Delaware Public Benefit Corporations: Widening the Fiduciary Aperture to Broaden the Corporate Mission

Abstract

As a past practitioner of corporate law in Delaware for 26 years who remains convinced that the for‐profit corporation remains the best vehicle for raising and allocating private capital, the author nevertheless also believes that the stockholder primacy model that currently animates corporate fiduciary principles is too narrow. In the excerpts from his new book that make up this article, the author describes the “benefit corporation,” which introduces a corporate governance model based on stakeholder principles. This model encompasses a more complete recognition of the complex interdependencies between all aspects of a global society, and of the responsibility of corporations to reflect those interdependencies in their decision‐making. Although initially a skeptic, the author now believes that benefit corporation law offers an important opportunity for companies to align the interests of their investors with those of their stakeholders in a potentially value‐increasing way that is discouraged by traditional corporate law. State legislatures began authorizing benefit corporations in 2010, and they are now available in 32 U.S. jurisdictions. Over 3,000 benefit corporations have been formed. What's more, they are raising capital from traditional funders, including venture capitalists, and at least one benefit corporation has already gone public. As the author says in closing, “the stakeholder governance model facilitated by benefit corporations provides a clear path to a future of shared value creation, and some investors and corporations have started down that path.”