Cannabis banking can offer many valuable financial benefits for credit unions choosing to serve the industry. However, implementing a well-managed, compliant cannabis banking program requires considerable planning and an understanding of all potential areas of risk. This includes ensuring that the credit union’s directors and officers are covered by their institution’s Directors and Officers (D&O) liability insurance policy. Shield sat down with corporate and finance-focused attorney Scott Moskol, a partner of Boston-based law firm Burns & Levinson and co-chair of the firm’s Financial Restructuring & Distressed Transactions and Cannabis Business & Law Advisory practices. Named an inaugural “Cannabis Trailblazer” by The National Law Journal in 2018, Scott has been providing corporate counsel to clients in the cannabis industry since 2013 and offers his insights on this complex issue.
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This past week, Senate Majority Leader Chuck Schumer (D-NY) unveiled the first draft of his long-awaited bill to legalize marijuana at the federal level. Along with Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ), Sen. Schumer presented the proposal at a July 14 press conference. Titled the Cannabis Administration and Opportunity Act, the legislation – which was partly modeled after the social equity-focused Marijuana Opportunity Reinvestment and Expungement (MORE) Act – largely aligns with advocate and stakeholder expectations.
See “MORE Act: Federal Cannabis Legalization Reintroduced in House” for discussion of the House legislation and its social equity provisions.
“Communities that have been most harmed by cannabis prohibition are benefitting the least from the legal marijuana marketplace,” reads the findings section of the bill, further noting that a “legacy of racial and ethnic injustices, compounded by the disproportionate collateral consequences of 80 years of cannabis prohibition enforcement, now limits participation in the industry.” If enacted, the senators’ bill would decriminalize and deschedule cannabis, expunge prior convictions, and allow the states to create their own marijuana policies.
The proposal is multifaceted and comprehensively addresses several critical issues:
- Federalism: States may decide whether or how
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When New York became the 15th state to legalize recreational cannabis on March 31, 2021, it opened one of the largest cannabis markets globally. Not surprisingly, the state’s capital raises and M&A activity in the cannabis space have meteorically accelerated following the legislature’s legalization of adult-use cannabis.
Gov. Andrew Cuomo signed into law the New York State Marijuana Regulation and Taxation Act (MRTA) to legalize recreational use of marijuana for adults over the age of 21, although the recreational market in New York will take longer to bloom. The state’s timeline for opening recreational cannabis dispensaries was originally expected to take at least 18 months, but this projection may be further delayed due to an apparent legislative impasse over who should lead the new Office of Cannabis Management and the Cannabis Control Board, which were created under the MRTA to regulate New York’s legal cannabis industry.
Nonetheless, the enthusiasm of the capital markets cannot be contained. A recent graph from Viridian Capital Advisors tracks year-to-date capital raises and M&A deals with New York-based companies as either acquirers or targets:
As noted by Viridian, both capital raises and M&A transactions have skyrocketed to record levels since New York legalized … Keep reading
Compared to businesses in other industries, there is no debate that legally operating cannabis-related businesses (referred to herein as “cannabis companies”) are disadvantaged in their efforts to raise capital and thus grow their business. This disparity is especially stark as it relates to cannabis companies seeking to raise debt capital through loan arrangements with financial institutions and private lenders. As a result of the continued federal illegality of marijuana, would-be lenders are hesitant (or, more commonly, outright unwilling) to deploy their capital to cannabis companies for fear of being penalized by federal banking regulators. The primary justifications for assessing penalties on lenders who do transact with cannabis companies are (1) that the proceeds of a loan to a cannabis company inevitably fund “unlawful activity” (i.e., the cultivation, processing and sale of cannabis products) and/or (2) the proceeds deposited by cannabis companies in saving institutions are deemed generated from unlawful activity and are therefore subject to anti-money laundering (AML) regulations.
How Limited Financial Services Affect the Cannabis Industry
The unwillingness of many banks and other financial institutions to provide financial services to cannabis companies hamstrings the companies in a number of ways; most prominently, it (1) limits the financial services … Keep reading
Just before the start of Memorial Day weekend, U.S. House Judiciary Chair Jerry Nadler reintroduced the MORE Act – formally known as the Marijuana Opportunity Reinvestment and Expungement Act – which would federally legalize cannabis by removing it from the federal Controlled Substances Act. This would allow people with cannabis convictions to have their records expunged and would create a federal tax on marijuana with the revenue allocated to community reinvestment programs. This is not the first time the MORE Act has made its way through Congress. During the previous Congress, the House passed a similar version of the bill by a vote of 228-164, but it failed to advance in the Republican-controlled Senate.
If approved by both chambers and signed by President Biden – which is possible, but by no means a certainty – the MORE Act would provide enormous economic opportunities for plant-touching and ancillary businesses across the country. Further, federal legalization would disrupt the current patchwork of state-legal marijuana markets. To date, 18 states and Washington, D.C. have legalized adult-use cannabis, although states have yet to officially launch their programs. The opportunity for interstate trade and the formation of regional (and national) cannabis markets would spark … Keep reading
Special purpose acquisition companies (SPACs), or “blank check” companies, have been one of the most popular investments and investment vehicles over the past year – an alarming 308 SPACs have gone public since the start of 2021. In particular, SPACs have played a major role in supporting the marijuana funding boom since the cannabis industry faced a drought in late 2019. In just the first three months of this year, three SPAC initial public offerings have totaled over $570 million.
However, signals glaring from the U.S. Securities Exchange Commission (SEC) have attempted to slow down the momentum of the SPAC market. A few of these public statements so far this year include:
- A public statement in March 2021, by Paul Munter, Chief Accountant of the SEC, highlighting the complexities encompassed by the trustworthiness of the SPAC financial reporting, governance and quality of audits.
- A public statement on April 8, 2021, by John Coates, Director of the SEC’s Division of Corporation Finance, indicating that SPAC’s compliance with disclosure and filing requirements are in the close purview of the staff, and underscores legal liability corresponding to SPAC disclosures once a target is acquired.
- A public statement made on April 12, 2021,
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Earlier this week, the Massachusetts Legislature’s Joint Committee on Cannabis Policy held a virtual hearing on nine proposed bills focused on reforming the approval process of host community agreements (“HCAs”) between municipalities and marijuana businesses licensed to operate in those cities and towns. Massachusetts lawmakers listened to testimony from advocates, former regulators, attorneys, cannabis business leaders, entrepreneurs and others who argued that the existing local approval process gives municipalities undue leverage in HCA negotiations with marijuana establishments.
As a prerequisite to obtaining state cannabis licensure in Massachusetts, marijuana establishments are required to have an HCA in place with the appropriate municipality. HCAs typically include significant fees imposed by cities and towns, which are ostensibly required to offset the impact by the operation of the cannabis business on the surrounding community. Massachusetts cannabis regulations require the community impact fees to be “reasonably related to the costs imposed upon the municipality by the operation of the marijuana establishment.”
Many of the proposed bills in front of the Joint Committee emphasized, in particular, the community impact fees charged by cities and towns in negotiating HCAs with marijuana establishments. A number of the proposed bills centered around further clarifications to ensure that the … Keep reading
Legalization efforts (and victories) have continued to spread across the country in 2021. Over the last few months, we have seen New Jersey and, subsequently, New York legalize adult-use cannabis – programs that are expected to produce more than $4 billion in annual revenue within five years. Both the Virginia and New Mexico legislatures also legalized adult-use cannabis earlier this year – programs expected to generate about $2 billion in annual revenue within five years. Now, industry experts are watching other east coast states like Connecticut, Delaware and Rhode Island for the next wave of pro-cannabis legislation.
Legislators around the country are feeling the economic pressure of the market as well as pressure from their respective voters. More than two-thirds of Americans are in support of adult-use legalization, and 40% of Americans now live in states where marijuana is recreationally legal. Just this week, the Louisiana House of Representatives approved a bill to expand the state’s current medical marijuana program by allowing patients to purchase whole-flower cannabis. The legislature also advanced another proposal to establish licensing fees for adult-use cannabis if the state decides to legalize it under separate legislation.
Several other states could legalize medical or adult-use cannabis … Keep reading
Federal securities regulators recently obtained judgments in two enforcement actions brought in federal court in California and Illinois involving cannabis-related businesses raising capital. At a high level, the recent trend we have observed in these recent securities enforcement actions is the general emphasis, as we would expect, on (i) accuracy and completeness of material disclosures to investors, (ii) investor solicitation activities, including use of unregistered broker-dealers by issuers, and (iii) properly conducting compliant securities offerings.
1. SEC v. Geoffrey J. Thompson, No. 1:20-cv-05205 (N.D. Ill. Jan. 20, 2021)
Geoffrey Thompson, a repeat securities law violator, and his company Covalent Collective, Inc., a supposed cannabis company, allegedly conducted numerous offerings of unregistered securities from 2014 to 2019, ultimately raising more than $19 million from approximately 500 investors. The Securities and Exchange Commission (SEC) alleged that Thompson diverted over $2.7 million of funds from investors while serving as CEO of Covalent Collective, a Canadian corporation operating out of Longmont, Colorado.
Among other allegations, the SEC alleged that investors were lured in by Covalent’s use of unregistered broker-dealers; an investor relations firm; a call center maintained by Fortress Legacy LLC, another of Thompson’s companies; and other fraudulent investor-facing solicitations, including audio updates … Keep reading
On March 24, 2021, Defendants Hamid (Ray) Akhavan and Ruben Weigand were found guilty of defrauding banks as part of a scheme they had set up to help cannabis company Eaze accept credit card payments for marijuana purchases. During the trial, former Eaze CEO James Patterson testified that he and other Eaze employees, Eaze board members, and even the dispensaries they served, knew that they were disguising the payments to appear as if they originated from non-cannabis businesses because banks and the major credit card networks did not allow credit cards to be used for marijuana. The Defendants argued that although banks may claim that they do not want nor allow marijuana transactions, they, in fact, know they are facilitating marijuana-related payments and profit from doing so.
Although a prosecution witness from Bank of America testified that the bank’s policies strictly prohibit doing business with cannabis-related companies, he also admitted that Bank of America profits from marijuana credit card purchases when customers maintain balances on their cards. Bank of America stated that it monitors for cannabis-related transactions by screening merchant names and if an investigation reveals that a merchant is a cannabis-related business, it reports the merchant to Visa … Keep reading