(a) Except as otherwise provided in §31B-3-303(c) of this code, the organizational statute of a limited liability company, other statutes regulating the activities and operations of a limited liability company, or by express agreement of the members, the debts, obligations, and liabilities of a limited liability company, whether arising in contract, tort, or otherwise, are solely the debts, obligations, and liabilities of the company. A member or manager is not personally liable for a debt, obligation, or liability of the company solely by reason of being or acting as a member or manager. It is the intent and policy of the Legislature that for any claim against a limited liability company arising after the effective date of the reenactment of this section during the regular session of the Legislature, 2019, common law corporate “veil piercing” claims may not be used to impose personal liability on a member or manager of a limited liability company, and that the West Virginia Supreme Court of Appeals decision in Joseph Kubican v. The Tavern, LLC, 232 W.Va. 268, 752 S.E. 2d 299 (2013) be nullified.

(b) The failure of a limited liability company to observe the usual company formalities or requirements relating to the exercise of its company powers or management of its business is not a ground for imposing personal liability on the members or managers for liabilities of the company.

(c) All or specified members of a limited liability company are liable in their capacity as members for all or specified debts, obligations, or liabilities of the company, whether in tort, contract, or otherwise, if:

~~(1) A provision to that effect is contained in the articles of organization; and~~

~~(2) A member so liable has consented in writing to the adoption of the provision or to be bound by the provision~~. the limited liability company is or becomes insolvent and:

(1) The member, either directly or through representations made through the limited liability company, commits actual fraud which causes injury to an individual or entity.

(2) The member, either directly or through representations made through the limited liability company, is shown through acts or omissions to have committed constructive fraud, and he or she is shown to have committed or participated in one or more wrongful acts.

(3) The limited liability company participates in a conflicted exchange; or

(4) The limited liability company makes an insolvency distribution to the owner.

(d) Definitions. As used in this section:

“Conflicted exchange” means a transfer of money or other property from a limited liability company to a member of the limited liability company (or to any other organization in which the member has a material financial interest) in exchange for services, goods, or other tangible or intangible property of less than reasonable equivalent value.

“Creditor” means a person or organization to which the limited liability company is indebted based on a contract or other voluntary transaction between the limited liability company and the creditor. “Creditor” includes, for example, employees, customers, trade creditors, and lenders. The term “creditor” does not include toward claimants or governmental agency seeking to impose statutory obligations.

“Insolvency distribution” means a transfer of money or other property from a limited liability company to a member of that limited liability company (or to any other organization in which the member has a material financial interest), in respect of the member’s ownership interest, that renders the limited liability company insolvent.

“Insolvent” means, with respect to a limited liability company, that the limited liability company is unable to pay its debts in the ordinary course of business. Claims that are unusual in nature or amount, including tort claims in claims for consequential damages, are not to be considered claims in the ordinary course of business for the purposes of this section.

“Member” means any person or organization that, by reason of an ownership interest, is entitled to share in the profits of the limited liability company.

“Wrongful acts” means one or more of the following:

(1) Commingling - whether members and managers fail to keep business funds and accounts separate from funds and accounts of members, (or) whether members fail to keep their personal books and financial accounts and records separate from the accounts of the limited liability company;

(2) Siphoning of Funds - whether the manager or majority member has siphoned funds from the limited liability company in violation of the articles of organization, the operating agreement, or this article;

(3) Gross Undercapitalization - at the time of its formation, or at the time of the litigated transaction or occurrence, whether the limited liability company was grossly undercapitalized or underinsured, rendering the business unable to satisfy the reasonably anticipated debts and expenses of the limited liability company incurred in the ordinary course of business;

(4) Public Notice of the limited liability company - whether the members fail to hold the business out as a separate legal entity;

(5) The Members Usurp Power - whether the members make decisions for the limited liability company, thereby usurping the power of the managers, in direct contravention of the articles of organization and/or operating agreement;

(6) Disrespect of the Separate Legal Entity - whether the members acted in such a way as to fail to respect the separate legal existence of the limited liability company, as shown by such acts as using limited liability company credit to secure personal loans, distributing limited liability company earnings to members through nonauthorized means, members using limited liability company property as if it were their own, or other usage of the limited liability company by members for personal transactions;

(7) Improper Purpose of Formation - whether the limited liability company was organized with the purpose of avoiding contractual liabilities or circumventing regulatory statutes or common law duties.

(8) Breach of Fiduciary Relationship - whether the members' acts constituted a breach of a legal or equitable duty owed to the injured party, thereby violating a fiduciary relationship.