been complied with and the size and style of type used in this brief is Times New Roman 14 point. 16