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CannaBeat – March 10, 2023

CannaBeat is a curated biweekly selection of top news stories impacting business, research, and culture in the cannabis industry, crafted by Emerge Law Group.

Emerge’s Hot Take

Emerald Triangle Communities Were Built On Cannabis. Legalization Has Pushed Them To the Brink

Legalization in California seemed like a dream come true for the cannabis industry, home of the Emerald Triangle. Abide by the rules and regulations in exchange for the opportunity to have a legal business. Six years later, and the price of cannabis is unbelievably low, businesses are closing, and the illegal market is flourishing. According to coverage by HighTimes and Forbes, cannabis sales declined in 2022, and many believe it wasn’t because people were consuming less.

The Emerald Tringle seems to be hit the hardest as cannabis is a base for much the community’s economy. Farmers in Humboldt reported that even though they sold all their product, they come in at loss for the year. Farm closures reverberate throughout Trinity County. Local businesses that depended on the patronage of the famers and their employees are laying people off and cutting hours. Some have lost so much revenue that they may close. In Mendocino, it is estimated that nearly 70% of operators might not remain in the legal market.

Besides overregulation, two major culprits are said to be the roots of the larger issues within the industry: high taxes and lack of shelf space. In attempt to fix the first problem, the State eliminated the cultivation tax in July of 2022. As for shelf space, 56% (302/539) of California jurisdictions still do not allow any type of commercial cannabis operations. There are only about 1000 licensed dispensaries serving 40 million residents. Delia Rojas of Emerge Law Group says that “the power local jurisdictions hold is frustrating, especially when residents of communities where a majority voted in favor of prop 64 haven’t experienced the product of their vote. Fear still runs rampant in much of the state. Education and advocacy continue to be important to wipe away the stigma surrounding this plant.”

Other Noteworthy News

Mendocino Growers Ask California To Address County’s Cannabis Licensing
A trade association representing cannabis growers in California’s Mendocino County has asked the state government for an “urgent intervention” in the county’s licensing process, citing concerns that many farmers’ license applications won’t be processed by a July 1, 2023, deadline. The Mendocino Cannabis Department and local government have failed to “establish a process capable of moving good-faith cannabis operators towards state annual licensure,” the Mendocino Cannabis Alliance (MCA) claims in a Feb. 8 letter to California Gov. Gavin Newsom and state Department of Cannabis Control Director Nicole Elliott. The letter charges that by the July deadline, the Mendocino Cannabis Department (MCD) will have licensed only 256 “prioritized” marijuana operators in the county, “implying that nearly 70% of Mendocino’s 841 current operators have no path forward to remain in the legal market,” according to an accompanying news release. “Further, among over 500 ‘deprioritized’ operators, MCA has found that a substantial number have been deprioritized incorrectly based on demonstrably false claims of tax delinquency or lack of state licensure.” MCA Executive Director Michael Katz said Mendocino County has “no functional permit program in Mendocino, and no plan to create one.”
Oklahoma Voters Reject Marijuana Legalization Ballot Initiative
Oklahoma voters have rejected a ballot initiative that would have legalized marijuana for adult use in the state on Tuesday. For most counties across the state, the cannabis reform measure—State Question 820—was the only proposal on the ballot, a unique scenario in the history of the legalization movement. Advocates tried to put the reform on the November 2022 ballot, but delays in signature verification by officials and the state Supreme Court’s subsequent decision in litigation meant that it missed the window to qualify for that cycle. In October, Gov. Kevin Stitt (R) called a special election for the cannabis measure that took place on Tuesday.
UConn Launches New Cannabis Cultivation Minor
The University of Connecticut announced a new minor in Cannabis Cultivation for students receiving specialized training in this growing field. “Since we launched the nation’s first cannabis horticulture course, UConn has been a leader in cannabis education and research,” says Indrajeet Chaubey, dean of the College of Agriculture, Health and Natural Resources. “We are thrilled to add another mechanism for students to formalize the skills, knowledge, and expertise in cannabis studies that they gain while at UConn.” Led by professors of plant science Gerald Berkowitz and Matthew DeBacco, the 15-credit minor was formalized in the spring 2023 semester. It provides training in the propagation, cultivation, commercial production, maintenance, processing, and potential markets for and uses of one species of cannabis, Cannabis sativa. As part of the minor, students can receive credit for approved internships with growers and companies to provide students with experiential learning opportunities and exposure to jobs.
Justice Department Website Opens Portal For Those Seeking Presidential Pardon Certificates
After a several month delay, the Justice Department has opened the online application process for those persons eligible to receive certificates indicating that their marijuana-related convictions have been pardoned by the President. The website began accepting applications hours after a notice published in the Federal Register stated that the Office of the Pardon Attorney had “developed the subject form to collect information from potential pardon recipients.” In its notice, the Office estimated that as many as 20,000 people may apply to receive pardon certificates.

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CannaBeat by Emerge Law Group
CannaBeat is a weekly brief on news, business, and culture in the cannabis industry curated by members of Emerge Law Group's distinguished Cannabis Industry Group.
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Beneficial Owners – New Reporting Rules

Authors:
Kaci Hohmann and Delia Rojas, Attorneys at Emerge Law Group

On September 30, 2022, the federal Financial Crimes Enforcement Network (“FinCEN”) published final regulations governing beneficial ownership reporting requirements under the Corporate Transparency Act (the “Final Rule”). The Final Rule substantially mirrors the draft rules covered in our earlier blog on the topic. The Final Rule becomes effective January 1, 2024. See our summary and tips below to prepare for the upcoming reporting requirements.

Who must report?

The Final Rule requires a “reporting company” to report certain information to FinCEN regarding its beneficial owners and company applicants. A “reporting company” is any domestic or foreign entity created or registered to do business in a U.S. state or Indian tribal jurisdiction (“Reporting Company”). This definition would seemingly capture nearly all US businesses, although there are 23 categories of exemptions set forth in the Final Rule, including (i) certain inactive entities, (ii) insurance companies, (iii) financial institutions, and (iv) large operating companies employing more than 20 full-time employees, having an operating presence in the U.S., and having gross receipts for sales in the U.S. exceeding $5,000,000.

Who is reported?

Each Reporting Company must report information concerning its “beneficial owners,” which includes any individual who, directly or indirectly, exercises “substantial control” over or owns or controls 25% or more of the “ownership interests” of the Reporting Company (“Beneficial Owners”).

An individual has “substantial control” over a Reporting Company if they serve as a senior officer, have authority over the appointment or removal of any senior officer or a majority of the directors (or similar body), or directs, determines, or substantially influences important Reporting Company decisions.  FinCEN indicated that it designed the “substantial control” element to capture the key individuals of the Reporting Company who direct its actions and to “focus the applicability [of the Final Rule] on the senior officer element of the definition of substantial control”.

In the Final Rule, the definition of “ownership interest’’ more broadly focuses on types of arrangements that directly or indirectly convey ownership interests, such as equity, convertible instruments, and put options. Additionally, the definition of “ownership interest” now includes a catch-all provision for “any other instrument, contract, arrangement, understanding, relationship, or other mechanism used to establish ownership.” Importantly, any option or similar interest of the Reporting Company is treated as exercised in determining “ownership interest.”

In response to extensive public comments on the topic of a “company applicant”, the Final Rule requires Reporting Companies created or registered on or after January 1, 2024, to report information related to a “company applicant.” A company applicant is the individual(s) primarily responsible for directly filing the document that creates or registers a Reporting Company, such as a law firm (“Company Applicant”).  Entities created or registered before January 1, 2024, are not required to report information with respect to any “company applicant.”

What information must reports include?

The initial report for the Reporting Company must include the legal name, any trade name or d/b/a name, principal place of business address in the U.S., state of formation or registration, and its IRS employee identification number. The Reporting Company must also provide the full name, date of birth, current address, the number and issuing jurisdiction of a passport, identification card, or driver’s license, and a photo of the identification document used for each Beneficial Owner and Company Applicant.

When must reports be filed?

Reporting Companies in existence prior to January 1, 2024 must file its initial report before January 1, 2025. Reporting Companies created or registered on or after January 1, 2024 must file its initial report within 30 calendar days of receiving actual notice that it was created or registered to do business with a secretary of state or similar office. If a Reporting Company’s exemption status changes, a report must be filed within 30 calendar days of the change in exemption status. Lastly, if there are any changes to the information filed in the initial report, an updated report must be submitted within 30 calendar days of the change.

What proactive compliance steps should businesses take?

The Final Rule imposes considerable new federal compliance requirements on businesses. Although some entities will be exempted, many will not. Every business should investigate whether it is a Reporting Company or qualifies for an exemption. A Reporting Company’s failure to comply with the reporting requirements could result in significant penalties and possible imprisonment.

Businesses with reporting obligations should create and implement internal policies and procedures to ensure that all reporting is timely and properly made. It’s not too early to begin collecting the information your business may need to report. Additionally, businesses and business attorneys should consider adding provisions to certain agreements requiring the applicable people to cooperation with required information collection and reporting, and update confidentiality clauses to carve out exceptions for reporting requirements.

If you have any questions or concerns about how the beneficial reporting requirements may impact your business, contact an attorney from our Business Group.

See the final rule here.

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The CannaBeat Podcast –  Copernican Solutions for Hemp & Cannabis

The CannaBeat Podcast – Copernican Solutions for Hemp & Cannabis

Six years after Proposition 64, cannabis consultant Joanna Cedar explains why cannabis “legalization” caused most Sonoma County cultivators to exit the industry.

In her analysis, Sonoma County’s ordinance is the worst offender, because it prohibited commercial cultivation on parcels smaller than 2 acres. With that decision, Sonoma County eliminated the cottage license-type before anyone had a chance to apply. Prop. 64 isn’t blameless, of course, but nothing hurt Sonoma’s cultivators like that ordinance: at one point, as many as 5,000 parcels were used for growing cannabis. Over ninety percent (90%) are now out of the regulated market, because they shuttered or because they’re selling exclusively to the illicit market.

But on parcels large and small, through California, hemp cultivation persists. And there’s a nationwide market for hemp. Someone can drive a tractor trailer filled with hemp from California to Florida, as easily as onions. Hemp is underregulated, however, with no or minimal age-gating, testing and labeling standards.

Joanna Cedar’s “Copernican solution” to the mis-regulation of cannabis and hemp is to unite the two under one regulatory scheme. In truth, they are united in nature (they’re two names for the same plant), but our mis-regulation of the plant has become baroque.

List to the CannaBeat Podcast Here:

 

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CannaBeat Podcast: Increasing Access to California Cannabis

It’s estimated that 75% of cannabis transactions in California occur outside the regulated market. Dwell on that for a moment: Most cannabis transactions in California fall outside the regulated market. We use euphemisms to describe this: illicit, illegal, grey market, unregulated, legacy. Proposition 64, which created a regulated California cannabis market, passed in 2016, and now, almost 6 years later, three in four cannabis sales avoid the system Proposition 64 created. 

Why? Most jurisdictions ban the system that Prop. 64 created. Even though Prop. 64 passed, two-thirds of California cities prohibit what Prop.64 created: cannabis manufacture, distribution, retail, cultivation, and testing.  

For most California cities, the cannabis business is “illegal-only.” Too often, we focus on the people in the illicit/illegal/grey market, the “outlaws.” Let’s instead focus on the structures blocking the legal market: the cities responsible for blocking legal cannabis. Local governments blocking Prop. 64 are responsible for illegal-only zones. This “illegal-only” language may be provocative; cities will retort, “We don’t require illegal-only. We simply decline to authorize legal cannabis businesses.” Fair enough.  

One such city is Los Gatos, near San Jose. Los Gatos provides a good case study on “illegal-only” cities because its town council studied residents’ views and the impacts of cannabis normalization (read more here).  In the year after Prop. 64 was approved 57% to 43% statewide, and 62% to 38% in Los Gatos, the City passed an ordinance prohibiting commercial cannabis. In other words, Los Gatos residents voted in favor of legal, regulated adult-use cannabis, but the Town Council removed the blocked it. Four years later, in 2020, the Town Council affirmed this ban, but began further study. In January 2022, Los Gatos hired consultants to provide additional analysis and community engagement. Six years after Prop. 64, a majority of Los Gatos residents (58%) again supported commercial cannabis in their city. But, in June 2022, the Town Council affirmed the 2017 ban for a second time. Why?  

Some Los Gatos residents told the Council that cannabis businesses would harm the town’s image, would not provide significant tax revenue, and would create intolerable risks for users and children (cannabis is a “destructive addictive drug that can ruin lives and destroys developing brains;” “every addicted drug user, which causes homelessness, started their addiction with cannabis. It is a gateway drug;” “allowing storefront marijuana dispensaries in Los Gatos completely negates  efforts that our town has upheld for [good, well supported schools]”). Cannabis opponents also point to neighboring jurisdictions who have also outlawed regulated cannabis businesses, such as Cupertino, Saratoga, and Campbell.  Residents support lifting the ban for predictable reasons: “Adding tax revenue, providing safe access and eliminating the [illegal] market by allowing legitimate businesses seems like an obvious choice.”  But the minority opinion seems to hold more sway with the Town Council. 

Los Gatos isn’t any worse than most places in California – most jurisdictions continue to ban the legal cannabis market. Senate Bill 1186 aims to eliminate cannabis deserts, beginning with the delivery of medicinal cannabis products. Written by Senator Scott Wiener and co-sponsored by Assemblyperson Ash Kalra (whose district abuts Los Gatos), SB 1186 blocks prohibitions of medicinal cannabis delivery. In other words, after SB 1186, Los Gatos may not prohibit delivery of medicinal cannabis. Residents of Los Gatos can order medicinal products for delivery, beginning January 1, 2024.  

Prop. 64’s authors (and most of us in California) assumed the adult-use market would swallow the old medicinal sector. But medicinal products continue to exist, despite bans of (adult-use and medicinal) cannabis businesses. SB 1186 means that, in about 14 months, licensed delivery companies can bring medicinal cannabis anywhere in the Golden State. SB 1186 became law on September 18. Check out the podcast with Senator Wiener about 1186 and what’s next.. 

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The Craft Beverage Industry Expands into to the Cannabis Space and Vice Versa

Author: Jake Cormier

As the markets for legal cannabis continue to expand nationwide, companies continue to develop new products to attract new customers in different commercial markets.  Long gone are the days when smoking cannabis was the only way to receive its benefits and options for consumption now include vaping and eating tasty sweets or gourmet foods.  And now the 30+ year-old craft beverage industry is crossing over with the cannabis space.

Beverage companies large and small are betting on continued growth in legal cannabis markets and also betting that the beverage consumer may look to replace (or at least compliment) alcohol consumption with THC and other cannabis-derived substances.  Large beverage companies such as Pabst and Constellation have developed non-alcoholic “beers” and replaced the alcohol with intoxicating cannabis extract.  Likewise, smaller THC-centric brewed beverage companies are also in start-up and growth mode.  New cannabis-derived beverage products range from dealcoholized beer and wine that contain THC, to craft beverages that use terpenes (flavorful botanical compounds found in cannabis and other plants) to flavor alcoholic drinks, to cannabis-infused seltzers flavored like tequila or gin.

So, some beverages taste like alcoholic drinks, but contain only THC and others contain alcohol, but include flavors associated with cannabis.  Notably, none of these beverages contain alcohol and THC due to the regulatory prohibition against mixing the two.  Producing such products can require navigating complex malt or cereal beverage-related regulations and cannabis regulations. Further issues include questions on how the body handles THC in drink form, how beverage manufacturers are formulating THC levels and dosing, and how the consumer will control consumption.  In other words, innovation in alcoholic and cannabis-infused beverages present exciting new consumption options, but also new risks and challenges.

Emerge has several craft beverage and cannabis regulatory attorneys eager to help clients bring new creative products to market in safe and compliant ways.

Don't Miss our Craft Beverage Industry Group (C-BIG) Fall Social Event at Oakshire Beer Hall on October 18th!
Join us and our network of craft beverage business owners, industry advisors and professionals, for a fall social at Oakshire Beer Hall in northeast Portland!
Click here for event details.
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The CannaBeat Podcast – Commercial Lending to Cannabis Businesses

The CannaBeat Podcast – Commercial Lending to Cannabis Businesses Is Alive w/ Robert Goebel of North Bay Credit Union 

North Bay Credit Union was a pioneer in providing commercial banking services to California cannabis companies. According to, NBCU’s Robert Goebel, the reason is simple: “We were formed as Sonoma Grains Credit Union[.] We were formed to help farms and agriculture and to us, cannabis is another crop.” NBCU’s banking platform for cannabis companies is called Higher Growth. Recently, NBCU launched a commercial lending program for cannabis companies.  

For years the absence of commercial lending has hurt cannabis businesses and hindered expansion. When companies could find loans, high interest rates and fees often burned through the principal. Cannabis companies commonly pay 30 or even 40 percent interest. The lack of commercial banking and lending equates to a heavy tax on these businesses.  

To date no consistent or reliable alternative financial system exists to alleviate the lending issue. But that’s not a barrier for NBCU, which is now lending to state-legal cannabis companies in Washington, Oregon and California. On this episode of The CannaBeat Podcast, Robert Goebel, NBCU’s Chief Lending Officer explains why NCBU is opening this line of business (even in the absence of a federal or state legislative solution); what borrowers can expect; and, how he sees the program expanding in the future.  

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The CannaBeat Podcast – Lucas Seymour ~ Old Kai Distribution

The CannaBeat Podcast – Lucas Seymour of Old Kai Distribution 

Before Proposition 64 created the commercial adult-use cannabis industry in California, Lucas Seymour co-founded Old Kai Distribution in Ukiah, California. Old Kai’s wanted to be “squeaky clean” and prove to cultivators in Mendocino, Trinity, and Sonoma Counties that it was time to come out of the shadows. The company planned expansion to Southern California, aiming to link Northern California’s world-renowned cannabis cultivators with Southern California’s massive retail opportunities. But, the company quickly hit several headwinds: regulations in Southern California were unique to each jurisdiction; some local regulations conflicted with state regulations (e.g., the drive-time between distribution hubs). Cities that were great targets for distribution (like Long Beach) wanted high distribution taxes, all but eliminating profitability. And, most importantly, licensing timelines were extremely long, and required an applicant to hold a leased space for the entire approval process requiring applicants to, pay commercial rent indefinitely, without any idea of when they could actually start making sales.  

Meanwhile, conditions in Ukiah were no better.  Incongruity between state and local regulations cost Old Kai over a million dollars when the Mendocino County Sheriff Department seized 1,800 lbs. of inventory in late 2017 (despite Old Kai holding state and local distribution licenses). The cannabis was never recovered.  After this “we were dead in the water,” Seymour reports.  Learn more on The CannaBeat Podcast and read more about Old Kai in these news stories: 

North Bay Business Journal 12/27/17 

Associated Press 12/27/17 

SF Gate 12/29/17 

Willits News 1/4/18 

Press Democrat 1/20/18 

Mendo Public Radio 3/5/18 

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The CannaBeat Podcast on Spotify (free)

The CannaBeat Podcast on Anchor (free)

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Introducing the “CannaBeat Podcast”

Introducing The CannaBeat Podcast

We’re approaching two anniversaries: the 6-year anniversary of Proposition 64, the California voter initiative that legalized both for profit and adult use cannabis; and, the 26-year anniversary of Proposition 215, the ballot measure decriminalizing medicinal cannabis. It’s time to explore past, present and future of California cannabis. Regulatory lawyer Delia Rojas and business attorney Jay Purcell are excited to announce a new series, the CannaBeat Podcast. The podcast will include conversations with legacy operators, entrepreneurs, community group leaders, legislators, local and state regulators, reformers and the people shaping the California cannabis landscape.

The CannaBeat Podcast kicks off with a quick history of the twenty-years separating Prop. 215 and Prop. 64, a two-decade period of grey markets and instability. Next, in Episode 2, we talk with longtime Sonoma and Mendocino County cultivator and consultant, Josh Abrams, about how Prop. 64 affected his grow, and other cannabis businesses in the region. Josh wasn’t alone in voting against Prop. 64, a decision he does not regret.

The CannaBeat Podcast seeks insight into the varied experiences with the California cannabis industry, including both “winners” and “losers” in the market; those working for expansion and against expansion; small companies with long histories and large companies with no history at all; and, the people charged with regulating the heterogenous industry. By discussing what’s working and what’s failing for the people running California’s cannabis economy, readers and listeners will better appreciate the conflicting outcomes of Prop. 64 and what’s ahead for the Golden State.

Join Delia and Jay for their informative and entertaining discussions on the CannaBeat. If there’s a compelling California cannabis story or person you think needs attention, let us know: cannabeats@emergelawgroup.com

The CannaBeat Podcast on Spotify (free)

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California Cannabis Legislative Update

Governor Newsome Budget Proposal

On May 13, 2022, Governor Newsom released his proposed California Budget which included cannabis tax reform. The state has acknowledged that the current cannabis tax framework is overly complex and burdensome to both operators and consumers. The hope is to simplify the tax structure, remove unnecessary burdens and costs, and temporarily reduce taxes with hope to assist in stabilizing the cannabis market. The major proposed changes are as follows:

  • eliminate the cultivation tax beginning July 1, 2022 and temporarily maintain the excise tax rate at 15%;
  • shift the collection of the excise tax from the distributor to the retailer starting January 1, 2023;
  • allow the excise the tax to increase between January 1, 2024 to July 1, 2025 depending on the amount of tax revenue received; and
  • starting July 1, 2025, increase the excise tax to 19%.

The release of the proposal is the first step in the legislative process. The proposal will be reviewed and potentially accepted, rejected, or amended over the next four-weeks. Reach out to your local advocacy groups for information on how to reach out to your state representatives and voice your thoughts.

Other tax related bills have been moving forward through the California legislative process, including SB-1074 (eliminates the cultivation tax and increases the excise tax by an undetermined amount) which has recently been ordered inactive, and SB-1281 (discontinue cultivation tax and lowers the excise tax to 5%) which has been held at its current desk.

AB-2691 – Temporary Event Cultivator Retailer License

As of May 26, 2022, this bill has been ordered inactive at the request of Assembly Member Wood. The bill would have allowed equity applicants and cultivators of less than an acre of cannabis (inclusive of all licensed premises) to obtain up to 8 temporary event retail licenses per year to sell cannabis direct to consumers at licensed cannabis events. Additional work needs to be done to get this bill, or at least some version of this bill, to move forward.

SB-1148 – Cannabis: California Environmental Quality Act

The bill was last amended on May 23, 2022. If passed as written, CEQA review would not be required by the state agency to issue a state license if the local jurisdiction filed a notice of exemption or determination with the Office of Planning and Research specific to the cannabis activity. The exemption only applies to the activities associated and reviewed under CEQA by the local jurisdiction. As of May 27th, this bill was moved to the Assembly, read for the first time, and held at the Assembly desk.

SB – 1186 – Medicinal Cannabis Patient’s Right of Access

This bill prohibits local jurisdictions, on or after January 1, 2024, from adopting or enforcing any regulation that prohibits the delivery of medicinal cannabis within the local jurisdiction. On May 23, 2022, the bill passed the state Senate and ordered to the Assembly. Given that there are still a majority of the local jurisdictions that banned commercial activity, it has been burdensome for medical patients to receive their medicine. This could help ensure access to patients that don’t have the capability to travel to the nearest dispensary. As of May 24, 2022, this bill was moved to the Assembly, read for the first time, and held at the Assembly desk.

This blog is for informational purposes only and is not intended for legal advice. Emerge is tracking numerous pieces of state and local statutes, ordinances, and rules. If you have any questions, reach out to attorneys Genny Kiley or Delia Rojas.

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Lions and Tigers and Shell Companies, Oh My! Preparing Your Business for Federal Beneficial Ownership Reporting Requirements

By:  Delia Rojas and Kaci Hohmann

The Corporate Transparency Act (“CTA”), part of the federal Anti-Money Laundering Act of 2020, came into effect in January 2021. Its goal is to prevent money laundering and abuse related to the use of shell companies as a mechanism for concealing illicit business activities.  In December 2021, the Financial Crimes Enforcement Network (“FinCEN”) published proposed rules for public comment implementing the beneficial ownership information reporting requirements of the CTA (the “Draft Rules”).  The Draft Rules address who must report beneficial ownership information to FinCEN, when they must report, and what information the reports must include.  The public comment period for the Draft Rules closed on February 7, 2021. As of the date of this blog post, it isn’t yet clear whether FinCEN will further revise the Draft Rules and open a second public comment period before finalizing and publishing the final rules. Regardless, the scope of the CTA is broad and will impact small and large businesses alike.

Below we summarize some of the most important reporting requirements proposed under the Draft Rules. These requirements are subject to change, and as more information becomes available, Emerge Law Group will keep you updated.

Who must report?

Under the Draft Rules, a corporation, limited liability company (LLC), or similar entity formed or registered to do business in any state by filing documents with a U.S. state or Indian Tribe (“Reporting Company”) must report certain information to FinCEN about anyone who, directly or indirectly, exercises substantial control over, or owns or controls 25% or more (“Beneficial Owners”) of the Reporting Company. The definition of Reporting Company broadly captures many businesses with a number of important exceptions, including certain publicly traded companies; tax-exempt entities, such as 501(c) entities; and heavily regulated businesses that already provide ownership information to a federal government agency. The Draft Rules also specifically exclude financial institutions; insurance companies; and large operating companies that employ more than 20 full-time employees, have an operating presence in the U.S., and have gross receipts or sales in the U.S. exceeding $5 million dollars.

Examples of an individual who exercises “substantial control” over a Reporting Company are those who serve as senior officers; and those who direct, determine, or “substantially influence important matters of a Reporting Company.” FinCEN specifically stated that a person who makes day-to-day managerial decisions with respect to one part of a Reporting Company’s assets or employees should not, in isolation, cause that person to be deemed to exercise “substantial control” of a Reporting Company, unless that person satisfies another element of the “substantial control” criteria.

Examples of an individual who “owns or controls 25% or more” of a Reporting Company are those who hold an ownership interest through stock, LLC units, profit interests, and other convertible equity interests, such as warrants or options.

Additionally, information about individuals who file documents creating, or first registering, a Reporting Company under state law, or who direct or control the filing of such documents (“Company Applicants”), must be included in the report to FinCEN. This means attorneys, legal assistants, entity registration service providers, and any person involved in the preparation and filing of entity formation documents will also have to provide their information to Reporting Companies for reporting obligations.

When must reports be filed?

When a Reporting Company must file their initial report will depend on when the final rules become effective.

For Reporting Companies formed after the effective date, the report must be filed within 14 days of formation. For Reporting Companies formed before the effective date, the report must be filed within one year of the effective date of the final rules.

Furthermore, the Draft Rules require ongoing reporting to ensure that all beneficial ownership information is up to date, requiring updates to be made within 30 days of a change.

What information must reports include?

The Draft Rules provide that Reporting Company reports must include the Reporting Company’s legal entity name, assumed business name, street address, state of organization, and federal employer identification number. The reports for Beneficial Owners and Company Applicants must include the individual’s name, birthdate, residential address, and acceptable photo ID.

Confidentiality will be of concern for many of our firm’s clients. The CTA requires the establishment of security protocols to protect the confidentiality of the reported information. FinCEN is specifically prohibited from sharing the information with the general public and as a general matter, the information can only be disclosed, subject to stringent access protocols, to law enforcement, financial institutions, and other authorized users for the purpose of protecting national security and intelligence, enhancing financial system transparency, and assisting in other enforcement efforts to counter illegal activity. However, rules detailing which agencies will be authorized to view reported information and the security protections for that information have yet to be published for public comment.

What proactive steps should businesses take?

For starters, your business can begin collecting the beneficial ownership information that will eventually need to be reported to FinCEN. Businesses and business attorneys should also consider adding provisions to agreements with owners requiring the owner’s cooperation to collect the owner’s required reporting information and update confidentiality clauses in legal documents to carve out exceptions for these reporting requirements.

Violating the beneficial ownership reporting requirements could result in civil penalties up to $500 per day and criminal fines up to $10,000 or up to two years in jail. Compliance with these impending rules will be crucial and Emerge Law Group will continue to monitor developments.

If you have any questions or concerns about how the beneficial ownership reporting requirements will impact your business, contact an attorney from our Business Group.

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FRANCHISE LAW

Franchisors

Franchise law is a heavily regulated area of law.  We help clients expand their businesses through franchising and other distribution methods. We have experience in many industries including, restaurants, health, and beauty, alcohol, and cannabis among others. Our representative services include the following:

Franchisees

We also help potential franchisees interested in buying a franchise. We are able to assist with evaluation of franchise opportunities with respect to:

Alternative Structures

However, not all businesses are suited to franchise. We are also experienced with helping clients structure alternative distribution methods to prevent classification as a franchise.

MERGERS AND ACQUISITIONS

Our M&A attorneys are highly experienced in counseling clients who are considering acquisitions or exit strategies.  We have many years of experience handling deals of various types and sizes, ranging from sales of small closely-held business, private companies, and publicly-traded corporations.  We have represented business owners, private equity firms and investment banks in a wide range of industries. 

We have a deep business bench, and Emerge attorneys have handled transactions of all shapes and sizes.  Whether your deal is valued at $100,000 or $100,000,000, our experienced attorneys will guide you through the deal process.

We understand the intensity, technical skill and judgment needed to get deals done, and we provide our clients with timely, practical and cost-effective legal advice.  We are highly capable in all aspects of M&A, including the following:

CANNABIS INDUSTRY

Emerge Law Group is highly experienced in the cannabis industry.  We have helped many clients obtain state licenses and local permits to operate cannabis businesses throughout California, Oregon, and Washington.

Emerge attorneys were instrumental in the drafting and passage of Oregon Measure 91, legalizing marijuana in the State of Oregon, and have represented cannabis businesses well before many law firms were willing to enter the cannabis industry. As a firm that has provided legal services in the cannabis space for many years, we are familiar with the unique and complex issues businesses and individuals face in an emerging and highly regulated industry.

We regularly help clients with:

Cannabis laws and rules are also regularly changing.  Members of our team are dedicated to attending legislative hearings, state agency and local city and county meetings to stay up-to-date on any new changes and how to adjust to any new changes.

See our Cannabis Industry page for more information.

PSYCHEDELICS

There is tremendous excitement about the potential for psychedelic drugs to benefit a wide variety of populations, including terminally ill patients suffering with anxiety and depression. Until recently, psychedelic substances have been accessible only in the illicit market and are illegal under federal and state to manufacture, distribute, or possess. These substances have, since 1970, been treated as having no legitimate medical use, and no commercial application. As such, no one invested in this area or required legal services, outside of the criminal context.

Today, researchers in a multitude of clinical studies are proving the medical safety and efficacy of these medicines, with the objective of changing the treatment of these substances under the Controlled Substances Act. Companies are now actively raising money to develop intellectual property and seize market opportunities associated with psychedelic drugs.

In addition, advocates at the state and local levels are not waiting for the rescheduling of these substances and are active in undertaking efforts to decriminalize these substances and/or make them affirmatively legal under state and/or municipal law. Decriminalization already has occurred in cities including Denver, Oakland, Santa Cruz, and Ann Arbor. Oregon is poised to be the first state to make psilocybin therapy affirmatively legal. Emerge Law Group is working with a wide array of clients pushing forward in this emerging area.

See our Psychedelics Practice Group page for more information.

TAXATION

CORPORATE AND PARTNERSHIP TAX

Businesses of all kinds benefit from a customized but systematic approach to structuring legal relationships. Emerge Law Group helps businesses and business owners with a variety of tax planning matters.

Representative client services include:

ESTATE PLANNING

Estate planning encompasses everything from a will and power of attorney to combined estate and business succession planning. In almost all cases, the purpose of the plan is to help the client protect those they care about most in the event they can no longer be there for them.

Emerge Law Group has experience with a wide range of tools used in estate planning, including wills, trusts, and family business entity planning.

TAX CONTROVERSIES

Emerge Law Group can assist with the resolution of difficult tax controversies. Our areas of emphasis and experience include:

REAL ESTATE TRANSACTIONS

Emerge Law Group assists clients with a wide range of real estate transactional matters.  We regularly help clients with:

LAND USE

Emerge Law Group also assists clients with all aspects of local government land use and development processes, ranging from preliminary property analyses and building permit issues to complex land use reviews and hearings. Our attorneys are experienced in obtaining land use entitlements and development permits for a wide range of uses.

We regularly help clients with:

Above all, we understand the value of working with cities and counties to enhance communities while developing the land to its potential. We strive to create solutions to land use issues that serve to better our clients and the communities in which they live and work.

LITIGATION AND ALTERNATIVE DISPUTE RESOLUTION

The attorneys in Emerge Law Group’s Litigation and Alternative Dispute Resolution practice group litigate commercial, intellectual property, and public interest matters in state and federal courts, as well as private mediation and arbitration proceedings.  Our lawyers have represented national and regional financial institutions, major media, entertainment and technology companies, and other Fortune 500 companies in a broad array of high-stakes disputes.  Our team of litigators has handled leading cases that have shaped the law in cutting-edge business, technology, free speech, and public interest impact lawsuits in trial and the courts of appeal.

We have particular expertise in handling civil litigation and regulatory enforcement matters in the cannabis and psychedelic industries.  While many firms claim expertise in the these industries, few have our depth of experience successfully litigating contract, trademark, partnership, shareholder, land use, and real estate disputes in court and arbitration.  Even fewer firms have our level of experience handling writ of mandate proceedings against the government regulators.

Our litigators practice in California, Oregon, and Washington, but have appeared in state and federal courts nationwide.  Our knowledge of our clients’ businesses, goals and concerns, and our experience litigating at the highest levels, give us unique insight into possible outcomes and pitfalls as we continuously confront issues of new impression.

No matter what the industry, we pride ourselves in achieving our clients’ objectives through efficient and creative solutions primarily designed to avoid disputes in the first place—which is always the best litigation strategy.  Many times, our clients obtain excellent outcomes before or at the earliest stages of litigation because our adversaries quickly recognize the challenges they will face in litigating against us.  When litigation is unavoidable, however, we work hard to provide our clients with both cost-efficient and “big firm” quality representation.

 

INTELLECTUAL PROPERTY

Your intellectual property (or “IP”) strategy can harness your most valuable information and intangible assets including your name, your brand, your designs, your content, your services, and your products — what makes your business stand apart in a competitive world.  We can help you evaluate and build your IP portfolio, then secure it, monetize it, and protect it.

IP encompasses multiple areas of law and different types of information or material.

Our Intellectual Property practice focuses on:

TRADEMARK

Trademarks include names, signs, logos, designs, phrases, slogans, expressions, and sometimes even colors, sounds, or smells that identify or distinguish one business compared to others.  Trademark protection is fundamental in securing your “brand.”

COPYRIGHT

Copyright covers original works of creative authorship fixed in a tangible medium of expression.  This includes literary, dramatic, musical, and artistic works, such as poetry, novels, designs, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.  Depending upon the type of work, “moral rights” (such as the right of attribution) may be implicated as well.

TRADE SECRET

Trade secret laws can vary somewhat between states, but generally trade secrets cover information, including drawings, cost data, customer lists, formulas, recipes, patterns, compilations, programs, devices, methods, techniques or processes that derive economic value from not being generally known and are the subject of efforts that are “reasonable under the circumstances” to maintain secrecy.

PRIVACY

Depending upon where you live or operate, there is a special patchwork of laws and regulations that protect and regulate personal information.  If you are handling or giving out personal or potentially sensitive information, you may be implicating privacy laws.

PUBLICITY

Publicity rights address the commercial use of an individual’s face, name, image, or likeness.  These rights vary state-to-state.  Marilyn Monroe, for example, lived in multiple states which created complex questions about her publicity rights.

Our Intellectual Property services include:

FINANCIAL INSTITUTIONS

In states where new cannabis banking opportunities exist, Emerge Law Group has the proven expertise in creating canna-banking programs to efficiently capitalize on those opportunities. Our Banking Practice Group specializes in working with banks and credit unions to develop regulatory compliant programs and operational best practices. We also train banking staff to become experts in canna-banking so they can effective understand and manage the risk affiliated with canna-banking.

We regularly help clients with:

EMPLOYMENT LAW

At Emerge Law Group, we recognize that employees are the heart and soul of any successful business.  Our Employment Law Practice Group works with employers to help them effectively manage their workforce, navigate the complex web of federal, state and local employment laws and, if necessary, defend against claims before administrative agencies and in court.

We regularly help clients with:

CORPORATE FINANCE AND SECURITIES

Our corporate finance and securities lawyers are experienced attorneys who have practiced at large law firms, worked as in-house counsel for public companies and investment banks, and owned and operated start-up companies. We work with clients to help achieve their financing goals while safely navigating the highly technical securities law landscape. 

In addition to representing issuers, we also routinely represent institutional and individual investors, including in connection with fund formation and investments.

Our expertise includes:

We have a deep understanding of the financing options available to businesses, including simple unsecured loans, asset-backed financing, convertible debt, common and preferred equity, crowdfunding and various other structures.  We work closely with our clients to understand their business and financing needs, ensure they are prepared to approach investors and choose the right partners, structure and negotiate terms, navigate the due diligence process and successfully close the deal.

COMPLIANCE AND LICENSING

ALCOHOL AND BEVERAGE INDUSTRY

Emerge attorneys have represented businesses in the alcohol and beverage industry, including wineries, breweries, distilleries, restaurants, bars, movie theaters, golf courses, and gas stations.  We can help you vet new locations, acquire existing locations, and apply for the appropriate liquor license.  We also provide training to comply with applicable rules and regulations, prepare operating procedures, submit renewals, and keep clients protected in the event of any potential violations or administrative hearings.

CANNABIS INDUSTRY

Emerge Law Group is highly experienced in the cannabis industry.  We have helped many clients obtain state licenses and local permits to operate cannabis businesses throughout California, Oregon, and Washington.  We regularly help clients with:

Cannabis laws and rules are also regularly changing.  Members of our team are dedicated to attending legislative hearings, state agency and local city and county meetings to stay up-to-date on any new changes and how to adjust to any new changes.

See our Cannabis Industry page for more information.

PSYCHEDELICS INDUSTRY

Emerge Law Group is a leader in the psychedelics industry.  There is tremendous excitement about the potential for psychedelic drugs to benefit a wide variety of populations, including veterans struggling with PTSD and terminally ill patients suffering with anxiety and depression.  Until recently, psychedelic substances have been accessible only in the underground; they are illegal under state and federal law to manufacture, distribute, or possess.  These substances have, since 1970, been treated as having no legitimate medical use, and no commercial application.  As such, businesses have not invested in this area or required legal services, outside of the criminal context.

Today, psychedelics are proceeding toward legalization on multiple paths.  Researchers in a multitude of clinical studies are proving the medical safety and efficacy of these medicines, with the objective of changing the treatment of these substances under the federal Controlled Substances Act, opening legal access to them.  Private and public companies are now actively raising money to develop intellectual property and capitalize on the market opportunities associated with psychedelic drugs.  Opportunities to be early actors in this new arena are tremendous.

See our Psychedelics Practice Group page for more information.

BUSINESS AND CORPORATE

Our business transactions team is made up of highly experienced transactional attorneys who have practiced at large law and accounting firms, worked as in-house counsel for public companies and investment banks, and owned and operated start-up companies. We understand complex legal matters and provide high quality legal services in a cost-effective manner.  Our clients value our experience, knowledge and judgment.

ENTITY FORMATION

Our team routinely advises clients regarding:

CORPORATE GOVERNANCE

Emerge attorneys also advise on-going concerns with: