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William Mitchell Legal Studies Research Paper No. 2010-07


The November, 2009 issue of Community Dividend, included an article entitled “The L3C: A new business model for socially responsible investing.” The article spoke enthusiastically about “[t]he low-profit limited liability company, or L3C, …a newly developed form of business that blends attributes of nonprofit and for-profit organizations in order to promote investment in socially responsible objectives.”

We understand the enthusiasm; proponents of the L3C have predicted dramatic benefits. However, after careful study of the relevant law, we have concluded that the enthusiasm is misplaced. The L3C concept is fundamentally flawed, potentially dangerous, and at best counterproductive.

We also understand that our skepticism may make us seem like a pair of Grinches. We want, therefore, to briefly describe our experience in this realm of law and to outline the legal issues we have considered. We have each been involved in the law and practice of limited liability companies for more than 20 years. One of us (Bill) has a full-time practice that includes substantial amounts of work with low-income housing and community development financing transactions and extensive work with nonprofit organizations. The other of us (Daniel) is a professor of law, who was the Reporter for the Uniform Limited Partnership Act (from the National Conference of Commissioners on Uniform State Laws) and Co-Reporter for the Revised Uniform Limited Liability Company Act. Each of us has taught and written extensively about LLCs. In our assessment of the L3C concept, we have considered the arguments and claims of the L3C’s proponents (including statements made in state legislatures), and also the laws providing for limited liability companies, regulating charitable foundations, and governing the sale of securities.

The promoters of state L3C legislation describe three principal benefits from the L3C form: (1) the L3C complies or “dovetails” with IRS program-related investment (“PRI”) rules, thereby enabling private foundation investment in qualifying business enterprises that operate according to for-profit metrics (but nonetheless for socially beneficial purposes); (2) the L3C permits “tranched investment” through which foundations can make high risk/low return investments to enable profit-seekers to make low risk/high return investments, thereby bringing market-rate capital into socially beneficial enterprises; and (3) the L3C creates a “brand” to enable easy comprehension and use of the PRI tool. Our research shows that none of these benefits exist.