On Further Reflection, "No"

At the UKCLE/KBA Section of Business Law Business Associations Institute I mentioned that the General Assembly had just passed an amendment to the Kentucky LLC Act providing by statute for derivative actions in LLCs (2015 Ky. Acts, ch. 34, § 50).  Jim Seiffert, also on the panel on fiduciary duties, asked whether the operating agreement could limit or eliminate the ability of a member to bring a derivative action?  I think I told him I don't think so, but I can't swear that was my response.

That said, on further reflection, and after considering the decision of the Delaware Supreme Court in In re Carlisle Etcetera, LLC, C.A. No. 10280-VCL, 2015 WL 1947027 (April 30, 2015), I've come to the view that the operating agreement cannot modify the capacity of a member to initiate on the LLC's behalf a derivative action.