Can You Sue Your Business Partner for Stealing?

Can I sue my business partner for stealing from the company?

By Kristina E. Wilson, attorney, KEW Legal, Coral Gables, Florida

Often, yes. If a business partner takes company money, property, or opportunities, you may have a claim against that partner under Florida law. The right type of claim depends on who was harmed and what kind of business entity you own.

This guide walks through the main questions owners ask. It covers LLCs, partnerships, and corporations, because Florida’s rules differ for each.

Does a business partner owe a duty not to take company money?

Yes, in an LLC, each manager of a manager-managed LLC and each member of a member-managed LLC owes duties of loyalty and care to the company and its members. Florida’s LLC standards say so in Fla. Stat. § 605.04091.

The duty of loyalty is the one that matters most when money goes missing. It includes accounting to the company for any profit or benefit the partner got from using company property. It also includes accounting for benefits from taking a company opportunity. The partner must hold that benefit as trustee for the company.

The duty of care is narrower. It means refraining from grossly negligent or reckless conduct, willful or intentional misconduct, or a knowing violation of law. Taking company funds for personal use often falls into the willful or intentional category. The facts decide that.

Not every bad business decision is theft. The same statute says a manager or member does not violate a duty just because the conduct also helps that person’s own interest.

Should you file a direct or a derivative claim?

A direct claim is for harm to you as an owner. A derivative claim is for harm to the company. Choosing the right one matters.

Florida law lets a member, subject to pleading and proving the injury required by subsection (2), sue another member, a manager, or the company to enforce the member’s rights. That includes rights under the operating agreement. See Fla. Stat. § 605.0801.

A direct claim has a higher bar. Either your injury is not solely harm to the company. Or your injury comes from breaking a separate statutory or contractual duty owed to you, even if it overlaps with the company’s injury.

When a partner takes money from the company, the company usually loses first. That’s why these claims are often derivative. A derivative claim is brought on the company’s behalf. To maintain a derivative action to enforce a right of a Florida LLC, Fla. Stat. § 605.0802 provides that a member first makes a demand on the other members of a member-managed company, or on the managers of a manager-managed company, asking them to cause the company to take suitable action to enforce the right, and they do not take that action within a reasonable time, not to exceed 90 days. The demand is not required if it would be futile, or if irreparable injury would result to the company by waiting for the other members or the managers to act.

To bring a derivative action, a member may maintain it to enforce a right of the company if the conditions in § 605.0802 are met. You must have been a member when the conduct happened, or your membership must have passed to you by law or under the operating agreement.

What must you do before you file?

Two steps often come first: making a demand and getting the company’s records.

The demand rule. A member may bring a derivative action only after first asking the other members or managers to act. They must be asked to take suitable action to enforce the right. If they don’t act within a reasonable time, not to exceed 90 days, you can proceed. You can skip the demand only if it would be futile, or if waiting would cause irreparable injury to the company. Source: Fla. Stat. § 605.0802.

The operating agreement. Read it for an arbitration clause. Under Fla. Stat. § 682.02, a written agreement to arbitrate existing or future disputes is generally valid and enforceable. The court decides whether that agreement exists. A clause like this can send the dispute to arbitration instead of a courtroom.

Settlement approval. A derivative action can’t be voluntarily dismissed or settled without the court’s approval. The court may also direct that notice go to affected members. See Fla. Stat. § 605.0806.

How do partnerships and corporations differ?

In a partnership, the partnership itself may sue a partner for breaching the partnership agreement. It may also sue for violating a duty to the partnership that causes it harm. A partner may sue the partnership or another partner to enforce rights under the partnership agreement or the partnership act. A partner may also protect rights that exist apart from the partnership relationship. Florida’s rule on which partners may sue is in § 620.8405.

For corporations, a complaint brought in the right of a corporation must be verified and allege with particularity under Fla. Stat. § 607.0742. A complaint brought on the corporation’s behalf must be verified. It must also state with particularity any demand made on the board. It must say either that the board refused, rejected, or ignored the demand before 90 days passed from the date it was made, or why waiting that 90-day period would cause irreparable injury or misapplication or waste of corporate assets causing material injury to the corporation, or why no demand was made.

Can your partner move company assets to another entity?

Possibly. Florida law can treat a transfer as fraudulent. A transfer is fraudulent as to a creditor if it was made with actual intent to hinder, delay, or defraud any creditor, or if it was made without receiving reasonably equivalent value while the debtor was left with unreasonably small assets for its business or transaction, or intended to incur, or believed or reasonably should have believed it would incur, debts beyond its ability to pay as they became due. A court may weigh factors such as a transfer to an insider, the debtor keeping control of the property, concealment, and a transfer of substantially all of the debtor’s assets. See Fla. Stat. § 726.105.

That law is about transfers that hurt creditors. Whether it fits your situation depends on the facts.

A deal between the company and a partner’s relative or a company the partner controls raises a separate issue. Florida’s conflict-of-interest rule says such a transaction is not void just because of the relationship, if the statutory requirements were met. See Fla. Stat. § 605.04092.

How long do you have to file?

Florida sets time limits for lawsuits, and the limit depends on the type of claim. The general limitations statute is Fla. Stat. § 95.11. Delay can make a claim harder to bring, because the clock keeps running while you gather facts.

Mistakes owners often make

• Confronting the partner before gathering the company’s records.
• Skipping the demand step, then filing too early.
• Ignoring an arbitration clause in the operating agreement.
• Moving money or records yourself, which can complicate your own position.
• Waiting while the other side moves assets.

Frequently asked questions

Talk through your situation with KEW Legal

Discovering that a co-owner has taken money or property is stressful. You’re likely trying to protect your investment while you figure out what comes next. KEW Legal is based in Coral Gables and Sunny Isles Beach, and serves business owners and investors across Miami-Dade and South Florida. Our team can review the facts with you in a free, confidential first consultation, with no obligation to continue. Call 305-990-2300 or send us a message.