A Rose by Any Other Name: Using Tradename in Clean Air Act Citation Is Just as Good as Real Name of LLC

A Rose by Any Other Name: Using Tradename in Clean Air Act Citation
Is Just as Good as Real Name of LLC

      In a recent decision from Washington state, there was considered and rejected the suggestion that a citation for violation of the clean air act was deficient because it was issued in the LLC’s tradename, rather than its real name.  Annette Holding LLC d/b/a Super Duper Foods v. Northwest Clean Air Agency, 2020 WL 2731097 (Wash. Ct. App. May 26, 2020).

      In this case the notice of violation of the Clean Air Act was issued in the name of “Super Duper Foods”, that being the assumed name of “Annette Holding, LLC.” It was asserted that the citation was invalid for the use of the assumed, and not the real, name of the LLC. Rejecting that analysis, the court wrote: 

 In Washington State, a “person” may use an assumed name for a business. RCW 19.80.010. RCW 19.80.005(3) defines a “person” under RCW 19.80 to include a “limited liability company.” In Washington, a limited liability company, such as Annette Holding, must register its trade name and include the true name of the company as filed with the secretary of state before the “person ... carries on, conducts, or transacts business in this state under any trade name.” RCW 19.80.010. A trade name by definition is used by the entity “to identify the person’s business.” RCW 19.80.005.

     Nothing in the statutory language governing trade names suggests that the person registering the name is separate from its tradename. The Washington Supreme Court early proclaimed:

The general rule of law seems to be that a corporation may contract and do business in an assumed name, as well as can an individual, and be bound thereby in its corporate capacity.

Brotherhood State Bank of Spokane v. Chapman, 145 Wash. 214, 219, 259 P. 391 (1927).

     Foreign courts confirm that a person or entity is not separate from its trade name. A fictitious business name does not create a separate legal entity, rather the law deems the two identical. Pinkerton’s, Inc. v. Superior Court, 49 Cal. App. 4th 1342, 1348, 57 Cal. Rptr. 2d 356 (1996); Southern Insurance Company v. Consumer Insurance Agency, Inc., 442 F. Supp. 30, 31 (E.D. La. 1977); American Express Travel Related Services Company v. Beryle, 202 Ga. App. 358, 360, 414 S.E.2d 499 (1991); Wood v. Manufacturing Co v. Schultz, 613 F. Supp. 878, 884 n.7 (W.D. Ark. 1985); Krawfish Kitchen Restaurant, Inc. v. Ardoin, 396 So. 2d 990, 993 (La. Ct. App. 1981).