Benefit corporation

"B corporation" redirects here. Not to be confused with B Corporation (certification).

In the United States, a benefit corporation or B-corporation is a type of for-profit corporate entity, legislated in 28 U.S. states, that includes positive impact on society and the environment in addition to profit as its legally defined goals. B corps differ from traditional corporations in purpose, accountability, and transparency, but not in taxation.

The purpose of a benefit corporation includes creating general public benefit, which is defined as a material positive impact on society and the environment. A benefit corporation’s directors and officers operate the business with the same authority as in a traditional corporation but are required to consider the impact of their decisions not only on shareholders but also on society and the environment. In a traditional corporation, shareholders judge the company's financial performance; with a B-corporation, shareholders judge performance based on how a corporation's goals benefit society and the environment. Shareholders determine whether the corporation has made a material positive impact. Transparency provisions require benefit corporations to publish annual benefit reports of their social and environmental performance using a comprehensive, credible, independent, and transparent third-party standard. In some states, the corporation must also submit the reports to the Secretary of State, although the Secretary of State has no governance over the report's content. Shareholders have a private right of action, called a benefit enforcement proceeding, to enforce the company’s mission when the business has failed to pursue or create general public benefit. Disputes about the material positive impact are decided by the courts.

There are around 12 third-party standards that meet the requirements of the legislation. Benefit corporations need not be certified or audited by the third-party standard. Instead, they use third-party standards similarly to how the Generally Accepted Accounting Principles (GAAP) are applied during financial reporting, solely as a rubric a company uses to measure its own performance.

History

In April 2010, Maryland became the first U.S. state to pass benefit corporation legislation. As of October 2014, 28 states have passed legislation allowing for the creation of benefit corporations:

• Arizona's legislation became effective on December 31, 2014.
• Arkansas’s legislation was signed by Governor Mike Beebe on April 19, 2013 and will go into effect 90 days after sine die.
• California’s legislation was signed into law on October 9, 2011 and became effective on January 1, 2012.
• Colorado's legislation was signed by Governor John Hickenlooper on May 15, 2013 and takes effect April 1, 2014.
• Connecticut's law came in to effect October 1, 2014. It is the first to allow "preservation clauses," which allow the corporation's founders to prevent it from reverting to a 'For Profit' entity at the will of their shareholders.
• Delaware's legislation became effective on August 1, 2013.
• Florida's legislation became effective on July 1, 2014.
• Hawaii’s legislation was signed into law on July 8, 2011 and became effective upon signing.
• Illinois’s legislation was signed into law on August 2, 2012 and went into effect on January 1, 2013.
• Louisiana’s legislation became law on May 31, 2012 and went into effect on August 1, 2012.
• Maryland’s legislation was signed into law on April 13, 2010 and became effective on October 1, 2010.
• Massachusetts’ benefit corporation legislation became law on August 7, 2012 and became effective on December 1, 2012.
• Minnesota's legislation passed April 10, 2014 and became effective January 1, 2015.
• Nebraska's legislation became effective on July 18, 2014.
• Nevada's legislation became effective on January 1, 2014.
• New Hampshire's legislation became effective on January 1, 2015.
• New Jersey’s legislation passed on January 10, 2011 and became effective when it was signed into law on March 1, 2011.
• New York’s legislation was signed into law on December 12, 2011 and became effective on February 10, 2012.
• Oregon's legislation became law on June 18, 2013 and went into effect on January 1, 2014.
• Pennsylvania’s legislation became law on October 24 and will become effective on January 22, 2013.
• Rhode Island 's legislation became effective on January 1, 2014.
• South Carolina’s legislation became law on June 6, 2012 and became effective June 14, 2012.<S.C Code of Laws Section 33-38-110 http://www.scstatehouse.gov/code/t33c038.php />
• Utah's legislation became effective on May 13, 2014.
• Vermont’s legislation was signed into law on May 19, 2010 and became effective on July 1, 2011.
• Virginia’s legislation was signed into law on March 26, 2011 and became effective on July 1, 2011.
• Washington State’s legislation to create a Social Purpose Corporation instead of a Benefit Corporation became law on March 30, 2012 and went into effect on July 6, 2012.
• Washington, D.C. legislation was signed by the Mayor on February 8, 2013 will go into effect after 30 days of congressional review.
• West Virginia legislation became effective July 1, 2014.

Benefit corporation legislation has been introduced in Indiana and Kentucky. In Illinois, legislation is pending that establishes a new type of entity called the “benefit LLC,” making the state the first to allow limited liability companies the same opportunities afforded to Illinois corporations under the state’s Benefit Corporation Law.

Differences from traditional corporations

Historically, United States corporate law has not been structured or tailored to address the situation of for-profit companies who wish to pursue a social or environmental mission. While corporations generally have the ability to pursue a broad range of activities, corporate decision-making is usually justified in terms of creating long-term shareholder value. A commitment to pursuing a goal other than profit as an end for itself may be viewed in many states as inconsistent with the traditional perspective that a corporation’s purpose is to maximize profits for the benefit of its shareholders.

The idea that a corporation has as its purpose to maximize financial gain for its shareholders was first articulated in Dodge v. Ford Motor Company in 1919. Over time, through both law and custom, the concept of “shareholder primacy” has come to be widely accepted. This point was recently reaffirmed by the case eBay Domestic Holdings, Inc. v. Newmark, in which the Delaware Chancery Court stated that a non-financial mission that “seeks not to maximize the economic value of a for-profit Delaware corporation for the benefit of its stockholders” is inconsistent with directors’ fiduciary duties.

In the ordinary course of business, decisions made by a corporation’s directors are generally protected by the business judgment rule, under which courts are reluctant to second-guess operating decisions made by directors. In a takeover or change of control situation, however, courts give less deference to directors’ decisions and require that directors obtain the highest price in order to maximize shareholder value in the transaction. Thus a corporation may be unable to maintain its focus on social and environmental factors in a change of control situation because of the pressure to maximize shareholder value. Of course, if a company does change ownership and the result is no longer in adherence to its initially described benefit goals, the sale could be challenged in court.

Mission-driven businesses, impact investors, and social entrepreneurs are constrained by this legal framework, which is not equipped to accommodate for-profit entities whose mission is central to their existence.

Even in states that have passed “constituency” statutes, which permit directors and officers of ordinary corporations to consider non-financial interests when making decisions, legal uncertainties make it difficult for mission-driven businesses to know when they are allowed to consider additional interests. Without clear case law, directors may still fear civil claims if they stray from their fiduciary duties to the owners of the business to maximize profit.

By contrast, benefit corporations expand the fiduciary duty of directors to require them to consider non-financial stakeholders as well as the financial interests of shareholders. This gives directors and officers of mission-driven businesses the legal protection to pursue an additional mission and consider additional stakeholders besides profit. The enacting state's benefit corporation statutes are placed within existing state corporation codes so that it applies to benefit corporations in every respect except those explicit provisions unique to the benefit corporation form.

Provisions

Typical major provisions of a benefit corporation are:

Purpose

• Shall create general public benefit.
• Shall have right to name specific public benefit purposes (e.g. 50% profits to charity).
• The creation of public benefit is in the best interests of the benefit corporation.

Accountability

• Directors' duties are to make decisions in the best interests of the corporation
• Directors and officers shall consider effect of decisions on shareholders and employees, suppliers, customers, community, environment (together the "stakeholders")

Transparency

• Shall publish annual Benefit Report in accordance with recognized third party standards for defining, reporting, and assessing social and environmental performance
• Benefit Report delivered to: 1) all shareholders; and 2) public website with exclusion of proprietary data

Right of Action

• Only shareholders and directors have right of action
• Right of Action can be for 1) violation of or failure to pursue general or specific public benefit; 2) violation of duty or standard of conduct

Change of Control/Purpose/Structure

• Shall require a minimum status vote which is a 2/3 vote in most states, but slightly higher in a few states

Benefit corporations are treated like all other corporations for tax purposes.

Benefits

Benefit corporation laws address concerns held by entrepreneurs who wish to raise growth capital but fear losing control of the social or environmental mission of their business. In addition, the laws provide companies the ability to consider factors other than the highest purchase offer at the time of sale, in spite of the ruling on Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc. Chartering as a benefit corporation also allows companies to distinguish themselves as businesses with a social conscience, and as one that aspires to a standard they consider higher than profit-maximization for shareholders.

See also

• Community interest company
• Impact investing
• Public-benefit corporation
• Socially responsible investing
• Stakeholder theory
• Social Purpose Corporation

External links

• BenefitCorp.net - Information about creating and running benefit corporations
• Vermont benefit corporation statute - an example of legislation
• California Benefit Corporation Statute - scroll down to Part 13, law begins at §14600.