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Doherty wrote a software program called 'Viper' for Szlendak. P and Hamburg, both Ernst employees, expressed interest in Viper, and on February 14, 1997, they joined Szlendak and Doherty in forming the LLC to exploit the capabilities of the software. On that date, they filed the LLC's articles of organization with the Secretary of State. In it, they indicated that management of the LLC was vested in its managers, P and Hamburg, and not retained by its members. Each member held a 25% interest, and as a condition of the operating agreement, Szlendak and Doherty assigned their rights, interest, and title to Viper to the LLC. The operating agreement provided that the 'business and affairs of the [LLC] shall be managed by its managers' and that the members agreed to elect P and Hamburg as the 'sole managers' of the LLC. None of the provisions setting forth the rights and obligations of the members provided the members with any managerial authority. The operating agreement could 'not be amended except by the affirmative vote of members holding a majority of the participating percentages.' Katris and Hamburg, as managers of the LLC, prepared a written consent adopting certain resolutions in lieu of holding an initial meeting of the managers. Hamburg was elected as chief executive officer, P as chief financial officer, Szlendak as director of marketing, and Doherty as director of technical services. The written consent contained signature lines for Hamburg and P, who were identified as 'all of the managers' of the LLC. Prior to the LLC's formation, Doherty worked as an independent contractor for Hamburg and Carroll (both Ernst employees). In late 1997, Ernst hired Doherty to work for Carroll. As part of his duties for Carroll, Doherty worked with a programmer to adapt a software program ultimately called 'Worldwide Options Web (WWOW).' P initiated this action asserting a breach of fiduciary duty against Doherty and a claim for collusion against Doherty, Carroll, and Ernst. P claimed that WWOW was functionally similar to Viper and contended that Doherty usurped a corporate opportunity of the LLC by working in secret with Carroll and the programmer hired by Ernst to develop competing software for Ernst. P claimed that Carroll and Ernst colluded with Doherty in the breach of Doherty's fiduciary duties to the LLC. Doherty subsequently settled with P, providing P with an affidavit setting forth his involvement in the case in exchange for his dismissal. P's claim for collusion against Carroll and Ernst (Ds) remained. Ds filed a motion for summary judgment asserting that P's collusion claim failed because Doherty, as a nonmanager member of the manager-managed LLC, did not owe P or the LLC a fiduciary duty. P claimed that the written consent constituted an amendment to the operating agreement and that, pursuant to the terms of that amendment, Doherty was named 'Director of Technology' and 'given the sole management responsibility for developing, writing, revising and implementing the Viper software.' P claimed that in this position Doherty was thus subject to the standards of conduct imposed upon managers under the Act, and he breached those duties by usurping a corporate opportunity belonging to the LLC. The court granted P summary judgment. P appealed. P contends that Doherty exercised some of the authority of a manager in his capacity as director of technology for the LLC. Ds disagree, claiming Doherty was only subject to fiduciary duties if he exercised managerial authority pursuant to the operating agreement. Doherty did not have any such managerial authority under the operating agreement. Doherty was subject to fiduciary duties if he exercised some or all of the authority of a manager pursuant to the LLC's operating agreement. The LLC operating agreement provides for the election of P and Hamburg as the 'sole managers' of the LLC, and sets forth the powers of the managers of the LLC. Doherty did not exercise any managerial authority pursuant to the LLC's operating agreement. P contends that the managers amended the operating agreement by passing the written consent wherein they elected Doherty 'Director of Technology.' We disagree. An amendment to the operating agreement required the 'affirmative vote of members holding a majority of the participating percentages.' The facts show that Doherty was a member of a manager-managed LLC and exercised no managerial authority pursuant to the operating agreement. Affirmed.

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