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School of Law
1045 W. Maple St.
Robert A. Leflar Law Center
Waterman Hall
University of Arkansas
Fayetteville, AR 72701

Phone: (479) 575-5601

I understand C and S Corporations, but what are B Corporations?

By · March 19, 2018 · 2018 Ark. L. Notes 1987
In categories: Business Law, Extended Article

I was teaching Business Lawyering Skills one Saturday morning, with the assistance of a distinguished guest speaker who has helped me before with my experiential learning class. In the midst of her presentation about various resources that might be available for lawyers working with entrepreneurs and start-ups, she happened to mention (among the different organizational options available in Arkansas) the possibility that a client might want to form a B Corp.

Modeling the behavior that I hope all young lawyers exhibit, I promptly asked what that stood for, because I had not heard of “B Corporations” alongside the more familiar C and S Corporations. My guest speaker explained that some companies wanted to blend the traditional for-profit motive with a more socially conscious outlook. She pointed to businesses like the up and coming Bombas, which produces “athletic-leisure socks with a mission to help those in need.”[1] The “B” in B Corporation does not stand for “blended,” but for benefit,[2] and when used to refer to an organizational option, it is a markedly different designation from the initial letters in C and S Corporations. A true Benefit Corporation is formed under a statute specifically authorizing Benefit Corporations; Arkansas enacted its Benefit Corporation statute in in 2013.[3] I had heard of benefit corporations, but really had not stopped to think of them alongside C and S Corps, in the mix of available business options, and I probably should have.

C, S, and B Corps

As most lawyers are probably well aware, a “C” Corporation is simply a traditional for-profit corporation, formed under a state business corporation statute,[4] and taxed under subchapter C of the Internal Revenue Code.[5] The “C” does not stand for close, or closely held, or anything under state law; it is simply a notice of how the business is to be taxed under the federal income tax code. Similarly, an “S” Corporation is formed the same way, and under the same state business corporation statute.[6] The “S” is a notice that the organization is a business that has met certain restrictive criteria and has filed an effective election to be taxed under subchapter S of the Internal Revenue Code.[7] The “S” does not stand for small (although one of the criteria is that the business may not have more than 100 shareholders); it merely describes the rules under which that business’ income will be taxed. The “B” in “B Corporation” does not refer to tax status at all; it describes a business which has adopted a particular mission to promote public good in certain ways.

Terminology

Before delving into the details of Benefit Corporations, it is probably worth a few words to talk about nomenclature. The very name by which these businesses operate contains a potential source of confusion. Technically, state business statutes are either silent or talk about “Benefit Corporations.” A “Certified B Corp” is something else. Unfortunately, the line between Benefit Corporations and Certified B Corps is not so neatly drawn in the various authorities that discuss these businesses. Both commentators and entrepreneurs sometimes talk about “B Corp” as referring to “for-profit companies certified by the non-profit B Lab to meet rigorous standards of social and environmental performance, accountability, and transparency”[8] regardless of whether the business is a Benefit Corporation under state law. Other sources use “B Corporation” or “B Corp” to refer to any Benefit Corporation, regardless of whether it has been certified.[9]

The difference can actually be fairly significant. It does not take much to organize a corporation as a Benefit Corporation under Arkansas law;[10] on the other hand the B Lab certification process is relatively rigorous. B Lab is the nonprofit organization primarily responsible for pushing benefit corporation legislation.[11] It also serves as an independent, third-party certifier of benefit corporations, in much the same way that Transfair certifies items as “Fair Trade,” or the U.S. Green Building Counsel certifies construction as LEED.[12] The process for becoming a Certified B Corp begins with a B Impact Assessment.[13] Businesses that earn a minimum score of 80 out of 200 points must also meet the legal requirements for corporate structure under applicable state law,[14] and then make the certification official by signing the “B Corp Declaration of Interdependence and Term Sheet.”[15] There is an annual fee associated with certification, and it can be substantial.[16] Certification lasts for two years, and the company must recertify after that time period.[17] In addition, ten percent of certified B Corps are randomly selected each year for a certification evaluation to audit and adjust the B Corp’s score.[18]

To avoid ambiguity, I will use “Benefit Corporation” when referring to corporations organized under a state Benefit Corporation Act. I will use “Certified B Corp” when the reference is intended to be to B Lab certified businesses. The more generic “B Corporation” is used only when the term is intended to cover either or both Benefit Corporations and Certified B Corps.

Forming an Arkansas Benefit Corporation

The process of becoming a Benefit Corporation under Arkansas state law is relatively straightforward. There is a separate statute for this form of entity: the Arkansas Benefit Corporation Act.[19] The Act is relatively short, incorporating Arkansas Business Corporation Act provisions except where contrary rules are specifically included.[20]

An Arkansas Benefit Corporation is formed in the same way that a regular business corporation is formed, relying on the traditional corporation statute rules regarding articles of incorporation,[21] although a Benefit Corporation’s articles must state that it is a Benefit Corporation.[22] The status can be discontinued by a vote of 2/3 of shareholders, voting as classes even if the articles or bylaws of the corporation do not otherwise require class votes.[23]

Aside from the necessity that a Benefit Corporation include a statement to that effect in its articles, the primary difference between a Benefit Corporation and any other business corporation is that the Benefit Corporation “shall have a purpose of creating a general public benefit.”[24] It may (but is not required to) have additional “specific public benefits” that are within the Benefit Corporation’s authorized purposes, but such specific purposes are not to limit the purpose of the business to create a general public benefit.[25]

There is also an annual reporting requirement, which means that any Arkansas Benefit Corporation must file an “annual benefit report.”[26] The report is required to include a narrative description of all of the following:

(i) The ways in which the benefit corporation pursued the general public benefit during the year and the extent to which the general public benefit was pursued;

(ii) Both:

(a) The ways in which the benefit corporation pursued a specific public benefit that the articles of incorporation state is the purpose of the benefit corporation to pursue; and

(b) The extent to which that specific public benefit was pursued;

(iii) Circumstances that have hindered the creation by the benefit corporation of a general public benefit or a specific public benefit; and

(iv) The process and rationale for selecting or changing the third-party standard used to prepare the benefit report.[27]

The report must also have “[a]n assessment of the overall social and environmental performance of the benefit corporation [measured] against a third-party standard,” and the report must use standards consistent with earlier reports, although it need not be prepared, audited, or certified by any third-party.[28] Compensation paid to directors for serving in that role must also be reported,[29] although that financial information (along with any proprietary financial data) may be omitted from public distributions of the report.[30] Otherwise the report must be provided to shareholders, must be available on the Benefit Corporation’s website or otherwise provided to anyone who requests a copy, and must be filed with the Secretary of State.[31] There is a $70 fee for filing the required report.[32]

There are other optional differences between a traditional business corporation and a Benefit Corporation. For example, a Benefit Corporation may designate a benefit director, who will have certain responsibilities.[33] A benefit officer may also be appointed, with whatever “powers and duties relating to the purpose of the corporation to pursue a general public benefit or a specific public benefit” in the bylaws or by directors’ resolutions or orders.[34]

Why form a Benefit Corporation?

The most obvious question raised by these provisions is why anyone would want to form a Benefit Corporation. Although they are relatively easy to form, they are certainly more complicated to operate than a traditional for-profit corporation. In addition, they are unfamiliar, probably to most entrepreneurs as well as to most lawyers. In addition, it is not at all clear that it is necessary to be a Benefit Corporation in order to work for the public good.

The reality is that Benefit Corporations are not all that common in Ark. As of February 6, 2018, a document search of Benefit Corporations on the Arkansas Secretary of State’s website retrieved only 13 records.[35] Of those, only three were in good standing; the rest were revoked, dissolved or no longer current.[36] On the other hand, some sources suggest that there are a thousand or more other companies that have chosen to organize or reorganize as B corporations in this country.[37]

If there were tax advantages to this form, that would be one thing, but the reality is that B Corps, at least currently, have no favored tax status despite occasional statements to the contrary that have appeared.[38] While some commentators have argued that B Corps should be allowed a greater deduction for charitable expenditures in furtherance of their general or specific public benefit purposes,[39] neither Congress nor the IRS has accepted this position.

In fact, there seem to be three primary advantages that might be associated with being a benefit corporation. The first stems from increased interest from the public in supporting the greater good, and the second derives from the legal standard of care applicable to directors and officers in such ventures. The third benefit is that doing good can be its own reward, and for individuals committed in their own lives to improving society or the environment, the B Corp may align well with their personal objectives.

With regard to the first of these benefits, the potential to increase attractiveness to customers or investors is what appears to have driven some of the success of endeavors such as Kickstarter and Patagonia, both of which are B Lab Certified.[40] Various statistics support investment in benefit corporations,[41] which may also explain some of the increasing attention being paid to B Corps.[42]

On the other hand, it is certainly not necessary to organize as a B Corp in order to have a positive impact on society.[43] It is true that, historically, corporations were generally prohibited from donating to charities,[44] but that is no longer the case. In fact, Congress has specifically allowed tax deductions for charitable donations by corporations, although the deduction is generally limited to ten percent of the corporation’s taxable income.[45]

On the other hand, in addition to the ten percent limitation embodied in the Tax Code, there are other limits on the ability of for-profit corporations to adopt purposes that may conflict with shareholder wealth maximization. Some commentators argued that charitable giving could be considered ultra vires even after the federal action.[46] The charitable purpose must therefore be ancillary to the profit motive, given the ten percent limitation. In addition, the federal rules require the donation to be through other charitable organizations, most commonly those with a 501(c)(3)[47] designation, meaning that there is an additional level of administrative cost associated with any gift. Moreover, there is no guarantee that appropriate charities exist to facilitate the specific mission that a for-profit enterprise would prefer to support.

These kinds of potential limitations on a for-profit corporation’s ability to engage in particular activities designed to promote the public welfare suggest why the second potential motive for becoming a Benefit Corporation may be important to some. The second potential benefit relates to the standard of care that must be observed by corporate directors. Both traditional and Benefit Corporations are run by directors, in whose hands all of the management power of the company is vested.[48] The issue is the extent to which directors, in acting in accordance with their statutorily imposed duties of care, are allowed to consider the interests of external constituents other than those of shareholders.

Traditionally, directors of American corporations have been views as being tasked with maximizing shareholder wealth.[49] Certainly in the context of change-of-control situations, the duty to maximize shareholder value has been explicitly confirmed.[50] At least some commentators have also espoused that view. “There is no longer any serious competition to the view that corporate law should principally strive to increase long-term shareholder value.”[51] At least one more recent case confirms the priority of shareholder wealth maximization as the duty of corporate directors.[52]

Consider then a director who wishes to approve decisions that are geared towards achieving a public good rather than at increasing shareholder wealth. Under those standards, could it be said that they have violated their duty of care?

The Benefit Corporation statutes help resolve that issue pretty clearly. In fact, the statutory duty of care owed by directors in Benefit Corporations explicitly requires directors to consider more than just shareholder wealth maximizing while discharging their duties to their corporations.[53] Benefit Corporation directors are directed to consider the impact not only on shareholders, but also on employees, customers insofar as they may be beneficiaries of the public benefit purposes of the corporation, community and societal factors, the local and global environment, short and long term interests of the corporation, and the ability of the corporation to achieve its purposes.[54] In addition, the directors may also consider “other pertinent factors or interests of a group that they consider appropriate.”[55]

Moreover, the statute explicitly provides that a director of a Benefit Corporation, acting in compliance with the normal duty of care (as modified by the statutorily expanded list of proper objectives), will not be “personally liable for monetary damages.”[56] Contrast this with the rule applicable to Arkansas for-profit business corporations, which provides that a corporation may include in its articles a provision limiting liability of directors for monetary damages, with additional limitations.[57] The limitation on monetary damages is neither automatic nor certain, given the lack of clarity as to whether directors are allowed to consider or prioritize non-shareholder constituencies in setting and carrying out corporate policies.

Not for Everyone

It should be relatively clear that the Benefit Corporation is not for everyone. Indeed, Forbes has explained that the big problem with Benefit Corporations is that there is currently not much benefit for the corporation.[58] Until states offer incentives, or the tax code or its regulations are adjusted to allow increased deductions for charitable costs,[59] there are few tangible benefits associated with Benefit Corporation status. Ironically, until more corporations adopt that model, the political pressure necessary to achieve such change is likely to be lacking.

Certified B Corp status may help with issues such as transparency and ameliorating some of the uncertainties associated with the interpretation, application, and (in some states) availability of Benefit Corporation Status. However, the cost of becoming a Certified B Corp is not insignificant.[60] The fact is that B Lab, even though it is operated as a nonprofit organization, receives a financial benefit as part of its certification process. This raises questions about potential bias in its activities promoting Benefit Corporations and certified status for B Corps, and a great deal of the public information about such businesses comes from B Lab.


Notes

* Carol Goforth is University Professor and the Clayton N. Little Professor of Law. Special thanks are owed to Martha Londagin, VP of Commercial/SBA Lending at Legacy National Bank. She was the distinguished guest speaker in my class who not only volunteered her time and expertise for the benefit of my students, but also gave me the idea for this note. Thanks also to my colleagues, Professors Mary Beth Matthews and Lonnie Beard, who reviewed a draft of the article. It could probably go without saying that all errors and inaccuracies that remain are mine, but I will say it anyway.

[1] Bombas socks are described in some detail on the Certified B Corporation website. Bombas, Certified B Corp., http://bcorporation.eu/community/bombas (last accessed March, 2018). For a discussion of terminology, and the differences between Benefit Corporations under state law and Certified B Corps, see infra notes 8-18 and accompanying text.

[2] There are other well-known B Corporations, including Patagonia and Ben & Jerry’s. CK Staff, The A-List of B Corps, Corporate Knights (April 16, 2015), http://www.corporateknights.com/channels/social-enterprise/list-b-corps-14291706/ (last accessed Feb., 2018). The first large publicly traded B Corp was Natura, a Brazilian cosmetics company. Id. The first company to file a Form S-1 statement with the SEC and to go public in the US was Laureate Education Inc. Victoria R. Westerhaus, Popularity of Certified B Corporations, Benefit Corporations Continues to Grow, Lexicology (July 19, 2016), https://www.lexology.com/library/detail.aspx?g=a9a51300-c876-4ef6-a594-9ecdbf36f820 (last accessed Feb. 2018). As of the date this note was written, 34 states have Benefit Corporation statutes, and an additional 6 are considering such legislation. State by State Status of Legislation, Benefit Corporation, http://benefitcorp.net/policymakers/state-by-state-status (last accessed Feb. 2018).

[3] Arkansas Benefit Corporation Act, Ark. Code Ann. § 4-36-101 (2013).

[4] For a corporation formed today in Arkansas, the applicable statute would be the Arkansas Business Corporation Act of 1987, which is codified at Ark. Code Ann. § 4-27-101 (1987). There are still some Arkansas Corporations governed by our prior corporation statute, the Arkansas Business Corporation Act, codified at Ark. Code Ann. § 4-26-101 (1965). Corporations in existence before the 1987 Act’s effective date continue to be governed by the older statute, unless and until an election to be subject to the newer statute is made. In addition, foreign corporations, organized under the laws of other jurisdictions, may choose to do business here through the process of domestication. The law of the state of incorporation would govern that company’s status.

It is also worth noting that “C Corporation” is really a tax status, which is not limited to businesses formed as corporations under state law. Under the current “check-the-box” regulations governing tax classification of business entities, partnerships and entities that would otherwise not be taxed as corporations can elect to be taxed as “C Corporations” by filing Form 882. See Form 8832, Entity Classification Election, IRS, https://www.irs.gov/forms-pubs/form-8832-entity-classification-election (last accessed Feb. 2018). LLCs, which are taxed as partnerships unless the election is made, is also eligible to file to be recognized as a C Corporation. LLC Filing as a Corporation or Partnership, IRS, https://www.irs.gov/businesses/small-businesses-self-employed/llc-filing-as-a-corporation-or-partnership (last accessed Feb. 2018).

[5] Subchapter C of the IRC is codified at 26 U.S.C. §§ 301-385.

[6] Technically, an “S Corporation” need not even be incorporated under state law. Under the current elective tax regime for unincorporated domestic businesses, partnerships and LLCs can generally elect to be taxed as corporations, and as an association taxable as a corporation may also choose to elect S Corporation status if the eligibility requirements are satisfied. For a further exploration of this possibility, see G.P. Diminich, Halsey O. Schreier, Re-Thinking the LLC in Today’s High-Tax Environment, Practitioners Should Explore Having Active Member(s) in an LLC Make the S Corporation Tax Election, S.C. Law., Nov. 2014, at 42.

[7] Subchapter S of the IRC is codified at 26 U.S.C. §§ 1361-1379. For a description of how S Status works, see David R. Sicular, Subchapter S at 55-Has Time Passed This Passthrough by? Maybe Not, 68 Tax Law. 185 (2014). For a comparison of S Corporation taxation and C Corporation rules, see John N. Evans & Maria L. Castilla, Despite Higher Tax Rates, S Corporations Retain Advantages Over C Corporations, 91 Prac. Tax Strategies 271 (2013) (written before the January 2018 changes to the Tax Code went into effect).

[8] What are B Corps, Certified B Corp., https://www.bcorporation.net/what-are-b-corps (last accessed Feb. 2018). This site sets up a dichotomy between “Certified B Corps & Benefit Corporations.” Id.

[9] See, i.e., Arthur Rieman, David Adelman, & Jessica Shofler, California’s New Hybrid Corporation Statute, L.A. Law., Sept. 2012, at 19, referring to these new entities as “Benefit Corporations (B Corporations),” while footnoting the fact that “Certified B Corporations” means something else. See also, What You Need to Know About the Delaware B Corporation, IncNow (April 12, 2016), https://www.incnow.com/blog/2016/04/12/about-b-corps/ (last accessed Feb. 2018) (“A Public Benefit Corporation (“PBC”) in Delaware, which some refer to as a B-corporation, is a new type of corporate structure that is a for-profit business that has a stated “public interest.”).

[10] See infra notes 19-34 and accompanying text.

[11] See James Johnson, The Benefit Corporation: A New Trend in Social Entrepreneurship, First Venture Legal Blog (Dec. 21, 2011), http://www.firstventurelegal.com/the-benefit-corporation-a-new-trend-in-social-entrepreneurship/ (last accessed Feb. 2018).

[12] Emily Cohen, Benefit Expenses: How the Benefit Corporation’s Social Purpose Changes the Ordinary and Necessary, 4 Wm. & Mary Bus. L. Rev. 269, 280 (2013).

[13] Performance Requirements, Certified B Corp., http://www.bcorporation.net/become-a-b-corp/how-to-become-a-b-corp/performance-requirements (last accessed Feb. 2018). The site notes that “[t]he assessment varies depending on the company’s size (number of employees), sector, and location of primary operation.” Id.

[14] How to Become a B Corp, Certified B Corp., http://www.bcorporation.net/become-a-b-corp/how-to-become-a-b-corp (last accessed Feb. 2018). Note that the B Lab certification process does not require that the business be a Benefit Corporation under state law. For those companies that do wish to be formed as such, they must organize under a state Benefit Corporation Act. The specific requirements under the Arkansas statute, which is based on the B Lab model for Benefit Corporations, are discussed infra at notes 19-34 and accompanying text.

[15] How to Become a B Corp, supra note 14.

[16] Annual fees can range for $500 to $50,000+, depending on the company’s annual sales. Make it Official, Certified B Corp., http://www.bcorporation.net/become-a-b-corp/how-to-become-a-b-corp/make-it-official (last accessed Feb. 2018).

[17] Id.

[18] Id.

[19] Ark. Code Ann. § 4-36-101 (2013).

[20] Ark. Code Ann. § 4-46-102(c)(1) (1999).

[21] See Ark. Code Ann. § 4-36-104 (2013), specifically referencing Ark. Code Ann. § 4-27-101 et seq.

[22] Ark. Code Ann. § 4-36-104(a). An existing Arkansas corporation may also elect to become a Benefit Corporation by a 2/3 “status vote” of all shareholders, voting by classes, and again requiring a statement of the election to appear in the corporation’s articles as amended. Ark. Code Ann. § 4-36-105 (2013).

[23] Ark. Code Ann. § 4-36-106. The necessary status vote is defined in Ark. Code Ann. § 4-36-103(a)(7)(ii) (2013).

[24] Ark. Code Ann. § 4-36-201(a) (2013). The term “general public benefit” is defined in the Act as meaning “a material positive impact on society and the environment, taken as a whole, assessed against a third-party standard, from the business and operations of a Benefit Corporation.” Ark. Code Ann. § 4-36-103(a)(5). Oddly enough, the requirement that the company have a general public benefit is required to be in addition to the defined general public benefit. Ark. Code Ann. § 4-36-201(a). I am not entirely sure what this requirement is supposed to mean, but I suspect that the intention is to have each Benefit Corporation articulate with some specificity how it intends to create the positive impact on society and the environment.

[25] Ark. Code Ann. § 4-36-201. A Benefit Corporation may “add, amend, or delete” any such specified public benefit, again by the minimum 2/3 “status vote.” Id.

[26] Ark. Code Ann. § 4-36-401(a)(1) (2013).

[27] Ark. Code Ann. § 4-36-401(a)(2)(A).

[28] Ark. Code Ann. § 4-36-401(a)(2)(B).

[29] Ark. Code Ann. § 4-36-401(a)(2)(D).

[30] Ark. Code Ann. § 4-36-401(b) (various subsections).

[31] Ark. Code Ann. § 4-36-401(b) & (e).

[32] Ark. Code Ann. § 4-36-401(e)(3).

[33] Ark. Code Ann. § 4-36-302 (2013). A benefit director must be independent, and is required to prepare an annual benefit report which articulates whether, in the benefit director’s opinion, the corporation has been acting under its general public benefit and any specific pubic benefit purposes, and whether its directors and officers are in compliance with their standards of care. Ark. Code Ann. § 4-36-302(e). In addition if there is a benefit director, that person’s name, address and benefit statement must also appear in the annual report. Ark. Code Ann. § 4-36-401(a)(2)(C) & (E).

[34] Ark. Code Ann. § 4-36-304(b)(1) (2013). Any designated benefits officer shall also have the responsibility of preparing the benefit report. Ark. Code Ann. § 4-36-30(b)(2).

[35] Search Incorporations, Cooperatives, Banks and Insurance Companies, Arkansas SOS https://www.sos.arkansas.gov/corps/search_corps.php (last accessed Feb. 2018).

[36] Id. As of the date this note was written, only one Arkansas company, Jordan Inc. was a Certified B Corp. Certified B Corp., https://www.bcorporation.net/community/find-a-b-corp (last accessed March, 2018) (search company search field for “Find a B Corp” and select state field as “Arkansas”).

[37] “Those who shop at Patagonia or Etsy are likely aware of a new type of business entity that is growing in popularity. These companies and a thousand more have chosen to organize as either B corporations or Benefit Corporations.” Cara Griffith, Benefit Corporations: The Corporate Entity of the Future? Forbes (Oct. 30, 2014), https://www.forbes.com/sites/taxanalysts/2014/10/30/benefit-corporations-the-corporate-entity-of-the-future/#24e690619e56 (last accessed Feb. 2018). It is not clear if the figure of 1000 B Corps means Certified B Corps, Benefit Corporations, or either.

[38] See, What You Need to Know About the Delaware B Corporation supra note 9, specifically noting and refuting the “[c]ommon misconception is that a Public Benefit Corporation is afforded certain tax benefits.”

[39] See, i.e., Cohen, supra note 12, at 274.

[40] To What You Need to Know About the Delaware B Corporation supra note 9.

[41] See, Why Do Investors like Benefit Corporations, Benefit Corporation, http://benefitcorp.net/investors/who-investing-benefit-corps (last accessed Feb. 2018).

[42] Benefit Corporations are not the only innovation in this area. Some states have enacted special rules applicable to Limited Liability Low-Profit Companies, known as L3C’s. See generally Dennise Bayona & Ken Milani, The L3C Low-Profit Limited Liability Company: Investment Option For Societal Impact, 86 Prac. Tax Strategies 66, 66, (2011). According to this source, Arkansas considered this option, but as of the date this note was written, Arkansas does not have an L3C statute in place.

[43] One relatively well known example of a for-profit business seeking to do good within the state of Arkansas is Tacos 4 Life. According to their website, Tacos 4 Life works toward ending “childhood hunger around the world. The strategy is simply – Tacos4Life will donate the funds necessary to Feed My Starving Children to purchase one meal for every meal sold in the restaurant.” Giving, Tacos4Life, https://tacos4life.com/ (last accessed Feb. 2018). Tacos4Life is not, however, an Arkansas Benefit Corporation; it operates through Arkansas LLCs.

A national example is Tom’s Shoes, which is best known for donating its shoes, but also supports other giving efforts around the “TOMS works with more than 100 giving partners to deliver toms shoes, sight, water, safe births and bullying prevention to people in need.” What we Give, Toms Shoes, http://www.toms.com/what-we-give (last accessed Feb. 2018).

Note, however, that a corporation wishing to obtain B Lab certification must now be prepared to organize as a B Corporation, at least where that is an option under state law:

Corporations in the … [certain] states were previously able to satisfy the legal requirement for Certification by amending their articles using B Lab’s Legal Framework language… as opposed to electing benefit corporation status …. Currently Certified B Corporations who have not yet completed the legal requirement retain the ability to choose either option. However, all other corporations must meet the legal requirement by electing benefit corporation status within two years of initial certification or becoming an SPC (where available) with B Corp Legal Framework language included in its SPC Articles of Incorporation.

Corporation Legal Roadmap, Certified B Corp., https://www.bcorporation.net/become-a-b-corp/how-to-become-a-b-corp/legal-roadmap/corporation-legal-roadmap (last accessed March, 2018).

[44] See 1 Corp. Forms § 10:61 (Conducting Corp.Bus. 2018).

[45] 26 U.S.C. § 170(b)(2)(A) (2017), which provides that in the case of a corporation “[t]he total deductions … [with certain limited exceptions] shall not exceed 10 percent of the taxpayer’s taxable income.”

[46] See generally Linda Sugin, Theories of the Corporation and the Tax Treatment of Corporate Philanthropy, 41 N.Y.L. Sch. L. Rev. 835, 857 (1997); Nancy J. Knauer, The Paradox of Corporate Giving: Tax Expenditures, the Nature of the Corporation, and the Social Construction of the Charity, 44 DePaul L. Rev. 1, 8 (1994). On the other hand, the U.S. Supreme Court, in Burwell v. Hobby Lobby, specifically took note of a for profit corporation’s right to support charitable causes:

While it is certainly true that a central objective of for-profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy-conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits.

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2770–71 (2014).

[47] 26 U.S.C. § 501(c)(3) (2018).

[48] Ark. Code Ann. § 4-27-801(a) (1987) includes the requirement that all corporations have a board of directors unless they have a very limited number of shareholders and make a special election to dispense with the board, and Ark. Code Ann. § 4-27-801(b) provides that all “business and affairs of the corporation” shall be managed by or under the authority of the board. These requirements, which appear in the Arkansas Business Corporation Act of 1987 are incorporated by reference into the Arkansas Benefit Corporation Act. Ark. Code Ann. § 4-36-104(a) (2013).

[49] In addition to the authorities cited supra at note 46 see also Dodge v. Ford Motor Co., 170 N.W. 668 (Mich. 1919).

[50] Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986).

[51] Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law, 89 Geo. L.J. 439, 439 (2001). For a thorough exposition of the view that wealth maximization continues to be both the norm and the law, see George A. Mocsary, Freedom of Corporate Purpose, 2016 BYU. L. Rev. 1319, 1342 (2016).

[52] eBay Domestic Holdings, Inc. v. Newmark, 16 A.3d 1, at 35 (Del. Ch. 2010). The eBay court specifically stated that the for-profit corporation is not an appropriate vehicle for purely philanthropic objectives. Id. at 34.

[53] Ark. Code Ann. § 4-36-301 (2013).

[54] Ark. Code Ann. § 4-36-301(a)(1).

[55] Ark. Code Ann. § 4-36-301(a)(2).

[56] Ark. Code Ann. § 4-36-301(c).

[57] Ark. Code Ann. § 4-27-202(b)(3) (2007). The additional restrictions do not allow a corporation to remove liability for monetary damages:

(i) for any breach of the director’s duty of loyalty to the corporation or its stockholders;

(ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

(iii) under § 4-27-833 of this chapter;

(iv) for any transaction from which the director derived an improper personal benefit; or

(v) for any action, omission, transaction, or breach of a director’s duty creating any third-party liability to any person or entity other than the corporation or stockholder.

Id.

[58] “Still, the number of Benefit Corporations is relatively small. The reason for this is – ironically – a lack of benefits.” Griffith, supra note 37.

[59]   Id.

[60] See, Make it Official, supra note 16.

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