This presentation was given on April 3, 2014 at Harvard Business Law Journal Symposium on Benefit Corporations.
An abridged version of this article ran in The Guardian Sustainable Business section. Click here for that version.
A quiet corporate revolution for good is sweeping across America. The Benefit Corporation, a new class of corporation for sustainable business, is being passed into law in states across the US. The Benefit Corporation is being adopted by state legislatures at light speed, with twenty states passing legislation in just over three years. By comparison, it took the LLC well over a decade to reach the twenty-state mark. In an age of intense partisanship, the law is gaining popular support across the aisle, including unanimous passage in the notoriously divided New York legislature.
The Benefit Corporation is a new class of corporation that broadens the purpose of a corporation and introduces unprecedented transparency and accountability. Traditional corporations operate under the legal duty to maximize shareholder value, which forces entrepreneurs to purse profit at the expense of purpose. The Benefit Corporation broadens the mandate of the corporation from a narrow of view shareholder maximization to consider all stakeholders in its decision-making, essentially codifying triple bottom line accounting. The Benefit Corporation’s social and environmental performance is measured by an objective third party standard and must be reported to the public every year in an annual Benefit Report.
On August 1st, Delaware followed suit and passed their own version of the Benefit Corporation, the Public Benefit Corporation. Delaware, widely seen as the most important state in corporate law, is where most venture-backed and fortune 500 companies are incorporated. One such Delaware corporation, Method Inc., a home cleaning products company, was one of the first companies to convert to a Benefit Corporation in Delaware. Adam Lowry, cofounder and Chief Greenskeeper, noted, “We started the business to show that business could be a positive force on society, and now have a legal form that is inline with our ethic.”
This new corporate form mandates that entrepreneurs take into consideration their social and environmental impact, which could have a negative financial impact on returns to shareholders. An essential question for entrepreneurs who are creating a sustainable business, but also need the financial backing of investors is:
What do investors think about the Benefit Corporation?
SHIFT FROM TECHNOLOGICAL INNOVATION TO SOCIAL INNOVATION
As a partner at Union Square Ventures (USV), Albert Wenger has invested in some of the most successful tech companies including Twitter and Tumblr. He considers himself a pure tech venture capitalist, not an impact investor, and yet he is strongly in favor of the Benefit Corporation.
Mr. Wenger believes that the current version of capitalism has been incredibly efficient at creating and distributing a high volume of stuff at an increasingly cheaper price. Technical innovation has ensured that everything from computers to clothing is getting cheaper and much more widely available. “The problem of technological innovation is not the primary problem that we still need to solve. The primary problems are the very large-scale problems: giving people access to good education, quality healthcare, poverty alleviation and not destroying our planet. So the big change is that there was a time period where we really had to address technological innovation and where this type of capitalism that we had was quite good at bringing that technological innovation into the marketplace. I don’t think that’s our biggest set of problems anymore.” Since the biggest questions of the future cannot be solved simply by the current shareholder maximization-centered version of capitalism, Mr. Wenger believes we have to usher in a new version of capitalism that will shift the focus from purely technological innovation to social innovation and the Benefit Corporation is a great vehicle to do that.
PROTECTION FROM SHORT-TERMISM
Another key shift that Mr. Wenger sees is a shift away from hierarchical systems to networks – think Etsy and Shapeways for production and Tumblr and Twitter for communication. Indeed we are already seeing that with social media disrupting the traditional journalism and Amazon disrupting retail.
Mr. Wenger says, “So from our perspective, because we believe in the power of networks, we think Benefit Corporations are particularly important because we believe with great power comes great responsibility.” If you operate a very large network, there will be a temptation for management or newer shareholder to extract too much value too soon from the network. This tension between extracting value in the short-term and building a healthy long-term comes into clear focus when you look at the divergence between management timeframes, investor timeframes, and market place timeframes. Mr. Wenger notes, “Etsy (a USV portfolio company) could and should exist for decades or longer, but individual managers may only work at a company for 5 years or 10 years. Investors may be looking to exit even quicker. So you have very different time horizons.” There is a fundamental disconnect between the incentives for short-term profit maximization and long-term value creation. The Benefit Corporation empowers management, directors and shareholders to set a long-term vision for the health of their company and make those decisions that align with those goals without the interference of short-term focused shareholders forcing them to extract value too soon. A good example of this according to Mr. Wenger is the Myspace acquisition, “News Corp. bought it, and paid what they thought was a reasonably high price for it and then proceeded to want to recover that price very quickly. So they tried to monetize the network very, very heavily, ultimately contributing to its collapse.”
After a long career in investment, including serving as co-Chairman for the $21 billion asset management firm Genworth, Ron Cordes has shifted his focus from simply investing in great companies, to investing in great companies that have a positive social and environmental impact. These days he’s looking to maximize both profit and purpose, and is one of the leaders in the impact investing movement.
Most investment rounds include multiple investors and, more often than not, they have never met each other – the other investors are simply names on a capitalization table. There is no way to understand the other investors’ motives for making the investment. Typically, the investor would have to rely on the CEO of the company to bring together a group of investors that are aligned around a common mission.
This works well so long as the company is meeting or exceeding their financial projections, but, Mr. Cordes notes, “growing a business is never a linear path. So it’s always two steps forward, one step back. Markets and economies are at play. Crashes like 2008 happen, and generally issue occur that were unexpected in a negative way. Investors sometimes react in unusual ways. They may say, ‘wait a minute, that was great when we were performing well. But now we’re down here and you’re asking me to put extra money up and you’re saying we still have this employee and stakeholder engagement policy.’” For individual investors to continue to support the social and environmental mission of a company even when the company is struggling financially is challenging. In another instance, a shareholder may transfer the stock to someone else, say in the event of death or divorce. Now all of a sudden, there is a new person in control of voting those shares who may or may not align with the mission of the company.
“Things like that can happen,” says Mr. Cordes. “If the values are not codified, you’re going to be relying on the collective good intentions of the group, which is hard. So if I’m a shareholder and I truly don’t know the other shareholders, then the Benefit Corporation at least says, okay I’m not going to have that issue come out of the left field here, because everybody is signing up to the baseline goals. If in any point somebody was wrong and misread the intentions of an investor, you have it in writing and baked into the articles, which gives you a recourse that you don’t have otherwise.”
Though it sounds lovely to pursue profit and purpose, David S. Rose, angel investor and entrepreneur who has founded or funded over 75 companies, says that when the rubber meets the road, you need to choose profit or purpose, but you can’t build a successful company trying to pursue both simultaneously.
Mr. Rose says, “It’s wonderful to think that one can have one’s cake and eat it too. That one can benefit society, make a lot of money, make everybody happy, end wars, cure cancer. In the real world however things tend to optimize in one area. It is nearly impossible to try and truly optimize for a double bottom-line. But in the case of making money and creating social good the underlying challenge is that starting a new venture is insanely tough. It’s really, really difficult. Given the fact that the majority of new business fail when entrepreneurs are busting their rear ends to try and make it succeed economically, to then overlay on top of that a secondary goal is really, really challenging.”
For Mr. Rose, there is a clear dividing line either an organization is primarily pursuing profit or primarily pursuing purpose, a company has to choose one or they will fail. “When the rubber meets the road in the real world, I think you have to choose, because if a company is going to prioritize the public benefit by 0.1%, then ultimately it cannot survive. It will go out of business.”
Mr. Rose believes in doing good through business. He just believes the only way to do that is to give clear priority to profit over purpose. In fact, he has invested in, and serves as the chairman of the board for Porti Familia – a company bringing modern healthcare to the slums of Lima, Peru – a company that is certainly doing a great deal of good in the world. His other investors are some of the biggest impact investment funds in the world, such as Acumen and responsAbility. Rose says, “we all agree that the company is doing good things, but I invested in it not to do good things – I can give money to charity for that. I invested in this company to make money, and oh, by the way, it’s making money in a good way by doing good things.”
So, when it comes to the Benefit Corporation, which is designed for companies pursuing both profit and purpose simultaneously, his conclusion is, “I don’t think Benefit Corporations are evil. I just think that they are ultimately naïve, because in the real world, you have to choose. You can’t have your cake and eat it too.”
In the end, it’s difficult to make a general statement for the entire investment community because every investor is different, and is driven by unique blend of motivations. But there seems to be openness from some leading investors to the new corporate structure. Mr. Wenger and his team at USV are looking forward to working with Benefit Corporations. “We are actively encouraging some portfolio companies to pursue the Benefit Corporation structure. It certainly would never stop us from investing.”
The best-case scenario is for entrepreneurs and investors to have clear alignment on both profit and purpose. The Benefit Corporation is a ready-made legal structure that helps codify that alignment from the outset and protects the company from mission drift in the long term. Method is an example that, Mr. Lowry says, “I’m very luck that I have mission-aligned investors. All the directors, officers and investors involved in Method, want to ensure that our mission is preserved forever into the future, so we are all excited about a new corporate form that gives directors the rights and protections to pursue a triple bottom line.”
Katie Smith Milway and Christine Driscoll Goulay wrote a great post in Harvard Business Review about the explosion of social entrepreneurship in the last decade. Check out the post here.
I’m ecstatic to see that the next generation of business leaders are taking social enterprise seriously. With the exception of a few schools, the legal academy is not even aware of the social enterprise movement. The legal academy is about 20 years behind the curve on this. Why does this divide across the quad exist? When will the legal academy start taking this sector seriously?
It’s a privilege to welcome Suzanne McKechnie Klahr to socentlaw.com. Ms. McKechnie Klahr is the Founder of build.org, an Ashoka Fellow, and to my knowledge, the first person to ever teach a social entrepreneurship course at any law school (Stanford Law). She currently is a Lecturer at Law on Social Entrepreneurship at both Stanford Law School and Harvard Law School, and has served as both a role model and a mentor to me. We are lucky to have her wisdom and insight.
Suzanne McKechnie Klahr is the CEO and Founder of BUILD, a four-year entrepreneurship-focused college preparation program whose mission is to provide real-world entrepreneurial experience that empowers youth from under-resourced communities to excel in education, lead in their communities, and succeed professionally. By helping students develop and run their own small businesses, BUILD supplements traditional school with real-world business experiences and critical skill-building for the future. BUILD currently operates two San Francisco Bay Area sites, one site in Washington, DC, and has plans for national expansion. BUILD maintains an incredible track record with 100 percent of its seniors having applied to and gone onto college. For her accomplishments with BUILD, Suzanne has received numerous awards and been asked to speak nationally on such topics as education, social entrepreneurship, venture philanthropy, new models of providing legal services to the poor, and poverty alleviation strategies. In 2006 she was inducted as a lifetime member of Ashoka, a global fellowship of leading social entrepreneurs. In 2007, she was honored by CBS’s Jefferson Award on television, on radio, and in print. In 2008, Suzanne was elected to the San Mateo County Women’s Hall of Fame and in 2009, she was named as one of Silicon Valley’s Most Influential Women by the Silicon Valley/San Jose Business Times. She earned a dual degree from Brown University and a JD from Stanford Law School, and she has successfully completed the Harvard Business School’s Executive Education program in Strategic Perspectives in Non-Profit Management.
It’s my pleasure to welcome Professor Deborah Burand as a new author on socentlaw. She’s been a real leader in the sector over the years, and you can catch her at the upcoming Law and Finance of Social Enterprise Symposium at NYU.
Professor Deborah Burand is the Co-Director of the Law School’s International Transactions Clinic that she cofounded in 2008. She also teaches in the area of impact investment lawyering. Burand returned to the Law School in January 2012 after taking a leave of absence to serve as general counsel to the Overseas Private Investment Corporation, the development finance institution of the United States.
Prior to joining the Law School faculty, Burand worked in the microfinance sector, most recently as executive vice president of strategic services at Grameen Foundation, a global microfinance network. Earlier in her career, she worked as a senior attorney in the international banking section of the Federal Reserve Board’s legal division, and at the U.S. Treasury Department, first as the senior attorney/advisor for international monetary matters and later as the senior advisor for international financial matters. She also worked in private practice at Shearman & Sterling where, among other things, she advised bank advisory committees in the negotiation and implementation of Brady Bond deals that restructured the sovereign debt of Vietnam and Peru, and she supported, on a pro bono basis, the development of the world’s first debt-for-nature swap.
Burand is a member of the faculty of The Boulder Microfinance Training Institute (Turin, Italy) where she teaches courses on securing debt and equity finance for microfinance institutions. She was the co-topic leader for finance for the 2009 Clinton Global Initiative. In 1993-1994, she was an International Affairs Fellow of the Council on Foreign Relations (during which she was seconded to the IMF and EBRD), and is currently a member of the Council. She is a member of the bars of New York and the District of Columbia. She earned her BA, cum laude, from Depauw University and a joint graduate degree, JD/MSFS with honors, from Georgetown University.
This is a full two-hour lecture at Harvard’s iLab on how to structure your social enterprise for impact. The lecture addresses the three types of social enterprise business models, then compares and contrasts seven legal structures including:
The UC Hastings Business Law Journal is proud to host a symposium exploring the new legislation recently passed in California that allows corporations to promote the public good. The symposium will feature representatives from B Lab, the legislation drafters, professors, practitioners in the field, and business advisors.
DATE / TIME:
October 19th, 9am – 4pm
Alumni Reception Center, UC Hastings,
200 McAllister St. San Francisco, CA
The opening speaker will introduce the legislation’s background and describe benefit corporations, as well as flexible purpose corporations, benefit limited liability companies, and low-profit limited liability companies (L3Cs). The morning panel will compare social benefit corporations to their counterparts, and explore why a corporation would elect to organize as one type of corporation over the other.
In the afternoon, speakers will shift their focus toward the practical aspects of running these corporations-How can social and environmental impacts be quantified? How should a board adequately consider their new stakeholders? The afternoon panel will then present the partisan viewpoints surrounding the legislation, arguing both for and against its need and expansion. Finally, our closing speaker will address the future of these entities-Will the legislation expand? What type of lawsuits can we expect?
Students, professors, practitioners, and business owners are welcome to join the event. Lunch and reception graciously hosted by DLA Piper, and a reception will follow the event. MCLE Credit will be available.
RSVP to: firstname.lastname@example.org
Today Regent University Law Review is hosting a symposium entitled “Emerging Issues in Social Enterprise” in Virginia Beach, Virginia.
The symposium website is available here: http://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/symposium.cfm.
The panelists include law professors who teach and write in one or more of the following areas: business associations, corporate governance, nonprofit, securities regulation, social enterprise, and tax law. In addition, the panels will feature three current corporate attorneys and two social entrepreneurs.
Stay tuned for live tweeting today from @socentlaw.
Gregory P. Bergethon, Esq., C.P.A., (The Keel Group, Ltd.)
Cassady V. Brewer (Georgia State University College of Law)
Joan MacLeod Heminway (University of Tennessee College of Law)
Lyman P. Q. Johnson (Washington and Lee School of Law and University of St. Thomas School of Law)
Marcia L. Narine (University of Missouri-Kansas City School of Law)
Michael I. Pirron (CEO of Impact Makers, a founding certified B Corporation in Virginia)
Dana Brakman Reiser (Brooklyn Law School)