Los Angeles Lawyer July/August 2018
By Richard P. Ormond
BANKING, LENDING, AND INSOLVENCY RESTRICTIONS RELEGATE THE LEGITIMATE CANNABIS INDUSTRY IN CALIFORNIA TO AN ALL-CASH BUSINESS, VULNERABLE TO CRIME
ON OCTOBER 2, 2012, kidnappers robbed and abducted a marijuana dispensary owner from his Newport Beach home. They then drove him to the Mojave Desert where they tortured him and demanded that he reveal where he had buried his medical marijuana proceeds (rumored to be in the millions of dollars). After concluding that the dispensary owner was not going to reveal his “secret stash” buried in the desert, the kidnappers caused bodily harm and drove away. Since the dispensary owner had been lawfully licensed and was operating in compliance with the laws of the State of California, why did his dispensary not keep its monies in a bank like other businesses generally do?
This grievous risk to life and limb is not exclusive to this unfortunate man. His episode is just one of many frightening and shocking events that are occurring throughout the emerging legitimate cannabis landscape. Marijuana-related businesses (MRBs), even after being legally established under state law and operating under strict regulations and oversight, nonetheless cannot open a simple deposit account at a bank owing to inconsistent, conflicting federal regulations.
Under the current federal prohibition of marijuana many banks, fearing potential repercussions, simply refuse to do business with marijuana growers, extractors, distributors, and sellers— even ones that operate legally in their own respective states. As a result, MRBs are forced to operate on a cash-only basis, making them prime targets for robberies, kidnappings, and extortion.
The inability of an MRB to deposit monies at a bank thus may pose serious risks to its principals, increase risk to the surrounding community, and force legal, legitimate businesses to conduct operations only in cash or with other risky instruments. The inability to bank also restricts the type of commerce an MRB can undertake, including leasing real estate or equipment, acquiring assets, processing payroll, and paying taxes. Economically, this represents largely untapped potential to participate in the market at large.
The biggest pitfalls and risks that impact the nascent cannabis industry in California and nationwide originate from the patch- work of inconsistent regulatory and legal approaches taken by different federal agencies, beginning with the Department of Justice (DOJ) itself, which just a few years ago under the prioradministration was carefully creating a legitimate path for state-compliant MRBs and banks to operate lawfully within certain strict parameters. The current DOJ has not only walked that progress back but affirmatively indicated it would prefer to prosecute lawful state operators, once again raising the specter of uncertainty and possible criminal prosecution for many players in the cannabis industry, despite the fact that MRBs for many years relied on that path to establish and operate their businesses along the lines set forth by past incarnations of the DOJ.
On January 4,2018, only four days after California enacted the Adult Use of Marijuana Act (AUMA or Proposition 64), U.S. Attorney General Jefferson B. Sessions rescinded the DOJ’s previous nationwide guidance that had relaxed certain types of enforcement in connection with the cultivation, distribution, and possession of marijuana as set forth in the Controlled Substances Act (CSA). The rescission under Attorney General Sessions included the revocation of the important 2013 memorandum issued by Deputy Attorney General James M. Cole, (Cole Memo), which provided that, if cannabis businesses operated legally within the “four corners” of their respective states’ laws and complied with the eight primary directives listed in the Cole Memo (referred to in the industry as the “Eight Deadly Sins,” not without some tongue-in-cheek humor), the DOJ would, in essence, create a safe harbor, albeit a narrow one, for compliant cannabis business operators whereby federal officials would refrain from seeking enforcement of the CSA with respect to these operators. What were once reasonably clear guidelines for MRBs to follow has now been replaced with uncertainty.
In a somewhat surprising and contradictory move, just three weeks after Sessions rescinded the Cole Memo and its progeny, the U.S. Department of the Treasury declined to follow the DOJ’s lead. In a public letter dated January 31, 2018, sent to-U.S. Representative Denny Heck of Washington, the Treasury Department reaffirmed that the Financial Crimes Enforcement Network (FinCEN) would continue to follow the Cole Memo as set forth in its 2013 FinCEN Guidance Memorandum, despite the rescission of the Cole Memo by the DOJ. While good news for lawful cannabis operators, the announcement complicated the regulatory picture even further, for now instead of the relatively straightforward landscape in which state law conflicts with federal law, MRBs have to contend with the additional layer of complications that arise when federal agencies and bureaucracies do not agree with one another.
In the FinCEN Guidance Memorandum, which remains in effect, the Treasury Department agreed that the safe harbor from prosecution as set forth in the Cole Memo was necessary. The FinCEN guidance requires that banks engaged in banking cannabis businesses file special-purpose Suspicious Activity Reports (SARs) that distinguish among: 1) marijuana businesses lawfully operating in a state (requiring the filing of a “marijuana limited” SAR), 2) marijuana businesses that may not be operating in a manner compliant with state laws (requiring the filing of a “marijuana priority” SAR), and 3) marijuana businesses for which the bank concludes that a cannabis business was operating in violation of one or more of the Cole Memo’s Eight Deadly Sins (requiring the filing of a “marijuana termination” SAR).
These inconsistencies, not to mention the CSA elephant in the room, create an environment in which finance, banking, lending, and creditors’ rights face a possibly confusing array of rules, restrictions, and smart guesswork. Most banks err on the side of caution and typically do not take deposits from MRBs or from businesses that receive funds, as their primary source, from MRBs (including, e.g., landlords collecting rents from an MRB and cultivation and grow equipment lessors).
Banks fear that the inconsistent regulations could risk their ability to insure deposits through the FDIC or restrict access to FedWire (the system that facilitates the wiring of funds between banks and other financial institutions). Also, a national association (a federally chartered bank) may unnecessarily risk its federal charter by getting caught up in the CSA if it is accused of a violation of the Bank Secrecy Act (BSA) or of anti-money laundering (AML) regulations.
Some state-chartered banks and some local credit unions are attempting to step in to fill the void, seeking to create access to banking services for MRBs, but even that intrastate activity is becoming difficult. In Fourth Corner Credit Union v. Federal Reserve Bank of Kansas City, Fourth Corner, a Colorado-based credit union, in compliance with the Cole Memo and the FinCEN Guidelines, had formed its credit union specifically to “bank” the Colorado cannabis industry. Before Fourth Corner could commence operations, the Federal Reserve rejected Fourth Corner’s application for a master account that would have allowed it to transact business and transfer funds through FedWire.
Fourth Corner filed suit and sought to compel the Federal Reserve, by way of injunction, to issue it a master account. The district court remarked that “ [courts cannot use equitable powers to issue an order that would facilitate criminal activity.” The court concluded that the Cole Memo and FinCEN Guidelines “simply suggest that prosecutors and bank regulators might ‘look the other way’ if financial institutions don’t mind violating the law. A federal court cannot look the other way.”
Fourth Corner appealed, and the Tenth Circuit recently remanded the matter back to the district court. Currently, Fourth Corner is seeking to .bank businesses that are not actively cultivating or selling cannabis or cannabis products until such time that its case can move through the federal court. As one observer noted, “Fourth Corner cannot provide services to marijuana businesses. That is: business [sic] that deal with the consumption of marijuana products— such as dispensaries. So while the lawsuit brought the credit union one step closer to giving the industry financial inclusion, they [sic] did not walk away with a total victory, leaving a financial services gap that still needs to be filled.”
Other key decisions in federal courts, including the U.S. Supreme Court, add to the patchwork and uncertainty. In United States v. Oakland Cannabis Buyers’ Cooperative, the Supreme Court held that there is no medical necessity exception to the CSA’s prohibitions against manufacturing and distributing marijuana, stating that the statute reflects a “determination that marijuana has no medical benefits worthy of an exception],]” and that “medical necessity is not a defense to manufacturing and distributing marijuana.” In the matter entitled Gonzales v. Raich, the Supreme Court went even further and held that the Commerce Clause gave Congress the authority to prohibit the local cultivation and use of marijuana, despite California’s state law to the contrary.
There is also the Rohrabacher-Farr amendment (also known as the Rohra- bacher-Blumenauer amendment), legislation approved by Congress and incorporated into the federal budget, that prohibits the DOJ from spending funds to interfere with the implementation of state medical cannabis laws. It passed the House in May 2014, becoming law in December 2014 as part of an omnibus spending bill and was recently renewed in March 2018 stating, in full, that:
None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
In United States v McIntosh, the DOJ prosecuted the largest medical marijuana dispensary in the United States, which is located in Oakland, California. The Ninth Circuit pushed back, holding that the Rohrabacher-Farr amendment prohibited the DOJ from spending money granted by the appropriations bill to prosecute organizations or otherwise prevent certain states “from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana,” thus effectively preventing the federal government from prosecuting people whose medical marijuana activities were legal in their states and who had fully complied with that state’s laws.
There remains a substantial degree of risk for a financial institution to take in deposits from MRBs without the manpower (and resources to pay for that manpower) to review the relevant BSA issues and AML issues as well as to comply with the Know Your Customer (KYC) requirements. The DOJ is highly unlikely to back off from its early aggressive stance under the new administration any time soon, which will only keep more wary financial institutions away from the cannabis space. Coupled with the FedWire, FDIC Insurance, and charter risks, it currently is not recommended for most banks to take deposits in the present cannabis-related legal environment. Legally operating MRBs will continue to be the hardest hit.
Lending to an MRB is also risk-inherent as any collateral secured by the lender may be subject to civil asset forfeiture, presenting a significant credit risk for banks that may otherwise want to provide services in this industry. Civil asset forfeiture may include “All real property, including any right, title, and interest…which is used… in any manner or part to commit, or to facilitate the commission of [violation of the CSA] shall be subject to forfeiture.” And lenders must know that lienholders themselves may be considered “owners” of seized property. Recovery of seized property is possible, but a lender must satisfy the conditions of the “Innocent Owner” defense under the Civil Asset Forfeiture Reform Act, which has two key elements: 1) the owner before illegal conduct giving rise to forfeiture occurs is an “innocent owner” if that owner was not aware of illegal conduct giving rise to forfeiture, or upon learning of such conduct, did all that reasonably could be expected under the circumstances to terminate the illegal use of property; and 2) an owner who acquires property after illegal conduct occurs is an innocent owner if at time of acquisition it was a bona fide purchaser or seller for value, and did not know, and was reasonably without cause to believe, that the property was subject to forfeiture.
Because cannabis is a Schedule I drug pursuant to the CSA and thus illegal at the federal level, enforcement rights for lenders may also be curtailed by limiting loan enforcement remedies only to state available remedies and only in state court. A federal court is unlikely to grant a writ of attachment on behalf of a lender seeking to attach assets that consist of or are derived from an illegal narcotic (at least as long as the CSA remains on the books without mitigation). Moreover; if the nature of the collateral is unlawful, it may raise an illegality of contract issue in that the subject matter of the loan agreement (and its security) is illegal and thus the entire contract or loan itself is unenforceable.
California, in anticipation of an illegality of contract defense being raised in its state courts, preemptively issued and signed into law Assembly Bill 1159, which was enacted as California Civil Code Section 1550.5 and provides that:
[Commercial activity relating to medicinal cannabis or adult-use cannabis conducted in compliance with California law and any applicable local standards, requirements, and regulations shall be deemed to be all of the following: (1) A lawful object of a contractf;] (2) Not contrary to an express provision of law, any policy of express law, or good morals[; and] (3) Not against public policy.” Lenders can thus rest assured—at least in California state courts—that their loan agreements will not be summarily deemed unenforceable by virtue of conflicting federal law.
Adding to the complexity of creditors’ rights is the fact that it is nearly impossible for an MRB to seek protection under the Bankruptcy Code, conversely eliminating the many creditor protections available to a lender in a bankruptcy proceeding. A number of rulings from the Ninth Circuit and other federal courts effectively close the door to bankruptcy protection for struggling MRBs. As one court firmly declared, bankruptcy courts “should not be ‘a haven for wrongdoers.’” This ruling appears to conflict with 28 USC Section 959(b), which states in pertinent part:
[A] trustee, receiver or manager appointed in any case pending in any court of the United States, including a debtor-in-possession, shall manage and operate the property in his possession as such trustee, receiver or manager according to the requirements of the valid laws of the State in which such property is situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof.
Richard P. Ormond is a shareholder at Buchalter, APC, in Los Angeles. He specializes in representing businesses, banks, and investors in the emerging cannabis industry. He is also a former chair of the LACBA Remedies Section. The author wishes to thank his colleague Zachary Spear for his editing skills and Bluebook mastery.