THE LEGAL SIDE OF
SOCIAL ENTERPRISE

Thomson Reuters: Trustlaw Training

Thomson

 

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In their latest annual survey, the Global Impact Investing Network and J.P. Morgan reported a total of USD 77 billion in capital allocated to impact investing. This unparalleled potential of the impact investing market coupled with a social enterprise sector that is exceeding expectations in both growth and impact, has increased the demand to master the evolving legal and financial frameworks available to social enterprises and impact investment funds. Choosing a robust legal and financial structure for transactions is key to tapping into this potential, which is exactly what TrustLaw’s Social Enterprise & Impact Investing Training aims to facilitate.

Headed to San Francisco this September and returning to London in October, the course series combine hands-on legal training with practical case studies, enabling strategic discussions and the sharing of best practices in social entrepreneurship and impact investing.  By attending, delegates will become part of a community of practice and will take away invaluable know-how on optimal legal and financial structures that will be taught by academics, lawyers, social investors and social entrepreneurs themselves.

Top reasons to attend:

o    Gain a “big picture” market overview of the social enterprise and social finance space in the US, UK and beyond

o    Learn how to structure social enterprises and lock in social mission

o    Get an in-depth understanding of social finance models

o    Learn about the key legal and commercial issues for the sector

o    Network with key players in the social innovation space

*San Francisco full-day workshop* Register before July 15 to take advantage of the Early Bird Rate. This course has been approved for up to 10 CLE credits in New York and New Jersey and 8 CLE credits in California. For more information, visit our website or contact Carolina at carolina.h.schmitz@tr.com.

*London breakfast series* Register before 15 July to take advantage of the Early Bird Rate. For more information, check out our website or reach out to Shiura at shiura.rasheed@tr.com.

Save the Date: 2016 Impact Investing Legal Working Group Conference

 

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Contact Reed Smith at events@reedsmith.com for further information

UNIVERSITY OF CINCINNATI COLLEGE OF LAW │ THE 29TH ANNUAL CORPORATE LAW CENTER SYMPOSIUM │CORPORATE SOCIAL RESPONSIBILITY AND THE MODERN ENTERPRISE │ CINCINNATI, OH │ MARCH 18, 2016

I am looking forward to presenting at this conference next month. Looks like a great group of academics and practitioners.

Cross-posted at Business Law Prof Blog.

—————–

University of Cincinnati College of Law

The 29th Annual Corporate Law Center Symposium – Corporate Social Responsibility and the Modern Enterprise

March 18, 2016

8:45 a.m. – 3:30 p.m.

Hilton Netherland Plaza

Pavilion Ballroom

 

This event is free. CLE: 5.0 hours, pending approval.

Presented by the University of Cincinnati College of Law’s Corporate Law Center and Law Review.

Symposium materials will be available on March 14 at: law.uc.edu/corporate-law-center/2016-symposium

Please register by contacting Lori Strait: email Lori.Stait@uc.edu; fax 513-556-1236; or phone 513-556-0117

 

Introduction, 8:45 a.m.

Keynote, 9:00 a.m.

Clare Iery, The Procter & Gamble Company

Social Enterprises and Changing Legal Forms, 9:30 a.m.

Mark Loewenstein, University of Colorado Law School

William H. Clark, Jr., Drinker Biddle & Reath LLP

Haskell Murray, Belmont University College of Business

Russell Menyhart, Taft Stettinius & Hollister LLP

Sourcing Dilemmas in a Globalized World, 11:00 a.m.

Steve Slezak, University of Cincinnati College of Business

Marsha A. Dickson, University of Delaware Department of Fashion & Apparel Studies

Tianlong Hu, Renmin University of China Law School

Anita Ramasastry, University of Washington School of Law

CSR and the Closely Held Company, 1:15 p.m.

Eric Chaffee, The University of Toledo College of Law

Michael Petrucci, FirstGroup America, Inc.

Lisa Wintersheimer Michel, Keating Muething & Klekamp PLL

Sourcing From the Enterprise Perspective, 2:30 p.m.

Christopher Bedell, The David J. Joseph Company

Walter Spiegel, Standard Textile Co. Inc.

Martha Cutright Sarra, The Kroger Co.

Conclusion, 3:30 p.m.

FIRST BENEFIT CORPORATION IPO!

Laureate Education Inc. filed an S-1 on Friday, indicating its plans to go public. At the same time, it converted to a public benefit corporation in Delaware. According to the Baltimore Business Journal, Laureate is the world’s largest for-profit network of colleges.” With respect to Laureate’s status as a public benefit corporation, the S-1 states: “we redomiciled in Delaware as a public benefit corporation as a demonstration of our long-term commitment to our mission to benefit our students and society.” The prospectus touts that Laureate will be the first publicly traded public benefit corporation. I’m reading through the rest of the prospectus now and will post more analysis this week. . . stay tuned!

“DODGING” TAXES AND B CORP STATUS

There has been a growing controversy surrounding Etsy’s much-publicized B Corp status and Etsy’s recent move to save (“dodge”???) taxes by using an Irish subsidiary. Stories have appeared in Bloomberg Business, the WSJ, and even The Irish Times. The advocacy group, Americans for Tax Fairness, requested in an August 28, 2015, letter to B Lab that Etsy’s B Corp designation be made “contingent upon its elimination of the use of its subsidiary in Ireland to dodge taxes” (emphasis added). The pressure on Etsy apparently has been so strong that Chad Dickerson, Etsy’s CEO, felt the need to publish a blog post defending the company’s tax strategy.

Today, one of the country’s leading publications for tax professionals, Tax Analysts, reported on the controversy. (See Tax Notes Today, Sept. 2, 2015.) As a result of the Tax Analysts story, we may see the broader tax community begin to comment and, perhaps, become more familiar with B Corps. According to Tax Analysts and Americans for Tax Fairness, a few already have commented—apparently supporting the notion that Etsy’s tax strategy either is inconsistent with its B Corp status or is inconsistent with one of Etsy’s core values of being “a mindful, transparent, and humane business.” Specifically:

  • Professor Omri Marian (University of Florida): “Many people will tell you that Google shouldn’t do it. So if Google shouldn’t do it, a corporation that presents itself as supporting social sustainability definitely shouldn’t.” (Ars Technica, Aug. 13, 2015)
  • Professor Neil Buchanan (George Washington University): Regarding Etsy’s disclosure of the use of an Irish subsidiary in its June 30, 2015 SEC filing: “Translation: We figured out a technically legal way to cut our tax bill, and it doesn’t bother us that doing so reduces the ability of our government to fund programs that we otherwise claim to support. We’ll get back to you when we’ve figured out any other ‘operational efficiencies’ that we might exploit.” (Ars Technica, Aug. 13, 2015)

I respectfully disagree with Americans for Tax Fairness and the sentiments of my colleagues Professors Marian and Buchanan. B Corp status is determined by a company’s score on a 200 point scale. Although I am not intimately familiar with the B Corp scoring system, I understand that only two questions pertain to a company’s tax positions: one concerns whether a company has paid any tax fines or penalties and the other relates to tax-saving strategies (the subject of the Etsy controversy). I wouldn’t think that two unfavorable answers, much less one, should disqualify a company from B Corp status.

Moreover, B Corp status does not signify perfection. B Corp status does not even signify “beyond reproach.” B Corp status merely signifies that a company scored 80 out of 200 points on B Lab’s impact assessment scale. That’s it. If you like B Lab’s scale, then maybe you like B Corps. But, if you don’t like B Lab’s scale, then you may not like B Corps. I bet Walmart does not get 80 points on B Lab’s scale; however, Walmart’s failure to qualify as a certified B Corp should not automatically lead us to the conclusion that Walmart either is “bad” or is a tax “dodger.” (Although, Americans for Tax Fairness believes that Walmart is in fact a tax dodger.) I’m not ashamed to admit that I’ve shopped at Walmart many times.

Finally, as far as I am concerned, saving taxes in compliance with applicable law is admirable. If saving taxes means “dodging” taxes, then I suppose I’m just as guilty as Etsy. Every year when I file my tax return I look for every possible deduction I can take. In fact, those deductions always include charitable contributions to causes that I feel do “good” in this world. Am I “dodging” taxes when I take a big fat deduction for those charitable contributions? If so, that’s one tax “dodge” I don’t feel “bad” about.

Granted, many companies use elaborate tax-saving techniques that comply with the letter of the law but that violate the spirit of the law or that exploit loopholes. I do not like or condone those strategies any more than Americans for Tax Fairness or my above-quoted colleagues. AND, I agree that the government needs to be vigilant about monitoring, auditing, and punishing those companies that abuse the system.

On the other hand, consider this: If enough companies become B Corps or other well-behaving corporate citizens, perhaps our need for government programs and subsidies (and thus taxes) will diminish. Imagine that! (Yes, I’m sure I’ll get plenty of push back on that last assertion.)

In any event, let’s ease off on Etsy. Don’t let the perfect be the enemy of the good. Viewed from a wider perspective, the growing social enterprise movement, which includes B Corp and other “good company” certifications, is a positive development. Saving taxes is neither inherently bad nor good and, besides, it is really the government’s job to make that call. It is entirely legitimate for a social enterprise to employ tax-saving strategies, even with an Irish subsidiary.

UCONN SOCIAL ENTERPRISE AND ENTREPRENEURSHIP CONFERENCE │ STORRS, CT │ APRIL 23-24, 2015

Cross-posted at Business Law Professor Blog.

At the end of next week, I will be at the University of Connecticut School of Business and the Thomas J. Dodd Research Center for their Social Enterprise and Entrepreneurship Conference.

Further information about the conference is available here, a portion of which is reproduced below:

In October 2014, Connecticut joined a growing number of states that empower for-profit corporations to expand their core missions to expressly include human rights, environmental sustainability, and other social objectives. As a new legal class of businesses, these benefit corporations join a growing range of social entrepreneurship and enterprise models that have the potential to have positive social impacts on communities in Connecticut and around the world. Designed to evaluate and enhance this potential, SE2 will feature a critical examination of the various aspects of social entrepreneurship, as well as practical guidance on the challenges and opportunities presented by the newly adopted Connecticut Benefit Corporation Act and other forms of social enterprise.

Presenters at the academic symposium on April 23 are:

Mystica Alexander, Bentley University

Norman Bishara, University of Michigan

Kate Cooney, Yale University

Lucien Dhooge, Georgia Institute of Technology

Gwendolyn Gordon, University of Pennsylvania

Gil Lan, Ryerson University

Diana Leyden, University of Connecticut

Haskell Murray, Belmont University

Inara Scott, Oregon State University

Presenters at the practitioner conference on April 24 are:

Gregg Haddad, State Representative, Connecticut General Assembly (D-Mansfield)

Spencer Curry & Kieran Foran, FRESH Farm Aquaponics

Sophie Faris, Community Development, B-Lab

James W. McLaughlin, Associate, Murtha Cullina LLP

Michelle Cote, Managing Director, Connecticut Center for Entrepreneurship and Innovation

Mike Brady, CEO, Greyston Bakery

Jeff Brown, Executive Vice President, Newman’s Own Foundation

Justin Nash, President, Veterans Construction Services, and Founder, Til Duty is Done

Vishal Patel, CEO & Founder, Happy Life Coffee

Anselm Doering, President & CEO, EcoLogic Solutions

Dafna Alsheh, Production Operations Director, Ice Stone

Tamara Brown, Director of Sustainable Development and Community Engagement, Praxair

WILL CERTIFIED B CORPORATION ETSY BECOME A PUBLICLY-TRADED DELAWARE PUBLIC BENEFIT CORPORATION?

I consider the question above in a post at the Business Law Prof Blog here.

YET ANOTHER U.S. HYBRIDS MAP WITH HYPERLINKS: RHODE ISLAND SHOULD BE GREEN

I recently posted yet another U.S. hybrids map (with hyperlinks!) to reflect the fact that Minnesota should be viewed as a benefit and social purpose corporation state even though its approach to the two forms is slightly different than California’s and Florida’s. Since that time, James Woulfe at Connecticut’s Social Enterprise Trust points out that Rhode Island has both a benefit corporation statute and a low-profit limited liability company statute. Rhode Island thus should be green on my U.S. hybrids map, not gold. Accordingly, I post another corrected version of the map below along with the interactive version here. I am grateful for the watchful eyes of readers of this blog to ensure that my U.S. hybrids map is both up-to-date and correct. Keep those questions, comments, and corrections coming!

NEW AND IMPROVED U.S. HYBRIDS MAP WITH HYPERLINKS: MINNESOTA IS PURPLE!

On February 17, 2015, I posted an updated map of social enterprise legislation across the U.S. A few readers, however, took issue with my characterization of Minnesota as an ordinary benefit corporation state (light blue) instead of being a benefit and social purpose corporation state (purple) like California and Florida. Mind you, this had nothing to do with the Minnesota Vikings’ team colors, but rather had to do with the substance of the Minnesota benefit corporation statute. Let me explain.

In The Beginning . . .

Most of the early adopters of benefit corporation statutes followed the B Lab model legislation. The B Lab model statute required a “general public benefit” for hybrid corporations. On the other hand, one early adopting state, California, took a different approach to hybrid corporation legislation. California authorized “social purpose corporations” (previously called “flexible purpose corporations”) at the same time it passed benefit corporation legislation. [Footnote: Since that time, Washington and Florida also have authorized social purpose corporations. Washington has a social purpose corporation (“SPC”) statute but no benefit corporation statute, while Florida, like California, has a social purpose corporation statute and a separate benefit corporation statute.]

Distinct from a benefit corporation, a social purpose corporation pursues a chosen social or environmental mission without necessarily providing a “general public benefit.” Example: A social purpose corporation could produce electricity-generating windmills to preserve the environment, but nevertheless pay its employees substandard wages. Theoretically, a benefit corporation cannot save the environment at the expense of its employees. It must do both and more to fulfill its “general public benefit” mandate.

This “do everything well” approach has led many to argue that the B Lab benefit corporation model is fundamentally flawed. The B Lab model arguably is flawed, Haskell Murray and other commentators have written, because no person can serve two (much less more than two) masters simultaneously. Thus, a better model was needed.

Colorado and Delaware Modification

Next, along came Colorado and Delaware, which passed statutes blending the benefit corporation and social purpose corporation concepts. In particular, Colorado and Delaware created the “public benefit corporation” (“PBC”). PBCs are designed to further a general public benefit while pursuing a specific benefit purpose. Example: Our electricity-generating windmill company primarily will preserve the environment, but it will do so only after weighing the benefit of its primary activity against any countervailing social ills created thereby (such as paying substandard wages).

Clever lawyers, though, found an end run around the Colorado and Delaware approach. To wit, a number of public benefit corporations chartered in Delaware chose a specific benefit purpose of pursuing a general public benefit.  Oy vey!

Minnesota GBCs & SBCs

In response, Minnesota’s new hybrid corporation statute adopts an approach similar to that of California and Florida, but does so in a single hybrid corporation statute. Under the “Minnesota Public Benefit Corporation Act,” a hybrid corporation may choose to be either a general benefit corporation (“GBC”) or a specific benefit corporation (“SBC”). A GBC must pursue a general public benefit—please everybody—while an SBC need only pursue a single social or environmental purpose—not please everybody. Florida’s approach is very similar to Minnesota’s, but Florida follows the California model by authorizing benefit corporations and social purpose corporations in completely separate statutes. Moreover, unlike Minnesota and its “GBC” and “SBC” labels, neither Florida nor California requires a unique identifier for benefit corporations or social purpose corporations.

Of course, this brief explanation of the light blue (general and specific public benefit) versus purple (general or specific public benefit) debate necessarily omits many subtleties and nuances of the various U.S. hybrid entity statutes. Put differently, any map that I create will be more like an SBC than a GBC: the map will not please everyone. [Footnote: For the subtleties and nuances of benefit corporations, I highland recommend Haskell Murray’s chart posted to SSRN.]

New Hybrid Entity Map With State-by-State Hyperlinks

Nevertheless, being an incurable perfectionist, I have revised my hybrid entity map yet again in response to reader concerns. Moreover, in the new and improved map below, Minnesota is purple, reflecting the fact that Minnesota, like California and Florida, allows its hybrid corporations to serve either a general public benefit or a specific social or environmental benefit.

More importantly, perhaps, this new map contains hyperlinks to each state’s underlying hybrid entity legislation. I also have included a link to another resource: the Bloomberg BNA portfolio about social enterprise that Elizabeth Minnigh, Rob Wexler, and I co-authored. In this manner, any reader who does not agree with my color-coded map is only a mouse click away from conducting his or her own investigation. [Click on the following link to access a copy of the map below containing state-by-state hyperlinks to the underlying statutes: Social Enterprise Hybrids Map Mar 2015]

DAVID BROOKS, IMPACT INVESTING, AND (PERHAPS SURPRISING?) CAREER ADVICE

David Brooks—the highly-regarded, conservative columnist for the New York Times—recently wrote an opinion piece entitled “How to Leave a Mark.” Mr. Brooks’ commentary was about social enterprise (which he labeled “social capitalism”), impact investing, and (perhaps surprising?) career advice. As regular readers of this blog undoubtedly know, impact investing means investing for both a financial return and a positive social or environmental impact.

Mr. Brooks previously has written about social enterprise, and with respect to impact investing, Mr. Brooks summarized his views as follows:

Impact investing is not going to replace government or be a panacea, but it’s one of a number of new tools to address social problems. If you want to leave a mark on the world but are unsure of how to do it, I’d say take a look. If you’re a high-net-worth individual (a rich person), ask your adviser to get you involved. If you’re young and searching, get some finance and operational skills and then find a way to get involved in a socially useful investment proposition. If you’ve got a business mind, there are huge opportunities to build the infrastructure (creating measuring systems, connecting investors with deals).

Someday government will get unstuck, with new programs to address this new era. But there’s no prospect of that happening soon. Right now social capitalism is a more creative and dynamic place to spend a life.

I generally agree with Mr. Brooks, of course, but I also believe that in order for impact investing to flourish, more changes in the U.S. legal landscape must occur. Significant changes are taking place with respect to U.S. business law. More and more states are experimenting with new legal forms for conducting social enterprise. Nonetheless, other changes in U.S. law are necessary to facilitate impact investing as “one of a number of new tools to address social problems.”

In a subsequent post, I will outline some of the changes in U.S. fiduciary and tax law that I believe must occur before impact investing can fulfill its promise as predicted by Mr. Brooks.