LAW AND SOCIAL ENTREPRENEURSHIP

MARYLAND FIRST TO PASS BENEFIT CORPORATION

One small step for Maryland. One giant leap for Social Enterprise!

On Monday the Maryland Legislature made history by being the first state in the US to pass a Benefit Corporation bill into law. The bill passed the House, 135-5, on Monday. The Senate version passed, 44-0.

The benefit corporation will allow corporations to consider stakeholder value not solely maximization of shareholder value, thereby, effectively eliminating the conflict between social/environmental mission and profit.

“I think that Maryland can become the Delaware of B corporations,” said said Sen. Jamie B. Raskin, the Senate sponsor of the legislation. “We could be the magnet for companies that want to organize in this way.”

Stay tuned for more in depth coverage of this Maryland legislation.

GOODNESS HAS A NEW FLAVOR, MAYBE A NEW FORM

Earlier this week, National Public Radio aired a story (featured below) about efforts by lawyers in seven states to “rewrite laws” on behalf of social entrepreneurs. Right now, according to April Dembosky’s report, social entrepreneurs operate in a state of legal limbo: in the eyes of the law, social enterprises are for-profit entities, but they have a non-profit ethos, a concern for doing good or simply doing less or no harm.

The law may respect and admire, but it doesn’t have to recognize that ethos; social enterprise is not – or not yet — a legitimate corporate form. The law in most states currently says that shareholders have the right to sue if your desire to do good compromises their ability to do well, or better than they are already doing. And shareholder value will always trump “social values” in a court of law.

But now there are now serious efforts, mainly in Vermont and California, to create the legal framework for a new, “for-benefit” corporate form. These efforts seek to undo what is commonly called “shareholder primacy” in the for-profit corporation and challenge the idea that the sole duty of corporate directors is to make decisions in the best interests of shareholders – or, as it’s usually put, to “maximize profits” or “maximize shareholder value.” Advocates say that corporations should also have a duty to various stakeholders, including employees and consumers as well as to society as a whole, and that this duty should be on par with, or sometimes trump, fiduciary duties – or, at the very least, that shareholders ought to take into account the costs corporations socialize (e.g., the degradation of the environment) for the sake of shareholder profits.

There is already a for-benefit certification companies can earn. Think of it as a Good Housekeeping Seal for politically progressive investors, job seekers and consumers. But the for-benefit legal movement wants to do much more. For this reason, the movement represents more than another extension of the corporate social responsibility movement, more than a new chapter in the old debate about the public purpose of the corporation that dates back (at least) to the Berle-Dodd debates of the 1930s. The newly-chartered for-benefit corporation or “B-Corp” would, presumably, use “the power of business to solve social and environmental problems.” It would have a legal mandate to do so. In other words, the B-Corp would be a legally chartered, for-profit agent of social change or social “benefit”; its directors would be bound by law to take stakeholder interests and social benefits into account when faced with a decision.

To illustrate the need for the new corporate form, Dembosky looked briefly back to Unilever’s 2000 takeover of Ben & Jerry’s Homemade Ice Cream. As a case study, it’s a bit hackneyed, but as I went back to review it I discovered some distortions in Dembosky’s reporting, and came up against a number of questions about the for-benefit movement, and social enterprise in general, that I’ve run into before.

Ben & Jerry’s is widely regarded as a sort of ur-social enterprise, an early experiment in “hippy capitalism”. The company was founded in 1978. By 2000, Ben & Jerry’s had grown far bigger than its founders ever imagined it would. They needed to raise cash. The company had not solved its distribution problems: Ben & Jerry were still hitching a ride on other “super premium” ice cream distribution networks (mainly Haagen Dazs and Dreyer’s). Ben Cohen and Jerry Greenfield no longer saw eye to eye. All this made the company vulnerable and the target of speculation.

Still, the company was well past its hippy phase, and this is probably the first place where Dembosky’s story starts to distort the picture.

To hear her tell it, these really cool social entrepreneurs were just making their ice cream and trying to make the world a better place when the Unilever harpy swooped down upon them and carried them away, arms flailing.

Not quite.

First of all, Unilever was already part of a buyout offer engineered by Ben Cohen himself in March of 2000. He had teamed up with Unilever and Meadowbrook Lane Capital; Meadowbrook, a socially responsible investment firm, had put together a group of investors that included Bodyshop founder Anita Roddick. This unlikely trio offered $38 per share; Ben & Jerry’s was then trading at around $30. A shareholder who was privy to the board’s deliberations told the New York Times that the board had approved the deal (over Jerry Greenfield’s angry objections).

But then, in April, things took an unexpected turn. Unilever offered $43.60 per share – a 25 percent premium, almost nine dollars over the then-current share price — for a total offer of $326 million in cash.

Why the aggressive offer? Not because Unilever admired the social mission Cohen and Greenfield had set for their company, except insofar as it added to the buzz of the Ben & Jerry’s brand. Unilever had a nationwide distribution network already in place in the United States and access to European markets; and the company was faced with growing pains of its own: the consensus among analysts was that the company’s “longer-term fundamental growth rate” was “not inspiring.” It needed to enter new markets and find new areas of growth.

When the offer came in, Ben & Jerry’s Board of Directors was in no position to refuse, or stand on principle. This much Dembosky had right. However they may have felt about Unilever, however much they may have feared for the social mission of the ice cream company, they were prudent – and they were right — to reject the lower offer from the Cohen-Roddick group in favor of the higher cash offer.

To do otherwise would be to risk being sued by shareholders, and to be accused of neglecting their duty of care – even if the Cohen-Meadowbrook-Unilever group could somehow have proven that they and they alone could keep the ice cream company true to its social mission.

Which is, by the way, exactly what the Cohen-Meadowbrook-Unilever group had done when making their offer. As the Times reported, Meadowbrook Lane “pledged to create a ‘social performance plan’ that would place women and minorities on the board, pay about 7.5 percent of the company’s pretax profits into the Ben & Jerry’s Foundation and provide venture capital to other ‘progressively minded enterprises,’ among other social efforts.”

(Missing from this list – at least as reported by the Times — was the original Ben & Jerry’s compensation scheme, whereby no executive would earn more than seven times what an entry-level employee learned. The company had abandoned that policy in 1995, and apparently there was no going back. But all the ideas in the Meadowbrook package were, and — most people will tell you — still are, very fine sentiments. Whether they are good business practice is open to debate; whether they are to be dignified with the phrase “social mission” or “social responsibility” is even harder to decide.)

In the end, none of this stuff really mattered to the merger agreement. None of it influenced the Board’s deliberations or could make up the difference in the offers. So, when the deal was done, Cohen and Greenfield issued a joint statement celebrating Unilever’s commitment “to pursue and expand a social mission that continues to be an essential part of Ben & Jerry’s,” and the European multinational mumbled something about nurturing community values. None of this talk was binding or even very credible. At the time, it all seemed a little discouraging.

By December of the same year, Ben Cohen was threatening to quit unless Unilever appointed a CEO with the right “business mentality”: “otherwise,” he was quoted as saying, “I’m not interested in hanging around and supporting what I’m sure is a destruction of the company.” It’s worth noting that while making these threats Cohen was angling to have his own choice for CEO, Ben & Jerry’s director Pierre Ferarri, assume the role. He lost that battle. But over time, it seems, the guys from Unilever started to get the idea – or at least they learned how to keep up Ben & Jerry’s “socially responsible” brand.

The company continued to make decisions in keeping with the social agenda Cohen and Greenfield had set for it. It switched to “eco-pint” packaging in 2001. On Earth Day of 2005, Ben & Jerry’s protested oil drilling in the Arctic National Wildlife Refuge by delivering a half-ton “Baked Alaska” to the Capitol. In the same year, the company committed to fair trade; and just last month, Ben & Jerry’s announced that its entire “global flavor portfolio” would use only “fair trade ingredients” by the year 2013, engaging with “smallholders, who grow nuts, bananas, vanilla, cocoa and other Fair Trade-certified ingredients.” And in September of 2009, Ben & Jerry’s changed the name of Chubby Hubby to Hubby Hubby, in support of gay marriage.

All’s well that ends well, I suppose. But surely there are larger lessons here. What are we to make of the real buyout story, and what does it tell us about the efforts now underway to create a new corporate form?

For Dembosky, the moral of the story, or at least the good news, is that the new for-benefit corporate form will allow – or legally require — a social enterprise to stay true to its mission and its values. It will attract a different kind of investor, one who cares about balancing profits with social costs and social responsibilities. That may be true. But questions remain. Consider what would have happened if Ben & Jerry’s had been legally incorporated as a B-Corp back in 1978, at its founding. How would its for-benefit incorporation have affected its growth? Would it have been possible for the company to make those early distribution deals with Haagen-Dazs or Dreyer’s, without requiring those companies to undergo an intrusive social audit? A fussy shareholder could have demanded it; any early deals or alliances could have been subject to the same additional scrutiny. It sounds cumbersome, and a little absurd.

I’m no lawyer, but I don’t really see how legally-binding social commitments wouldn’t hang over all legally-binding deals or contracts that the B-corporation makes (unless of course the “social values” inscribed into the B-Corp charter are easily manipulated or ignored when it’s convenient to do so). The Meadowbrook Lane social performance plan would have been legally binding, written right into the merger agreement. It’s unclear whether under those conditions Ben Cohen would have been able to bring Unilever to the table at all. Jerry Greenfield might have liked that just fine. But would Unilever have agreed to be bound by the social mission of a Vermont ice cream company? It’s hard to see how that deal would have shaped up under these circumstances, but it’s clear that B-Corp charter would have altered the merger equation. Couldn’t shareholders have objected — as Greenfield did — that Unilever would compromise the company’s social mission, and held the merger up on those grounds?

There are broader and more interesting questions here, too. One has to do with the phrase “for-benefit” itself, and whether it can stand up to very close legal scrutiny, or survive a legal challenge. Current definitions of for-benefit corporations don’t really help in this regard. The Vermont Benefit Corporation Act defines “public benefit” as “a material positive impact on society and the environment, as measured by a third-party standard, through activities that promote some combination of specific public benefits.” That is sufficiently vague as to open the door to all kinds of arguments; and it’s also worth noting that the proposed legislation sets out “no criteria to qualify to be a ‘benefit corporation’.” The company is required only to file “annual reports about its community-oriented work.”

I suppose the “third-party standard” is meant to be reassuring; but it is bound to raise the question who will guard the guardians. That question doesn’t matter all that much when “for-benefit” is simply a certification or thumbs up from the progressive business community, or from the non-profit B-Lab; but when it’s a matter of corporate law, you can expect that someone is eventually going to point out that the third party needs to be checked and balanced, and that the for-benefit corporation is essentially chartered to pursue what looks very much like a political agenda.

Of course it’s nothing too offensive – a concern for the environment, fair dealing, civil rights, workers’ rights. If it were a Ben & Jerry’s flavor, it would be Progressive Passionfruit, or Vibrant Vanilla: easily digestible, soft, kind of sweet. Hope and Change. But what about other flavors, other political agendas to the right or the left of the B-Corporation’s Unitarian progressivism? To put the question bluntly, is B-corporation law essentially legislating an idea of what constitutes a “social benefit,” and therefore deciding for the rest of us what is good? How — outside Vermont – can that stand without a quarrel? What about other ideas of how businesses benefit society? How long before Milton Friedman rises from the grave to tell us that increasing profits is the highest social responsibility of a business? Or what happens to the idea of social “benefits” (for example) when the American religious right gets into the social enterprise game?

What bothers me most about all this is that behind the Unitarian progressivism of the B-corporation, behind much of the talk about social enterprise and delivering social benefits through business, lurks another 19th century idea: benevolent corporate paternalism, which, as I suggested in a recent post, now manifests itself in a more politically correct, palatable way, so kind and soft and sweet and full of concern that it might be better termed benevolent corporate maternalism.

By chartering corporations to deliver social benefits, isn’t society also surrendering power? Instead of rewriting the laws to create for-benefit, for-profit companies, why don’t states more strictly enforce the existing laws, or enact laws on behalf of communities and the environment? The rise of the social enterprise may actually signal society’s loss of its power to regulate and restrict business. These fledgling efforts to rewrite the law may — albeit inadvertently — usher in a new era of lawlessness, in which companies can do whatever they want, as long as they can claim to be doing good.

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by Louis Galdieri

PROTECTING COMPANIES THAT MIX PROFITABILITY, VALUES

Imagine you’re a new baby-food company that wants to promote a certain social vision: You use organic ingredients, and you’re at the cutting edge of employee benefit policies. You also want to grow and make money. But that might jeopardize your social values.

Now, a network of lawyers across the country is working to change the law so that social entrepreneurs can grow their businesses without risking their visions.

There’s a fast-growing company in San Francisco called Method. Every year it sells about $100 million worth of household cleaning products, but the company’s founders say they aren’t just out to make money. They say they strive to use nontoxic materials and renewable resources, and they minimize energy consumption in the manufacturing process. Co-founder Adam Lowry says that is more important than profits.

“What we’re not going to do is say, ‘Let’s do this ugly, dirty, toxic thing because it’s going to make us more money,’ ” Lowry says. Lowry joins a growing number of entrepreneurs driven by a desire to do some social good. The problem, he says, is that corporate law is not on their side.

“In most bylaws of most companies, there’s a provision that says that the shareholder is king,” he says. And if shareholders think you’re sacrificing profits for some other non-profit-making reason, they can sue you.

Case Study: Ben & Jerry’s

Nearly 350 Ben & Jerry’s locations dot the country, but in the early days, Ben & Jerry’s was small and local. It used its product to take political stands. The company sold chocolate-coated “peace pops” and began using hormone-free milk. It donated 7.5 percent of its annual profits to small community projects.

As the company grew, it needed some cash. So it went public. Things went really well, and years later, huge offers rolled in to buy Ben & Jerry’s. Co-founder Ben Cohen thought the company could better protect its social mission if it stayed independent. But he says the law was on the side of shareholders.

“The laws required the board of directors of Ben & Jerry’s to take an offer, to sell the company despite the fact that they did not want to sell the company,” Cohen says. “But the laws required them to sell the company to an entity that was offering an amount of money far in excess of what the stock was currently trading at.”

That entity was European conglomerate Unilever. Lawyers told the board members that shareholders could sue if they turned Unilever’s offer down. Cohen says individual board members were concerned that the company didn’t have adequate insurance to cover a lengthy court battle, and that they’d be personally responsible for the legal fees.

“I think most people that are sitting on a board are not willing to lose their house for the privilege of sitting on that board,” Cohen says. And so they sold to the highest bidder. That helped set the stage for today’s young, idealistic companies.

Efforts To Protect ‘For-Benefit’ Companies

“As it exists today, there’s not a good framework for the entrepreneur who wants to create an entity that really mixes profitability and mission,” says Todd Johnson, who heads a group of California lawyers that’s trying to change that. He says that right now, businesses can be either for-profit companies or nonprofit organizations. The law doesn’t recognize a corporate form that falls in between. “Traditionally, directors of for-profit corporations are, at certain points, required to maximize shareholder profit, over and above other obligations that they have,” Johnson says.

Johnson and others are trying to rewrite laws in seven states, which define “for-benefit corporations” and require their boards to balance social and environmental policies with profit. Johnson hopes California will take the lead. “California is a unique state because it has such a high concentration of these kinds of companies already,” Johnson says.

But Vermont might get there first. Legislation in Ben & Jerry’s home state is expected to pass this spring.

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by April Dembosky for NPR Morning Edition

http://www.npr.org/templates/story/story.php?storyId=124468487

A NEW ROAD FORWARD

Have you ever tried to organize a social enterprise and find yourself frustrated by your options for legal structure? Well… we know the feeling. As a social entrepreneur and an attorney, I’ve dealt with this frustration both personally and on behalf of my clients.

As a leader of a social enterprise, you are an innovator, but the current structures stifle that innovation. You are forced to chose between two out-moded options: either organize as a for-profit or nonprofit entity, and maybe use some Frankenstein-like techniques to find something that sort of works, but is sub-optimal to say the least. The bottom line is that neither the for-profit not the nonprofit entity addresses the needs of social enterprise.

There must be a new road forward.

Fortunately, there is a group of legal minds around the country that are starting to cut a new road across the U.S. legal landscape. We are creating a new corporate form that will empower social enterprises. This is an exciting time in the social enterprise movement as a whole, but specifically in the legal structures supporting the movement.

This blog is a space dedicated to discuss and disseminate information on the legal structures, both old and new, including Nonprofit, For-Profit, L3C, the For-Benefit Corporation and other emerging legal structures connected to the social enterprise movement. We hope that be aggregating and curating the knowledge about this area of law, social enterprises will have an understanding of all their options, and make decisions that will set them up for success.