New York LLC Publication Requirement: Everything You Need to Know
The New York LLC publication requirement is that every LLC in the state must publish ads in two newspapers to alert the public of their formation.6 min read
The New York LLC publication requirement is one in which every LLC in the state must publish ads in two newspapers to alert the public of their formation.
Requirements for Ad
The ad for an LLC must meet the following requirements:
- The ad should run for six weeks in a row in both newspapers.
- One of the newspapers must be circulated daily.
- The other newspaper should be circulated weekly.
The LLC ad only needs to appear one time a week in both the daily and weekly newspaper.
To meet the publication requirement, the ads for the LLC should be published within 120 days of the LLC's approval date. Ads must contain the following information:
- The name of the LLC
- The date the LLC was formed
- The address of the LLC
Example of an LLC Ad
Fish Pond LLC
Articles of Organization filed with the Secretary of State of New York on 8/1/2017
Office: Allegany County
SSNY has been designated as the LLC's agent upon whom process against it may be served
A copy of process should be mailed to the LLC at: 100 State Street, Belmont, NY 14813
Purpose: any lawful purpose
This sample would be used in both the daily and weekly newspapers.
What to Include on Formation Documents
When forming an LLC in New York, an office address must be listed in the formation documents. However, the listed address is not required to be the actual address of the LLC. Instead, the address can be in a different state where the LLC receives its mail. For instance, if an LLC has hired a registered agent in another state, the formation documents would list the registered agent's address.
Registered agents are businesses or individuals who accept mail and legal documents on behalf of an LLC and then mail those documents to the LLC. The typical fee for a registered agent is between $100 and $300 per year.
The New York LLC publication requirement dates back to a time where newspapers were the only reliable way to notify the public that a business had opened.
Theatrical production companies are excluded from the LLC publication requirement. However, to be exempt, the company must develop and produce live shows or invest in live performances.
Cost of Publication
The price of the ad depends on the county in which it is published. The cost of publishing an ad can cost between $600 and $1200. The specific cost often depends on two factors:
- The location of the LLC office.
- The rates charged by the newspapers for special advertisement.
When fulfilling the New York LLC publication requirement, there are two costs that will need to be covered. The first is the price to place the ad in the newspaper. Second is the cost of filing a Certificate of Publication, which is a document used to prove that an LLC has met the publication requirement. Filing a Certificate of Publication will cost $50.
The county where the LLC is required to publish its ads will depend on the address that was listed in its formation documents. The cost of publishing ads can vary greatly depending on the county where an LLC must file. In some counties, ads are very affordable, and in others, they can be quite expensive. In Manhattan County, for instance, publishing an ad can cost as much as $1500. On the other hand, publishing in Albany County costs as little as $75.
Risks of Ignoring the Publication Law
Although most LLCs follow the publication requirement, some find the costs to be burdensome. The cost is especially problematic for startup companies without much capital. Some LLCs put off the requirement or fail to publish the required ad.
However, failure to comply with the law is risky as it could put the LLC in jeopardy. Following the laws around publishing ads ensures that the business is operating under the purview and cover of the law in the state of New York. Although legal research hasn't revealed any negative consequences suffered by LLCs that didn't follow the publication requirement, it is still not advised to ignore the law. If a business doesn't meet the requirements, the state of New York can suspend its authority to operate and conduct business.
In one example, a foreign LLC, which was subject to the same publication requirements as an LLC set up in the state, was trying to retain a deposit when its debtor did not close on a transaction that involved an option contract. The debtor responded that the LLC hadn't fulfilled the requirement to publish within 120 days of becoming legally able to do business in New York. Therefore, the debtor stated that the LLC didn't have the legal authority to enter into the contract and therefore couldn't take legal action to keep the deposit.
In this case, the court reviewed sections 206 and 802 of the Limited Liability Company laws, which state that failure to comply with the requirement for publication will not impair or limit the validity of an act or contract by the LLC, or any other remedy or right under the virtue of a contract. Under those statutes, the court also pointed out that if an LLC files the required documentation stating it is in compliance with the publication requirement, the potential suspension of business activities is annulled.
The debtor had complied with the requirement for publication after the lawsuit over the deposit had begun, thus revoking the suspension. Several courts in the state of New York have faced similar situations, but all have come to the same conclusion. If an LLC wants to enforce a contract or take legal action due to breach of contract, it doesn't have to wait until the publication requirement has been met.
Process of Publication
After an LLC has been successfully filed, it will have 120 days to meet the New York LLC publication requirement. Ads are to appear in two newspapers for six weeks in the county where the LLC office can be found.
The County Clerk will choose which two newspapers will publish the ad. After the ads have been published for the required six-week time period, each newspaper will provide an affidavit of publication to the LLC.
To prove that the publication requirement has been met, the LLC must file the Affidavit of Publication and the Certificate of Publication with the Department of State. A $50 filing fee must be included with these documents.
Importance of Publication
Any contracts signed by the company will remain intact, and the LLC members will still be shielded from liability. However, no mechanism is in place that restricts an LLC from doing business in the state. In fact, the Division of Corporations doesn't change an LLC to an inactive status for failing to publish the information.
Losing the ability to sue in New York is one of the most common consequences of ignoring the publication requirement. The LLC will also likely be unable to acquire a Certificate Under Seal, which is more commonly referred to as a certificate of good standing. This may impact the LLC's ability to work with certain vendors.
If the LLC fulfills the publication requirement any time after the 120-day time limit has expired, their ability to do business will be reinstated. An LLC also will not lose its liability protection due to failure to meet the publication requirement.
A client with whom the LLC is working may request proof that the business has been published, so this could be a downside of failing to meet the requirement. For example, if an LLC was working through a major deal with a large client but couldn't show the affidavit of publication, the publication process could take about nine weeks, which could delay the deal or cause the potential client to go elsewhere.
Who Can File for Publication?
After the LLC has been formed and filed its articles of the organization, the next step is contacting the County Clerk to submit the filing receipt. Sending the receipt by mail is usually the fastest and easiest way. The County Clerk will then assign two newspapers to the LLC, which must be contacted by the LLC to arrange for the publication and payment of the required fees. Finally, the LLC must submit its Certificate of Publication with the filing fee and the affidavits.
If the process of filing for publication is too time-consuming or cumbersome, the LLC members can hire an attorney to take care of it. However, the responsibility for complying with all regulations and requirements falls on the owner of the LLC. While going through the publication process, it's best to consult with a lawyer who understands the nuances of LLC laws in the state of New York and can advise you on your particular situation.
If you need help fulfilling the New York LLC publication requirement, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.