As more and more politicians of all stripes move towards support of federal legalization of cannabis, two senior Republicans have joined the advisory board of a major cannabis company. According to The Hill, the former Speaker of the House John Boehner and former Massachusetts Governor William Weld became advisers to a New York-based grower and distributor of cannabis.
The article reminds us that Boehner was formerly opposed to legalization, though Weld, a moderate, has been a long-time supporter. They issued a joint statement saying, “we both believe the time has come for serious consideration of a shift in federal marijuana policy.” They focused particularly on the view of a large majority of Americans that cannabis should be legalized on a federal level.
As we know, President Trump said during the campaign that he is “100%” in favor of medical cannabis and that adult use should be decided by the states. Of course he is famous for changing his mind and frankly does not appear focused on the issue. And Attorney General Jeff Sessions remains strongly opposed to legalization and rescinded a series of advisory memos designed to protect those complying with state cannabis laws. But we have not yet seen any increase in federal enforcement efforts, though a number of states recently have been cracking down on unlicensed operators.
While it seems unlikely for the time being that the Trump Administration would unilaterally deschedule cannabis and legalize it (which they could), there is growing belief among DC-watchers that Congress might yet consider some action. For example, Republican Senate Majority Leader Mitch McConnell said he intends to introduce legislation to legalize hemp. The legislators are paying attention to the massive taxes coming into legal states, reduction in opioid use and deaths in those states, and many new jobs being created.
Although, in making the above comments, Sessions was clear that marijuana was still illegal in the U.S., he appears to have drawn a box around those types of marijuana-related criminal activities on which federal prosecutors are focused. The above comments are not inconsistent with the Sessions memo of January 4, 2018, and may help clarify what prosecutorial discretion looks like under that memo. Based on the above comments, it would seem that activities conducted pursuant to state marijuana programs are not the types of activities on which federal prosecutors are focused.
An Israeli peer-reviewed study, just published in the European Journal of Internal Medicine, reports that pain and nausea of cancer patients can be lessened through the use of medical cannabis. The study included thousands of cancer patients using medical cannabis between 2015 and 2017. Over 95% of the patients reported an improvement in their condition after using cannabis. The conclusion of the study: “Cannabis as a palliative treatment for cancer patients seems to be well tolerated, effective and safe option to help patients cope with the malignancy related symptoms.”
As we know, the US Government continues to defend the status of cannabis as a Schedule I drug, deemed as dangerous as heroin and LSD. Their previous claims suggested that no research shows that cannabis is safe or has medical benefit. At the same time, the Government severely limits the amount of research on cannabis that can be conducted in the US. According to the DEA website, Schedule I drugs are “drugs with no currently accepted medical use and a high potential for abuse.” This study, with others also underway, appear to now counter the belief that cannabis has no accepted medical use.
With the recent dismissal of a constitutional challenge to the Controlled Substances Act as it relates to cannabis (which may be appealed), more eyes are turning to Congress and the various bills pending to deschedule cannabis at the federal level.
As the values of transactions in the cannabis industry grow, commercial litigation is certain to follow. One reason for this is that lawyers may be more inclined to represent clients on a contingency fee basis. Where the value of a cannabis transaction is small, the expense of litigation may not be worthwhile for an individual or business feeling cheated, and any settlement or judgment would likely not cover the costs of an attorneys’ contingency fee. However, where the value of a cannabis transaction is sufficiently high, say the upper six-figures or more, a lawyer may be more inclined to take the case for a contingency fee because the lawyer’s percentage of any recovery is likely to be greater than the costs the lawyer will incur in litigating the matter. A contingency fee arrangement may also be utilized to the advantage of a party that believes threatened or actual litigation might shift the leverage in negotiations and result in more attractive commercial terms.
A recently filed action captioned Silver v. High Street Capital et al., 2:18-cv-00020 (E.D. PA. 1/3/18), appears to result from the type of high value transaction that might warrant a contingency fee in a commercial litigation. The plaintiff, industry consultant Harris Silver alleges that, in connection with their bid to obtain a license to grow and process cannabis pursuant to Pennsylvania’s Medical Marijuana Program, defendant High Street Capital and other defendants associated with High Street promised Silver a lucrative compensation package, including (a) $180,000 to prepare the license application; (b) a $150,000 cash bonus upon the granting of a license and a 4% non-dilutable equity stake in any licensee; and (c) a salaried position with the licensee. Silver claims that notwithstanding his work on the High Street application, for which a permit was granted, the High Street defendants never paid Silver the valuable consideration that was contingent on the permit being granted. Thus, based on a host of factual allegations detailing various communications he had with the High Street defendants, and other allegations detailing his efforts on their behalf, Harris asserted claims against the High Street defendants for breach of contract, common law fraud, promissory estoppel, unjust enrichment, securities fraud and civil conspiracy. Continue reading Contingency Fees and Commercial Litigation Hit the Cannabis Space→
With the election of Phil Murphy as New Jersey Governor in 2017, the possibility of New Jersey becoming one of the next states to pass recreational marijuana legislation became very real, as this was among the issues key to Murphy’s campaign.
On Tuesday, January 9, 2018, less than one week after AG Sessions issued guidance to all US Attorneys rescinding Obama-era policies deprioritizing the federal prosecution of state-lawful cannabis-related activities, that possibility became more of a likelihood, as New Jersey Sen. Nicholas Scutari introduced Senate Bill 830, which would allow for the cultivation, sale and use of marijuana for recreational purposes in New Jersey by those 21 and older.
The legislation proposes adults would be permitted to possess up to 1 ounce of marijuana, 16 ounces of marijuana-infused products in solids, 72 ounces in liquid form, 7 grams of concentrate and up to six immature plants, and establishes a sales tax on marijuana that would rise incrementally from 7 percent to 25 percent over five years.
With New Jersey’s large population, and proximity to Manhattan and Philadelphia, the recreational cannabis market in New Jersey will likely dwarf most other states that have legalized adult-use.
Several weeks ago, scientists at King’s College London announced exciting preliminary study results involving mental illness and CBD derived from cannabis. The trial involved 88 patients diagnosed as psychotic, meaning they experience hallucinations, paranoia and anxiety. The study found that patients administered CBD saw lower levels of psychotic symptoms than those given just a placebo.
CBD, or cannabidiol, is separate from the psychoactive aspect of cannabis known as THC. Thus, the patients were provided a fully non-psychoactive form of cannabis, the same as is used to treat ailments such as chronic pain or seizures, even in children.
The study results were published in the American Journal of Psychiatry. As reported in the VOA News, one of the trial leaders, Philip McGuire, said, “The study indicated that CBD may be effective in psychosis: patients treated with CBD showed a significant reduction in symptoms, and their treating psychiatrists rated them as having improved overall.” McGuire also noted very few side effects to use of CBD.
A slow but steady drumbeat of study results is beginning to prove what many in the medical community have believed for a number of years: while we still don’t quite know why, CBD and cannabis may indeed provide safe and effective treatment or cure for many illnesses and diseases facing mankind today.
Articles appearing this week in the LA Times and the Philadelphia Inquirer, among other recent articles, highlight the horrors of the opioid crisis and the need for research into cannabis as a possible solution. While the federal government warns about the spiraling toll of the opioid epidemic, it refuses to grant the applications of world-renowned scientists at major universities and research centers seeking to explore the ways in which the well-documented therapeutic properties of cannabis can alleviate the pain and suffering – physical, emotional and financial – being caused by opioid abuse. There is no shortage of deep pockets willing to fund the research, and US-based scientists are ready, willing and able to get to work, yet the federal government refuses to depart from its antiquated “reefer madness” established in the early 20th Century. 2018 should be the year the federal government stops blocking cannabis research so that scientists can determine if and how cannabis can stem the opioid crisis. Fingers crossed!
New York Gov. Andrew Cuomo yesterday signed a bill into law permitting those suffering from post-traumatic stress disorder (PTSD) to access legal medical cannabis. It was particularly symbolic that the bill was signed on Veterans’ Day, since many battle-scarred veterans suffer from PTSD. Most states with medical cannabis permit its use to treat PTSD. New York remains one of the most restrictive states in limiting what ailments trigger the right to obtain this treatment.
The PTSD bill was one of five that Cuomo signed yesterday aimed to help veterans. He did not specifically comment on the PTSD bill in his press release. But the release did note that it appears as many as 19,000 New Yorkers with PTSD could benefit from this treatment. The release further acknowledged that PTSD victims include “military veterans, police officers and fire fighters, as well as survivors of domestic violence, rape, violent crime, and accidents.” Here in NY, I know folks who would want to add “survivors of terrorist attacks.”
The irony is that those same veterans cannot access medical cannabis through the free VA hospital system as long as cannabis use remains a federal crime. Therefore, these too often financially struggling vets have to go out of pocket to access this medicine. However, many simply may not be able to afford it. In 2010 the VA did make clear that vets accessing legal medical cannabis in their state outside the VA system are not at risk of losing their VA benefits. But the VA itself still cannot offer cannabis to vets.
Veterans groups like the American Legion have been lobbying for the VA directly to supply cannabis. They argue that the VA provides highly addictive opioids, whereas medical cannabis can help vets avoid these dangerous drugs. Let us hope that it is not too long before those who served our country can access all the help they need from our federal government.
Two big announcements this week on the finance side of the emerging global cannabis industry. First, yesterday’s word that the giant alcohol company, Constellation Brands, the maker of Corona Beer among others, is acquiring a stake in Canada’s Canopy Growth Corporation. Canopy is possibly the biggest medical cannabis producer in Canada and is a public company. The terms? $245 million for a 9.9% ownership interest. Established industries like tobacco, alcohol and pharma have stayed away from investing in US cannabis companies since it is still a federal crime to produce or sell cannabis. But the Constellation investment is into a totally legal enterprise in Canada.
Separately, this week we also learned that a large US operator of cultivation and dispensary facilities in the US announced it is seeking to raise a $250 million investment fund for buying into cannabis companies in several US states. While tremendous capital has flown into the cannabis industry, it has come principally from high net worth individuals and family offices. Established venture and private equity funds generally are prohibited from investing in illegal enterprises. Several funds have been established for cannabis investment, but none known to be as big as this one is planned to be.
One can only imagine the deluge of capital that will descend on US cannabis businesses if/when the US federal criminal restrictions are eliminated. We have already seen it happening in Canada, mostly driven by a group of very active investment banking firms. Once the shackles of the federal restrictions are removed, it appears the growth trajectory of this toddler US industry will expand exponentially.
As I note in the linked article, insurers only stand to gain, and in big ways, from underwriting cannabis businesses. Growers, processors, dispensaries and ancillary businesses need a full range of coverage, and are ready to obtain it! Just as in any industry, insurance is a critical component to success in the cannabis space and will hasten the growth of markets already expanding at warp-speed. There are ways for insurers to cover the medical and recreational marijuana markets notwithstanding the regulatory uncertainty. It may require some creativity, but given the financial upsides, it should be well-worth the time and effort it takes to find the optimal pathway.