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ABA’s LLC INSTITUTE | 10/18 – 10/19 | ARLINGTON, VA

The Business Law Section of the American Bar Association is hosting the LLC Institute on October 18-19, 2012 at the Le Meridien hotel near Washington D.C. (Arlington, VA).  The entire program looks excellent, but the “Drafting LLC Agreements for Nonprofit and Social Enterprise LLCs” session on October 18 may be of special interest to our readers. 

Program Chair:

J. William Callison, Partner, Faegre Baker Daniels LLP, Denver, CO.

Panel:

Carter G. Bishop, Professor of Law, Suffolk University Law School, Boston, MA;

Cassady V. Brewer, Assistant Professor, Georgia State University School of Law, Atlanta, GA;

J. William Callison, Partner, Faegre Baker Daniels LLP, Denver, CO; and

J. Haskell Murray, Assistant Professor, Regent University School of Law, Virginia Beach, VA.

Each panelist has written about using LLCs in social enterprise and/or about low-profit limited liability companies (“L3Cs”) specifically, with varying degrees of criticism or suggestions for improvement.  The articles are available on SSRN:  Professor Bishop (here); Professor Brewer (here); Mr. Callison (here and here); and Professor Murray (here).

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.

OPENING THE DOOR FOR PROGRAM RELATED INVESTMENTS

The US Treasury and IRS are proposing a rule change involving Program Related Investments. Below is the post from Jonathan Greenblat – Director of the Office of Social Innovation.

Recently, the Obama Administration took a simple but important step that has the potential to do a lot of good in communities across the country – anything from improving education, creating opportunity in low-income communities, or keeping our water and air safe.

Traditionally, foundations have tackled our most vexing problems primarily by making grants to organizations. Foundations are required to make annual charitable contributions of at least five percent of their total assets. These overwhelmingly are done via grants and most stay very close to the five percent minimum. The remaining 95 percent of assets are maintained in an endowment and typically invested in a diversified portfolio in order to preserve or increase value to enable continued giving in the future.  The proposed rule issued by the Treasury Department and IRS would make it easier for philanthropies to make what are called Program Related Investments (PRIs).

PRIs allow foundations to put more of their resources to work to advance their charitable mission through means other than grant-making – like equity investments, loans, loan guarantees, or other investments. Despite their flexibility, PRIs historically have not been used with much frequency because of confusion as to how they work and the high costs associated with them.  For example, many foundations find it necessary to proactively seek legal counsel to confirm that an investment would qualify under the definition of charitable purpose even before using a PRI.

To address these concerns, the Treasury Department and the IRS proposed a rule that includes updated examples of how private foundations may use PRIs to fund charitable activities, which will help foundations make these investments more easily and at a lower cost. The guidelines illustrate that organizations can use PRIs to support groups working on a diverse set of issues from preserving the environment, to furthering education and scientific research, to relieving the poor and distressed.

This important update is the first in 40 years since PRIs were implemented in 1972.

The proposed rule also clarifies how foundations can use different methods such as credit enhancement arrangements to strengthen the capacity of organizations.  This approach can leverage the balance sheets of foundations, enabling “capital activation” and potentially adding significantly to their capacity to drive social impact.  Such methods can serve as an indicator to other institutional investors about the possibilities of deploying capital in creative ways to generate value and strengthen communities.

A PRI is an investment made by a foundation, which, although it may generate income, is made primarily to accomplish charitable purposes.  PRIs are novel for several reasons.  First, they provide foundations with the flexibility to fund activities serving charitable purposes in a variety of ways beyond conventional grants.  Second, such investments can be made to tax-exempt charities but also to social enterprises and conventional businesses.  And third, unlike conventional grants, PRIs can take various forms, including equity investments and low-interest loans.

These guidelines do not cover all the potential scenarios, and public comments on the proposed rule have been requested by July 18.  We hope that the proposed rule will spark a dialogue over the next two months with the philanthropic community.  Through feedback on the guidelines and an exchange of ideas, we hope to update the regulations in a manner that serves the public interest.  This additional guidance is expected to facilitate the ability of foundations to determine whether investment qualifies as a PRI, reducing the transaction costs, conserving a foundation’s resources for additional charitable activity, and increasing capital flows for charities and social enterprises that can create jobs and generate impact.

To comment on the proposed rule for PRIs, please visit the Federal Register.

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!

 

NEW LEGAL STRUCTURES FOR SOCIAL ENTREPRENEURS

Originally posted in Wall Street Journal

BY: KYLE WESTAWAY

You may have noticed the emerging class of “social entrepreneurs” who are creating companies that seek profit but also are devoted to a social purpose, to create long term, sustainable value.

Social entrepreneurs believe a business can be a part of the solution to some of the world’s greatest challenges. It’s this kind of thinking that has given rise to such mission-driven companies as Better World BooksTOMS ShoesD-Light Design and Warby Parker, to name a few.

But, until recently, social entrepreneurs would find themselves in the position of choosing whether to organize either as a for-profit company or a nonprofit organization. The problem was that sometimes a company would be too much of a business to be a nonprofit. Yet, it also might be too mission-driven to be a for-profit.

Fortunately, there are a few innovative legal structures designed for entrepreneurs who are driven as much by mission as money. The cost of using one of these new legal structures will vary depending on lawyer fees, but generally those fees shouldn’t exceed more than $10,000 for a start-up with fewer than 10 employees.

Here’s an overview:

L3C

Ideal for: companies that want to blend traditional capital with “philanthropic” capital, such as from foundations

Available to start-ups in: Vermont, Michigan, Wyoming, Utah, Illinois, North Carolina, Louisiana, Maine and soon in Rhode Island.

The Low Profit Limited Liability Company is a new class of LLC for mission-driven companies.

An L3C offers the same liability protection and pass-through taxation as an LLC. But it must be organized primarily for a charitable purpose – and secondarily for profit. Unlike a traditional nonprofit, it may distribute its profits to owners.

The L3C is designed to attract both traditional investment and a very specific type of philanthropic money called Program Related Investments (PRI). PRI is capital – in the form of equity or debt – from a foundation to a for-profit company that is doing work in line with the charitable purpose of the foundation.

BENEFIT CORPORATION

Ideal for: companies that want to create a measurable positive impact while and providing greater transparency to the public

Available to start-ups in: Maryland, Vermont, Virginia, New Jersey, Hawaii, California and soon New York

The Benefit Corporation is a new class of corporation with a corporate purpose to create public benefit, a broader fiduciary duty and is transparent about its overall social and environmental performance.

By definition, it must operate for the general public benefit – defined as a material positive impact on society and the environment. Every benefit corporation is required to publish an assessment using an independent, third-party assessment tool. To create a material positive benefit, a benefit corporation operates in a manner that not only creates value for the company’s shareholders, but also its community, environment, employees and suppliers.

The structure also calls for a high level of transparency and accountability. Within 120 days after the end of each fiscal year, a benefit corporation is required to publish a “Benefit Report,” which states how it performed that year on a social and environmental axis.

FLEXIBLE-PURPOSE CORPORATION

Ideal for: companies seeking to do good on their own terms

Available to start-ups in: California

The Flexible Purpose Corporation a new class of corporation that creates the maximum amount of flexibility for socially/environmentally conscious companies. It is designed for businesses that want to pursue profit along with a special purpose of its own designation.

The structure allows the designation of a special purpose that the company will pursue in addition to profit. For example, a flexible purpose corporation might be a for-profit developer that has a special purpose of building a public park in each of its developments.

This type of corporation must issue an annual report that is available to the public and provides details on the following: the special purpose; the annual objectives that it has set to achieve its special purpose; the metrics used to gauge the success of the special purpose; how it has achieved or fallen short of the stated objectives; and how much money was spent in furtherance of the special purpose. But it does not require any measurement against an independent third-party standard.

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

THREE OBJECTIONS TO L3C’S ANSWERED

Though many sections of the American Bar Association are in favor of L3C legislation, the Nonprofit Organizations Committee and the Limited Liability Companies, Partnerships and Unincorporated Entities Committee of the Business Law Section of the American Bar Association are planning to oppose the L3C legislation based on three primary objections. Below are the objections and the responses by leading nonprofit attorneys excerpted from their letter.

1. L3C’s are no better at receiving PRI’s than an LLC

Your letter indicates that “The L3C is no better than any other business form for receiving program related investment[s] ….”  In our view, an L3C is a better vehicle for accepting program-related investments than a standard LLC. The state-law L3C restrictions will make it easier for private foundation investors to conduct the due diligence necessary in order to complete a
program-related investment and comply with expenditure responsibility. A charitable purpose would necessarily be articulated in the L3C’s operating agreement, helping to ensure that the L3C’s purposes and operations are
aligned with PRI requirements. Persons who form L3Cs are likely to be better informed about the  requirements applicable to private foundations for PRIs and for expenditure responsibility and so draft their operating agreements accordingly.  The L3C designation automatically sets the entity apart from ordinary LLCs that may or may not be structured in  a way compatible with PRI requirements.
We agree, and understand that, L3C is not necessary for an LLC to serve as the vehicle for a program-related investment, and we have represented many foundations that have made PRIs into LLCs, but we believe that in many cases L3C will make it easier for foundation investors to make the findings that they need to make for a proper PRI and for compliance with expenditure responsibility.

Your letter indicates that “The L3C is no better than any other business form for receiving program related investment[s] ….”  In our view, an L3C is a better vehicle for accepting program-related investments than a standard LLC. The state-law L3C restrictions will make it easier for private foundation investors to conduct the due diligence necessary in order to complete a program-related investment and comply with expenditure responsibility. Acharitable purpose would necessarily be articulated in the L3C’s operating agreement, helping to ensure that the L3C’s purposes and operations are aligned with PRI requirements. Persons who form L3Cs are likely to be better informed about the  requirements applicable to private foundations for PRIs and for expenditure responsibility and so draft their operating agreements accordingly.  The L3C designation automatically sets the entity apart from ordinary LLCs that may or may not be structured in  a way compatible with PRI requirements.We agree, and understand that, L3C is not necessary for an LLC to serve as the vehicle for a program-related investment, and we have represented many foundations that have made PRIs into LLCs, but we believe that in many cases L3C will make it easier for foundation investors to make the findings that they need to make for a proper PRI and for compliance with expenditure responsibility.

2. Traunched investment results in private benefit for profit-seeking investors.

Your letter indicates that “tranched investing purposefully uses foundation funds to subsidize (and thereby attract) private, profit-seeking investors” so that such a PRI “almost inevitably results in private benefit.” Tranched financing does not lead to per-se private benefit, as you suggest.  Private benefit depends on all of the  facts and circumstances in a given situation.

In fact, a PRI (other than one made to a charity) always involves some level of private benefit, but rather than a disqualifying private benefit, it is deemed incidental to the accomplishment of charitable purposes. One example in the Treasury regulations involves a foundation making a below-market-rate loan to a “business enterprise which is financially secure and the stock of which is listed and traded on a national exchange,” in order to encourage the enterprise to establish a factory in a depressed urban area. In this example, there is clearly private benefit, since the corporation receives a below-market-rate loan from charity – but the private benefit is incidental. In any PRI investment in a for-profit entity there is private benefit, but the private-benefit doctrine involves a weighing of public good against private benefit.

In any case, there is  nothing in the L3C statutes that requires or even addresses tranched financing anymore than there is in the LLC statutes. L3C is now a creature of the states and American Indian nations that have adopted it, not of some promoters. Just because some promoters of L3C have talked about tranches does not mean that tranched financing is an inherent part of L3C. It is simply not in the L3C legislation

3.  Supposedly “Low Profit” companies could make significant profits.

Your letter also points to a purported “technical error” in the L3C legislation, suggesting that there is some contradiction between the requirement that “no significant purpose of  the company  is the production of income or the appreciation of property” on the one hand and the label “low-profit” and the involvement of for-profit investors on the other. But there is no such contradiction.

L3C requires that the primary purpose of the organization must be charitable, but permits the production of income to be a secondary purpose. As with a tax-exempt charity that must have a charitable purpose by law, yet also must, from an economic standpoint, have sufficient revenue to conduct operations, institutional decisions must be made with the L3C’s overarching charitable purpose in mind, but profit may certainly be the result. The fact that an investment produces significant income or appreciation is not, in the absence of other factors, conclusive evidence of a significant purpose involving the production of income or the appreciation of property.

In fact, an example in the Treasury regulations, in analyzing an investment by foundation “Y,” states that the investment “is a program-related investment even though Y may earn income from the investment in an amount comparable to or higher than earnings from conventional portfolio investments.” When assessing whether a “significant purpose” of a foundation’s proposed investment is the production of income for purposes of the PRI rules, the IRS finds it “relevant whether investors solely engaged in the investment for profit would be likely to make the investment on the same terms as the private foundation.”

Such an investment is less likely to be a PRI to the extent that for-profit investors would enter it on the same terms as a foundation. The clear corollary is that for-profit investors may enter such investments on terms more favorable to them than those under which a foundation is willing to invest. Thus, L3C can bring together foundations’ PRIs and investments on more favorable terms by for-profit investors to accomplish the L3C’s primary charitable purpose through a business that, because of its inherent risk and low likelihood of profit, simply would not be attractive solely to for-profit investors.

photo: Kate Gaensler

419 L3C’s IN THE US

According to a recent report from our good friends at L3C Intersector Partners the L3C movement is growing. There are now 419 L3Cs in the US. Below is the breakdown by state. Click here for the full report.

169 L3Cs organized in Vermont (since April 2008)
93 L3Cs organized in Michigan (since January 2009)
25 L3Cs organized in Wyoming (since February 2009)
36 L3Cs organized in Utah (since March 2009)
1 L3C organized – Oglala Sioux Tribe (since July 2009)
63 L3Cs organized in Illinois (since January 2010)
22 L3Cs organized in North Carolina (since August 2010)
8 L3Cs organized in Louisiana (since August 2010)
2 L3Cs organized – Maine (starting July 2011)
0 L3Cs organized – Rhode Island (starting July 2012)
———————————————————————————
419 social entrepreneurs blazin’ a path

Photo: Himalayan Trails

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

L3C PART 2: DEFINING CHARACTERISTICS OF AN L3C

Since the L3C is a form of limited liability company (LLC), it has many of the defining characteristics of a traditional LLC:  flexible ownership and management structure; limited liability for the actions and debts of the company; and, default classification as a “pass-through entity” for federal tax purposes. The profits generated by an L3C are default taxed at the member level on the members’ individual tax returns, but tax-exempt nonprofits that invest in L3Cs may receive profits tax-free (so long as the L3C’s income is related to the non-profit’s charitable purpose and the non-profit uses the profits to further charitable purposes).

In order for private foundations to receive beneficial treatment under federal tax law, they are required to distribute five percent of their assets to social programs every year. IRC § 4944(c). Typically, foundations will donate this money to a non-profit. However, the other option is to make a program-related investment (PRI). PRIs are usually made into for-profit endeavors, but are intended to achieve some charitable purpose. PRIs are not common occurrences because the transaction costs in guaranteeing that the target of the investment will meet PRI requirements are prohibitive (for instance, to “guarantee” that an investment qualifies as a PRI, private foundations may apply for a private letter ruling from the IRS, but it is difficult and expensive to do so). If a private foundation makes an investment that turns out not to qualify as a PRI, the foundation may suffer penalties and be required to pay substantial taxes. See Allison Evans, Christine Petrovits & Glenn Walberg, L3C: Will New Business Entity Attract Foundation Investment?, 63 The Exempt Organization Tax Review 457 (2009).

The risks and costs of PRIs prevent most foundations from making any investments with the five percent that result in financial profits. The L3C aims to make it significantly easier for foundations to make PRIs by taking the three requirements for a PRI and including them in the legislative language regarding the L3C (the three requirements in the prior paragraph mirror the Internal Revenue Code’s requirements for something to qualify as a PRI). While the creators of the L3C hope that the Internal Revenue Service (IRS) will begin to recognize any investment in an L3C as automatically qualifying as a PRI, the IRS has warned that foundations may not currently rely on L3C status for deciding whether something qualifies as a PRI. Many experts continue to expect guidance from the IRS this year (2010).

The flexibility of the limited liability structure allows ventures to structure differing levels (tranches) of investment opportunities. For instance, a L3C may offer three different tranches of capital with the first tranch to foundations (PRIs with lower rate of return, greater risk, high emphasis on social purpose), the second to socially conscious investors (medium rate of returns, lowered risk, emphasis on social return), and the third to regular investors (market rate of return, less emphasis on social purpose).

Americans for Community Development further explains the structuring benefits of an L3C:

“[The L3C] also facilitates tranched investing with the PRI usually taking first risk position thereby taking much of the risk out of the venture for other investors in lower tranches. The rest of the investment levels or tranches become more attractive to commercial investment by improving the credit rating and thereby lowering the cost of capital. It is particularly favorable to equity investment. Because the foundations take the highest risk at little or no return, it essentially turns the venture capital model on its head and gives many social enterprises a low enough cost of capital that they are able to be self sustainable.”

The distinguishing factor of the L3C is that, although a for-profit entity, it is designed primarily to achieve a social aim and secondarily to achieve a profit. Each state that has passed L3C legislation has: (1) included some language requiring the L3C to “significantly further the accomplishment of one or more charitable or educational purposes”; (2) specified that the company must not have the significant purpose of “the production of income or the appreciation of property” (remember, the L3C is designed to earn profit, it just cannot be the significant purpose of the company); and, finally, (3) disallowed the L3C from being organized to achieve “political or legislative purposes.” These three requirements must be adopted in the organizational documents of the L3C (typically the operating agreement) and, just as the liability veil of an LLC can be breached if formalities are not complied with, the L3C can revert to a traditional LLC if any of the three requirements stop being complied with.