LAW AND SOCIAL ENTREPRENEURSHIP

Cross-posted at Conglomerate.

This is my third and final substantive post comparing the Model Benefit Corporation Legislation (the “Model”) to the proposed Delaware Public Benefit Corporation (“PBC”) amendments.

“Branding” is one area where proponents of the Model may argue that the Model is better than the PBC.  As mentioned in my first substantive post, the PBC favors private ordering more than the Model, which makes the PBC more flexible, but also makes it more difficult to maintain a consistent brand.  Branding could be useful to investors, consumers, and governments that wish to quickly identify socially responsible companies.

Some proponents of the Model may point to the required annual report (PBC only requires a biennial report) and the requirement of measuring general public benefit against a third party standard (optional under the PBC) as building the Model’s brand.  In my opinion, however, neither the required annual report nor mandatory use of a third party standard is likely to facilitate creation of a useful brand under the current language of the Model.

First, the Model does not expressly provide an enforcement mechanism for assuring the public posting of an annual report and the use of a third party standard.  Currently, a number of benefit corporations are in violation of the statute, but nothing seems to be done about the violations.  Second, most of the few annual reports available are full of fluffy self-promotion and do not include much of value.  Third, the available third party standards vary wildly, so simply requiring a third party standard is not likely to lead to a consistent and valuable brand.  The updated version of the Model requires that the third party standard be “comprehensive,” “independent,” “credible,” and “transparent,” but those requirements will be difficult to enforce and, in any event, do not appear aimed at creating a consistent brand.  A benefit corporation that does not see the value in using a third party standard may use the lowest standard available, provide little to no useful information to the market, and waste company resources in the process.

If the Model proponents wished to create a brand via statute they would do better requiring an annual charitable giving floor and a partial asset lock, as I suggest here.  In my opinion, however, the heavy lifting in the branding department of social enterprise should be left to private organizations like B Lab.  The social enterprise space is evolving quickly, and I think it unlikely the state governments would keep up with the changes and engage in the type of enforcement needed to maintain a valuable brand.  Also, the term “social good” means very different things to different people, and therefore it is likely better to have private organizations develop various standards and allow the market to determine which standards, if any, are useful and valuable.

Cross-posted at Conglomerate.

One of my main criticisms of the Model Benefit Corporation Legislation (the “Model”) has been (and still is) the lack of guidance for directors. (See, e.g., here and here).  The Model requires directors to “consider” seven different stakeholder groups (§301(a)), and directs them to pursue “general public benefit” but does not provide any priorities to guide directors. (§§102, 201(a)).  The Model allows companies to choose one of more “specific public benefit purposes,” in addition to the “general public benefit purpose,” but does not require that any specific public benefit purpose be chosen. (§201(b)).

In contrast, Delaware’s proposal does require public benefit corporations (“PBCs”) to choose one or more specific public benefits (§362(a)), though the statute is not crystal clear on priorities and requires directors to “manage or direct the business and affairs of the public benefit corporation in a manner that balances [1] the pecuniary interests of the stockholders, [2] the best interests of those materially affected by the corporation’s conduct, and [3] the specific public benefit or public benefits identified in its certificate of incorporation.” (§365(a)) (emphasis added).   (As a side note, the PBC’s requirement to “balance” the stakeholder interests seems more onerous than the Model’s requirement to “consider” the interests.)

Even if directors’ duties are owed to the corporation as a whole, I suggest that clear priorities are important.  I attempted to explain the importance of priorities in my response to Professor Lynn Stout’s thought-provoking recent book:  The Shareholder Value Myth:

Professor Lynn Stout and others reject the need for a single metric and have argued that directors, like other human beings, balance the interest of various stakeholders.   Among other examples of balancing by human beings, Professor Stout points to the ability of people to balance work and family.   This article admits that directors do and should balance various stakeholder interests and does not argue for myopic focus on a single metric, but rather posits that clear corporate priorities can make that difficult balancing job easier.

Using Professor Stout’s work/family example of balancing can help illustrate the point.  Clearly defined priorities can help an individual make difficult decisions in the constant work/family balance.  If an individual prioritizes family over work, that obviously does not mean that every decision leads to direct, short-term benefits for the family.  For example, on occasion, that family-primacy individual will rightly choose to stay late at work and miss dinner.  While that individual decision may have seemed to prioritize work over family, viewed in the long-term, the family may benefit from the resultant career security.  Even if the long-term benefits do not actually come to fruition, most would agree that the individual should not be judged for her well-intentioned decision.

The fact that humans certainly balance interests of various constituents, however, does not mean that priorities are unimportant.  Priorities can help guide and can also provide weightings for the costs and benefits of any decision.   Also, priorities most clearly help in critical situations.   To continue with the work/family example, in a zero-sum game, how does one decide between work and family when the outcome of that decision is of critical importance to both?   If an individual has clearly stated that family is a higher priority than work, this critical decision is more easily answered.  Even if the priorities are not clearly stated, priorities will still drive the decision.  Transparency as to the priorities makes things clearer to all involved and makes it less likely that the individual will drift from his or her true priorities.   Similarly, directors would benefit from a clear corporate objective that includes specific corporate priorities.

While I would have preferred the proposed Delaware amendments to have made clear that the PBC’s top priority is its specific public benefit purpose, I think requiring PBCs to identify a specific public benefit purpose is a move in the right direction and likely to aid directors in decision making.

In my third and final post, on Delaware’s proposed amendments involving the PBC, I will talk about the social enterprise statutes and branding.

Simon Mainwaring (CEO of We First), Jay Coen Gilbert (Co-Founder of B Lab), and Dave Cobban (Director of Sustainable Business & Innovation for Nike) will host a live Google+ hangout on May 7, 2013 at 4pm eastern (1pm pacific).  You can RSVP for the free event here. 

The text of the announcement reads:

Join us live to discuss how business can become a force of good by partnering with customers to co-create lasting social impact. Submit your questions below or by tagging them with #ProfitToPurpose. Simon Mainwaring, CEO of We First and New York Times bestselling author, will lay out a new sustainable vision for purposeful capitalism. We First provides strategic consulting and training in storytelling and community building to brands like Coca-Cola, 3M, Livestrong and the X Prize Foundation. www.WeFirstWebinar.com.  Jay Coen Gilbert, Co-Founder of B Lab, will share how the +BCorporation movement is building a new sector of the economy. Encompassing more than 700 companies across 60 industries and in 26 nations, B Corps use the power of business to solve social and environmental problems. http://www.bcorporation.net Dave Cobban, Citizen Mobilization Director of Sustainable Business & Innovation of +Nike, will talk about his role and why Nike is focused on changing “the making of making” http://nikemakers.tumblr.com/. He’ll also give an inside look into Nike’s collaborative innovation approach and their partnership with NASA, USAID, and the US Department of State called LAUNCH www.launch.org.

I am continuing my research on interest convergence as a reason why the social enterprise movement has been successful (or at least recently gained momentum). This time I am looking at interest convergence from an ideological standpoint. Another brilliant aspect of social enterprise is that its goals do not fall neatly into conservative or liberal ideology. Consider, for example, (i) that the benefit corporation statutes adopted in twelve states and the District of Columbia generally have been passed with overwhelmingly bipartisan support, (2) social enterprises have been founded by conservative and liberal entrepreneurs alike, and (3) social enterprise missions are often couched in both conservative and liberal language (e.g., typically-conservative anti-government, anti-poverty language of “self-sufficiency” but also typically-liberal language of “doing good” and “giving back”.) Although the benefit corporation is not synonymous with social enterprise, it can be taken as a proxy—and the benefit corporation concept has widespread bipartisan appeal. The ends are attractive to liberals; conservatives like the means. Generically, liberals want the problems to be solved; conservatives want the problems solved without government and with some modicum of self-sufficiency and sustainability.

This leads me to ponder if social and environmental impact measurements also incorporate the normative values of both conservatives and liberals. Certainly, some of the typical slogans are similar. Is “Made in America” (which often makes me wary) the same as “Buy Local” (which sounds so much more pleasant and quaint)? When we talk about sustainability, what definitions of community are being employed? Is it the local community, national community, or global community? Are we talking about “us vs. them” (where “them” typically denotes Chinese laborers who are “stealing” American jobs)? Similarly, on an academic panel on social enterprise last fall, I asked a representative from an organization that sets social and environmental impact measurement standards whether or not Chick-fil-A, the infamous, privately-held fast food restaurant which claims to pay competitive wages, provides employee health and retirement benefits, prizes its environmental stewardship (which includes recycling, energy and water conservation, a sustainable supply chain, and a LEED-certified “test” restaurant) but contributes a portion of its profits to a family foundation that funds anti-same-sex marriage initiatives, can be considered a social enterprise. The response was “no.”

I have never been one to defend a company like Chick-fil-a (ever). And I am in no way defending Chick-fil-a right now (really, please take me at my word). But I am still puzzling about the distinguishing feature of social enterprise – what is the core of social enterprise? In my most recent article, I present various business models of social enterprise, including a philanthropy-based business model through which companies donate profits to foundations to do good (like TOMS Shoes or any other Buy-One-Give-One business, which I generally am not a fan of). What Chick-fil-a donates to its conservative, anti-gay family foundation may fit into this philanthropy-based business model. Perhaps what a company does with its profits (i.e., revenue minus cost) is just philanthropy, comparative to a shareholder who has received dividends off the profits of a company and then goes and donates to Goodwill. But the things that Chick-fil-a does with its core business—the employee benefits, the environmental stewardship, etc.—maybe that is a truer measure or defining characteristic of a social enterprise.

Stay with me here. Let’s forget that Chick-fil-A funds a conservative, anti-gay family foundation. Some might say that such donations are not the core of Chick-fil-A’s chicken-selling business. Instead, let’s think about Chick-fil-A’s closure on Sundays. That is, it is Chick-fil-A’s corporate policy to close on Sunday and this is for religious reasons. According to the owners, Sunday is supposed to be a day of rest. This policy can probably go in the category of “conservative values.” Nonetheless, the policy may align with liberal sympathies for employees—employees shouldn’t be overworked and should be given time off to spend with their families. For example, there is always liberal outcry against Walmart and other big box stores that stay open on Thanksgiving or Christmas day. My question is—is Chick-fil-A’s policy of closing on Sundays a “plus” on the social and environmental measurements scale? Does it matter that the policy is in place for religious reasons? What are the normative values incorporated into social and environmental measurements? Do they have room for conservative values? Or do they have room for conservative values only to the extent that the end result of those values converge with liberal sympathies?

(Note: I have to thank Haskell Murray for initiating some of this conversation over at The Conglomerate blog in August: http://www.theconglomerate.org/2012/08/chick-fil-a-as-a-social-enterprise.html).

Jonathan Ng, the Global Legal Director for Ashoka, recently sent me information about a webinar that Morrison & Foerster, Jones Day, and Adler & Colvin are putting on specifically for Ashoka staff, Ashoka Fellows, and Ashoka’s contacts and partners.  Jonathan said I could post information about the webinar on this blog.  You must preregister for the webinar here.

The speakers include:  Susan H. Mac Cormac (Partner, Morrison & Foerster) R. Todd Johnson (Partner, Jones Day); David Levitt (Principal, Adler & Colvin).

The webinar is described as “a workshop on legal ‘hybrid’ structures – where social, environmental, and economic missions are embedded in one or more legal forms. . . . [The presenters will] provide detail on important corporate, governance, and tax issues – as well as operational challenges – and discuss how the various models may or may not be effective in maximizing social and environmental goals through company operations.”

I am honored to introduce Jon Widrick to socentlaw.com.  Jon is a graduate of Georgetown Law Center and is a partner at Ascensus Law where he represents small to medium sized businesses dealing with corporate and tax law issues.  Jon has significant experience advising green businesses, sustainable businesses, and social enterprises.  He recently aided clients in becoming the first and second benefit LLCs to be recognized in the United States and currently represents a number of benefit entities in the DC area.  He has written a number of articles and client memos on social enterprise, including this one on Becoming a Benefit Corporation in Virginia, which introduced me to his work and practice.

Jon also has significant experience in representing tax-exempt organizations, including 501(c)(2), 501(c)(3), 501(c)(6), 501(c)(7) and 501(c)(8) entities.  Beyond assisting them in organizing their entity and obtaining tax-exempt status, Jon counsels them on such on-going compliance issues as lobbying and campaigning restrictions, operating in foreign countries, grant making, disclosure issues, sponsorships and avoiding classification as a private foundation.  His clients range in size and scope from multinational organizations seeking systemic governmental change in Africa to national trade organizations dedicated to supporting the composting industry to community charities seeking to provide opportunities for at-risk youth.

Finally, Jon is a founding member of Green America’s Certification Advisory Committee, which advises Green America on ways to make their green certification process more responsive to its members, especially small businesses.

I am excited to have Jon joining the blog as an author and am sure we will all learn from his posts.

I have come across two presentation documents recently, both written by practicing lawyers, that suggest the benefit corporations can be considered “charitable organizations” holding “charitable assets” for “charitable purposes” and therefore subject to oversight and regulation by a state attorney general’s charities office. Because it does not seem that the promoters of benefit corporation statutes or state legislatures intended the benefit corporation to be treated as a charity, I feel compelled to inquire into this issue further. Can benefit corporations be considered charities? What about social enterprises regardless of corporate form?

Let’s look to California as an example. The California legislature adopted the benefit corporation statute in fall 2011 and it went into affect on January 1, 2012. The California Attorney General’s Guide to Charities states that “it is not essential to form a nonprofit corporation, a trust or other legal entity to create a charity. In California, any individual or organization who solicits funds and represents that such funds will be used for charitable purposes may be held to be a ‘trustee for charitable purpose’ and accountable for such funds.” One can inadvertently create a charitable trust in California by receiving assets intended for a charitable purpose. Furthermore, the California Attorney General also regulates commercial co-venturers who are for-profit entities “who represent to the public that the purchase or use of any goods [or] services. . . will. . . be used for a charitable purpose.” (CA Gov. Code Section 12599.2(a)).

The question, then, is what is a “charitable purpose”? We find more guidance from the Guide to Charities: “California common law defines ‘charitable purpose’ very broadly to include relief of poverty, advancement of education or religion, promotion of health, governmental or municipal purposes, and other purposes that are beneficial to the community.” The Model Charitable Solicitations Act defines “charitable purpose” as “any benevolent, educational, philanthropic, humane, scientific, patriotic, social welfare or advocacy, public health, environmental conservation, civic or other eleemosynary objectives. . .” (MCSA Section 1(d)(2)). The Model Protection of Charitable Assets Act provides a similar definition: “the relief of poverty, the advancement of education or religion, the promotion of health, the promotion of a governmental purpose, or any other purpose the achievement of which is beneficial to the community.” (MPCAA Section 2(1)).

Now let’s look at the benefit corporation itself. A benefit corporation must have a general public benefit purpose. The “general public benefit” is a “a material positive impact on society and the environment. . .from the business and operations of a benefit corporation” (MBCL Section 102(a)). Taken literally, the definition of “charitable purpose” could apply to benefit corporations, and to social enterprises taking any corporate form because they represent to the public that the solicited funds (potentially covering investments as well as revenue from or a purchased good or service) will be used for a purpose that is beneficial to society. Examples of such companies include TOMS Shoes (a Delaware corporation) that advertises its controversial buy-one-give-one model to the public, or Patagonia that became one of California’s first benefit corporations and donates 1% of its sales to preserve the environment (among other environmentally-beneficial causes). Does Patagonia register with the California State Attorney General under the Registry of Charitable Trusts? I suspect not but I may be wrong.

Challenging the sharp dichotomy between “charitable” and “for-profit” seems to be part of the purpose of the benefit corporation—to embed social and/or environmental values in for-profit businesses by making them more accountable for the externalities that they create and to bring them in line with long-term social and environmental sustainability principles. It is unclear to me if labeling benefit corporations as charities and regulating them through a state’s charitable organizations office is a desirable approach. My gut reaction is that it is not.

If you’re a lawyer who advises social enterprises or benefit corporations, what is your take on the issue? I would also love to have a state attorney general weigh in on this conversation to determine if that state office is contemplating treating the benefit corporation or social enterprises generally as charitable organizations. Perhaps I should make a few calls to state attorney general offices for some answers.

On October 24, 2012, Pennsylvania became the twelfth state to pass benefit corporation legislation.

I will update my Benefit Corporations: State Statute Comparison Chart when the law goes into effect (after 90 days).

Lancaster Online has additional details: here.

Below are four thoughts that came to mind after reading the Lancaster Online article:

(1) The statement that the traditional purpose of the corporation is “making a profit for its shareholders” is hotly contested.  See, e.g., Professor Lynn Stout’s recent book, The Shareholder Value Myth.  In May, I made a similar statement, but with a two very important caveats (primary purpose and Delaware corporate law), and, even with those caveats, a number of well-regarded academics disagreed (see the comments).

(2) To date, not many benefit corporations have been formed.  The fact that 19  benefit corporations (reported by other sources as only 12) were formed in California on the first day is nice, but not impressive.  The first benefit corporation statute (Maryland) went effective in 2010, and it appears that a total of fewer than 200 benefit corporations have been formed across the nine states with active statutes (IL, MA, and PA are not yet effective).  To put the total number of benefit corporations into perspective, over 900,000 business entities are formed in Delaware alone.  The benefit corporation form may take off, but it has not yet.

(3) I am extremely interested to see what Pennsylvania’s neighbor, Delaware (the leader in U.S. corporate law), will do to address the social enterprise movement. The total number of benefit corporations currently formed will not get Delaware’s attention, but the media attention and the passion of social entrepreneurs might.  Whatever Delaware’s response, I am sure it will be well thought out.

(4) While I still maintain a healthy skepticism, I am intrigued by these new forms, respect those who are on the ground trying to effectuate change, and am enjoying my research in the area.

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

This announcement comes from an editor of the NYU Journal of Law & Business:

Please join the NYU Journal of Law & Business on Friday, November 9, 2012, from 2:30-5:30 PM for our Fall Conference on the Law & Finance of Social Enterprise.

The conference will be held in Greenberg Lounge at the NYU School of Law. Deborah Burand (University of Michigan Law School) will present groundbreaking work on social impact bonds; Ana Demel (NYU School of Law) and Rebecca Leventhal (Social Finance) will comment. John Tyler (General Counsel of the Kauffman Foundation) will present work on the fundamental question whether state attorneys general should regulate hybrid entities as charities; Jill Manny (NYU School of Law) and David Spenard (Assistant Attorney General for the Commonwealth of Kentucky) will comment.

Kyle Westaway will serve as master of ceremonies and will write an introductory essay for the Journal’s Winter 2013 Special Issue, in which the principal papers and written comments will be published.