Morrison Foerster’s MoFo Impact blog provides insights on the latest news, developments, and trends in the impact and social entrepreneurship space. Through MoFo Impact, Morrison Foerster attorneys dedicated to impact investing and social enterprise work offer a real-time assessment of the developments in matters that are shaping the industry. Here, we examine the unique challenges faced by social enterprises and impact investors, including issues related to impact investments, disclosure requirements, hybrid corporate forms, fiduciary duties, and beyond.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Susan (“Suz”) co-chairs the ESG + Sustainability and Social Enterprise + Impact Investing practices. Her practice focuses on late-stage financings, secondaries, and other corporate transactions for investors, such as SoftBank and Temasek, and on investments for some of the top investors dedicated to impact, from “impact first” foundations to family offices to private equity funds. She co-led the drafting group for the first of the new corporate forms (the Social Purpose Corporation in California), has created hybrid/tandem corporate structures and crafted debt and equity instruments that blend impact with traditional financial terms, and has used corporate law to develop creative capital market solutions to pressing environmental problems. She also advises the boards of public and private companies on corporate governance and fiduciary duties as applied to sustainability and climate change.She was named a California Lawyer Attorney of the Year (CLAY) in 2012 and 2016 by Daily Journal and the Most Innovative Lawyer in North America in 2015 by the Financial Times.Leading Business AdvisorA powerhouse negotiator, clients note that “you cannot get a better corporate counsel” and that Suz “understands the big picture, could not be more responsive, and understands the business” (The Legal 500 US). She has extensive experience providing corporate and finance advice to companies and investors in connection with growth equity financings and secondaries, with particular experience in late-stage investments that have come to rival traditional strategic acquisitions in size and significance. Her experience includes leading some of the highest-profile late-stage investments over the past few years, including notable transactions for SoftBank Group (in the two largest private tender offers in history) in its $7.7 billion investment in Uber, $4.4 billion investment in WeWork, further $10 billion investment in WeWork, $1 billion investment in SoFi, and $250 million investment in Kabbage. She has also advised Temasek on its $800 million investment in Verily Life Sciences, Intel on its equity investment in Cloudera, and each of Fortress, TPG Rise, Vision Ridge Partners, Generation Investment Management, and Pontifax AgTech in numerous mid- to late-stage investments in clean technology, sustainability, education, food, and agriculture technology.Social Enterprise and Impact InvestingSuz is the go-to legal resource for social enterprises (for-profit and non-profit companies focused on social or environmental purpose), impact investors (investors interested in social or environmental returns), and mainstream companies developing environmental, social, and corporate governance policies. With deep expertise in the impact investing model, institutional investors exploring the space turn to her for creative solutions and her ability to structure both investments and companies to emphasize impact and returns.She represents a wide range of investors who are focused on impact, from foundations like the Gates Foundation, The Nature Conservancy, and The Rockefeller Foundation, to family offices like Armonia, Cornerstone Capital, Emerson Collective, New Island Capital, and Omidyar Network, to private equity funds like Goldman Sachs, TPG Rise, Vision Ridge Partners, and Generation Investment Management, in their equity investments in companies and projects that are focused on generating impact and returns for investors. She has deep experience and expertise ensuring energy, sustainability, and other investments have positive impact through the use of new corporate forms, hybrid or “tandem” structures with non-profits and for-profits, and alternative debt and equity instruments.Notable work in this space includes the establishment of a tandem structure, The Carbon Endowment, to retire coal assets at scale while securing a revenue stream for community reinvestment and job training in coal communities. Suz also advised on the structuring of Common Sense Growth as an extension of the non-profit Common Sense Media (to invest in companies that address issues related to children, education, and technology), the establishment of a fund for TPG Rise to provide debt financing to Echoing Green fellows, the spin-out of PRX from Public Radio International (to generate new revenue flows up to the non-profit), the establishment of a for-profit joint venture with non-profit Medicines360 (to allow the non-profit to distribute its healthcare products to women in the developing world), and the structuring of a for-profit evergreen fund that allows The Nature Conservancy to aggregate return-seeking and donor capital in order to invest in preserving our natural resources. She has also advised numerous clients on converting to a public benefit corporation or social purpose corporation model (which requires balancing traditional fiduciary duties against a social or environmental purpose), including This American Life, Revolution Foods, Rise Labs, and Beneficial State Bancorp.Suz also regularly advises boards of directors of private and public companies, special committees, and CEOs on corporate governance, particularly the intersection of fiduciary duties with sustainability, and focuses on environmental, social, and governance issues.Unmatched Cleantech and Renewable Energy ExperienceIn addition to founding and chairing the firm’s Social Enterprise and Impact Investing Group, Suz serves as Chair of Morrison & Foerster’s Energy Group and has extensive experience representing start-up to late stage private companies in the clean technology or sustainability space. She provides corporate and finance advice in connection with equity and debt financings, mergers, acquisitions, asset purchases and sales, reorganizations, and joint ventures. She has experience working with renewable energy start-up companies and renewable energy developers in the solar, wind, and biofuels industries. Suz has assisted renewable energy start up companies with raising venture capital and has advised renewable energy developers on project acquisitions.Suz’s representative renewable energy, cleantech, sustainable, and social enterprise clients include Anaergia, Change.org, EDF Renewables, E.ON, Etsy, First Look, OneSun, Planet Labs, Rising Sun Energy, RSF Social Finance, SustainBio, Trelys, Inc., Wikipedia, and Xpansiv.Board Activity and Thought LeadershipMs. Mac Cormac was a founding board member of the Sustainability Accounting Standards Board (SASB), is a member of the board of directors of Business for Social Responsibility (BSR), the Ceres President’s Council, and the Earth Genome Project, and is an advising board member of the Committee Encouraging Corporate Philanthropy’s Strategic Investor Initiative.She has joined the faculty (teaching on the intersection of sustainability and fiduciary duties) at both the Stanford Director’s College and the Northwestern Corporate Counsel Institute and is an adjunct professor at UC Berkeley School of Law, teaching a course on Social Enterprise.

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Susan (“Suz”) co-chairs the ESG + Sustainability and Social Enterprise + Impact Investing practices. Her work focuses on advising innovative sustainable companies and investors, with particular expertise on ensuring investments have positive impact through use of new corporate forms, hybrids, alternative debt and equity instruments and disclosure.

Susan (“Suz”) co-chairs the Environmental, Social, and Governance (ESG) and Social Enterprise + Impact Investing practices. Her work focuses on advising innovative sustainable companies and investors, with particular expertise on ensuring investments have positive impact through use of new corporate forms, hybrids, alternative debt and equity instruments and disclosure.

<h5 dir="ltr">As Chair of the firm’s Social Enterprise + Impact Investing and Energy + CleanTech practice groups, I find it uniquely fulfilling to help emerging companies and their investors channel great ideas and good intentions into tangible, positive change.</h5>How I Help: I have extensive experience representing startup to late-stage private companies primarily in the clean technology, renewable energy and sustainability space. I counsel on corporate and finance matters in connection with equity and debt financings, mergers, acquisitions, asset purchases and sales, reorganizations, and joint ventures. I’m frequently called upon for my expertise in new corporate forms, hybrid of “tandem” structures with non-profits and for-profits, and alternative debt and equity instruments. I also regularly advise boards of private and public companies, special committees, and CEOs on corporate governance as it relates to sustainability and CSR.Favorite app or tech product: Strava. I love tracking the miles I run each week.Favorite place for client meetings: A walk in the PresidioLife beyond the law: When I’m not preaching to the world about the power of corporate form, I spend my time outside the office with my three young sons. I currently coach my youngest’s little league team. Go Pirates!

Susan Mac Cormac

Alfredo Silva is a partner in the Transactions Department, co-chair of the firm's Social Enterprise and Impact Investing Group, and a member of the ESG Strategy Committee. Alfredo represents companies and investors in a broad range of corporate and securities law matters, with a focus on businesses in the life sciences, agtech and fintech sectors. Alfredo’s practice includes capital markets transactions, venture capital, growth equity and corporate venture financings, tender offers and other secondary offerings, digital token matters, and mergers and acquisitions. Alfredo also helps clients leverage environmental, social and governance (ESG) factors to evaluate risk and opportunities and to invest responsibly in businesses seeking sustainable growth and impact.In his private company practice, Alfredo has served as company or investor counsel in early- and late-stage financings, minority strategic investments and impact investments in dozens of private companies, including representation of SoftBank and SoftBank Vision Fund in financings with a combined value of over $2 billion, Temasek in its $800 million minority investment in Verily Life Sciences, an Alphabet company, and Visa Ventures in strategic fintech investments around the world.In his public company practice, Alfredo counsels issuers on strategic transactions, such as the stock-for-stock merger of Marrone Bio Innovations, Inc. with Bioceres Crop Solutions Corp, as well as corporate governance and compliance with the U.S. federal securities laws and stock exchange listing standards, including advising on cutting-edge issues with respect to ESG disclosures and materiality assessments.In addition, Alfredo works extensively with nonprofit organizations, providing advice on fiduciary issues, entity formation, structuring and other corporate matters, and assists small businesses pro bono. He incorporated and continues to advise Illuminate, the nonprofit producer of The Bay Lights, a 25,000 LED sculpture on the western span of the San Francisco-Oakland Bay Bridge, in structuring, corporate governance, and project management matters. Alfredo currently chairs the audit committees of the boards of directors of Eat. Learn. Play. Foundation, a charity founded by four-time NBA champion Stephen Curry and The New York Times bestselling author Ayesha Curry to unleash the potential of every child, and Berkeley Repertory Theatre, an international leader in innovative theater whose shows have won eight Tony Awards, nine Obie Awards and a Pulitzer Prize, among many other honors.Alfredo is recognized by The Recorder as a 2013 Lawyer on the Fast Track, in 2014 was the inaugural recipient of the firm’s Kathi Pugh Award for Pro Bono Service, is a 2017 Lawyers Committee for Legal Diversity Fellow, and was the recipient of the American Bar Association’s 2023 National Public Service Award. Alfredo received his B.S. degree, cum laude with distinction, in Engineering Sciences (Chemical) from Yale College in 2004 and received his J.D. degree from Yale Law School in 2008. Alfredo speaks conversational Spanish and Mandarin Chinese, and spent a year at China’s Tsinghua University researching issues in intellectual property protection on a Fulbright Fellowship.

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Alfredo Silva is co-chair of the firms Social Enterprise + Impact Investing practice and member of the firm’s Pro Bono Committee. He represents public and private companies and investors in a broad range of corporate and securities law matters, as well as nonprofit organizations on entity formation, fiduciary issues, and structuring.

Alfredo B. D. Silva represents public and private technology companies and strategic and financial investors in a broad range of capital markets transactions, early- and late-stage financings, and corporate governance matters in a variety of industries, including Life Sciences, Health Tech, FinTech, and SaaS.

Alfredo Silva is co-chair of the Morrison Foerster Social Enterprise + Impact Investing practice and member of the firm’s Pro Bono Committee. He represents public and private companies and investors in a broad range of corporate and securities law matters, as well as nonprofit organizations on entity formation, fiduciary issues, and structuring.

<h5 dir="ltr">My job is to think creatively and balance competing interests to solve complicated problems, and the end result is that the companies I’m working with are able to raise the capital they need to grow, creating and maintaining jobs for others while bringing great products and services to consumers.</h5>How I help: I represent companies throughout their lifecycles, from entity formation to debt and equity financing to exit alternatives, including initial public offerings and mergers and acquisitions. I also counsel investors in venture financing, late stage / growth equity financing, strategic investments, secondary transactions, and impact investments in private companies in a wide variety of industries. Since I have a background in engineering, I get numbers, and often work closely with executives, finance teams, and financial advisors and analysts to model out complex capital structures, financing scenarios, and liquidity events. In doing so, I help clients analyze what’s possible, understand consequences of various transaction structures, and enhance their economics in deals in value from the tens of millions to the billions of dollars.Favorite app or tech product: I spend a lot of time these days checking Coinbase, seeing how the market reacts to developments in the cryptocurrency and blockchain spaces.Favorite place for client meetings: It’s great when you’re close enough with a client to catch up and talk shop at their house!Life beyond the law: Skiing at Lake Tahoe in the winter, weekends in Dolores Park in the summer, and travel to see family and friends in between.

Alfredo B. D. Silva

Benjamin Fox is a partner in the firm’s San Francisco office and a member of the firm’s Social Enterprise and Impact Investing Group. Benjamin’s practice focuses on the representation of clients in corporate and transactional matters, with a focus on investors and companies dedicated to pursuing social or environmental goals alongside financial returns.Benjamin counsels startup to late-stage private companies and venture capital and private equity investors, as well as family offices, private foundations, and public charities in early-stage and late-stage financings, mergers, acquisitions, asset purchases and sales, joint ventures, and hybrid or “tandem” structuring arrangements between nonprofit and for-profit entities. Benjamin has extensive experience working with investors and companies in the climate technology and infrastructure and sustainability space. He regularly advises clients on creative legal structures with respect to aggregating and deploying capital to maximize impact and returns.Benjamin earned his J.D. from the University of California, Berkeley, School of Law (Boalt Hall), with a certificate of specialization in both Environmental Law and Energy and Clean Technology Law. At Boalt, he served as an executive editor of Ecology Law Quarterly, a member of the California Law Review, and a judicial extern for the Honorable Edward M. Chen of the U.S. District Court for the Northern District of California. Benjamin received the Ellis J. Harmon Prize for best legal writing in Environmental Law and Policy and was a NAPABA Law Foundation Scholarship recipient for commitment to serve the Asian Pacific American community.Prior to law school, Benjamin worked for the U.S. Department of Energy in Beijing, China and spent a year at Taiwan’s Tunghai University researching renewable energy and urban development policy on a Fulbright Fellowship. He earned his B.A. with distinction and highest honors from the University of Michigan.

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Benjamin Fox is a partner in the firm’s San Francisco office and a member of the firm’s Social Enterprise and Impact Investing Group. Benjamin’s practice focuses on the representation of clients in corporate and transactional matters, with a focus on investors and companies dedicated to pursuing social or environmental goals alongside financial returns.

Benjamin Fox is an associate in the Morrison Foerster Corporate Department in the San Francisco office. Benjamin is a member of the firm’s Social Enterprise and Impact Investing and Energy and Clean Technology Groups.

<h5 dir="ltr">I feel fortunate to assist companies and investors focused on tackling our most pressing global environmental and social challenges.</h5>How I help: I provide counsel to companies from formation until exit, including in connection with corporate structure and governance, early- and late-stage equity financings, mergers and acquisitions, and joint ventures.  As a member of our Social Enterprise + Impact Investing Group, I frequently advise clients on the legal tools available to promote mission-driven businesses, including attracting non-profit and for-profit capital, and utilizing hybrid non-profit/for-profit structures and new corporate forms.  I also have a particular expertise in the renewable energy sector and work closely with investors, renewable energy developers and cleantech startups on a wide range of corporate matters.Favorite app or tech product: GuitarTuna. It’s pretty good at tuning my guitar.Favorite place for client meetings: At a baseball game. Fenway Park will always be the best, but other stadiums will suffice.Life beyond the law: Enjoying the great outdoors.

Benjamin Fox

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Susan H. Mac Cormac

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Regulators across the globe continue to focus on disclosures and marketing relating to environmental, social, and governance (ESG) issues. Consistent with this trend, on September 20, 2023, the U.S. Securities and Exchange Commission (SEC) adopted amendments to Rule 35d 1 (the “Names Rule”) under the Investment Company Act of 1940, as amended (the “1940 Act”). The amendments expanded the scope of the Names Rule to require any investment company registered under the 1940 Act (a “fund”) with a name that includes terms suggesting that it focuses on investments that have, or investments whose issuers have, particular characteristics, to adopt a policy to invest at least 80 percent of the value of its assets (an “80% policy”) in such investments.According to the SEC, the amendments to the Names Rule are designed to address fund names that are likely to mislead investors about a fund’s investments and risks, including names that have a thematic investment focus (e.g., “growth” or “value”) and, most notably, names that indicate a fund’s investment decisions incorporate one or more ESG factors. As the SEC continues to focus enforcement efforts on ESG-related marketing, funds and their investment advisers should expect SEC scrutiny of any ESG-related terms used in a fund’s name following the compliance date of the Names Rule. Read <a href="https://www.mofo.com/resources/insights/231010-esg-claim-to-fame-addressing-fund-names" target="_self">our client alert</a>.

Susan (Suz) Mac Cormac, San Francisco partner, has extensive experience in corporate law, ESG, social enterprise and impact investing, and venture capital.

Susan H. Mac Cormac | Corporate + ESG Attorney

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Co-chair of Investment Management Group

Kelley Howes is a Partner in the Denver office and Co-Chair of the Investment Management Group.

Kelley A. Howes

Kelley Howes serves as co-chair of Morrison & Foerster’s Investment Management Group. She has experience with a wide range of legal, regulatory, compliance, corporate governance, insurance, and other matters relating primarily to the representation of U.S. registered and unregistered investment companies, offshore funds, registered investment advisers, transfer agents, and broker-dealers.

Kelley Howes

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Associate

Aaron Russ is an associate in the Washington D.C. office of Morrison Foerster and a member of the firm’s Investment Management Group. 

Aaron J. Russ

Aaron Russ

Regulators across the globe continue to focus on disclosures and marketing relating to environmental, social, and governance (ESG) issues. Consistent with this trend, on September 20, 2023, the U.S. Securities and Exchange Commission (SEC) adopted amendments to Rule 35d 1 (the “Names Rule”) under the Investment Company Act of 1940, as amended (the “1940 Act”). 

ESG Claim to Fame: Addressing Fund Names and Safeguarding Investor Expectations Under the SEC's Amended Names Rule

On December 1, 2020, the Nasdaq Stock Market LLC (“Nasdaq”) proposed to adopt listing rules related to board diversity after determining that the national market and the public interest would benefit from a regulatory framework designed to promote “meaningful and multi-dimensional diversification of their boards.” This news comes following the influx of recent state laws and proposals relating to board diversity and on the heels of announcements from both Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis that they have updated their voting policies related to board diversity. The proposed rule change had met with significant stakeholder interest, with Nasdaq reporting that as of January 9, 2021, it had received more than 150 comment letters. Nasdaq’s proposed rules represent the second largest stock exchange in the world, recognizing mounting pressure from shareholders, institutional investors, and advisory services to proactively address board diversity as part of a public company’s disclosures. Board diversity is a trend that cannot be ignored, irrespective of the state in which a company is headquartered, and California’s headline-grabbing board diversity legislation can no longer be seen as an outlier event, but rather a harbinger—indicative of a larger movement that has now resulted in new initiatives by Nasdaq, ISS, and Glass Lewis.<a href="https://www.mofo.com/resources/insights/210127-iss-glass-lewis-nasdaq-board-diversity.html" target="_blank" rel="noopener">Read our client alert</a>.

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Jackie engages in a general corporate and transactional practice, with special emphasis on corporate counseling of public companies, mergers and acquisitions, and the China practice. 

Jackie Liu

Jackie Liu | White Collar Defense + M&A Lawyer

Our corporate governance practice brings together top lawyers from our corporate, regulatory and investigations, risk management, white collar defense and compliance, and executive compensation practices.

ISS, Glass Lewis, and Now Nasdaq – Board Diversity Is Here

On December 1, 2020, the Nasdaq Stock Market LLC (“Nasdaq”) proposed to adopt listing rules related to board diversity after determining that the national marke

ISS, Glass Lewis, and Now Nasdaq – Board Diversity Is Here

Over the last decade, impact investing has become a significant focus of many nonprofits, just as it has captured the attention of investors who care about social benefit or environmental results as much as financial results. The IRS recently issued a ruling that is a warning to public charities engaged in developing impact-investing opportunities and may discourage foundations seeking to make program-related investments (PRIs) by investing in certain impact funds. At the very least, public charities should reassess the investment terms of funds that they manage to ensure that such investments are focused on the charitable purpose or impact. Any investments that are also focused on investor returns should be channeled through a for-profit SPV or a fund that is not managed by a public charity.Read our <a href="https://www.mofo.com/resources/insights/201102-irs-rules-impact-investment-fund.html">client alert</a>.

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Chair of Global Private Funds Group

Stephanie, Chair of the firm’s global Private Funds Group, has over 15 years of experience advising on private fund formation and operations, as well as on regulatory compliance matters.

Stephanie C. Thomas

Stephanie, Chair of the firm’s global Private Funds Group, has over 15 years of experience advising on private fund formation and operations, as well as on regulatory compliance matters.

Stephanie Thomas

Firefly Children's Network Merger

Open eHealth Foundation Counseling

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Of Counsel

Linda Arnsbarger advises nonprofits and businesses on a wide range of issues relating to the regulation of exempt organizations and the unique issues raised in doing business with them.
Ms. Arnsbarger

Linda A. Arnsbarger

Linda Arnsbarger

IRS Rules That Impact Investment Fund Is Not Charitable Activity

Over the last decade, impact investing has become a significant focus of many nonprofits, just as it has captured the attention of investors who care about soci

IRS Rules That Impact Investment Fund Is Not Charitable Activity

The year 2020 was already predicted to be a year of heightened focus on environmental, social, and governance (ESG) topics for public companies—and that was before the COVID-19 pandemic and widespread protests galvanized by the Black Lives Matter movement increased the call for corporate discussion and action on topics ranging from operational resilience and risk management, to customer and employee safety and welfare, to social responsibility, to diversity and inclusion.The seismic shifts of 2020 have thrown into sharp relief the need for companies to communicate with investors and stakeholders not only the ESG risks faced by a company, but also its strategies to address those risks and its performance against those strategies. Yet, while reporting on ESG metrics can be an important tool for gauging the long-term health and stability of a company and its preparedness to weather challenges, this space is difficult to navigate, with an overabundance of non-uniform reporting guidelines, systems, and standards. Further, this lack of uniformity and the voluntary nature of disclosures create challenges for investors seeking comparability of information across companies and industries.Read our <a rel="noopener noreferrer" target="_blank" href="https://www.mofo.com/resources/insights/200811-sasb-gri-esg-reporting.html">client alert.</a>

Marrone Bio Innovations' Acquisition by Bioceres Crop Solutions Corp

Temasek’s Joint Venture with Bayer

SoftBank Group and SoftBank Vision Fund’s Investment Transactions

Temasek's Investment in Verily Life Sciences and Agtech Space

Intel's Investment in Cloudera

Visa's Strategic Investments in the Fintech Space

Marrone Bio Innovations’ Public Offerings

Ekso Bionics Holdings, Inc.’s Stock and Warrant Financings

Temasek's Investment in Coherus, Inc.

Catalyst Biosciences, Inc. IPO/Reverse Merger and Public Offerings

RH's Public Offerings

InvenSense's Public Offerings

At-the-Market Programs

Marrone Bio Innovation’s Acquisition of Pro Farm and Jet-Ag

SoftBank's Acquisition of Sprint

Novellus' Merger with Lam Research

Shutterfly's Acquisition of Tiny Prints

Alfredo Silva is a partner in the Transactions Department, co-chair of the firm's Social Enterprise and Impact Investing Group, and a member of the ESG Strategy Committee.

SASB and GRI Team Up to Tackle the Opaque Landscape of ESG Reporting

The year 2020 was already predicted to be a year of heightened focus on environmental, social, and governance (ESG) topics for public companies—and that was bef

SASB and GRI Team Up to Tackle the Opaque Landscape of ESG Reporting

Considering environmental, social, and governance (ESG) factors when making an investment is no longer solely the province of “impact-first” investors—those who prioritize social or environmental impact above return on capital—but has become, to one degree or another, the norm among private equity (PE) funds. As the calls from both investors and consumers for companies to integrate ESG considerations into their operations and rethink the way they have done business grow louder, funds are increasingly looking to respond to these concerns and integrate consideration of ESG factors into their investment and portfolio management strategies. This means that even “return-first” funds — those whose primary focus remains return on capital — are seeing advantages to considering ESG factors and synergies in connection with their own investment strategies.Read the full <a href="https://www.mofo.com/resources/insights/200806-esg-mainstream.html" target="_blank" rel="noopener noreferrer">client alert.</a>

ESG Goes Mainstream: How “Return First” PE Funds Can Factor ESG Considerations into Their Investment and Portfolio Management Strategies

Considering environmental, social, and governance (ESG) factors when making an investment is no longer solely the province of “impact-first” investors—those who

ESG Goes Mainstream: How “Return First” PE Funds Can Factor ESG Considerations into Their Investment and Portfolio Management Strategies

In August 2019, a group of nearly 200 chief executives issued a statement, arguing that the role of corporations should be redefined from solely maximizing shareholder value to also “invest[ing] in their employees, protect[ing] the environment and deal[ing] fairly and ethically with their suppliers.” Making that shift is hard when boards of directors are subject to the standard fiduciary duties applicable to Delaware corporations, but being a standard Delaware corporation is hardly the only option available to a profitable business, even a publicly traded company.Public benefit corporations (PBCs) are a special flavor of Delaware corporation. They are statutorily required to pursue the creation of one or more public benefits as set forth in their certificates of incorporation, including, potentially, considering the interests of stakeholders such as employees, customers, and members of the community. Accordingly, the board of directors of a PBC has a fiduciary duty to weigh additional considerations when taking corporate action, beyond those of a board of directors of a traditional Delaware corporation. In times of plenty, this additional fiduciary obligation rarely creates a tension for PBC directors, as companies and shareholders that have opted into the PBC standards often have business models where social or environmental impact and financial returns inherently tend to be aligned.However, in periods of economic stress—which we face today as a result of the coronavirus pandemic—directors may be required to make difficult decisions if a PBC faces a tradeoff between pursuing its social or environmental mission and protecting shareholder value. This alert outlines some of the key issues that PBC directors should consider when balancing these interests.<a href="https://www.mofo.com/resources/insights/200623-covid-impact-pbc-fiduciary-duties.html">Read our client alert</a>.

COVID’s Impact on PBC Fiduciary Duties: Understanding Director Obligations in an Economic Downturn

In August 2019, a group of nearly 200 chief executives issued a statement, arguing that the role of corporations should be redefined from solely maximizing shar

COVID’s Impact on PBC Fiduciary Duties: Understanding Director Obligations in an Economic Downturn

In this episode of Impactful Conversations, Michael Santos, a social-enterprise- and impact-investing associate in Morrison & Foerster’s San Francisco office, interviews Rodney Foxworth, the CEO of <a href="https://www.commonfuture.co/" target="_blank" rel="noopener noreferrer">Common Future</a>. Based in Oakland, California, Common Future tackles wealth inequality nation-wide by focusing on the needs of communities that have been the most negatively impacted by injustice, extraction, and exploitation.To address the wealth gap, Rodney and Common Future are committed to confronting the structural oppression that leaves many communities out by shifting capital towards community investment.Common Future envisions an economy owned by people of all races and ethnicities. Rodney believes in having communities assume a position “as not just a stakeholder but as a literal shareholder that is able to voice an opinion, has a vote, and is able to influence and determine what types of businesses and enterprises and economic development projects are invested in,” says Rodney. “That is power.”<a href="https://soundcloud.com/user-496742723/impactful-conversations-commonfuture" target="_blank" rel="noopener noreferrer">Listen to the full podcast</a>.

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Michael Santos is an associate in the San Francisco office of Morrison Foerster and a member of the firm’s Transactions Department. Michael is a member of the firm’s Social Enterprise and Impact Investing Group.