By Marc J. Lane
Social entrepreneurs throughout the nation are preparing to gather for this year’s Social Enterprise Alliance Summit 2014. Many are learning that their choice of legal entity can make a big difference for them—in funding, governance, and signaling—as they seek to drive positive social change. The two most popular legal forms, each designed with the mission-driven venture in mind, are the “low-profit limited liability company” or “L3C” and the “benefit corporation.”
The opportunity turns on an under-appreciated feature of the Tax Reform Act of 1969. It’s widely known that the law obligates private foundations to distribute at least 5 percent of their assets every year for charitable or similar purposes, helping explain the feverish competition for grants among charities. But the 1969 law also created an attractive alternative for foundations to satisfy their 5 percent payout obligation, the “program-related investment” or “PRI.”
A PRI can take a variety of forms—a loan, a loan guarantee, a line of credit, a linked deposit, or even an equity investment, so long as it’s for qualified purposes and meets other technical requirements. Most L3Cs are organized primarily for charitable or educational purposes, and those purposes qualify. But an amendment to Illinois’ L3C law, which recently was unanimously passed by the state’s Senate, would extend the L3C’s reach beyond charitable and educational organizations to include religious, scientific and literary organizations, organizations that foster national or international sports competition, and organizations which seek to prevent cruelty to children or animals, all PRI-permissible purposes under federal law. I was privileged to draft both the existing legislation, which itself was unanimously passed by both houses of Illinois’ General Assembly, and the pending amendment.
Like any other LLC, the L3C shields its owners from debts of their enterprise and affords them flexibility in governance and tax planning—but with one striking difference: An L3C’s articles of organization are required by law to mirror the standards for program-related investing imposed on foundations by the Tax Reform Act of 1969. So the business form itself gives the foundation comfort that the target company’s purposes and activities are constrained by statute to accommodate PRIs.
Because the foundation seeks social impact over economic rewards, it forgoes market-rate returns. And by taking on higher risk in exchange for lower financial returns, the foundation’s investment can be leveraged to attract private-sector investment that otherwise might not be tapped to support the social venture.
Not only can a foundation’s financial commitment to an L3C’s mission draw urgently needed private investment into the social sector; it also can elevate the foundation’s role to that of a social venture capitalist which has a stake in both the viability of the enterprise and the social impact it delivers. Just as important, the L3C establishes clarity and consistency in ordering mission-vs.-money priorities so that the venture’s stakeholders’ disparate objectives, including the foundation’s fiduciary duties, can effectively be harmonized, giving each investor the benefit of its bargain.
The officers and directors of benefit corporations are protected from shareholder claims when corporate decisions reflect the non-financial interest of a company’s workforce, community and environment at the expense of financial returns to shareholders. In demanding greater transparency and accountability of its management, the firm is expected to more easily attract funding from social-impact investors and the loyalty of consumers who favor socially responsible and sustainable companies.
The L3C and the benefit corporation are useful platforms to help empower social entrepreneurs who are tackling society’s most vexing problems. I’ll be honored to unpack real-life L3C and benefit corporation successes when I present “Social Enterprises from Conception to Operation: The Legal Issues” at Social Enterprise Alliance’s 2014 Summit.
Image credit: dhester, morgueFile
Marc J. Lane is President of the Law Offices of Marc J. Lane, P.C., Chicago.