On August 5th, Harris Bricken attorneys Griffen Thorne, Jihee Ahn and Jesse Mondry presented a webinar entitled Cannabis Litigation – Trends And Q&A. If you missed the live webinar, we will publish a replay tomorrow here on the blog.
The webinar was well attended, and we received numerous questions from the audience. In this post, I respond to a few questions we did not have time to answer.
Can you speak about requesting information from the Oregon Liquor Control Commission through a FOIA request? What is the procedure? What types of information can be requested? Sales data? Employee data?
A wide variety of records are available from the OLCC. Under Oregon’s Public Records Law, “every person” has a right to inspect any nonexempt public record of a public body in Oregon. See ORS 192.410 – 192.505. This right extends to any natural person, any corporation, partnership, firm or association. The law is similar to the federal Freedom of Information Act (FOIA) in some ways, but is a separate law, with its own provisions. So when making a request, don’t refer to it as an FOIA requests. The law favors disclosure, but the OLCC must be careful not to release sensitive information – e.g. social security numbers, bank account numbers, and so forth.
Typically, the OLCC receives requests from licensees or attorneys following the issuance of charging document. But the law does not require the records request be tied to a pending administrative matter. Responding to these requests may impose a significant burden for overworked and underpaid OLCC staff. So responses may take time and the OLCC may charge fees for responding to public records requests. Making a request is straightforward. The OLCC has a webpage with instructions that explains how to do so and what fees may apply.
With regard to membership and partnership disputes, is there anything especially different about litigating disputes in the cannabis industry? Do you have any practical advice about how to bring these cases to a swift resolution?
Litigating membership and partnership disputes in the cannabis industry is much like any other industry. But there are a few quirks.
When a partner or member decides to leave the business, one of the first questions is: What is that person’s interest in the business worth? Cannabis businesses present different considerations in terms of the marketability of an interest. This is because of licensing requirements, IRC § 280E, lack of access to financing and banking, insurance risks and costs, and the overarching problem that marijuana is a schedule I controlled substance.
Another difference is that most states require tracking marijuana products to the gram gram through tools such as METRC. Access to this information can provide non-managing or minority interest holders a powerful tool in the event a forensic accounting becomes necessary. On the other hand, dispensaries operate on a cash-only business on the retail side, which can make an accounting difficult.
A final significant concern is whether the facts and issues of the partnership/membership dispute concern violations of the state regulatory scheme. It may not be in the best interest of the business (or its owners) to engage in a public lawsuit that concerns allegations of financial fraud, diversion into the illegal market, hidden investors or investments, and so on. These kinds of facts may result in the business losing its ability to operate in the cannabis industry and leave the owners with letters of reprimand in their files that restrict their ability to operate in the industry in the future.
As far as ending disputes quickly, the best advice I can give is to thoroughly paper everything. By this mean cannabis businesses should hire transactional lawyers with expertise in cannabis at the outset of any business venture as well as to review contracts and deals throughout the life of the business.
Could you talk about class action litigation trends in cannabis and CBD
We spoke about this during the webinar, but one concept that was not addressed was the doctrine of primary jurisdiction. This is a doctrine increasingly used, and with increasing success, by defendants in CBD class actions. The basic concept is that courts may stay (pause) litigation when the claims involve issues that fall within the special competence of an administrative agency. In such cases, courts may wait for the agency to issue rules or guidance that may substantially affect the outcome of the case. The primary jurisdiction doctrine, then, is a form of judicial abstention. See Litigation Update: Who Decides Whether You Can Ship Hemp Through Idaho? and The Rise of Cannabis Litigation Against Foreign Entities – Where Will You Litigate?
Our colleague, Nathalie Bougenies, has also written on this topic and it is one worth watching
Hemp-CBD: More Federal Courts Stay CBD Cases Until the FDA Issues Regulations
Patchwork Of Judicial Decisions Exacerbates Confusion On Legality Of CBD Products
Thanks to everyone who attended. Please note that our next FREE Q & A webinar is Thursday, September 17, 2020 from 12pm to 1pm PDT, during which our transactional hemp attorneys will field questions on all aspects of hemp and CBD. Register is available for that one here.
We will be back tomorrow with a replay of Cannabis Litigation Q&A webinar, as well.
The post Cannabis Litigation Q&A Webinar – A Few More Questions and Answers appeared first on Harris Bricken.
Original Source: harrisbricken.com
There were lots of fantastic questions on the last post so it made the most sense to lay it all out in the same place especially since there may be lots of folks who are considering long term trips right now.
Q – Have you considered renting out your home while you are gone?
A – Yes. There are some big problems with this idea though. First, there are 6 of us in 1,200 sq. ft. and we homeschool. The prospective money we could make off AirBnBing our home didn’t offset the cost/burden of moving out the school room set-up and our personal belongings. That, and in the time of COVID, the liability/risk factor is high. If someone got COVID, could they say it was because we didn’t adequately clean the home between renters? Lots of hassle. Very little reward.
Q – Does your health insurance cover you out of state? Will you get stuck with a huge hospital bill?
A – We have the worst, best insurance out there. We have an HSA which means we pay 100% of all medical expenses out of pocket until we hit our deductible (that’s the bad part). Once we hit our out-of-pocket maximum, our insurance pays 100% of medical and prescription drug costs for the rest of the year (that’s the good part). The out-of-pocket maximum is less than our emergency fund. This would be the same whether we were in-state or out of state but it’s something everyone should look into when traveling, particularly during a pandemic.
Q – Should you use the trip money to pay down your mortgage instead?
A – This is a hard call. We saved up money for a fall trip and my husband got some unexpected side jobs so we aren’t going into our emergency fund or stealing from another budget bucket BUT, I recognize this experience won’t be what it would have been had we not been knee deep in a pandemic. There will be no stops at amusement parks or zoos. There won’t be family dinners at fun restaurants. That makes me sad. But at the same time, I also recognize that I’m in a situation that is unlikely to happen again (please Lord, I HOPE IT WON’T!). I have a huge chunk of time to watch my kids fish in lakes and rivers and explore backcountry. I’ll pay my mortgage for two months longer to take advantage of this opportunity.
Q – Would you like to get into a debate about traveling during a pandemic?
A – As fun as that sounds… No. ; ) I understand that we all have strong opinions and I respect them but I’m not open for a debate. I’ll explain the finances related to traveling during a pandemic but not about the pandemic itself.
A couple more things I think are important when trip planning…
Double Check Your Insurance Coverage
Yes, look at your healthcare but also look at your home insurance and your car insurance. Are the limits right? Do you feel comfortable with your deductibles? Do you have enough insurance? Do you have roadside assistance?
Make Sure Your Affairs Are in Order
Yup. I’m getting morbid on you. Chris and I have very detailed wills. They outline what to do in lots of situations. What happens if we both die? Who gets the kids? Who is the executor? What are our health directives? It’s all there. Before we leave on big trips, we double check to make sure everything is still the way we want it and we call my mom to remind her where the information is. We don’t do it because we are morbid, we do it because the last thing I want my loved ones worrying about when dealing with loss is trying to figure out what to do with my kids or my house or my car. You should have this in place NOW but you should regularly revisit to make sure it’s accurate. Travel is a good reminder to double check.
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Original Source: bloggingawaydebt.com