It is safe to say that the Federal Bench in Texas is at it again.  Just a few months ago, the Northern District of Texas struck down the Federal Trade Commission’s nationwide ban on non-compete agreements just days before it was set to take effect.  Ryan LLC v. Federal Trade Commission, No. 3:24–cv–986-E (N.D. Tex.).  Now, on December 4, 2024, the Eastern District of Texas just issued a temporary injunction prohibiting the Federal Government from enforcing the Corporate Transparency Act (“CTA”) and its corresponding regulations. Texas Top Cop Shop, Inc., et al. v. Garland, et al., Case No. 4:24-cv-478 (E.D. Tex.)

Congress enacted the CTA to combat the use of corporate entities and shell-companies by bad actors looking to conceal their illicit activities.  It generally requires companies to disclose certain identifying information about their business, the “applicant” who formed the entity, and the individual owners of the entity.  Companies were required to file their report either (1) by January 1, 2025, for pre-existing entities formed before 2024, (2) within 90 days of their formation, for those formed in the year 2025, or (3) within 30 days, for entitles formed in 2025 and beyond. 

Now, thanks to last week’s ruling, those reporting deadlines and the substantive reporting requirements themselves are all currently unenforceable nationwide.  Texas Top Cop Shop, Inc., et al. v. Garland, et al., Case No. 4:24-cv-478 (E.D. Tex.).  The government has already begun their appeal, but the Court’s decision will stand while they proceed. For now, businesses can still submit their reports voluntarily if they wish to play it safe.

The Corporate Transparency Act (the “CTA”) has been in place since 2020 when it was passed as part of the National Defense Authorization Act for Fiscal Year 2021; however, after a long administrative rulemaking process, the Beneficial Ownership Information (“BOI”) reporting requirements have only recently been finalized and will first become effective on January 1, 2024 (the “Effective date”). 

The CTA was enacted in response to the vast and increasing use of corporate entities and shell-companies by bad actors looking to conceal their illicit activities.  To improve transparency, as the name suggests, the statute requires all entities to file a BOI report unless they fall under one of 24 exemptions.  The exemptions are meant to apply in situations where the threat of unscrupulous behavior underlying the CTA is diminished, such as when the entity is already regulated under a separate statutory scheme, or has characteristics evidencing real operations such as physical domestic offices, 20 or more employees, etc.   (See 31 U.S.C. § 5336(a)(11)(B)(i)-(xxiv) for a full list of exemptions).

As of the Effective Date, and unless covered by an exemption, pre-existing companies will have one year (until January 1, 2025) to file their BOI report, and new companies formed after the Effective Date will be required to file a report within thirty (30) days of the entity’s incorporation, organization, etc.  The report must include certain entity information, beneficial owner information, and “applicant” information. See below.  A beneficial owner under the CTA is anyone who exerts substantial control over the reporting company, or who owns 25 percent or more of the ownership interests in the company.  Furthermore, “substantial control” is defined in the regulations as directing, determining, or having substantial influence over important decisions made by the reporting company.  See 31 C.F.R. § 1010.380(d).  The regulations give three specific but non-exhaustive indicators of “substantial control”:

  1. Service as a senior officer;
  2. authority over the removal of any senior officer or a majority of the board of directors; and
  3. the direction, determination, decision of, or substantial influence over, important matters of the company.  See 31 C.F.R. § 1010.380(d)(1).

The required beneficial owner information includes, for each beneficial owner:

  1. Their full legal name;
  2. date of birth;
  3. a complete and current residential address;
  4. a unique identification number from the list of acceptable items (see 31 U.S.C. § 5336(a)(1); 31 C.F.R. § 1010.380(b)(1)(ii)) including the jurisdiction that issued the identification document; and
  5. an image of the identification document.

The required entity information includes:

  1. The entity’s full legal name;
  2. any and all trade names or “doing business as” names;
  3. a complete and current address for the entity’s principal place of business;
  4. its jurisdiction of formation; and
  5. its taxpayer identification number. 

The “applicant” is the individual who files the required formation documents to create the entity, such as the incorporator, organizer, etc.  The required applicant information is the same as that required for a beneficial owner, except the address should be the address for the company’s principal place of business, not the applicant’s residence.  Companies existing before the Effective Date do not need to include any applicant information.

It is critical for each entity, new or existing, to begin contemplating this required report and gathering information so that they can be prepared to file it promptly.  Violators are subject to civil penalties of up to 500 dollars per day that the violation continues, and criminal penalties of up to two years imprisonment.  31 U.S.C. § 5336(h)(3). 

On June 20th Governor Evers signed into law 2023 Wisconsin Act 12 (the “Act”), which repeals the personal property tax that has long been an administrative burden for authorities and a source of confusion for taxpayers. 

Under the former provisions, both real and personal property was (and is until January 2024) subject to tax unless otherwise exempted by law.  Certain personal property might have been exempted based on factors such as its character, predominant use, legal classification, etc.  Prior law proved cumbersome as local authorities attempted, first, to determine whether an exemption applied to the given property, and second, to ascertain the item’s current fair market value within a ten percent margin of accuracy.  State authorities would then assume the complex task of normalizing variations between local assessments based on population, schools, technical colleges, economic growth, and more, before issuing the final bills to taxpayers.  The Act is designed to simplify this process by eliminating the personal property tax altogether.

The Act removes personal property from the definition of both “Taxable Property” and “General Property” found in Sections 66.1106 and 70.02, respectively.  The Act further states that, beginning January of 2024, “no tax shall be levied under this chapter on personal property.”  2023 Wis. Act. 12 § 69 (creating Wis. Stat. § 70.015.)  Now, under the Act, only real property is subject to tax.  Although some personal property has been reclassified as taxable real property, the overall net effect is reduced general property taxes. 

Of course, eliminating the personal property tax will have a commensurate impact on the State’s revenue.  According to fiscal reports filed in connection with the Act, municipalities throughout the state generated nearly 174 million dollars of revenue from personal property taxes in 2023, income which the State will be forced to subsidize beginning in 2024 when the Act takes hold.  To ease these municipal losses the State has authorized Milwaukee County to increase its sales tax by 0.375 percent, and the city of Milwaukee to increase its sales tax by two percent.  The State estimates these new sales taxes will generate nearly 194 million dollars of revenue in 2024, more than enough to cover the losses from the Act and remove the need for State subsidies.

This article was put together by Noah G. Buhle, a law clerk with our firm and a Senior at Marquette University Law School, in Milwaukee, Wisconsin. Thanks for Noah’s great effort and nice summary!

Biden Tax Plan and Ramifications

President Joe Biden, in his campaign and in several speeches after being inaugurated, has stated his intent to change the tax code. One common theme of his statements has been that the average lower and middle class American will not see any increase in taxes, with taxes only being increased for those who earn more than $400,000 per year. But the question remains as to what the tax increases will look like, and how individuals and businesses will be affected after the changes, if passed, are implemented.

The goal of the Biden tax plan is to increase funds to pay for a multi-pronged infrastructure plan and an expansion of the social safety net for lower and middle class families. Three different but related plans have been proposed. Each plan focuses on different aspects of America’s economy, but they all have the ultimate aim of revising the tax code.

American Families Plan (proposed)

The American Families Plan is a plan which has been proposed by Biden that focuses on increasing tax credits for lower and middle class families and expanding access to free education. If this plan were enacted, the following would occur:

  • Households which make more than $800,000 a year would have their tax contributions increase by about $213,000, resulting in a decrease of about 11% of their after-tax income.
  • Households which earn at least $3.6 million a year would have their tax contributions increase by about $1.6 million, resulting in a decrease of about 17% of their after-tax income.
  • The top marginal income tax rate would increase from 37% to 39.6%.
  • It imposes a tax on unsold stock and other assets at death instead of allowing them to descend to beneficiaries tax-free.
  • The top tax rate on long-term capital gains would increase to a combined 43.4%, up from the current 23.8% for taxpayers with more than $1 million of annual income from capital gains.
  • It extends recent temporary increases to the child tax credit, the child and dependent care credit, and the earned income tax credit.
  • Households earning less than $26,000 per year will receive an average tax cut of about $600, raising their after-tax income by about 4%.
  • Households earning between $52,000 and $92,000 per year will receive an average tax cut of about $300, raising their after-tax income by about 0.5%.
  • Families with kids could see a tax cut increase to nearly $3,200.
  • It provides free education from pre-kindergarten for three- and four-year-olds through two years of community college.

American Jobs Plan (proposed)

The American Jobs Plan is a plan which Biden proposed that focuses on increasing the tax burden on corporations that do business in the United States. If this plan were enacted, the following would occur:

  • The corporate income tax rate would increase from 21% to 28%.
  • The current exemption for the first 10% return on foreign investment would be repealed.
  • The preferential tax rate of half the 21% domestic rate on the remainder of foreign profits would end, resulting in a minimum 21% income tax rate on multinational corporations.

For the 99.5% Act (proposed)

The For the 99.5% Act is a plan proposed by Senators Bernie Sanders and Sheldon Whitehouse. Its goal is to reduce the amount that is exempted from estate taxes in large estates and gifts. While this plan has not been proposed by Biden, it is considered by some to be part of the Biden Tax Plan. If this plan were enacted, the following would occur:

  • The estate, gift, and generation skipping tax exemption $11.7 million would be reduced to $3.5 million in the case of estate taxes and $1 million in the case of gifts.

 

I would like to thank Diane Tomb of the American Land Title Association and NPR, which put together the following information, who together are making our lives easier by showing us how to get vaccinated against COVID-19. Click here for the link!

 

Take care of yourselves and let’s all get vaccinated!

Wisconsin is making news! But not good news. Wisconsin has joined the elite group of states with the worst numbers in Coronavirus cases, hospitalizations and deaths. What’s the problem, and what’s being done about it?

The problem is that there is no plan. The politicians are more concerned about winning or making the other side lose than they are in protecting the lives of their constituents. It’s time for the bickering to end.

Our Governor Evers is weak. He has come up with some mandates, and they may be good ideas, but they are all too little and too late. Worse yet, they are not part of a comprehensive plan. He has no plan and he’s afraid to act because he may “lose” if challenged.

There is now way for businesses or individuals to know what’s coming next. “Will I have to shut down?” “Can I go to my favorite restaurant this Saturday?” No one knows ahead of time, because there is simply no plan. If there were a plan, we could all see where we are on the plan’s parameters and we could plan ahead. This might also have the effect of getting people to protect themselves and others by wearing masks, since they could see that if they don’t, then the results will be that they won’t be able to do something they want to do.

This blame is not only on the Governor nor his administration. The Republicans, who control both state houses, have been obstacles to progress, refusing to meet to come up with a solution and offering none of their own. Sue the Governor to make him look “wrong,” regardless as to whether there is a better way.

It makes no sense! People are dying and the politicians just don’t care. It’s time to end this madness! If the politicians don’t like what’s going on, then present a plan, first, before attacking. Anything else is just politics, and your constituents are getting tired of it!

Governor Tony Evers this week announced that he would release names of businesses that have had two or more employees test positive for COVID-19 or are linked to two or more contact tracings. It is believed this list was to be released today, October 2, 2020.

A group, consisting of WISCONSIN MANUFACTURERS AND COMMERCE, MUSKEGO AREA CHAMBER OF COMMERCE, and NEW BERLIN CHAMBER OF COMMERCE AND VISITORS BUREAU sought to stop that release in an action brought in Waukesha County, before Hon. Lloyd V. Carter, Circuit Court Judge.

In his ruling, Carter issued a Temporary Restraining Order, barring the release, and giving the parties 5 days to bring the matter on for a hearing.

Judge Carter’s Order may be read here.

Update. September 8, 2020: At a hearing before Judge Carter yesterday, the above Temporary Restraining Order was extended into November. The parties will now file briefs and the matter may then be decided. Keep following to see what happens!

This article is the marvelous work of our current law clerk Kieran O’Day, who will be finishing his stint with us shortly and heading on to clerk with the Supreme Court for the State of Wisconsin!

Now that many of the initial small businesses who received PPP loans are in full swing on using such funds, many are looking toward the loan forgiveness provided by the CARES Act. Additionally, in anticipation of forgiveness applications, there have been significant updates from the federal government including (1) releasing the forgiveness application and guidance related to it; (2) publishing guidance on the forgiveness process generally; and (3) passing the Paycheck Protection Program Flexibility Act (PPPFA). This post briefly discusses updates (2) and (3), the forgiveness guidance and the PPPFA, respectively. The PPP loan forgiveness application can be found here. 

PPP Forgiveness Guidance

On May 22, 2020, the Department of the Treasury issued guidance to clarify PPP forgiveness under the CARES Act. Certain portions of the guidance are affected by the PPP Flexibility Act discussed below. However, there remain important aspects of the guidance that business owners should keep in mind. Such provisions include clarifications on:

  • Timing of payroll costs and alternative payroll periods. Payroll costs are paid when the employer distributes paychecks or initiates ACH transactions. Such costs are “generally incurred on the day the employee’s pay is earned.” Businesses can select an “alternative payroll period” if a business’s payroll period does not fall perfectly in line with loan disbursement. Ordinarily, the covered period is 8 weeks from loan disbursement, however, the under the alternative payroll period, the 8-week covered period can begin on the first payroll period after disbursement and continue 8 weeks from that date. The alternative payroll period is only permitted for those businesses that use a bi-weekly or shorter payroll cycle.
  • FTE employee calculations. Business should calculate the number of full time equivalent (FTE) employees. According to the guidance, FTE employees are those who work an average of 40 hours per week, and each FTE employee is capped at a quotient of 1.0. Meaning, for example, an employee who works an average of 48 hours per week is 1.0 FTE employee. For calculating part-time employees, employers have the option of either calculating the average number of hours worked divided by 40 (e.g. average 30 hours per week/40=.75, which is .75 FTE employee) or treating each part-time employee as .5 FTE employee. It does not matter which calculation employers use provided they remain consistent for all part time employees.
  • Eligible expenses. Payroll expenses and permissible non-payroll expenses are those that are either paid or incurred during the covered period. This means that even those payments that were incurred before the covered period may be forgiven as long as they were paid for during the covered period. The same principle applies for expenses that are incurred during the covered period but not paid for until after. For the latter category of expenses, they must be paid in the next payroll period after the covered period (in the case of payroll expenses) or the next regular billing date (for non-payroll expenses).
  • Reduction in FTE employees. Under the PPP, the amount of PPP Loan forgiveness is reduced proportionately to the of reduction in FTE employees during the covered period. The guidance clarifies that employers are to choose a reference period and compare the number of FTE employees during the reference period to the number of FTE employees during the covered period. The guidance provides the example that if an employer had 10.0 FTE employees during the reference period and that number was reduced to 8.0 FTE employees during the covered period, then the borrower’s forgiveness amount would be reduced by 20%. [1] The guidance further clarifies that FTE employee reductions are not calculated for employees that are fired for cause, voluntarily resign, or voluntarily request a schedule reduction.
  • Reduction in salary or wages. Similar to reducing the number of FTE employees, the amount of forgiveness is affected by reductions in employees’ salary and wages of more than 25% during the covered period. A reduction in salary or wages “only applies to the portion of the decline in employee salary that is not attributable to the FTE reduction.” This means that borrowers will not be penalized twice for the same employees if the reduction was a reduction in hours that did not change the salary or wage of the employee. The example provided in the guidance and reprinted in the footnote below is informative on this issue.[2]

PPP Flexibility Act

On Friday, June 5, President Trump signed the Paycheck Protection Program Flexibility Act (PPPFA) into law. The PPPFA contains several key provisions that are designed to maximize forgiveness for loan recipients. Some of those key provisions are the following:

 

  • Extended the original “covered period” under Section 7(a)(36)(A)(iii) of the Small Business Act to February 15, 2020 to December 31, 2020. The original Covered Period was February 15, 2020 to June 30, 2020.
  • Extended the “covered period” under Section 1106(a)(3) of the CARES Act to “the period beginning  on the origination date and ending the earlier of the date that is 24 weeks after said origination date or December 31, 2020.” Additionally, any place where “June 30, 2020” appeared in reference to the PPP was changed to “December 31, 2020.” The original period ended 8 weeks after it began.
  • Added an exemption for the reduction in forgiveness proportionate to the reduction in full time equivalent employees, if the employer is able to document either (a) an inability to rehire individuals who were employees on February 15, 2020 and an inability to hire similarly qualified employees on or before December 31, 2020 or (b) an inability to “return to the same level of business activity as such business was operating at before February 15, 2020” due to complying with safety requirements related to COVID-19.
  • Amended the ratio of loan amount that can be used for payroll expenses vs non-payroll expenses (see SSM’s prior post on the PPP for allowable non-payroll uses) from 75% to 60%.
  • Allows eligible recipients that received their loans prior to the enactment of the PPPFA (June 5, 2020) to elect to use the previous 8-week covered period rather than the 24-week period as amended.
  • Extended the deferral period for loan repayment commencement from “no less than 6 months but no more than 1 year” to “the date that forgiveness is determined under Section 1106 of the CARES Act.”
  • Added a provision that requires payments of principal, interest, and fees to begin if an eligible recipient does not apply for forgiveness within 10 months of the last day of the covered period.

If you have any questions about PPP Loans or such loan forgiveness, please call our business attorneys at Schober Schober & Mitchell, S.C. at (262)785-1820.

[1] Note that FTE reduction is directly affected by the PPFA as discussed below.

[2] “Example: An hourly wage employee had been working 40 hours per week during the borrower selected reference period (FTE employee of 1.0) and the borrower reduced the employee’s hours to 30 hours per week during the covered period (FTE employee of 0.5). There was no change to the employee’s hourly wage during the covered period. Because the hourly wage did not change, the reduction in the employee’s total wages is entirely attributable to the FTE employee reduction and the borrower is not required to conduct a salary/wage reduction calculation for that employee.”

This post was drafted primarily by our talented law clerk, and recent Marquette University Law School Graduate, Kieran O’Day, who will soon begin a clerkship with the Wisconsin Supreme Court. Congrats to Kieran on his graduation!

On May 13, 2020, the Wisconsin Supreme Court declared the extended Safer at Home Order unlawful, which meant businesses originally deemed “nonessential” could reopen. After the order was issued, a handful of counties and other municipalities implemented their own orders that largely reflect the former statewide order. For the most part, as of May 26, 2020 (the date the Safer at Home Order was scheduled to end), non-essential businesses are legally allowed to be open. Despite the Safer at Home Order no longer being in place and it now being legally permissible for non-essential businesses to reopen across the entire State of Wisconsin, the novel COVID-19 virus hasn’t gone away. Business owners looking to re-open now need to be aware of the potential liability they face if an employee or customer contracts the disease as a result of the operation of their business and how to minimize that risk. This post will briefly discuss some potential avenues of liability that Wisconsin business owners may face if employees or customers contract COVID-19 and are able to trace it to their business and what steps should be taken to minimize that liability.

Worker’s Compensation

Worker’s compensation insurance is required for most Wisconsin businesses. It is used to cover the medical costs for an employee injured on the job. The Wisconsin Department of Workforce Development (DWD) has provided a guidance page discussing the relationship between worker’s compensation and COVID-19. According to the page, if an employee can prove that the employee contracted COVID-19 “while performing services growing out of and incidental to . . . employment,” the employee would be covered under the State’s worker’s compensation statute and may be able to make a claim against the employer. As such, though it is likely impossible for employers to completely prevent the contraction of COVID-19 by its employees in the workplace, employers can and should take steps to minimize the likelihood of this, primarily by adhering to state, local, and federal governmental health officials who provide guidance to businesses on how to minimize the spread of the disease. The CDC and state agencies in Wisconsin have issued recommendations on this.

These precautions may include, but are not necessarily limited to, putting into place policies regarding required masks for employees, requiring social distancing of employees, allowing employees to work from home if possible, practicing proper sanitation practices, requiring that any employees feeling ill stay home from work, and/or required temperature checks to come into the workplace. Though of course not a guarantee that employees will not contract this virus while working, taking these steps may result in a much greater chance of minimizing the spread of the virus, and therefore minimize liability from worker’s compensation claims.

Negligence

It is also possible that a business could be held liable for negligence if a customer or employee were to contract COVID-19 which is caused by the business, whether the person contracts it on the business premises or not.   In Wisconsin, “a person is negligent if the person, without intending to cause harm either acts affirmatively or fails to act in a way that a reasonable person would recognize as causing an unreasonable risk of injury.”[1]  To hold a business liable for contracting COVID-19, the infected person would have to be able to prove that the business breached a reasonable standard of care and that that breach was the cause of the person’s infection. Though there are of course proof problems inherent with an infected person proving that they contracted the disease from a particular business, a business’ failure to take reasonable steps to prevent a reasonably foreseeable harm to employees or customers poses substantial risk of exposure to liability for the business.   Given the availability of recommendations from federal, state, and local health experts to avoid and minimize the spread of COVID-19, businesses failing to adhere to these recommendations may be ripe for being sued by customers or employees who contract the disease as a result of the business not taking such steps. Time will tell on whether these claims will succeed, but businesses looking to avoid being embroiled in litigation are advised to err on the side of caution and put into place a plan based upon health experts recommendations.

Wisconsin Safe Place Statute

Finally, Wisconsin has a unique statute that places an additional burden on employers and owners of properties open to the public. This is the Wisconsin Safe Place Statute, or Wisconsin Statute section 101.11. The statute states that “[e]very employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof . . . .”[2] It also imposes a duty upon employers to “adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do everything reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.”[3] Frequenters are “[persons] other than employees and trespassers at the place of employment.”[4] This means that customers of a business actually on the premises of the business and who may be injured by contracting COVID-19 may have a claim under the Wisconsin Safe Place Statute.

The safe place statute places a higher burden upon employers and building owners as compared to negligence.[5]  The Safe Place Statute is intended to cover liability for unsafe workplace or business conditions, not negligent acts or omissions. Id. Safe place statute violation claims have three elements for an injured party to succeed: “(1) there was an unsafe condition; (2) the unsafe condition caused the plaintiff’s injury; and (3) the defendant had either actual or constructive notice of the unsafe condition before the injury occurred.”[6]  The relative risk of any given hazard is a factual case-by-case analysis. More specifically, “[w]hat constitutes safe depends on the facts and conditions present and the use to which the place was likely to be put.”[7]

It remains to be seen how COVID-19 may fit into this scheme (i.e. how COVID-19 might be deemed to be an unsafe condition on a premises, or how a business owner may have had actual or constructive notice of the unsafe condition of COVID-19). There will likely be litigation on this in the future that will clarify this. However, at this point, given the rapid spread of the virus, especially in places of business that we’ve seen throughout the country and world, business owners looking to avoid becoming embroiled in litigation or being potentially liable to employees or customers under the Wisconsin Safe Place Statute would be prudent to adhere to federal, state, and local health officials’ recommendations for minimizing the spread of the disease. Taking those steps will, in the very least, show an effort to “do everything that is reasonably necessary to protect the life, health, safety, and welfare of employees and frequenters”, as is required under the statute.

Conclusion

It is incredibly important for businesses to begin reopening to get the economy in the right direction and persons employed in the midst of this unprecedented pandemic. Many of our business clients, friends, and family members have been substantially impacted by this shutdown and the virus–whether it be financial health, physical health, and mental health. However, it is equally important for business owners to understand and adhere to guidance from the CDC and state agencies to not only prevent further spread of the disease, but also to minimize the risk of liability in operating their business. Guidance is changing and updating as the health community gets more information on the spread of the virus, and the situation continues to be fluid. Keeping apprised of the changes and adapting to them is also incredibly important.

We are hopeful that if we all, collectively, work together by listening to health experts’ recommendations on best practices for fighting COVID-19, that business can get back to normal soon. Failing to do so, in addition to the legal implications identified in this post, may result in a second wave of the virus and even further catastrophic effects on the business community, the economy, and the health of our citizens.

We at Schober Schober & Mitchell, S.C., are keeping apprised of ongoing developments related to the COVID-19’s impact on Wisconsin. We are available to assist with your legal needs and questions related to COVID-19 as well as all other business matters that you and your business may have. Please contact us at 262-785-1820 or email me, Attorney Jeremy M. Klang at jmk@schoberlaw.com. Stay healthy and safe!

 

[1] Megal v. Green Bay Visitor & Convention Bureau, Inc., 2004 WI 98, ¶ 25.

[2] Wis. Stat. § 101.11(1).

[3] Id.

[4] Gennrich v. Zurich American Ins. Co., 2010 WI App 117, ¶ 16.

[5] Szalacinski v. Campbell¸ 2008 WI App 150, ¶ 25

[6] Hofflander v. St. Catherine’s Hosp., Inc., 2003 WI 77, ¶ 89.

[7] Megal, 2004 WI 98, ¶ 10.

This article is the marvelous work of our current law clerk Kieran O’Day, who will be finishing his stint with us shortly and heading on to clerk with the Supreme Court for the State of Wisconsin!

Wisconsin Statutes Permitting Proxies Generally

Wisconsin corporations are governed by Wisconsin Statutes Chapter 180. Specifically, Wisconsin Statute Section 180.0722, titled “Proxies,” sets forth the process for and requirements of proxy voting for Wisconsin corporations. Wisconsin Statute Section 180.0722(1) states in its entirety, “A shareholder may vote his or her shares in person or by proxy.” This statute section provides shareholders a statutory right to vote by proxy, and it is the default rule that cannot be revoked by the articles of incorporation or the corporate bylaws. Note that several sections throughout chapter 180 use the phrase “unless otherwise provided in the articles of incorporation” to allow for variance. See e.g. Wis. Stat. §§ 181.0622(2), 181.0728(1), and 181.0725(1). Section 181.0722 does not contain any such language allowing the alteration of the default rule permitting the shareholders to vote by proxy.

Some confusion may arise when one researches the laws relating to Wisconsin voting by proxy because Chapter 181, which governs non-stock corporations, permits voting by proxy “unless the articles of incorporation or bylaws provide otherwise.” Wis. Stat. § 181.0724(1). Non-stock corporations are those without capital stock and rather than shareholders, those with a voting interest in the corporation are called “members.” Wis. Stat. § 181.0103(15), (17). If a corporation is incorporated under chapter 180 and not 181, this permissive language is not applicable.

Requirements for Voting by Proxy

Section 180.0722 also lays out the process by which shareholders vote by proxy and the requirements of submitting such a vote. The statutes authorize both physical and electronic proxy appointments and appointments of proxies are “effective when a signed appointment form or an electronic transmission of the appointment is received by the inspector of the election or the officer or agent of the corporation authorized to tabulate votes.” Wis. Stat. §§ 180.0722(2)(b)(1),(2); 180.0722(3). Under Section 180.0722(4)(a), appointments of proxy are revocable “unless the appointment form or electronic transmission states that it is irrevocable and the appointment is coupled with an interest.” The statute then outlines some appointments that may be coupled with interests, including among others, pledgees, persons who purchased or agreed to purchase the shares, or parties to a voting agreement created under s. 180.0731. Wis. Stat. §§ 180.0722(4)(a)(1), (2), (5).

Under Section 180.0724, corporations may, acting in good faith, accept proxy appointments whether the appointment corresponds with the name of a shareholder or not. If an appointment does not correspond with the name of a shareholder, Sections 180.0724(2)(a)-(e) provide when the proxy may still be accepted. Corporations may reject a proxy appointment “if the secretary or other officer or agent of the corporation who is authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory’s authority to sign for the shareholder.” Wis. Stat. § 180.0724(3). Corporations are deemed to have acted in good faith in either accepting or rejecting a proxy appointment “unless a court of competent jurisdiction determines otherwise.” Wis. Stat. § 180.0724(5).

Beyond what is required to submit a vote by proxy, there are no additional statutory requirements for proxies, whether on behalf of the shareholder or the corporation. There need not be a statement regarding proxy voting in the articles of incorporation or the bylaws, though it is best practice to include a statement that matches the statutory language if a corporation believes voting by proxy will occur.[1]

 

[1] For the statutory requirements and optional provisions of articles of incorporation see Wis. Stat. § 180.0202.  For the law regarding corporate bylaws see Wis. Stat. § 180.0206.