Public Searches
Best Practice Summary

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Documents filed with the state recording offices are public records and retreivable by anyone. Formation documents, filings required by state or federal agencies and filings reflecting security interests, state and federal tax liens, bankruptcy filings and litigation are all matters of public record. Lawyers and paralegals commonly obtain copies of formation documents to support another filing, for historical purposes (such as reconstructing a minute book) and as part of a transaction.

Public records searches may be conducted at various government offices:

Agency
Documents to be Obtained
Secretary of State (or other state filing official)Entity formation documents, status certificates, required filings such as annual reports, UCC's and state tax liens
Federal District CourtFederal litigation dockets and pleadings, and federal tax liens
State Court (including Supreme, Superior and District)State litigation dockets and pleadings
Registry of DeedsDeeds, mortgages, chain of title, UCC's and generally all filings related to real estate
Bankruptcy CourtBankruptcy filings and dockets

Documents on File with Secretary of State

Most often, legal professionals seek to obtain copies of formation documents of entities to support another filing, for historical purposes such as reconstructing a minute book or to be delivered as part of a closing transaction. The reason for requesting the copies will dictate whether they need to be "certified" or "plain".

Plain Copies
As the name implies, "plain copies" of documents on file are not certified as true and complete by the secretary of state and are available for a minimal copy charge or increasingly, available for free at many secretary of state web sites. Turnaround times may be slower if the target state restricts public access to documents or requires state employees to make all copies.

Note: Generally, bylaws are not considered public records and are not filed at the secretary of state's office. In many states, public charities are required to register with the state attorney general's office and may be required to file the bylaws as part of that registration. Copies of bylaws may also be found in SEC filings of public companies at the SEC or EDGAR Online. Like bylaws, operating agreements (the governing document of a limited liability company) are not filed at the secretary of state's office for limited liability companies. Partnership agreements (the governing document of a limited partnership or limited liability partnership) are generally not filed for limited or limited liability partnerships with the secretary of state.

Certified Copies
Secretaries of state will certify copies of documents on file with their offices as true and complete upon request for an additional fee. For transactional purposes, certified copies of the formation documents will typically suffice, as opposed to "everything on file" which would include all changes (e.g. resident agent or office, and annual reports).

Restated Forward
When a restatement of the charter is on file, for transactional purposes, it is typically acceptable to obtain a copy of the restatement and all amendments filed after the restatement which is commonly referred to as "restated forward". Typically this will suffice because restatement forward adequately and accurately reflects the current charter of the corporation. The responsible attorney should decide whether these documents will suffice.

Note: Colorado, Massachusetts, North Carolina and Rhode Island currently offer online images for certain filings and/or the ability to order certified copies online. To quickly check whether a particular state offers online copies, plain or certified or good standing certificates, check LeapLaw's Corporate Connection or LeapLaw's LLC Connection.

Good Standing, Legal Existence Certificates and Tax Good Standing Certificates

Information regarding tax good standing may be found at LeapLaw's Good Standing Best Practice Summary.


Timing Tips

Need certified copies in a rush? Here are some tips to help beat the deadline:

Some service companies offer online ordering through their web sites allowing orders to be placed after business hours so they're in queue upon opening the next business day (passwords are necessary for these sites and are free upon request). Orders are electronically delivered to the service office in the target state allowing orders in later time zones to be processed immediately.

Calling a service office in a later time zone directly can also expedite processing. Many service companies keep their Delaware offices open until 8 p.m. EST.

Best Practice Tip: Don't order certified documents too soon. The rule of thumb is that certified documents are invalid after 30 days. Ordering too soon may result in the added cost of re-ordering. Review the representations and warranties in the major transaction documents to determine if there are any unusual requirements as to the date of certified copies. But don't order them too late, either. Turnaround times can vary state to state so set deadlines early to avoid surprises.

Placing the Order

Document retrieval requests are commonly placed using your preferred service company or directly with the secretary of state's office. LeapLaw's Corporate Connection and LeapLaw's LLC Connection also provide links to state web sites that currently offer online images of some filings and/or the capability for online ordering. It may be necessary to provide a credit card or set up a specialized account with the state in order to place online orders.


Fictitious Names Searches
(a/k/a doing business as or d/b/a; trade name)

Pursuant to most state commercial laws, companies transacting business under a name other than its legal name appearing in state records are required to file a business certificate, or equivalent thereof, as public notification that business is being conducted under an alternative name. Fictitious name filings are also required to register the name of sole proprietorships and general partnerships that are not otherwise required to formally incorporate or organize by filing a state registration.

When qualifying to conduct business in a foreign jurisdiction, where a desired name is unavailable in the target state, an entity may be required to file a fictitious name registration to complete the qualification.

Depending upon the jurisdiction, locating fictitious name filings may require searching the records of the secretary of state, the county recorder or the town or city clerk in all locations where business is conducted. Requirements vary widely state to state. A service company can help identify search parameters.


Federal and State Tax Liens

In order to determine whether federal and state tax liens have been levied against a company, tax lien searches may be ordered through your preferred service company to be performed at the U.S. District Court or Registry of Deeds where the company has its principal address and state tax liens at the state authority's office of the domestic state. In some jurisdictions, state tax liens may also be filed with the county recorder or city/town clerk.

Best Practice Tip: Searching under the exact legal name of the debtor as you would under Revised Article 9 may not discover federal tax liens. The Internal Revenue Code, which governs federal tax liens, requires the IRS to record liens under the name of the taxpayer which may be different from the debtor's name. Therefore, tax returns and other federal tax documents should be reviewed in order to verify the correct name of the taxpayer and other variations of the name.

Docket Searches

Court dockets may be searched in order to provide a listing of cases on file for a particular entity named as a defendant or petitioner. You may specify only open cases and judgments, lawsuits naming a party as defendant only or everything in the database. Typically, a docket sheet will be provided for review; copies of the complaints, motions and pleadings may then be obtained. Your preferred service company may retrieve such court records from any federal, state or local court in all 50 states and the District of Columbia.

Many documents are available free of charge however some courts provide documents only via Pacer or other court retrieval systems available over the Internet. Subscription is generally free. A fee of $.07 per page is charged.


UCC Searches

UCC searches will reveal filed financing statements representing security interests in company assets. The adoption of Uniform Commercial Code Revised Article 9 ("RA-9") of the Uniform Commercial Code simplified the filing process. However, when searching for financing statements, the search parameters should be framed pursuant to both new and old Article 9 to identify all filings and provide a chance to terminate obsolete filings or continue them in accordance with RA-9. To be safe, until 2006 (when all UCC filings must meet the requirements of RA-9), you may want to perform UCC searches in the following locations:

  • in any all states in which the company is organized or qualified;

  • in any county where property, fixtures or real estate is located; and

  • in any city or town where property is located, if the target state provides for filings at the city or town level. The search will be conducted during the prior 5 year period until the adoption of RA-9. Identified filings may need to be terminated or continued and moved to the proper filing location by filing a UCC "in lieu of a continuation".

After the expiration of the interim period, searches will only need to be performed at the central UCC filing office in the debtor's state of organization r. Searches with the county recorder or registry of deeds will need to be performed for fixture filings relating to real estate.

Preliminary searches may be performed online at many secretary of state's using LeapLaw's UCC Connection. Real estate fixture filings can be found online at some filing office's web sites. Some jurisdictions provide images online. Otherwise, searches may be ordered using a your preferred service company.

A UCC-11 is a financing statement search that is certified by the secretary of state or other filing officer. They may be ordered online using a credit card at the some secretary of state web sites (see LeapLaw's UCC Connection) or using your preferred service company.

Best Practice Tip: It is often more time and cost-efficient to use a service company to conduct searches, even local ones when considering transportation cost and time and possible wait time at the filing office. As long as the corporate name and jurisdiction provided to a search company are accurate, search companies generally retrieve documents for a set price regardless of transportation and waiting times that may occur.

See LeapLaw's UCC Forms and Filings Best Practice Summary for more information.


Trademark Searches

Trademarks do not have to be registered with the US Patent Trademark Office (USPTO) in order for an owner to have a valid claim of ownership. Trademark registrations may also be filed at the state level. Most importantly, trademark rights arise from the use of the mark, in "common law" and not from registration of any kind. Therefore, simply checking the USPTO listing of registered trademarks does not guarantee success.

You may search online at the USPTO or at the state level in some cases, using LeapLaw's Intellectual Property Connection. Searching online at the federal or state level provides a quick indication of availability but these searches are not completely reliable. To be absolutely sure of trademark availability, a full trademark search (that includes federal, state, domain names and common law searches) may be performed by a trademark search company.

For more information on trademarks and service marks see LeapLaw's Trademark and Service Mark Best Practice Summary.

Note: Make sure information provided for searching purposes is accurate. The company name must be accurate. If you are unsure of the exact name and do not have access to the minute book, the name may be verified on the secretary of state's web site at LeapLaw's Corporate Connection, prior to placing an order with a service company. The jurisdiction must also be accurate. Referencing a client code saves time when the invoice arrives.

General Corporate Research

Annual Reports
An annual report may refer to:

Form 10K
The Form 10-K required of public companies to be filed with the Securities Exchange Commission. A copy of the 10-K or any other report required to be filed by the SEC may be found at the SEC web site.

Glossy Annual Report
The glossy annual report is that report prepared by public companies for distribution to stockholders and other potential investors. These annual reports may be obtained via the Company's web site or online at the Annual Report Service.

State Annual Reports
Most secretaries of state require corporations and/or limited liability companies to file annual reports in order to maintain good standing with the secretary of state, whether or not the company is listed on a national stock exchange. These annual reports may be retrieved at many secretaries of state web sites or as referenced above.

Dunn & Bradstreet
Dunn & Bradstreet ("D&B") supplies various financial reports on millions of companies, both private or publicly-traded. The reports are used to establish credit terms, leverage customer and supplier relationships and overall better manage business risks. A D-U-N-S Number is a nine-digit number assigned by D&B to identify unique business entities. Dunn & Bradstreet Reports.

Thomas Register of American Manufacturers. Thomas Register provides information on most U.S. manufacturers by product name, company listing, and company catalogs.

Additional information may be compiled from the following sources:

  • Competitor information can be found in Hoovers.

  • Company's web site.

  • A Nexis search will produce all articles and press releases about the company and/or its management.

Search Companies

Searches may be ordered via your preferred service company. Using a service company is typically the most cost-efficient manner of performing searches and obtaining certified copies when considering possible transportation costs and waiting time that will be billed to the client.

For more information about service companies, see LeapLaw's Service Company Best Practice Summary.

LeapLaw's
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