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LAW & SOCIETY │ 5/31/13 │ BOSTON, MA

A few days ago, Kyle Westaway asked: When will law schools start taking [social enterprise] seriously?

Well, on Friday May 31, 2013 at the Boston Sheraton Hotel (Room 05) from 4:30 p.m. until 6:15 p.m. the Law and Society Association will host a roundtable discussion at its annual meeting on corporate and tax law issues in the social enterprise space.

The participants in the Law & Society roundtable include the following law professors:

Alicia Plerhoples (Georgetown) (Chair), Dana Brakman Reiser (Brooklyn), Haskell Murray (Regent), and Marcia Narine (currently UMKC, but moving to St. Thomas (FL) in the fall).

The abstract from our proposal reads:

We propose a roundtable discussion session that will focus on corporate and tax law’s expansion to accommodate for-profit businesses’ pursuit of the social good. This session ties to the conference’s theme of investigating the economic downturn’s effect on law and society by exploring the ways in which the downturn has promoted a rapid acceleration of the social enterprise movement and an increased commitment to corporate sustainability methods. Sustainability is a complex goal that requires a multidisciplinary approach that necessarily involves economic actors—businesses. Social entrepreneurs as well as corporate leaders are considering some of the most pressing economic issues of our time related to sustainability. How will businesses operate given the increased global demand for natural resources, gross economic disparity and inequality, and climate change of the twenty-first century?

Our panel will discuss the ways in which corporate and tax law are being reconceived to address social and environmental problems. We will discuss the proliferation of so-called social enterprise legislation (i.e., the benefit corporation, L3C, flexible purpose corporation, etc.) that has been hailed as an innovative step forward in business, while also criticized as being untested, unnecessary, and even irresponsible. In addition to introducing the audience to the new social enterprise legislation, the panelists will debate the various criticisms of social enterprise generally, and the legislation specifically, and discuss social enterprise in the larger context of the social and environmental pressures on the global economy. We will also offer our thoughts on the future of the social enterprise movement.

This is the only one of many panels, symposia, and conferences over the past few years that has had focused on social enterprise law.  That said, I agree with Kyle that law schools are still lagging behind business schools in the social enterprise space.  As I mentioned in the comments to his post, some of this lag is due to the fact that the U.S. social enterprise statutes are only 5 or fewer years old and, to my knowledge, there has not been any litigation involving these new forms.   This semester, I am teaching a social enterprise law course at Regent University School of Law, and it has been a wonderful class to teach.  I know a number of my co-bloggers have also taught social enterprise law classes, including Cass Brewer (Georgia State), Alicia Plerhoples (Georgetown), Deborah Burand (Michigan), and even Kyle Westaway – who asked the opening question – has co-taught a short course in social enterprise law at Harvard Law School.  I am sure there are additional social enterprise law courses being offered, and I do think law schools will start taking social enterprise more seriously as the space evolves.

 

HOW TO STRUCTURE SOCIAL ENTERPRISE FOR IMPACT

 

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:

  • Corporation
  • B Corp Certification
  • Benefit Corporation
  • Flexible Purpose Corporation
  • LLC
  • L3C
  • Nonprofit

REGENT LAW SYMPOSIUM RECAP

The Regent University Law Review’s symposium entitled “Emerging Issues in Social Enterprise” was a great success this past weekend.  The symposium consisted of a reception Friday night, two academic panels on Saturday morning, a primarily practitioner panel on Saturday afternoon, a CLE led by SocEntLaw’s own Kyle Westaway, and a gourmet three-course meal with Michael Pirron (CEO of Impact Makers, a founding Certified B Corporation) as the keynote speaker.

On the first academic panel, Professor Joan Heminway discussed securities law issues surrounding social enterprises, and briefly mentioned some of her research on crowdfunding (See, e.g., here).  Professor Cass Brewer followed with a presentation that suggested eight ways the L3C statutes might be reformed, including statutory language making explicit that investments other than program related investments (“PRIs”) would be freed from the requirement that “no significant purpose… [be] the production of income or the appreciation of property.”  On the second academic panel, Professor Lyman Johnson discussed the history of the traditional corporations, the longstanding debate over the shareholder wealth maximization norm, and corporate governance opportunities and issues presented by the benefit corporation form.  Professor Dana Brakman Reiser then discussed the Stag Hunt Game that social entrepreneurs and investors engage in when pursuing the goals of social enterprise.  She discussed the need of assurances from each group that they would pursue a blend of social purpose and private profit.  As a solution, she suggested financing social enterprises through “flypaper” – long-term (10-15 years), low-yield (below-market), convertible (upon sale of the company) debt.

The afternoon panel included Greg Bergethon (corporate attorney and CPA), Professor Marcia Narine (a Visiting Assistant Professor, with significant legal and corporate experience, at the University of Missouri-Kansas City School of Law), Michael Pirron, and Kyle Westaway.  They each described their experiences with social enterprise and ways to address the practical issues facing those in this space.  In the CLE, Kyle Westaway led the audience through the entity choice process for social entrepreneurs.  He also addressed management, tax, financing, and liability issues.  Michael Pirron concluded the symposium with a discussion of Impact Makers, and information regarding the Certified B Corporation and Benefit Corporation movements.

Professors Brewer, Heminway, Johnson, and Narine will all publish original papers with  the Regent University Law Review, and during the spring semester we will likely link to and discuss their articles.

INCORPORATING CHANGE: HOW SOCIAL BENEFIT LEGISLATION IS RESHAPING THE CORPORATE OUTLOOK | 10/19 | SAN FRANCISCO, CA

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

LOCATION:
Alumni Reception Center, UC Hastings,
200 McAllister St. San Francisco, CA

MORNING SESSION:
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.

AFTERNOON SESSION:
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: [email protected]

VIDEO: B CORP PANEL @ MILLS COLLEGE

B Corps, Benefit Corporations and More: Turning The Traditional Business Model On Its Head from CSRB @ Lokey School of Business on Vimeo.

PROFIT + PURPOSE

Over the last year, I’ve been lecturing at Harvard Law and Stanford Law about structuring social enterprises for impact. I always have people asking me to see the slides, but have never publicly shared the slides. Today I’m releasing those slides to the public.

This is meant to be an introductory presentation that touches on the possible legal structures for social entrepreneurs. The presentation discusses Corporation, B Corp Certification, Benefit Corporation, Flexible Purpose Corporation, L3C and Nonprofit legal structures. Within each legal structure, the presentation touches on Formation, Management, Taxation and Capital.

Click below to access the presentation. Leave your feedback in the comments section. Thanks!

 

B CORPS: FIRMS WITH BENEFITS

Originally posted in The Economist

 

By: Matthew Bishop

He likes to do things differently. Yvon Chouinard changed his favourite sport, mountaineering, by introducing reusable pitons (the metal spikes you bang into the rock face and attach a rope to). Climbers often used to leave pitons in the cliff, which is environmentally messy, another of Mr Chouinard’s peeves.
In business, Mr Chouinard, the founder of PatagoniaOriginally posted in The Economist He likes to do things differently. Yvon Chouinard changed his favourite sport, mountaineering, by introducing reusable pitons (the metal spikes you bang into the rock face and attach a rope to). Climbers often used to leave pitons in the cliff, which is environmentally messy, another of Mr Chouinard’s peeves. In business, Mr Chouinard, the founder of Patagonia, an outdoor-clothing firm, says he believes that well-treated employees perform better. (He wrote a book called: “Let My People Go Surfing”.) Before it was fashionable, Mr Chouinard preached a philosophy of sustainability and long-term profitability that he calls “the slow company”.

On January 3rd Patagonia was anything but slow in becoming the first firm to take advantage of a new California law designed to give businesses greater freedom to pursue strategies which they believe benefit society as a whole rather than having to concentrate on maximising profits for the next financial quarter. According to Mr Chouinard, the new “benefit corporation”—usually referred to as a B Corp— creates the legal framework for firms like his to remain true to their social goals. To qualify as a B Corp, a firm must have an explicit social or environmental mission, and a legally binding fiduciary responsibility to take into account the interests of workers, the community and the environment as well as its shareholders. It must also publish independently verified reports on its social and environmental impact alongside its financial results. Other than that, it can go about business as usual.

The B Corp is a deliberate effort to change the nature of business by changing corporate law, led by B Lab, a non-profit outfit based in Pennsylvania. California is the sixth state to allow B Corps; the first was Maryland, in April 2010. Patagonia was followed immediately by another 11 Californian firms, including Give Something Back Office Supplies, Green Retirement Plans and DopeHut, a clothing retailer. Across America, there are now several hundred B Corps. Before Patagonia, the best-known was probably Seventh Generation, a maker of green detergents, paper towels and other household products.

California’s B Corp legislation took effect alongside a new law creating the “flexible purpose company” (FlexC), which allows a firm to adopt a specific social or environmental goal, rather than the broader obligations of a B Corp. Another option in America is the low-profit limited liability (LC3) company, which can raise money for socially beneficial purposes while making little or no profit. The idea of a legal framework for firms that put profits second is not confined to America. Britain, for example, has since 2005 allowed people to form “community interest companies”.  Similar laws are brewing in several European countries.

The impetus for all this comes from people like Mr Chouinard, who believe that existing laws governing corporations and charities are too restrictive. For-profit firms, they argue, often face pressure to abandon social goals in favour of increasing profits. Non-profit firms and charities are needlessly restricted in their ability to raise capital when they need to grow. This prevents socially minded organisations from pursuing their goals as efficiently as possible. Existing laws for co-operatives and mutual companies are inadequate. Hence the need for B Corps and other novel structures, goes the argument. There is no tax advantage to being a B Corp, but there is to some of the new legal structures.

Whether these new legal forms will change business that much remains to be seen. Supporters of existing corporate law say it does not prevent firms, if they so wish, from setting social and environmental goals or rigorously reporting on their performance in delivering them—and that pursuing profit is often the best way to benefit society. Nor is it clear how much difference in practice will be made by the obligation of a B Corp to weigh interests other than profits. How does one measure such things? What counts for more: a clean lake or a happy neighbour? .
Mr Chouinard argues that making a firm’s social mission explicit in its legal structure makes it harder for a new boss or owner to abandon it. Perhaps so. B Corps will be tested in the market. Anyone who feels inspired by a B Corp’s mission is free to invest in its shares, or work for it.

 

 Photo: Wanaku

SOCENTLAW LIVE! – NYC

This fall you have not one, but two, opportunities to attend a live lecture about the legal structures for social enterprise in New York City. Click on the date below for more details.

 

October 11th / 7:00 PM / Skillshare HQ

November 8th / 7:00 PM / General Assembly 

 

Class Description:

Have a great idea for social innovation, but trying to figure out whether it should be a nonprofit or a for-profit? Have you heard something about these new hybrid legal structures but can’t figure out what the heck they do? If so this course is for you! We’ll be digging into:

  • 501(c)(3)
  • L3C
  • Benefit Corporation
  • B Corp Certification
  • LLC
  • Corporation
This course is taught by Kyle Westaway. Kyle believes in the power of the market to create a positive social and environmental change. He has helped build Biographe – a sustainable style brand that employs and empowers survivors of the commercial sex trade. Kyle is the founding partner at Westaway Law – an innovative New York City law firm that counsels social entrepreneurs.Kyle is a Cordes Fellow. He lectures at Harvard Law School and Stanford Law School. He launched Socentlaw – a blog about the legal side of social enterprise. Kyle has been featured by We Are NY Tech and Dowser; and writes for Huffington Post, GOOD, and Social Earth. He is Chairman of the Board for both the Excel Charter School in Brooklyn and The Adventure Project – a nonprofit that seeks to add venture capital to social entrepreneurs in the developing world.

 

photo: elsonpro

MISSION AND MONEY: A DANGEROUS MIX

Are so-called hybrid organizations such as B Corporations and Low-Profit Limited Liability Companies (or L3Cs) good models for social entrepreneurs?

Social entrepreneurs are quite excited about this new trend of mixing mission and money within the organizations they run.  You can often hear many of them proclaiming their intention to “do well by doing good,” implying that they will not only save the world but they will make money doing it. Behind the slogan, these entrepreneurs are experimenting with what we call “hybrid” organizations.  In the for-profit world, new organizational creatures with descriptions like “social business” are now prioritizing social and environmental goals equally with financial performance.  Among non-profits, social entrepreneurs are launching what are usually called “social enterprises” or income-generating businesses, like coffee shops, thrift stores, and bakeries, within non-profit organizations.

One the surface these hybrid organizations look very promising—an opportunity to have your cake and eat it too.  The reality, however, is that these hybrid organizations come with substantial risks and consequences that are rarely discussed and that need to be carefully taken into consideration from the start.

Last week I participated in a research symposium on “Exploring Social Enterprises” at the UCLA School of Public Affairs; much of the discussion centered on organizational hybrids.  Several researchers presented truly cutting-edge findings about the consequences of choosing the hybrid organizational type.  Cumulatively, this research identified four key risks associated with hybrid organizations.

The first, overarching risk is that people just don’t know what hybrids are. Is it a for-profit? Is it a non-profit?  Is this about mission or money?  This ambiguity doesn’t just affect potential investors who, for a start, are often not sure whether these organizations are a fit for venture capital or venture philanthropy.  The ambiguity also affects board members who are not clear on whether their primary responsibility is to uphold mission or financial performance. Internally managers and staff face similar confusion and their decision-making often wavers or stagnates as a result.

Risk No. 2 is that these hybrids often have no clear systems of accountability. In traditional for-profits, everyone knows that profit maximization is the ultimate goal.  In traditional non-profits, everyone knows that social impact is the ultimate goal.  In hybrid organizations, these two goals are purportedly equal and yet they are often at odds.

The magnitude of this risk is easily understood by looking at funding flows to hybrid organizations—they are virtually non-existent. Capital flows require transparency and certainty, particularly with regard to the organization’s priorities. For hybrids with two equal priorities and no transparent system to uphold them, the risk of misalignment and failure is extremely high. Consequently, capital avoids these investments.

Over the past few years innovations such as B Corporations and Low-Profit Limited Liability Companies (L3Cs) have attempted to provide mechanisms to create this transparent accountability.  But without formal, widespread legal infrastructure to codify decision-making authority, the risk of weak accountability is too high.

Risk No. 3 is that hybrids often have difficulty maximizing either social impact or financial sustainability.  As the dichotomy between these two forces pulls social entrepreneurs in different directions, hybrid organizations often experience both internal and external pressures to lean more in one direction or the other. Non-profit social enterprises often ultimately choose social mission as their priority and find their enterprise running at a loss.  For example, the leaders of one non-profit operating a Ben & Jerry’s Partnershop decided that their commitment to employ disadvantaged youth with serious social and emotional challenges outweighed the gains in customer service that could be had from hiring more “polished” employees. The non-profit also determined that it was necessary to employ a social worker as full-time support staff for the youth in the ice-cream shop. Unsurprisingly, the Partnershop operated at a net loss.

For-profit hybrids often ultimately prioritize profit over mission and thus compromise their social and environmental impact.  The social entrepreneurs who founded Blue Avocado, makers of a line of hip reusable shopping bags, found early on that they had to make difficult choices about the level of environmental sustainability they could achieve for a competitive price. Their original hope was to create a locally sourced, fully organic cotton bag, but with a resulting unsustainable price they realized that some sacrifices on sustainability would be required to keep their social business viable.

Finally, Risk No. 4 is that as hybrids face pressures to maintain financial sustainability it will come at the price of a long-term erosion of moral legitimacy. One research study presented at UCLA investigated social service non-profits that employ their clients through jobs-training programs at social enterprises such as coffee shops and janitorial services companies. In these organizations, moral legitimacy was often questioned as clients were increasingly treated like regular employees and were “commoditized” by the business. A second study looked at the particular case of NPower, a non-profit technology provider that received substantial cash and in-kind support from Microsoft. As NPower was perceived to become more “business-like” in its operations, peer organizations questioned their non-profit integrity and social focus.

The net result is that hybrid organizations are not exactly the panacea they appear to be. Mixing mission and money is tricky business, requiring strong leadership to articulate and maintain clear priorities and accountability.  The attraction to this type of organization is rooted in our hopes of find more financially sustainable ways of creating social and environmental impact. But as social entrepreneurs explore this intriguing territory, we must also beware of serious and substantial risks.

reposted from Inc.com November 15, 2010

By: Suzi Sosa

Photo By: drburtoni

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.

——————————————————————————————-

by April Dembosky for NPR Morning Edition

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