Tag Archives: state regulations

By David C. Kotler, Esq.

From time to time, lawyers that service the cannabis industry find themselves representing a client with a litigation matter. By anecdotal evidence, it appears that there is an up-tick in cannabis related litigation over the past year and a half, mostly in circumstances where respective promises made have not been lived up to or those who have invested money are seeking its return. Perhaps a partnership formed within the last few years is simply becoming unraveled.

In the world of litigation, we see defenses, or what are known as affirmative defenses, may be filed in response to a particular lawsuit or claim. One such affirmative defense often utilized in litigation is that a particular contract or agreement may be void based on illegality or void as against public policy.

In fact, this particular grounds for dismissal was at issue in a case in Maricopa County, Arizona wherein a judge in April of 2011 dismissed a lawsuit seeking enforcement of a loan agreement where two Arizona business people loaned $250,000.00 each to a Colorado-based medical marijuana dispensary. The agreement in that case specifically stated that the loan was for “a retail medical marijuana sales and growth center.” Colorado had the foresight in 2013 to legislate against this type of defense when their general assembly passed a law indicating “a contract is not void or voidable as against public policy if it pertains to lawful activities authorized by” Colorado’s constitutional and statutory cannabis law.

The issue becomes germane in emerging states wherein the legislatures and courts have not been dealing with cannabis related matters for any length of time. This is particularly true and ripe for problems in states such as Illinois and Massachusetts that have recently moved forward with cannabis programs and experienced an influx of out of state consultants and companies looking to partner with and work with local residents for licensure purposes. In Florida alone, there have been at least three lawsuits in the past year dealing with cannabis related civil disputes.

To my knowledge, none of those disputes were defended upon, nor did the court address, the legality of the underlying subject matter. However, the question arises whether the lawyer’s obligation to their client necessitates raising this as a defense, for instance, to an action for non-payment of a promissory note for a loan to fund cannabis related business. If the lawyer practices and seeks clients in the industry and hopes to move the industry forward in a positive manner, is it incumbent upon the lawyer to assist the client by making the best legal argument or protect the industry and greater good? As an aside, the answer is to zealously represent the client. Potentially, an adverse ruling in a particular jurisdiction could ultimately affect enforceability of cannabis related agreements in that jurisdiction. It is possible that having a court ruling, even if it is a trial level court within the jurisdiction, at least provides some precedent and a basis for the industry moving forward in that particular jurisdiction. If the ruling is unfavorable like the Arizona precedent mentioned earlier, perhaps planning for jurisdiction and venue to be in more favorable environs is key to document drafting on the front end. For investors, knowing the enforceability of their agreements in a particular jurisdiction could mean the difference between investing in a venture in a particular state or not.

Ultimately, I believe that as advocates, we must do whatever is in our power to protect the client even if it means testing the legal bounds by making an argument that at first blush may hurt the industry. However, having courts develop precedent by which the industry can govern itself in business dealings is important and takes away uncertainty, which in turn allows for good decision-making on the front end. Hopefully, in the near future this will be moot as the federal government moves forward to take actions that provide more certainty and uniformity in dealings within the cannabis space.

February 16, 2016

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What is Next for the East Coast?

By Tyler Dautrich

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I am excited to look at the amount of success the cannabis industry saw in 2015 and know that 2016 and the next five to eight years will see even more growth. With the upcoming presidential election and ten states that have either a medical or adult use legalization initiative on their ballot, the industry could rapidly accelerate.

Five of the states listed are located on the East Coast. The industry has, almost solely, existed in the West and it is relieving to see the East finally catch on. We saw the East grow more of a presence in 2015 than any other year. New Jersey is beginning to settle into it’s market, Delaware is getting off the ground slowly, Maryland began accepting license applications and New York, Connecticut, Massachusetts and Rhode Island have initiated medical programs. Now, there are eight potential states in the Northeast that may vote on cannabis in 2016.

I predict that we will see the Northeast become very research focused. There are five ranked medical institutions in the North East Region alone.

Philadelphia in particular has an incredible opportunity to become a research hub in the industry. In Philadelphia, there are three medical schools ranked top 100 in the country, and one that is ranked in the top five. When colleges and universities with clout like this step out and back medical cannabis research, more are soon to follow suit.

Last year I spoke with Dr. Marcel Bonn-Miller, researcher and faculty member at the University of Pennsylvania, Perelman School of Medicine. Dr. Bonn-Miller previously received two grants from Colorado to study the effects cannabis has on patients who suffer from PTSD.

While speaking with Dr. Bonn-Miller, we discussed how the University of Pennsylvania is involved with these studies. “Penn has always supported my work,“ he says. “They helped me all throughout the application process, making sure that I had everything I needed to receive the grants from Colorado.” Dr. Bonn-Miller also shared that he feels there are many opportunities for the other universities in Philadelphia to do the same.

When the industry loses the stigma people associate with cannabis, it will invite more professionals into the market, as well as top research programs. Currently not many top ranked organizations attempt to conduct research because of the difficulty to receive approval from the government.

“We’re only at the very beginning, essentially like being at the very beginning of Sir Alexander Fleming discovering penicillin as mold in a petri dish,” said Leslie Bocksor in an interview with CNBC. “That’s how it started, and now how broad are antibiotics as a category of medicine? In the same sense we’re just looking at the very beginning of cannabis.”

This industry is still relatively young. There is a tremendous amount that we have yet to learn until more research is done. When the barriers to research are removed, I believe we will see money put into research programs, helping to improve standards for quality and safety.