Does your (legal) form follow function?
by: Way-Ting Chen (with Giselle Timmerman and Taylor Chamberlin)
Deciding on the right legal structure for your social purpose organization or social enterprise can be a taxing process (pun intended), with many trade-offs to consider. Figuring out the differences between a Low-Profit LLC, Social Purpose Corporation, Benefit LLC, or traditional exempt organization is difficult enough to untangle, much less being certain of making the right choice for what your organization needs.
We’d like to help make this decision a little less tangled and a little better informed for you, and the first step is to answer the question, “legal structure for what?” Remember that in the world of social impact, your legal structure is just another means to achieving your ultimate ends: your impact. Simply put, your “ends” is your long-term organizational strategy, or intended ultimate impact. With the end in mind, you will have clarity about which legal status will help you to achieve your intended impact.
Let’s look at two client examples to put this approach into practice.
A supportive housing organization and a start-up apparel company both want to increase their financial sustainability while also growing their services. The supportive housing organization (let’s call it “Safe Haven”) is presented with the opportunity to develop a real-estate property adjacent to its building. The apparel company (we’ll call it “Sustainawrap”) is presented with the opportunity to create and sell products. How does each organization move forward with assessing the merits of these opportunities and their legal implications?
Safe Haven weighed the pros and cons of leasing market rate rental units or providing permanent supportive housing for homeless individuals. Their discussions landed on a critical question: Real-estate property for what end? They needed to define their intended ultimate impact in order to get clear and unified on what purpose the real estate property needed to serve. Ultimately, they realized they did not need a “cash cow” to generate unrestricted cash flow, so they committed to using this real estate for permanent supportive housing (using a hybrid legal model to minimize legal liability) to directly further their mission.
Safe Haven’s impact statement provided strategic direction: By 2023, North County homeless population will be reduced by 50%.
Sustainawrap weighed the pros and cons of launching a social enterprise to sell baby products. They struggled at first with defining how the social enterprise would contribute to their overall organizational strategy. After agreeing that their “ends” must be women’s self-sufficiency, they used their impact statement to help filter and guide decision-making.
Sustainawrap impact statement: By 2025, 100 homeless women living below the poverty line in LA County will be on the path to financial self-sufficiency. The means to their ends became creating jobs and selling unique baby products, so that impoverished women were employed. With this strategic goal in mind, business planning for their social enterprise was much easier, and they decided that a for-profit legal structure provided the simplicity and flexibility needed to achieve their ends.
Organizations with similar mission statements may have very different impact statements. But, with clarity on their long-term strategic direction, the legal structure decision (along with many other critical choices) becomes simpler.
Finally, the expectations and perceptions we have of various legal structures is evolving. Based on the most recent Edelman trust barometer report, a full 80% of people agree that business must play a role in addressing societal issues.
A for-profit structure doesn’t make you a Scrooge McDuck, just as a nonprofit status doesn’t put a halo over your head. So, setting aside any expectations or stereotypes, make the hard decisions to figure out your intended impact and strategy, then make the legal structure decision that follows.
Click here for our briefing on what an impact thinking mindset is, and here for how you can become a better ‘impact do-er’. For further help with your social enterprise’s legal structure, check out Sustainable Law Group, and the webinar series we presented together with the Society for Nonprofits.