As of January 1, 2015, California flexible purpose corporations will be deemed “social purpose corporations” to more appropriately reflect their purpose. The Corporate Flexibility Act of 2011 will be renamed the Social Purposes Corporation Act. The major substantive law change is that previously directors did not have to consider the social purpose of the corporation when making decisions. As I explained in my 2012 journal article on FPCs (Can an Old Dog Learn New Tricks? found here), consideration of the social purpose was permissive. The amendment now requires directors of FPCs/SPCs to consider the social purpose of the corporation in making decisions. The prior statute also exempted FPCs with less than 100 shareholders from providing a special purpose report; that exemption is now gone. The full amendment to the California FPC statute can be found here. Overall, these amendments make the new California social purpose corporations look a lot more like Delaware public benefit corporations. Indeed, Delaware public benefit corporations are now more similar to CA SPCs. Although not widely known, Delaware PBCs have a lot less in common with benefit corporation in other states (such as NY or DC).
SOCIAL ENTERPRISE AS A TOOL FOR COMMUNITY DEVELOPMENT │ABA AFFORDABLE HOUSE FORUM │WASHINGTON, DC │ May 21-23
The ABA’s Forum on Affordable Housing and Community Development Law Annual Conference is taking place this week in Washington, D.C. The Forum is full of great panels and workshops. I’ll be on a panel to discuss “Social Enterprise as a Tool for Community Development” with Bill Callison from Faegre Baker Daniels LLP and Jonathan Ng, general counsel of Ashoka. More info and registration here.
ITUNES PODCAST SERIES ON CORPORATE SOCIAL RESPONSIBILITY
David Yosifon (Santa Clara Law) has prepared an excellent iTunes podcast series on Corporate Social Responsibility in which he discusses the role of the corporation in a series of conversations with law professors including Steven Bainbridge, Robert Rhee, Kent Greenfield, Eugene Volokh, and myself. The series can be heard here: https://itunes.apple.com/us/podcast/corporate-social-responsibility/id807976212?mt=2. You can also subscribe to it as more conversations are added. In my podcast with David, we discuss the Delaware public benefit corporation, including results from my recent empirical research: Delaware Public Benefit Corporations 90 Days Out: Who’s Opting In?.
FELLOWSHIP: WVU’S LAND USE AND SUSTAINABLE DEVELOPMENT LAW CLINIC
Folks that follow this blog may be interested in the following fellowship announcement from WVU’s Land Use and Sustainable Development Law Clinic:
West Virginia University College of Law’s Land Use and Sustainable Development Law Clinic is now accepting applications for the Land Use and Sustainable Development Law Fellowship. The fellowship combines the opportunity to work with attorneys, planners and students at one of the leading Land Use Clinics in the United States with the opportunity to obtain the WVU Law LL.M. degree in Energy and Sustainable Development Law. The LL.M. program provides a uniquely deep and balanced curriculum in perhaps the nation’s richest natural resource region.
LL.M. in Energy and Sustainable Development Law
The WVU College of Law LL.M. in Energy and Sustainable Development Law is the only LL.M. program in the United States that provides a balanced curriculum in both energy law and the law of sustainable development. Working with WVU College of Law’s Center for Energy and Sustainable Development, LL.M. students will develop the expertise to advise clients and provide leadership on matters covering the full range of energy, environmental and sustainable development law.
The LL.M. in Energy and Sustainable Development Law provides a broad and deep offering of courses, experiential learning opportunities, and practical training for every part of the energy sector. Our broad spectrum of courses allows our students to prepare to be lawyers serving energy companies, investors, environmental organizations, landowners, utilities, manufacturing companies, lawmakers, policymakers, regulators and land use professionals.
More info here: http://law.wvu.edu/energy-llm/land-use-llm-fellow.
TEXAS A&M CLIP CONFERENCE INSIGHTS: BEING AN ENTREPRENEURIAL LAWYER
I just returned from a wonderful conference at Texas A&M School of Law, sponsored by the Center for Law and Intellectual Property (CLIP) and Startup Aggieland. Megan Carpenter, director of CLIP, did a wonderful job of organizing the conference, entitled “Innovation Summit: Shaping the Future of Law & Entrepreneurship”. As I listened to the speakers (of which I was one), I was inspired to gather a list of what exactly it means to be a lawyer for entrepreneurs, or an entrepreneurial lawyer. My list is below; what have I missed?
An entrepreneurial lawyer needs to have an entrepreneurial spirit and business mindset. By that, I mean:
1. The entrepreneurial lawyer must be able to assess both risks and opportunities. The entrepreneurial lawyer should not be risk averse or focus on the negative effects of every option. The entrepreneurial lawyer should recognize that risk is tolerable where there is opportunity for reward.
2. The entrepreneurial lawyer should aim to be part of the business team and be invited into business meetings, not kept outside. If the client simply hands the lawyer a term sheet to draft the deal after the business terms have already been settled, the lawyer has failed to be entrepreneurial. To be part of the team, the entrepreneurial lawyer must know the client’s business and have a solid business and financial understanding. It also helps if the lawyer is not a naysayer and can assess both risks and opportunities (see #2).
3. The entrepreneurial lawyer must be able to help her client’s “lean start-up” strategies, which includes avoiding high sunk costs when the start-up is in its early stages (e.g., avoiding high legal fees, potentially avoiding high legal costs such as patent and trademark filings and incorporation fees, at least at the pre-concept phases).
4. The entrepreneurial lawyer must be willing to find non-legal solutions to her client’s legal problems.
5. The entrepreneurial lawyer needs to break from the mechanical confines of traditional legal representation and be creative.
6. The entrepreneurial lawyer should not have a litigious mindset.
I plan to write a paper exploring the notion of an “entrepreneurial lawyer” further and how to teach such entrepreneurial skills to law students. That paper will be presented at Lewis & Clark Law School’s Fall Forum in October 2014, organized by Susan Felstiner, director of the Small Business Legal Clinic there.
NONPROFIT IPO: A GOOD IDEA BUT ONLY IF YOU WANT MEMBERS
I have recently read more than one article about nonprofit IPOs as a capital-raising method. Of course, a nonprofit does not have shareholders and cannot distribute its profits. Instead of an initial public offering, “IPO” stands for “immediate public opportunity.” An IPO in the nonprofit context means that a donor receives a “social innovation share” in the nonprofit: every X amount of money the donor donates entitles the donor to cast one vote for board director elections. Using the term “IPO” is certainly a way to grab attention and solicit donations in a sector that increasingly prizes innovation. However, there is one legal issue (and possibly more) of which nonprofit directors and officers should be well-advised. Under Delaware law, where the certificate of incorporation of the corporation is silent with respect to members, individuals who have the right to vote for board members of a nonprofit are considered to be “members.” (DGCL Section 102(a)(4)). Therefore, in conducting a nonprofit IPO, a nonprofit may be inadvertently anointing the IPO participants as legally-defined members with certain default statutory rights . It is also unclear what would happen in Delaware if a corporation that has members (and therefore references those members in its certificate of incorporation) then conducts an IPO that allows donors to participate in director elections. Are those new donors considered “members” with the same rights of members stated in the certificate of incorporation?
To resolve this, any nonprofit thinking of engaging in an IPO would be well-advised to first think through the ultimate fundraising objective and closely analyze whether the IPO participants will be considered members under state law. If the nonprofit decides to move forward with the IPO, the nonprofit should amend its certification of incorporation to clearly define who constitutes a member, whether participants in the IPO will be considered members, and what rights these members have.
WHITEWASHING & THE PUBLIC BENEFIT CORPORATION: AN EXAMPLE
Rasmussen College recently converted to a Delaware public benefit corporation. For those who don’t follow the blog regularly, a Delaware public benefit corporation is a for-profit entity “intended to produce a public benefit or public benefits and to operate in a responsible and sustainable manner.” “‘Public benefit’ means a positive effect (or reduction of negative effects) on one or more categories of persons, entities, communities or interests (other than stockholders in their capacities as stockholders) including, but not limited to, effects of an artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific or technological nature.”
What raises red flags for this corporate conversion is the fact that the U.S. Senate Health, Education, Labor and Pensions Committee (HELP) issued a damning report in July 2012 on for-profit colleges including, specifically Rasmussen College. The report, titled For-Profit Higher Education: The Failure to Safeguard the Federal Investment and Ensure Student Success, can be found here. The report is the result of a 2-year government study on for-profit colleges.
The report notes that the revenues of for-profit colleges come almost entirely from federal taxpayers (to the tune of $32 billion a year) but that the retention rate of students is low, the colleges are not held accountable for ensuring student success, the colleges have seen large increases shareholder returns in recent years, the colleges spend more money on recruiting than education, and that the quality of education provided is abysmal.
I cannot repeat the findings of the 250-page HELP report in total on this blog, but here are some figures from the part of the report that discusses Rasmussen College (full report on Rasmussen here).
• Approximately 80% of Rasmussen’s revenue comes from federal funds (approximately $185 million in 2010).
• Compared to public colleges offering the same programs, the price of tuition is higher at Rasmussen. A Bachelor’s degree in Business Management from Rasmussen College costs $68,668. The University of Minnesota costs $56,240 for a Bachelor’s in Business.
• Rasmussen spent $4,801 per student on instruction in 2009, compared to $6,261 on marketing and $9,017 on profit.
• Rasmussen’s student retention rates were among the lowest of the for-profit colleges surveyed.
• In 2010, with 17,090 students, Rasmussen employed 448 recruiters, 30 career services employees, and 303 student services employees. That means each career counselor was responsible for 570 students and each student services staffer was responsible for 56 students. Meanwhile, the company employed one recruiter for every 38 students. (Recruiting high volumes of students is part of the profit model).
The HELP report on Rasmussen College report concludes:
“Like many others in the sector, Rasmussen’s enrollment increased rapidly over the past decade.
Much of this growth came after the company’s 2003 acquisition by the private equity company
Frontenac. Additionally, Rasmussen has received increasing amounts of Federal financial aid dollars, at least $185 million in 2010, and realized significant increases in profit. However, the company’s programs are costly and students attending Rasmussen have some of the worst retention rates of any company examined by the committee, with more than 63 percent of students leaving with no degree. While Rasmussen has made some minor improvements, including an orientation program, and makes a greater investment in spending on instruction and student services than many for-profit colleges examined, it is unclear whether taxpayers or students are obtaining value from their investment in the company.”
And now, Rasmussen College is a public benefit corporation. This is exactly the type of “whitewashing” or “greenwashing” that lawyers and scholars predicted would occur as the benefit corporation legislation has been passed into law in 19 states and the District of Columbia. Any company can become a public benefit corporation; and the public benefit produced is only enforceable by shareholders. Quite unfortunately, I predict that we’ll see a lot of this in the years ahead.
This is a prime example of how the corporate form—whether a traditional corporation, benefit corporation, or even a nonprofit corporation—does not tell us much about the actual shared value (or lack thereof) that a firm creates. Socially- and environmentally-beneficial firms create shared value because they have investors and managers that pursue shared value and eschew opportunistic, greedy behavior, not because of a state statute governing corporate form. I still think that there are societal benefits to the benefit corporation and hybrid forms like it, but one should not mistake corporate form for actual corporate performance. Even a nonprofit corporation can engage in vice. To assess corporate performance, you need accounting and outcome measurements, and someone or something to hold companies accountable. Rasmussen would presumably fail miserably on GIIRS ratings or SASB standards.
THE BENEFIT CORPORATION’S RIGHT TO THE FREE EXERCISE OF RELIGION
Recently posted on SSRN (hat tip to Steven Bainbridge) is an article analyzing whether a benefit corporation organized for a religious purpose has the right to the free exercise of religion in context of the Hobby Lobby case:
Blurring Lines between Churches and Secular Corporations: The Compelling Case of the Benefit Corporation’s Right to the Free Exercise of Religion by Marc Greendorfer
The United States Supreme Court will soon hear oral arguments on two cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. Both cases present similar questions with regard to the applicability of the First Amendment’s “Free Exercise Clause” to corporations. In Hobby Lobby, the Tenth Circuit found that Free Exercise rights existed for a corporation, without regard to its status as a non-church, profit-seeking entity. In Conestoga, however, the Third Circuit agreed that a corporation could have Free Exercise rights, but such rights did not apply if the corporation happened to be “secular” and “for-profit”, defining characteristics which appear nowhere in the Constitution and which are contrary to recent First Amendment jurisprudence and other precedent, including the seminal case of Citizens United v. Federal Election Commission.
Why would there be such a distinction relating to a right as fundamental as the exercise of religion?
According to the Conestoga court, it all comes down to profit. A legal entity that exists to produce profits for those who organized it can’t exercise religion, but one that exists without an interest in profits miraculously is vested with the right to exercise religion. In Hobby Lobby, the court summarized (and subsequently rejected) the government’s position as being a black and white distinction between non-profit religious organizations, which have Free Exercise rights, and for-profit secular organizations, which have no such rights. The government made the same argument in Conestoga, and in that case the majority adopted the government’s position. Not only is the government’s distinction arbitrary and without logical or legal basis, it is utterly at odds with recent developments in corporate law.
The advent of the “Benefit Corporation” (or “B-Corp”) has formally established a gray area between the black of the non-profit religious organization and the white of the for-profit secular organization with respect to First Amendment rights generally and Free Exercise rights specifically. Indeed, a corporation organized as a B-Corp can be religious and formed for purposes other than the sole pursuit of profit. Such a creature was apparently beyond the knowledge of the Conestoga court. Well, not the entire Conestoga court. Judge Kent Jordan, in his meticulously argued dissent, touched upon the radical upheaval in the law occasioned by the recent establishment of the B-Corp in many states, pointing out that a B-Corp, like a religious non-profit corporation, is a legal entity that exists for purposes other than the solitary pursuit of profit; in fact, B-Corps can be formed in furtherance of religious purposes, much like a religious non-profit.
The purpose of this paper is to elaborate on Judge Jordan’s discussion of B-Corps in his Conestoga dissent and further, to argue that not only should Free Exercise rights apply to corporations that have a religious purpose, such as B-Corps, but also such rights should exist for what I refer to as “de-facto B-Corps.”
DELAWARE PUBLIC BENEFIT CORPORATIONS: THE FIRST 90 DAYS
I’ve just finished up a draft of an article that presents original research on the companies that opted into the Delaware public benefit corporation form within the first three months that the statutory amendments to the DGCL became effective. In the article I analyze the companies with respect to the following characteristics: (1) year of incorporation as a proxy for corporate age, (2) industry, (3) charitable activities, (4) identified specific public benefit, and (5) adoption of model legislation options not required by the Delaware statute. The article is forthcoming in the U.C. Davis Business Law Journal and a draft is available on SSRN here. The abstract follows.
The Delaware legislature recently shocked the sustainable business and social enterprise sector. On August 1, 2013, amendments to the Delaware General Corporation Law became effective, allowing entities to incorporate as a public benefit corporation, a new hybrid corporate form that requires managers to balance shareholders’ financial interests with the best interests of stakeholders materially affected by the corporation’s conduct, and produce a public benefit. For a state that has long ruled U.S. corporate law and whose judiciary has frequently invoked shareholder primacy, the adoption of the public benefit corporation form has been hailed as a victory by sustainable business and social enterprise proponents. And yet, the significance of this victory in Delaware is premature. Information about the number and types of companies opting into the public benefit corporation form has been preliminary and speculative. This article fills that gap. In this article, I present original descriptive research on the 53 public benefit corporations that incorporated or converted in Delaware within the first three months of the amended corporate statute’s effectiveness. Based on publicly available documents and information, I analyze these first public benefit corporations with respect to the following characteristics: (1) year of incorporation as a proxy for corporate age, (2) industry, (3) charitable activities, (4) identified specific public benefit, and (5) adoption of model legislation options not required by the Delaware statute. My analysis returns the following results: 75% of public benefit corporations are likely new corporations in their early stages of operation; 32% of public benefit corporations provide professional services (e.g., consulting, legal, financial, architectural design), the technology, healthcare, and education sectors each represent 11% of public benefit corporations, 10% of public benefit corporations produce consumer retail products; approximately 40% of public benefit corporations could have alternatively incorporated as a charitable nonprofit exempt from federal income taxes. This article discusses these and other findings to assist in understanding the public benefit corporation and how it has been employed within the first three months of its adoption.
J. GREG DEES, SOCENT LEADER DIES AT 63
J. Greg Dees has passed away. Dees was a leader in social entrepreneurship and responsible for making social entrepreneurship an academic field. His important work will be remembered and continued. Social Enterprise Alliance has a touching tribute here.