Virginia Code

Va. Code Ann. § 13.1-1042 (2026)

Right of action; standing; condition precedent; stay of proceeding

✓ current as of May 2026

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A. A member shall not commence or maintain a derivative proceeding unless the member fairly and adequately represents the interests of the limited liability company in enforcing the right of the limited liability company and is a proper plaintiff pursuant to § 13.1-1043.

B. No member may commence a derivative proceeding until:

1. A written demand has been made on the limited liability company to take suitable action; and

2. Ninety days have expired from the date delivery of the demand was made unless (i) the member has been notified before the expiration of 90 days that the demand has been rejected by the limited liability company or (ii) irreparable injury to the limited liability company would result by waiting until the end of the 90-day period.

C. If the limited liability company commences a review and evaluation of the allegations made in the demand or complaint, the court may stay any derivative proceeding for such period as the court deems appropriate.

1991, c. 168; 2011, c. 379.

Notes of Decisions

Cited in 17 cases (4 in the last 5 years), 2004–2025 · leading case: Davis Ex Rel. Woodside Props., LLC v. MKR Dev., LLC, 814 S.E.2d 179 (Va. 2018).

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Davis Ex Rel. Woodside Props., LLC v. MKR Dev., LLC, 814 S.E.2d 179 (Va. 2018). · cites it 22× “The applicable statute, Code § 13.1-1042, and related provisions present us with a conundrum because competing canons of statutory construction point in opposite directions.”

Hawkins v. Fishbeck, 301 F. Supp. 3d 650 (W.D. Va. 2017). · cites it 10× “Plaintiff can only bring a derivative action if he was a member of the company during the alleged injury, made a written demand on the company to take action, and waited ninety days to see whether the company would take action on its own behalf.”

Siska Revocable Trust v. Milestone Dev't, 715 S.E.2d 21 (Va. 2011). · cites it 6× “In the amended complaint, brought under Code § 13.1-1042, the Trust alleged that the transfer of assets to Milestone was not in the best interests of MIC or its members.”

MISSION RES. v. Triple Net Props., 654 S.E.2d 888 (Va. 2008). · cites it 2× “Code § 13.1-1042. The derivative claims asserted by Triple belonged to Holdings, not to Triple.”

Wright v. Dee, 87 Va. Cir. 148 (Hanover Cir. Ct. 2013). · cites it 13× “Va. Code Ann. § 13.1-1042 (B) (2013). First, a written demand must be made on the limited liability company to take suitable action.”

McFarland v. Virginia Ret. Servs. of Chesterfield, L.L.C., 477 F. Supp. 2d 727 (E.D. Va. 2007). · cites it 2× “1-1020 allows a member of a LLC to be a proper party to a suit only when the object of the suit is (i) to enforce a member's right against or liability to the LLC or (ii) in the context of a derivative suit similar that provided for in Code § 13.1-1042, such limited exceptions…”

Schrager v. Isquith, 69 Va. Cir. 31 (Richmond County Cir. Ct. 2005). · cites it 3× “The Bill of Complaint asserts claims under Va. Code § 13.1-1042, the statute that permits a member of a limited liability company to bring an action asserting a right of the company, similar to the statute which permits a shareholder of a corporation to bring a derivative suit…”

Wright v. Herman, 230 F.R.D. 1 (D.C. Cir. 2005). “Virginia’s LLC Act provides for derivative actions by members, Va.Code § 13.1-1042 (stating that “[a] member may bring an action in the right of a limited liability company to recover a judgment in its favor to the same extent that a shareholder may bring an action for a…”

Schur v. Sprenkle, 84 Va. Cir. 418 (Richmond County Cir. Ct. 2012). · cites it 3× “See Va. Code § 13.1-1042. Furthermore, section B of the statute provides that: [n]o member may commence a derivative proceeding until: 1.”

Millisor v. Anchor Point Ventures, L.L.C., 77 Va. Cir. 246 (Hopewell Cir. Ct. 2008). “A member of a limited liability company, solely by reason of being a member, is not a proper party to a proceeding by or against a limited liability company, except where (i) the object is to enforce a member’s right against or liability to the limited liability company or (ii)…”

Robert A. Linkenauger v. Micah S. Fraim (Va. Ct. App. 2024). · cites it 21× “The circuit court also found that Linkenauger had not sent the other members a written “demand letter” as required by Code § 13.1-1042 before suing. We conclude that the circuit court did not err in finding that Linkenauger failed to send a written demand letter as required by…”

Gen. Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114 (4th Cir. 2004). “, derivatively under Va.Code Ann. § 13.1-1042 — Exro has not done that in its counterclaims.”

Show all 17 citing cases →

— Va. Code Ann. § 13.1-1042(A) — 1 case

Robert A. Linkenauger v. Micah S. Fraim (Va. Ct. App. 2024). “The circuit court also found that Linkenauger had not sent the other members a written “demand letter” as required by Code § 13.1-1042 before suing. We conclude that the circuit court did not err in finding that Linkenauger failed to send a written demand letter as required by…”

— Va. Code Ann. § 13.1-1042(B) — 4 cases

Davis Ex Rel. Woodside Props., LLC v. MKR Dev., LLC, 814 S.E.2d 179 (Va. 2018). “The applicable statute, Code § 13.1-1042, and related provisions present us with a conundrum because competing canons of statutory construction point in opposite directions.”

Wright v. Dee, 87 Va. Cir. 148 (Hanover Cir. Ct. 2013). “Va. Code Ann. § 13.1-1042 (B) (2013). First, a written demand must be made on the limited liability company to take suitable action.”

Brian F. Ford, etc. v. Michael J. Tiernan (Va. Ct. App. 2025).

— Va. Code Ann. § 13.1-1042(B)(2) — 1 case

Hawkins v. Fishbeck, 301 F. Supp. 3d 650 (W.D. Va. 2017). “Plaintiff can only bring a derivative action if he was a member of the company during the alleged injury, made a written demand on the company to take action, and waited ninety days to see whether the company would take action on its own behalf.”

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