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updated 2:54 PM UTC, Jul 28, 2018

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Legal status that puts social purpose ahead of profit

With a growing number of states enacting laws that allow companies to put a social purpose as a higher corporate calling than shareholder benefit, there's an emerging disagreement among proponents of such legislation over whether it should require, or merely permit, companies to have the social purpose dominate in executive decisions.


The initiatives to allow a higher purpose than shareholder value was in response to the traditional corporate-law constraints that make it the fiduciary duty of officers and directors to operate with the underlying assumption that their role is to maximize shareholder profits.


Washington was one of the first states to provide for-profit companies a legal status for a social focus, under the legal designation Social Purpose Corporations. As of March 1, 89 companies had filed as SPCs under the two-year-old legislation that permits companies' decisions to go beyond maximizing financial results to include positive social or environmental impact.


And Oregon's legislature passed a law this session to provide for "B Corps"(benefit corporations) and state Rep. Tobias Read of Beaverton, co-sponsor of the legislation, described it as designed to "legally protect companies that want to strive for more than just profits." The law imposes much tougher requirements on companies to make the social purpose pre-eminent.


The two Northwest states point up the different approaches to the goal of allowing otherwise traditional for-profit corporations to have a higher standards of corporate purpose, accountability and transparency.


California actually has two social-benefit statutes, one called the "flexible purpose corporation" that emphasizes companies may take a stated social purpose into account in corporate decisions, and the other providing for a Benefit Corporation, imposing a requirement for the role of stated social purpose in decisionmaking.


Proponents of the flexible form of legal filing say it seeks to "unleash directors from the risk of liability while permitting them to experiment more broadly with the right mix of doing well and doing good, without concerns of personal or corporate suits."


The benefit corporation law, under which virtually all California companies have filed, is based on the model Act created by a 501C3 called B Labs, co-founded in 2006 by Andrew Kassoy, who sought to create a "social hybrid" corporate structure movement.


Kassoy, who had a career as a private equity investor and most recently was a partner at MSD Real Estate Capital, part of the investment vehicle for the assets of Michael and Susan Dell, says his goal was to make it easier "for all of us to tell the difference between 'good companies' and just good marketing."


All states require, as part of the benefit-corporation filing process, a third-party certification and verification for the chosen social purpose of a company and B Labs plays that role for businesses in 19 states with the Benefit Corporation model, which is a legal status like C Corp, S Corp of LLC.


Benefit corporation is often confused with Certified B Corp, which is a certification conferred by third-party organizations like B Lab that a company has achieved appropriate levels of social or environmental performance, accountability and transparency

Every benefit corporation is required to publish publically an annual benefit report that includes "an assessment of [its] overall social and environmental performance against a third party standard."


Kassoy is critical of both California's flexible purpose corp. legislation, whose sponsors are now seeking to amend it, and Washington's statute.


"I think that both miss the mark because by creating a 'may' instead of 'shall' standard and by failing to require transparency about the overall impact created by the company, investors and other stakeholders don't have something clear to rely on," Kassoy said in telephone interview. "That creates confusion, suspicion of potential 'greenwashing,' (a term used to deride bogus environmentalism or social causes) and therefore impedes market adoption."


But Peter Smith, a partner in Seattle-based Apex Law Group, disagrees, while saying he is "a big fan of what B-Labs is saying and doing," but adding "I think Washington got it right by making it about flexibility, making the legislation permissive rather than prescriptive."


"What this legislation really is about is providing officers and directors legal cover in the event they make decisions based on the stated social purpose of the company," he added.


What the Washington legislation provides is that officers and directors of SBCs shall act in the best interest of the company, but may take into account social purposes.



Paul Shoemaker, who founded Social Venture Partners and now carries the title Executive Connector, suggests the emergence of the ability of companies to provide for a social purpose is part of an expanding array of ways "to fund, invest in and sustain social programs in the community."

"The most exciting, potentially impactful thing about all this is it's part of a more diverse, wider range of capital and funding mechanisms coming into play for businesses," he said.


Preston Thompson, guided a variety of global-enterprise units or Boeing, ranging from production and supply chain operations to international development, last year founded VentureScale to help with a focus on "accelerating the sustainable growth of ventures."


After leaving Boeing, Thompson had already founded a non-profit to create education opportunities in Afghanistan and a business making clean cook stoves for the developing world when Washington's legislation was signed into law.


Thompson founded VentureScale as one of the first 50 businesses formed under that legislation with the goal of helping to accelerate the sustainable growth of social ventures.


"Gauging the success of a business strictly by evaluating standard bottom-line profit isn't enough," says Thompson. "Maximizing shareholder value and evaluating overall contributions should include social and environmental returns in addition to financial returns."


None of the nearly 1,000 social-purpose designated companies in the nation is publicly traded, but advocates of the designation insist that as the trend continues, companies seeking equity capital and focusing on eventual exit strategies will become increasingly appealing to investors.


Stephanie Ryan, B Lab's senior associate in the Northwest, sees banks as particularly attractive candidates for Benefit Corp status because of the traditional focus of community banks on serving their local areas. She says she is currently in conversation with an Oregon bank about converting to that legal status, which requires a two-thirds vote of shareholders.


Kristopher Lofgren, owner of an Oregon business called Bamboo Sushi, commented after passage of the Oregon law on its importance to the image of business as well as its community value.

"What a lot of people don't realize when they look at the CEOs of companies as despicable people who make these decisions about money, money, money is that the laws are actually written so that's all they can do legally," Lofgren said. "They can be sued and lose their jobs, and the company can go under if they don't. B corp is allowing another voice to come into that fray."


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