Hearing to Discuss Cannabis Industry's Banking Challenges

Next week, the U.S. Senate Committee on Banking, Housing and Urban Affairs will hear from U.S. Senators, Banking representatives, and Cannabis industry leaders to discuss the numerous banking challenges for the cannabis industry.

The witnesses scheduled to speak at the Hearing include United States Senators, Cory Gardner (of Colorado) and Jeff Merkley (of Oregon). Both Senators are also supporters of the “Secure and Fair Enforcement Banking Act” (“SAFE”), a banking bill that proposes to open up safe harbors to financial institutions working with cannabis businesses in states where cannabis is now legal. Additional witnesses scheduled to speak include, Chief Risk Officer of Maps Credit Union, Rachel Pross; President and Chief Executive Officer of Citywide Banks, Joanne Sherwood; Vice President of Government Affairs of Smart Approaches to Marijuana, Garth Van Meter; and Chief Executive Officer and Owner of LivWell Enlightened Health, John Lord.

Currently, thirty-three (33) states, the District of Columbia, and many U.S. territories have legalized marijuana to some degree, albeit medical or for adult-use. However, federal law still prohibits the possession and distribution of marijuana under the federal Controlled Substances Act (“CSA”).

Financial institutions are subject to federal laws and regulations including potential civil and criminal liabilities under the CSA, anti-money-laundering statutes, the Banking Secrecy Act, and the Patriot Act. Due to the significant risks involved, many financial institutions have been wary in dealing with marijuana businesses, even in states that have legalized marijuana. These challenges continue to force marijuana businesses into a “legal gray area” of dealing in cash-only transactions, and transporting and storing large amounts of currency.

In the last couple of months, state banking supervisors, the state bankers associations, and even the National Association of Attorneys General have all called on Congress to take action now to advance federal legislation to allow financial institutions to serve the needs of their local communities.

“Leaving the cannabis industry unbanked presents serious public safety, revenue administration, and legal compliance concerns and must be remedied immediately,” a May 2019 Letter from the 50 state bankers associations reads. “Although we do not take a position on the legalization of marijuana, our members are committed to serving the financial needs of their communities – including those that have voted to legalize cannabis. We believe federal action is necessary and support a solution that would allow banks to serve cannabis-related businesses in states where the activity is legal.”

Next week’s Senate Committee Hearing comes just over a week after the U.S. House of Representative’s Subcommittee held the first-ever hearing on the need to reform our nation’s marijuana laws.

The Senate Committee Hearing entitled, “Challenges for Cannabis and Banking: Outside Perspectives” is scheduled for Tuesday, July 25, 2019 at 10 a.m.

Navigating Real Estate Waters in a Cannabis World

With the legalization of cannabis in California, cannabis businesses will need to address their real estate needs.  As not many businesses can afford to buy a building outright, leases will need to be negotiated and executed. However, cannabis related real estate leases will need to be handled more carefully than a normal commercial lease.

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Landlords and Medical Marijuana in California

In 1966, California voters decriminalized the medical use of marijuana by approving the California Compassionate Use Act. In 2015, the voters approved the Medical Cannabis Regulation and Safety Act ("MCRSA"), to regulate the medical marijuana industry. In 2016, California voters approved the Adult Use of Marijuana Act ("AUMA"), allowing (1) individual adults to possess, use, purchase, transport, or give away up to 28.5 grams of marijuana or 8 grams of concentrated marijuana; (2) them to grow up to 6 plants and possess the marijuana produced by the plants; and, (3) legally possess marijuana accessories.

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Realities of Subrogation Litigation

Introduction

Subrogation litigation is a very broad topic that encompasses many different practice areas. It is ultimately however a practice specialty unto itself. It includes innate complexities of subrogation law, but also requires the skills of a Plaintiff’s attorney, and the knowledge of a specialist practicing in niche areas. These areas can range from fire litigation to workers’ compensation law. Complete mastery of subrogation requires the attorney to wear many hats, and requires the client seeking recoupment of their money to understand this dynamic.

Subrogation Basics

At its core, subrogation arises when a party who was obligated to a pay another party seeks recovery against a third party who may have committed an act giving rise to liability. A simple example is that of an insurance company who pays upon a homeowner’s policy to a homeowner after a fire. If the insurer determines that the fire may have been caused by a negligent electrician, the insurer may seek to “stand in the shoes” of the homeowner and pursue litigation directly against the electrician. The insurer often maintains this right by contract with the homeowner through the insurance policy, or it may independently seek an assignment of rights from the homeowner. In certain areas, such as workers’ compensation, the right of the insurer to proceed is authorized by statute.

A right to subrogation also exists in a non-insurer-insured situation. For instance, in lieu of suing a subcontractor for contractual breach over construction delays, a construction company may allow the breach, but then seek rights from the subcontractor to pursue one of its vendors who caused the breach by delaying needed materials.

Subrogation Pitfalls and Promises

Subrogation litigation can be a complex area. The attorney pursuing subrogation must be well versed in Plaintiff’s litigation, subrogation law and practice, as well as the area of law upon which they sue. As noted in the illustrations above, this could mean that the attorney must be knowledgeable of the intricacies of law ranging from fire litigation, workers’ compensation law, and construction law, to name a few. But even with knowledge of a specialty field, a key mistake that is often made by attorneys is a failure to understand the practicalities of subrogation as it relates to both liability and damages. While the legal theories of recovery may be the same, the practicality of subrogation differs very much from a typical Plaintiff’s case. This reality of subrogation law can often trump a “good case”.

In typical Plaintiff’s litigation, there is a maxim that a weaker liability case can be helped by a strong damages component. Unfortunately, this does not always hold true for subrogation. In typical litigation, the Plaintiff is asserting their own personal rights which a juror may relate to. In subrogation, the party bringing the case is generally a corporation or insurer who lacks broad appeal to a jury. In this sense, a weaker liability case which may ordinarily be softened by a sympathetic Plaintiff is removed or too distant. Further, in subrogation, there is often a bar to recovery of general damages or pain and suffering that an ordinary Plaintiff might be afforded. This sliding scale of general damages can vary a great deal and brings uncertainty to a defending party which can result in productive settlement negotiations. But with subrogation, you are generally left trying to recover upon what was paid out of pocket. Practically speaking, a personal injury Plaintiff could recover only a nominal sum for out of pocket damages yet a large sum in general damages. This is not true for a subrogating Plaintiff.

Another difficulty arises in whether the attorney retained to pursue subrogation is being compensated hourly or by contingency. Because subrogation litigation can sometimes be long, difficult, and technical, it can sometimes be difficult to find attorneys or firms willing to proceed with this work on a contingency basis. This holds especially true when one considers the reality of expert witnesses needed for difficult cases.

Defense attorneys fighting against subrogation claims also carry a bias. Unfortunately, subrogation claims are viewed as weaker (for reasons explained above). Even if damages are very high, attorneys and defendants often do not feel that they are required to pay near the full amount because the subrogating party should be willing to greatly discount their recovery. This problem stems not from laws supporting subrogation, but rather from history and the psychology of a weakened unsympathetic corporate Plaintiff.

Even with its pitfalls, subrogation’s weakness can also be its strength. The out-of-pocket expenditures made by a subrogating Plaintiff represent hard costs that can be boarded at trial. Depending upon the case, this can mean that if liability is proven, a near 100% recovery of damages can occur if the payments were reasonable and necessary (dependent upon the jurisdiction).

When is Subrogation Appropriate?

This can be a difficult question to answer because it requires a thorough assessment of subrogation practicalities, cost, liability and damages, as well as assessment of the area of law upon which a subrogating party is basing its claim upon. If all the pieces fit together, subrogation can be a powerful tool. Subrogation litigation benefits everyone, as it often results in companies or insurers paying upon claims quickly if they know they can recoup such payments from an at-fault third party. If you are pursuing subrogation, it is vital that you retain experienced and knowledgeable attorneys.

With offices in California and Nevada, Murchison & Cumming, LLP has several attorneys who have experience with subrogation litigation if you need further guidance.

Quenching Nevada’s Thirst for Beer: Checklist for Starting a Nevada Brewery

For many, turning their passion into a business comes with equal parts excitement and trepidation.  When it comes time to turn that passion into profit, that initial enthusiasm can be quickly tempered by legal and regulatory hurdles.  Those who have turned their home-breweries into commercial breweries know this pain particularly well. Nevada presents unique challenges to this process in part due to laws that have not kept up with the emerging craft brew industry.

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