In Episode 85 of The Wendel Forum (originally aired on November 17, 2012, on 960 KNEW AM radio), show moderator Dick Lyons, co-founder of Wendel Rosen’s sustainable business practice group, welcomes Kelly Boyd, founder of My True Nature, a line of natural body care products for children.

Kelly Boyd, founder of My True Nature

After Boyd’s first child was born, a baby nurse introduced her to natural products for kids.  Always interested in cooking and in organic foods, Boyd, a corporate securities lawyer and tech company executive, began developing her own formulations for personal care products, including bubble bath, shampoo, lotion and body wash.  She gave the products to friends, who tested them for her.  One of the things she learned in the process was how sensitive people are to scents.  In the process of finding the right formulation with the right scent, Boyd made more than 300 batches of her products.

After her second child was born, Boyd quit her job, and she and her husband financed and launched My True Nature.  Using all natural, largely organic ingredients, My True Nature products are manufactured locally in the Bay Area.  She describes them as “mainstream green,” meaning they look and feel like comparable mainstream products.  For example, the shampoo and body wash suds up and the bubble bath does, in fact, bubble.

Initially, Boyd sold the products to friends, who helped spread the word by putting the products in gift bags at birthday parties.  Later, she began selling online, including offering group deals through sites like Groupon.  Some of her products are now in “brick & mortar” stores, but the majority of her sales come from the big internet retailers, such as Amazon.com.

Boyd says that it was important that she not have investors in her company.  With her experience in the legal and tech company worlds, she knew investors would demand, and rightfully so, that she spend her entire time and energy on building the company.  And she knew that she would feel responsible to do so.  Instead, without having investors to answer to, she can devote the time and energy she wants to her children.  She recognizes that her company will grow more slowly, but the real payoff is that she can be the kind of mom she wants to be.

Boyd believes the rigidity of corporate jobs is contributing to the emergence of a generation of mothers who are starting companies.  In fact, Boyd believes there’s no better time than now for a woman to start a business.  There are funding sources particularly looking for women entrepreneurs, especially women launching green businesses.

Do you know green mompreneurs like Boyd?

Post Links:

Listen to the interview with Boyd: Episode 85 of The Wendel Forum (27:46 mins; mp3)

My True Nature Website: http://www.mytruenature.net

960 KNEW AM Radio Website: http://www.960KNEW.com

Dick Lyons’s online profile: http://www.wendel.com/rlyons

In Episode 82 of The Wendel Forum (originally aired on October 27, 2012, on 960 KNEW AM radio), show moderator Bill Acevedo, chair of Wendel Rosen’s sustainable business practice group, welcomes Caroline Duell, the founder of Elemental Herbs, an organic body care company based on the central coast of California.

With a background in herbal medicine, Duell is a massage therapist and outdoor enthusiast who began making skin care products for her friends and family.  Later, after success selling the products at farmers markets, she launched Elemental Herbs, a California certified B Corporation.  That certification is to sustainable business what Fair Trade certification is to coffee – it measures a company’s commitment to operating a business responsibly and sustainably.

Caroline Duell, Founder of Elemental Herbs

Duell also runs a farm, from which she harvests some ingredients for her natural healing products such as All Good Goop, a moisturizer and salve.  While Duell also gets ingredients from outside suppliers, she only partners with similar-minded businesses.  In particular, she examines other companies’ employee benefits, utilities use, social benefits and transparency.  Though not certified organic, all Elemental Herbs holistic products and remedies contain organic ingredients and are free of GMOs (genetically modified organisms).

The Elemental Herbs farm also offers a CSA (community supported agriculture) and serves as an education center, including offering courses about sustainable living.  As a member of 1% for the Planet, one percent of all Elemental Herbs revenues is dedicated to fighting for social and environmental justice around the world.  Organizations it supports include a local marine mammal protection organization, a local trail organization, Save Our Snow, which provides information about how global warming affects the planet’s snowfall, and cityWILD, which brings inner city kids into the mountains.

Do you care about the company policies, as well as the ingredients, of your skin care products?

Post Links:

Listen to the interview with Duell: Episode 82 of The Wendel Forum (26:47 mins; mp3)

Elemental Herbs website: http://elementalherbs.com

B Corporation website: http://www.bcorporation.net/

1% for the Planet website: http://onepercentfortheplanet.org/en/

960 KNEW AM Radio website: http://www.960KNEW.com

Bill Acevedo’s online profile: http://www.wendel.com/wacevedo

In Episode 80 of The Wendel Forum (originally aired on October 13, 2012, on 960 KNEW AM radio), show moderator Dick Lyons, co-founder of Wendel Rosen’s sustainable business practice group, welcomes Elliot Kallen, founder and CEO of Prosperity Financial, a San Ramon, Calif.-based money market fund with $200 million under management.

Elliot Kallen, CEO of Prosperity Financial, visits The Wendel Forum

Elliot Kallen, CEO of Prosperity Financial, visits The Wendel Forum

Years ago, socially responsible investing meant simply avoiding investing in so-called sin products such as tobacco or the defense industry.  Increasingly, though, socially responsible investing means more. While it can mean investing in green companies, the issue is somewhat muddy.  For example, is it socially responsible to invest in a solar module product if the parts were made in China and the manufacturing process included toxic chemicals that ended up in the water supply?

Not surprisingly, therefore, everyone has a different opinion of what it means to be socially conscious.  Generally, though, it means thinking about doing the right thing and considering every facet – from environmental issues to a company’s shareholder governance and charitable activities to the private activities (such as aiding the Nazis) of a company’s founder.

In addition, there are different approaches to socially responsible investing.  For example, an investor can proactively support companies that are doing good things for society or devote a portion of a portfolio to green companies. Alternatively, an investor can simply seek the highest possible return on investments but then commit to donating 10 percent of those earnings to a socially responsible cause.  Kallen recommends finding an advisor who will listen to your goals.

What does socially responsible investing mean to you?
Post Links:

Listen to the interview with Elliot Kallen: Episode 80 of The Wendel Forum (26:55 mins; mp3)

Prosperity Financial Website: http://www.prosperityfg.com

960 KNEW AM Radio website: http://www.960KNEW.com

Dick Lyons’s online profile:http://www.wendel.com/rylons

In Episode 78 of The Wendel Forum (originally aired on September 29, 2012, on 960 KNEW AM radio), show moderator Dick Lyons, co-founder of Wendel Rosen’s sustainable business practice group, welcomes Scott Potter, managing partner of San Francisco Equity Partners, a private equity firm that specializes in consumer products growth companies.

Scott Potter of San Francisco Equity Partner

Scott Potter, San Francisco Equity Partners, in The Wendel Forum studio

Potter’s firm partners with companies that have demonstrated a proven demand for their products.  So while there’s no consumer adoption risk, the companies are usually facing operational and scale challenges to reach the next level. Typically, they are $5-10 million companies poised to scale their businesses, often to north of $100 million.

Identifying these optimal risk-reward companies is more science than art.  San Francisco Equity Partners is particularly focused on its companies’ channel strategy.  That is, a given beauty product can’t successfully be sold at both Sephora and Wal-Mart.  Channels include food (Safeway), drug (Walgreens), mass (Wal-Mart), club (Costco), prestige (specialty retailers and department stores) and direct-to-consumer (online and direct-response TV).  Determining the right channel for products is often a company’s key to success.

A growing channel is the so-called natural channel, as epitomized by Whole Foods, which is separate from the traditional grocery channel.  But Potter’s firm specializes in natural products that are targeted for the mass channel.  Companies targeting this channel should not ask consumers to pay more for an inferior product “just to save the fish,” Potter says.  Rather, the product’s value proposition has to work in and of itself outside of sustainability and natural missions.  The prime example is Method products.

When San Francisco Equity Partners first invested in Method, it was producing just hand and cleaning products.  It has evolved to include bathroom and specialty products and even successfully launched into the competitive laundry space.  Early on, Method knew it would never have the marketing budget of Proctor & Gamble.  So it chose to overinvest in packaging, focusing on the point of sale: when product is on the shelf.  Method’s in-house design team devised a distinctive look, including the bottle molds, and focused on the aesthetic and the user-experience (such as the one-hand laundry detergent dispensing system). With the “design baked into the products,” Method aspired to be like Apple.

At what kind of store are you most likely to purchase natural products?

Post Links:

Listen to the interview with Scott Potter: Episode 78 of The Wendel Forum (27:48 mins; mp3)

San Francisco Equity Partners Website: http://www.sfequitypartners.com

Method Products Website: http://methodhome.com

960 KNEW AM Radio website: http://www.960KNEW.com

Dick Lyons’s online profile: http://www.wendel.com/rylons

In Episode 76 of The Wendel Forum (originally aired on September 15, 2012, on 960 KNEW AM radio), show moderator Dick Lyons, co-founder of Wendel Rosen’s sustainable business practice group, welcomes Ben Lee, director of business development at San Francisco-based CircleUp, a crowd funding platform founded in April.

Ben Lee of CircleUp

Ben Lee of CircleUp

CircleUp provides an online mechanism for consumer products companies and retailers to reach out to a broad network of potential investors, who may fund the companies in exchange for equity. CircleUp, which affiliated with WR Hambrecht, takes a commission.

So far, they’ve received 600 applications; they’ve selected 10 companies and four – including a baby skin care brand and an organic food brand – have been successfully funded.  CircleUp’s team serves as a curator for the investors. In evaluating companies, they look for businesses with $1 million to $10 million in annual revenue.  Usually these companies are seeking to raise $500,000 to $2 million to launch new products and achieve the next stage of growth. The typical investment is $5,000 to $25,000 (while each company’s offer is different, these are generally in the form of preferred stock shares); CircleUp assists with larger transactions offline.

While CircleUp streamlines what can otherwise be a year-long funding process, raising money through the platform can still take several months. Although CircleUp selects companies and presents opportunities, investors must do their own due diligence.  Like any private company investment, crowd funding is risky and the investment horizon may be three to seven years.

Lee says CircleUp’s goals include enhancing the ecosystem around consumer products, helping as many small consumer brands get financing as possible, and making sure CircleUp’s platform is a great experience for investors and companies.

Have you participated in crowd funding?  What do you see as the biggest opportunities and challenges to this form of financing?  

Post Links:

Listen to the interview with Lee: Episode 76 of The Wendel Forum (27:56 mins; mp3)

Circle Up Website: https://circleup.com

960 KNEW AM Radio website: http://www.960KNEW.com

Dick Lyons’s online profile: http://www.wendel.com/rlyons

[The following post is written by Wendel Rosen Green Business Practice Group Partner Donald S. Simon in response to a recent article addressing legislation that allows for the formation of benefit corporations.  Regular readers of The Wendel Forum will remember we have covered Benefit Corporation in prior episodes.]

A REAL WORLD RESPONSE TO A PROFESSORIAL CRITIQUE

I just read the article entitled “The Truth about Ben and Jerry’s” in this Fall’s edition of the Stanford Social Innovation Review (SSIR).  This article challenges the reasons Ben Cohen and Jerry Greenfield have given for approving the company’s sale to Unilever.  It also argues that recent legislation creating benefit corporations is unnecessary because traditional corporate law allows social entrepreneurs to accomplish their goals equally well.  The article advances erroneous, incomplete and misleading analysis of applicable law and evidences a lack of appreciation for how business and law interact in the real world, outside the halls of academia where the authors reside. 

Green Business attorney Donald Simon

Wendel Rosen’s Donald Simon helped draft and promote new Benefit Corporation legislation (AB 361)

I was not involved in the Ben & Jerry’s transaction; however, I was co-chair of the California Benefit Corporation Legal Working Group that authored the California benefit corporation law (AB 361) I provide this brief response to rebut some of the key inaccuracies in the SSIR article.

The article presents a misleading discussion of corporate law.  Corporate law differs from state to state.  The article claims that most states do not require corporate directors to maximize shareholder value (i.e., profits) and instead allow directors to consider the interests of other stakeholders impacted by the company’s actions, such as employees, community and environment.  This is a gross and misleading overstatement.  In fact, directors are permitted to consider broader stakeholder interests only in states that have adopted so-called “constituency statutes.”  Such statutes have been adopted in less than two-thirds of U.S. states.  And among those that have adopted constituency statutes, each state defines a different list of stakeholders whose interests the directors may consider.  For example, some states allow directors to consider the company’s impact on the environment, while most do not.  In states that do NOT have constituency statutes (including California), directors lack statutory authority to consider stakeholders interests and must act exclusively based on the interests of the corporation and its shareholders.

What about Delaware?  The most surprising omission in this article (among many) is the authors’ failure to mention Delaware.  Writing an article on American corporate law without discussing Delaware is like writing a history of the space program without mentioning the Apollo moon landings.  Because companies can incorporate under the laws of any state they wish (regardless of where they’re physically located), Delaware sought to dominate the market by providing companies what they seek most – legal certainty.  Delaware has achieved this by creating the largest body of corporate law and a specialized (Chancery) court system dedicated exclusively to such matters.  As a result, more companies are incorporated in Delaware than any other state.  When a court in any other state considers issues of corporate law that have not already been definitively answered by higher appellate courts in their state, they typically look to Delaware court decisions for guidance. 

Delaware is critical to this discussion because in a high-profile case from 2010, where eBay sued the founders of Craigslist (eBay vs. Newmark), the Delaware Chancery court reaffirmed the shareholder primacy rule made famous in Dodge v. Ford, ruling that “[p]romoting, protecting, or pursuing non- stockholder considerations must lead at some point to value for stockholders.”  The following excerpt from the court’s decision is instructive:

“[Craigslist founders, Newmark and Buckmaster] did prove that they personally believe craigslist should not be about the business of stockholder wealth maximization, now or in the future.  As an abstract matter, there is nothing inappropriate about an organization seeking to aid local, national, and global communities by providing a website for online classifieds that is largely devoid of monetized elements.  Indeed, I personally appreciate and admire [Newmark’s and Buckmaster’s] desire to be of service to communities.  The corporate form in which craigslist operates, however, is not an appropriate vehicle for purely philanthropic ends, at least not when there are other stockholders interested in realizing a return on their investment. … Having chosen a for-profit corporate form, the craigslist directors are bound by the fiduciary duties and standards that accompany that form.  Those standards include acting to promote the value of the corporation for the benefit of its stockholders.  Thus, I cannot accept as valid … a corporate policy that specifically, clearly, and admittedly seeks not to maximize the economic value of a for-profit Delaware corporation for the benefit of its stockholders….”

The authors’ failure to discuss Delaware law and the Craigslist case, while mentioning an obscure 1953 case from New Jersey, is puzzling.  Surely they were aware of these well-known legal precedents that refute the central theme of their article.

The Article misunderstands the purpose and need for new corporate forms.  The article correctly notes that companies can incorporate in one state while locating and doing business in another.  Because of this, the authors argue that there is no need for other states to adopt benefit corporation legislation because a handful of states already have.  The authors are apparently unaware that states like California impose their key corporate laws (including shareholder primacy) on all companies doing business in their state, regardless of where they are incorporated.  See Cal. Corporations Code section 2115(b).  This critical fact illustrates the danger of making simplistic generalities about a legal system that differs in each of the 50 states.

A quick primer of how law works in the real world.  Although neither of the article’s authors were involved in the Ben & Jerry’s deal and apparently never spoke to anyone who was, they claim to know more about the thinking, motivations and legal concerns than the principals and lawyers who lived it.  Ben & Jerry said they accepted Unilever’s higher offer over lower ones because their lawyers (correctly) advised them that doing so could expose them to personal liability if a shareholder chose to sue them for not maximizing their profits by taking Unilever’s higher offer. 

The authors apparently read the company’s corporate documents, from which they devised legal arguments they believe would have enabled Ben, Jerry and their board of directors to prevail in such a lawsuit.  While their analysis makes for an excellent law school essay question, it is divorced from the reality that governs such transactions. 

In the real world, cases aren’t decided by attorneys or professors declaring what they believe the law should be.  They are decided by lawsuits, trials and lengthy appeals that can take five or more years to reach a final conclusion.  How many businesses do you know that can wait in limbo that long, especially on critical decisions like who will own the company?  Ben & Jerry’s lawyers also (correctly) advised them that they could be held personally liable for losses claimed by their disgruntled shareholders.  The authors dismiss this fact by saying that Ben & Jerry could have sued the company to recover any personal losses based on indemnity provisions in the corporate documents.  I’m sure Ben & Jerry’s lawyers discussed this, and equally sure it provided Ben & Jerry little comfort.  After spending years in litigation losing one case and paying the verdict out of their own pocket, I suspect nothing would sound less appealing than spending six or seven figures litigating a new case pursing their indemnity claim against the company they no longer own or control.  The delay and costs attendant to litigation, coupled with the inability of companies to remain in limbo while awaiting a final decision, is the central reason why there are so few reported cases addressing these issues. 

The article ignores the central advantage that the Benefit Corporation provides.  The article conveys the authors’ opinion that social enterprise does not require benefit corporations or any of the other new forms provided by recent legislation, while ignoring the benefit they provide.  That benefit is legal certainty, which as noted above, is a critical commodity.  Social entrepreneurs operating as a traditional corporation are like guinea pigs waiting to be called for an experiment.  So long as all the shareholders remain mission-aligned, the experiment will be a success.  But shareholders and their attitudes often change over time, and in traditional corporations, the result is often a dilution of the company’s original social or environmental values.  If the values-driven shareholders control the company, then they can do as they wish and roll the dice to see if they’re sued.  And if they do, they’ll experience the thrill of litigation, with expensive legal fees, years of watching the slow grind of our legal system and the excitement that comes with never knowing how it’ll end until the appeals have been exhausted or a settlement is reached.  For the gambler, this sounds as fun as betting the company payroll on a roulette wheel in Vegas.

The benefit corporation was created for the more temperate social entrepreneurs who prefer not to be a legal guinea pig.  The benefit corporation was created for them so that they don’t have to worry about their continued ability to operate their business in a socially responsible manner.  No questions, no uncertainty, just clarity and peace of mind so that they can focus their attention on their business instead of threats to their vision of what that business should be.

Donald Simon
Partner, Wendel, Rosen, Black & Dean LLP
Oakland, California
September 17, 2012

In Episode 74 of The Wendel Forum (originally aired on August 25, 2012, on 960 KNEW AM radio), show moderator Bill Acevedo, chair of Wendel Rosen’s sustainable business practice group, welcomes Jenn Vervier, director of sustainability at New Belgium Brewing Company

Jenn Vervier

New Belgium Brewing Company prides itself on providing meaningful employment for its owners and workers.  It promotes a “high-involvement culture,” in which individuals “bring their whole selves to work” and everyone’s voice is heard.  Specifically, the company engages in participative decision-making, soliciting feedback from top to bottom.  All co-workers are included in strategic planning and business operations, and financial reports are shared monthly with all workers.

But – they don’t forget that business can be fun!  New Belgium Brewing Company is employee-owned, with workers brought into the ownership after a year.  On that anniversary, they also receive a bike.  Once employees have worked there for five years, they receive a weeklong, all-expenses-paid trip to Belgium to learn about Belgian beer culture.  Those are certainly nice perks!

Make no mistake about it, though, sustainability is a guiding business principle of the company.  In addition to donating to environmental causes, New Belgium Brewing Company is also one of the first breweries to publish a life- cycle carbon footprint of its processes for consumers.  Plus, New Belgium is constantly looking for ways to hone the efficiency and limit the impacts of its operations.  For example, the company instituted a new method of dry hopping that saves millions of gallons of water a year, and it also has changed its bottle lubricants to similarly conserve water.  For a beer company, conserving water has a tremendous influence on the bottom line and the environment.

In addition, New Belgium has a 200kW solar PV array, 800kW of cogeneration, which produces electricity from the methane captured from its on-site process water treatment, and 200kW of thermal storage—making cold water or ice at night, off peak, to use in the brewing process and in office HVAC during the hottest part of the day.

Are you more likely to drink New Belgium Brewing Company beer after learning about its core values?

Post Links:

Listen to the interview with Vervier: Episode 74 of The Wendel Forum (27:50 mins; mp3)

New Belgium Brewing Company Website: http://www.newbelgium.com/

960 KNEW AM Radio Website: http://www.960KNEW.com

Bill Acevedo’s Online Profile: http://www.wendel.com/wacevedo

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