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Residency Requirements Under Attack – Analysis of the First Circuit’s Opinion on the Dormant Commerce Clause’s Effect on Cannabis Residency Requirements

Author:
Blake Marvis, Attorney at Emerge Law Group; Oregon Litigation Practice Group

In August, the First Circuit Court of Appeals became the first federal appeals court to address an issue that had been litigated in district courts since 2020.  The question was relatively straightforward – does the dormant commerce clause (“DCC”) prohibit state residency requirements for owners of state-licensed cannabis businesses?

Many states that have legalized cannabis instituted various types of residency requirements for owning or operating a cannabis business within their borders.  The Supreme Court’s decision in Tennessee Wine and Spirits Retailers Association v. Thomas, 139 S.Ct. 2449 (2019) also breathed some new life into the DCC. Multiple cannabis-related cases leveraged that decision to make stronger DCC arguments.

Numerous district court cases that addressed this issue concluded that various residency requirements violated the DCC.  See NPG, LLC v. City of Portland, Maine, 2020 WL 474913, at *10-11 (D. Maine, Aug. 14, 2020) (determining that the DCC “likely restricts the City’s licensing of marijuana retail stores”); Toigo v. Dep’t of Health and Senior Servs., 549 F. Supp. 3d 985, 995-996 (W.D. Miss. 2021) (granting preliminary injunction and determining that Missouri’s “residency requirement is likely unconstitutional under the dormant commerce clause.”); Lowe v. City of Detroit, 544 F. Supp. 3d 804, 815-816 (E.D. Mich. 2021) (granting preliminary injunction against residency requirement based on violation of the DCC).  However, one district court determined that because cannabis is illegal under federal law, the DCC offered no protection or mechanism for striking down residency requirements related to cannabis.  See Original Investments, LLC v. State, 542 F. Supp. 3d 1230, 1234-1237 (W.D. Ok. 2021).

The First Circuit sided with the majority of district court decisions and held that Maine’s residency requirement for officers and directors of medical cannabis dispensaries violated the DCC.  See Northeast Patients Group v. United Cannabis Patients and Caregivers of Maine, 45 F.4th 542, 558 (1st Cir. 2022).  The First Circuit addressed defendant’s three main arguments in making its holding.

First, the Court addressed the argument that because cannabis is illegal under federal law, there is no “interstate” market for cannabis.  Therefore, the DCC does not apply because Maine was not discriminating against any “interstate” market.  Id. at 547.  The Court rejected this argument, stating that Gonzales v. Raich had established there was an interstate market for cannabis that Congress could regulate, even though that market was illegal.  Id.  The Court also looked to the fact that Congress had passed the Rohrabacher-Farr Amendment, and identical versions every annual congressional appropriation since, which the Court considered a tacit acknowledgement of the interstate cannabis market.  Id. at 547-48.

Second, the Court addressed the argument that because cannabis is federally illegal under the Controlled Substances Act (“CSA”), the DCC offered no protection to such illegal commerce.  Id. at 548.  The Court rejected this argument as well, indicating that the precise question before it was not “whether the CSA preempts the residency requirement,” but rather whether “the residency requirement cannot stand because it transgresses the [DCC] due to the substantial burden that this requirement . . . imposes on interstate commerce.”  Id.  The Court also focused again on how Congress had passed legislation related to state-legal cannabis regimes – including the Rohrabacher-Farr Amendment – since the enactment of the CSA, which reflects that “Congress contemplates both that an interstate market in medical marijuana may exist that is free from federal criminal enforcement and that, if so, this interstate market may be subject to state regulation.”  Id. at 549-550.

Third, the Court addressed the final argument from defendants, which asserted that the CSA evidenced Congress’s intent to “consent to otherwise impermissible state regulation.”  Id. at 550.  After extensive discussion about which legal standard to apply (i.e., whether Congress needed to make a “clear statement” or not on the issue), the Court ultimately determined that Congress did not need to make a clear statement that residency requirements were permissible, CSA notwithstanding.  Id. at 553.

Zooming out, the real thrust of the First Circuit’s decision narrowed in on how the situation of state-legal cannabis is unique. The Court avoided a finding that the DCC did not apply without a clearer statement from Congress on the issue.  In other words, the Congressional intent that could be gathered from the CSA, the Rohrabacher-Farr Amendment, and other cannabis related legislation was mixed and the Court would not interpret this mixed intent as barring application of the DCC.

It is important to note that the First Circuit’s decision was not unanimous and Judge Gelpi dissented from the holding.  Id. at 558.  The dissent focused on the argument that the CSA rendered cannabis illegal, which subsequently bars application of the DCC.  Id. at 558-559.  In other words, the dissent determined that the “fundamental objective” of the DCC was “inapplicable, because Congress has already outlawed the national market for marijuana.”  Id. at 559.  Interestingly, the dissent agreed that the DCC would render the residency requirement unconstitutional, but that the appellees “should not be able to receive a constitutional remedy in federal court to protect the sale and distribution of a controlled substance which remains illegal under federal law.”  Id. at 560.

Overall, the First Circuit decision provides an interesting glimpse into how subsequent cases addressing this issue could be litigated.  It seems most likely that other federal courts will follow suit and continue to find that the DCC prohibits various residency requirements implemented by states with legal cannabis industries.  Although, the dissent does provide some potential for contrary arguments.  Similar DCC and constitutional issues will be raised in the recent Oregon lawsuit seeking to overturn the prohibition on interstate cannabis sales.  And this type of reasoning can also be applied to other controlled substances, including the up-and-coming psychedelics industry in Oregon and in other states.

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Court Hears Argument in Landmark Case Seeking to Open Access to Psilocybin Therapy

Nation’s First Legal Challenge to Allow Psilocybin Therapy in End-of-Life Care Under “Right-To-Try” Law Heard by the Ninth Circuit Court of Appeals:

Cancer patients seek relief from anxiety and depression in alignment with ongoing research on the effectiveness of psilocybin in mental health care.

Time: 1 p.m. PST, Thursday, September 2nd, 2021

Pasadena Virtual Courtroom

Live Video Link: https://www.ca9.uscourts.gov/media/streaming/watch/pasadena-virtual-courtroom-1-1200pm-thursday-9-2/

Summary:

Two patients with advanced cancer and their palliative care physician challenge the Drug Enforcement Administration’s position denying patients with life-threatening medical conditions from accessing therapy with psilocybin (the active ingredient in “magic mushrooms”), which has been shown remarkably effective in alleviating depression and/or anxiety.

A Petition for Review was filed in the United States Court of Appeals for the Ninth Circuit on behalf of the Advanced Integrative Medical Science (AIMS) Institute, Dr. Sunil Aggarwal, M.D., Ph.D., Michal Bloom, and Erinn Baldeschwiler, all in the Seattle region.

Psilocybin is classified as a Schedule I Substance by the DEA. Research by some of the world’s leading academic institutions is showing dramatic promise of psilocybin therapy in relieving anxiety and depression of patients with cancer.

The 9th U.S. Circuit Court of Appeals will hear argument in the case challenging the Drug Enforcement Administration’s determination in February that it lacked authority to waive any provision of the Controlled Substances Act to allow medical use of psilocybin. The challenge is brought by a Seattle doctor, Sunil Aggarwal, and his clinic and research institute, the Advanced Integrative Medical Science Institute, seeking to provide psilocybin therapy to terminally ill patients to treat depression and anxiety under Washington’s “right to try” law, which aims to give certain patients access to experimental therapies.

Who:

Erinn Baldeschwiler: is a 49-year-old mother of two teenagers. She has stage IV metastatic triple-negative breast cancer that was found throughout her body. She was informed she had statistically two years left of life and the main focus of treatment and care would be to maintain the highest quality of life for as long as possible. Erinn would like to try psilocybin to alleviate her emotional suffering, which includes anxiety and depression.

Michal Bloom: is now retired, due to disability caused by her medical condition. She formerly practiced law as an attorney with the United States Trustee Program, within the United States Department of Justice. She has advanced, recurrent, BRCA+, ovarian cancer with metastasis to her lymph nodes and was first diagnosed in February 2017.

Since then, Michal has undergone several surgeries, and several rounds of chemotherapy for treatment of the cancer. She has also had surgery to install a port for chemotherapy in her chest and has had to manage side effects of various treatments, including persistent recurrent intestinal distress; terrible constipation and recurring bowel obstruction; chronic fatigue; weakness; hospitalization for an infected port; enduring an episode with MRSA; and has experienced the distress of having open wounds for months.

Michal understands that she may have a very limited quantum of time to live and does not have the luxury of time to await the full FDA new drug approval process to run its course to access a promising investigational drug. Michal has experienced severe anxiety and depression, which conventional therapy, even Ketamine-assisted therapy, has not ameliorated.

Kathryn Tucker, special counsel, Emerge Law Group, Portland, OR, one of the nation’s leading patient rights advocates. Kathryn is Special Counsel at Emerge Law Group, where she co-chairs the Psychedelic Practice Group.

Kathryn is also executive director of the End-of-Life Liberty Project (ELLP). Kathryn founded the ELLP during her tenure as executive director of the Disability Rights Legal Center (DRLC), the nation’s oldest disability rights advocacy organization.

Tucker served two decades as Director of Advocacy and Legal Affairs for Compassion & Choices, working to improve care and expand choice at the end of life. She has held faculty appointments as Associate Professor of Law at Loyola Law School, Los Angeles, and as Adjunct Professor of Law at the University of Washington, Seattle University, and Lewis & Clark Schools of Law, teaching in the areas of law, medicine and ethics, with a focus on the end of life.  Tucker was counsel representing patients before the SCOTUS in Glucksberg v WA, Quill v NY, and Oregon et al v Gonzales.

O: 503.227.4525
D: 206.595.0097
kathryn@emergelawgroup.com

 

Sunil Aggarwal: M.D., Ph.D., FAAPMR, Hospice and Palliative Medicine, co-founder and co-director, AIMS Institute. Dr. Aggarwal is a hospice and palliative medicine and physical medicine and rehabilitation physician and medical geographer. His primary clinical work is as an Integrative Pain, Palliative Care, and Rehabilitation Physician in private practice at AIMS Institute (Seattle, WA) and as an on-call MultiCare Palliative Physician and Associate Medical Director of MultiCare Hospice (Tacoma, WA).

Dr. Aggarwal previously ran the palliative care medicine consultation service at the MultiCare Auburn, Washington, hospital and regional cancer center. His medical geographic scholarship interests are in geographies of access, delivery, and development of cannabinologic and psychedelic integrative medicine, especially as they pertain to development in pain management, hospice and palliative medicine, and rehabilitation services.
saggarwal@aimsinstitute.net
D: 206-420-1321

Media contacts:

Kathryn Tucker
Emerge Law Group
O: 503.227.4525
D: 206.595.0097
kathryn@emergelawgroup.com
https://emergelawgroup.com/

Bad Bawmann
The Bawmann Group
O: 303.320.7790
D: 303.870.3949
brad@goteamtbg.com
https://goteamtbg.com/
Justin Hays
Emerge Law Group
O: 503.227.4525
D: 971.570.6564
justin@emergelawgroup.com
https://emergelawgroup.com/

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California’s Aid in Dying Law Challenged in Federal Court for Discriminating Against Terminally Ill Patients with Physical Disabilities

Read Mercury News Article here: When the Aid-In-Dying Law Leaves You Out 

A number of Californians with terminal illnesses involving progressive loss of physical ability filed suit today in federal court, along with a group of physicians who treat such patients, asserting that California’s End of Life Options Act discriminates against them. The law, Cal. Health & Safety Code § 443 et seq., allows mentally competent terminally ill adults to obtain prescription medication that can be ingested to achieve a peaceful death. This option is known as aid in dying (“AID”). However, the law prohibits assisting a patient with ingesting the medication. Cal. Health & Safety Code § 443.14(a).  Californians whose disability prevents them from ingesting the AID medicine without assistance are thus denied access, they are unable to achieve a peaceful death via AID.

Justin Morris talks with his mother Sandy Morris, left, on the deck of their home in Sierraville, Calif., on a recent day. (Frame from video by Kyle Methaney))

Plaintiff-patients are terminally ill Californians with illnesses which cause progressive loss of bodily function who want the option of a more peaceful death via AID, but because of progressive illness and advancing disability, they either (1) cannot self-administer the AID medicine without assistance or (2) will not be able to self-administer the AID medicine without assistance at the time they wish to ingest the drugs.  These patients are faced with a perverse choice:  ingest the AID medication earlier than they would like while they retain the physical ability to do so or else be forced to endure the final ravages of their illness if they wait and lose the ability to ingest without assistance.

This civil rights class action seeks to rectify the exclusion of physically disabled individuals from the EOLOA, calling for reasonable accommodation to ensure physically disabled Californians are afforded equal benefit of the EOLOA.

Plaintiff Sandra (Sandy) Morris has advanced amyotrophic lateral sclerosis (“ALS”), a progressive nervous system disease that affects nerve cells in the brain and spinal cord, causing progressive loss of muscle control. A mother of 3, Sandy was advised by her doctors that ALS is invariably fatal, and that there is no cure. Sandy is now entirely dependent on caregivers to meet her every need. Sandy will soon lack the hand strength and coordination to ingest the AID medication without assistance. Sandy is being forced by operation of the EOLOA to decide between ending her life sooner than she wants or suffering the slow-and-painful death she desperately wants to avoid if she waits and loses the ability to ingest without assistance.

Plaintiff Lonny Shavelson, M.D. is one of Sandy’s treating physicians. He would like to assist her in her desire for AID if she needs assistance in ingesting the medications, but feels he is barred from doing so, as the EOLOA only protects physicians from civil and criminal penalties so long as they do not “assist the qualified person in ingesting the aid-in-dying drug.” Dr. Shavelson says: “I have seen the assistance prohibition of the EOLOA adversely impact dozens of patients, either forcing them to make the choice to act sooner, while physically still able to do so, or wait and then lose the ability to access AID and then endure the prolonged sort of death they hoped to avoid.”

This complaint seeks injunctive relief requiring accommodation to enable such patients access to AID.  Plaintiffs assert that the State must ensure Ms. Morris, and others similarly situated, are not denied the option for a peaceful death via AID due to their disabilities.

The plaintiffs are represented by long-time patient rights advocate Kathryn Tucker, now Special  Counsel at Emerge Law Group. Tucker is past Executive Director of the Disability Rights Legal Center, and the End of Life Liberty Project, which was a sponsored project of UC Hastings/UCSF Consortiuum on Law, Science and Health Policy; prior to that she served as Director of Advocacy and Legal Affairs at Compassion & Choices for many years. Tucker has litigated many cases concerning the rights of patients with terminal illness , including Glucksberg v WA, Quill v NY, Baxter v Montana, Bergman v Eden Medical Center, Hargett v Vitas, AIMS et al v DEA.

Plaintiffs are also represented by leading disability rights litigator Cat Cabalo and civil rights litigator Adam Wolf of Peiffer Wolf.

View the Complaint here: EOLOA_.08.27 Complaint_Kathryn Tucker

Kathryn Tucker
Emerge Law Group
Phone: 206-595-0097
Email: kathryn@emergelawgroup.com

Adam Wolf
Peiffer Wolf Law
Phone: 415-766-3545
Email: awolf@peifferwolf.com

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Emerge Law Group Challenges Sonoma County, California Policy of Fining Medical Cannabis Users as Illicit Commercial Growers

Sonoma County, CA, August 16, 2021 — Emerge Law Group has filed a Petition in California Superior Court challenging penalties of over $28,000 imposed by Sonoma County on a mother and daughter for exceeding the allowed medical cultivation of 100 square feet.

The Petition seeks to overturn the July 16, 2021 decision by an administrative hearing officer that approved the County’s practice of imposing huge fines, even without any evidence that the property owner sold cannabis to any other person.  The penalty approved by the hearing officer would, if not overturned in Court, be financially destructive to the mother and daughter.

Sonoma County contended at the administrative hearing that any cultivation area that exceeds 100 square feet “magically” becomes subject to prosecution as an illegal “commercial” cannabis business.  By simply exceeding the allowed square footage, a property owner engages in “commercial cultivation,” according to the County.  County officials said at the hearing that imposing the harsh fine schedule for illegal commercial growers in these circumstances is “easiest” for them.

The Petition filed by Emerge attorneys Timothy L. Alger and Delia Rojas asks the Superior Court to vacate the fines, order Sonoma County to stop its arbitrary and excessively punitive enforcement practices and seeks damages for violation of the civil rights of the mother and daughter. The Petition alleges that Sonoma County has adopted policies and practices that are unfair and designed to punish individuals who, often by inadvertence, become non-compliant with regulations allowing limited personal and medical cannabis cultivations.

The mother and daughter contend in their Petition that a Sonoma County enforcement official, when he conducted an unscheduled inspection, called one of the petitioners names and threatened the petitioners with $10,000 fines per day if the inspector was not immediately allowed onto the property.  The petitioners have had medical approvals for their cultivation, and there is no evidence that they ever sold cannabis to any person.  The petitioners assert that they always attempted to comply with County regulations and cooperated with inspections.

“This is an important lawsuit because it holds local governments to account for abusing their limited power to regulate cannabis cultivation,” said Emerge attorney Timothy Alger.  “Californians overwhelmingly approved at the ballot box the right of residents to grow cannabis for personal and medical use.  Minor violations do not entitle a city or county to treat people who are exercising their rights to personal and medical cultivation — and attempting in good faith to comply with complicated and often illogical regulations — as illegal commercial businesses.”

Emerge Law Group is a full-service law firm that focuses on representing companies in the legal cannabis industry.  It has offices in Irvine, Los Angeles, and Santa Rosa, California, as well as Portland, Oregon.

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Signing on the Dotted Line: Contract Signature Issues in Litigation

The idea that “any contract is better than no contract” gets many new businesses into hot water. Small businesses, start-ups, and business partners eager to hit the ground running will skim over early documents or sign “temporary” agreements, intending to revisit the topic later or amend the agreements as the business grows. These hastily signed documents, however, can cause major issues if the parties get involved in future litigation.  Here are some common and easily avoidable contract issues we’ve seen.

Signing “Placeholder” Contracts

When starting a business, some people will sign a “placeholder” or “temporary” contract, planning to draft a “permanent” contract later. Believe it or not, oftentimes the parties never get around to forming a definitive agreement.

“Placeholder” contracts are often valid contracts, though. Even if the parties have verbally discussed drafting formal contracts later, they may still be bound by the terms of the original placeholder agreement. This can be problematic during litigation because the signed agreement may contain provisions that the parties had not considered carefully before signing. For example, a “placeholder” operating agreement may have a mandatory arbitration clause that neither party realized was in the document, or may contain complicated terms about how and when the members may dissolve the company. This can make litigation increasingly expensive as the parties try to piece together the intended terms of their agreement after the fact.

Signing “Key Terms” Contracts

Some parties may try to avoid signing initial contracts by instead signing “preliminary” documents that summarize the main points or key terms of their overall business transaction. Unlike “placeholder” contracts, these preliminary agreements may provide a false sense of security by including provisions that state that the parties will draft and agree to additional formal business documents later.

But if a party takes action pursuant to a signed “key terms” agreement, they run the risk of binding all parties to the agreement’s terms. If the agreement has enough essential terms, a preliminary contract may still be legally binding, even if the parties see it as incomplete. A court may enforce such a binding agreement even if it has open terms or minor terms that the parties intended to address later. This is so even when the contract contemplates that the parties will negotiate and agree upon additional terms set forth in a “final” agreement.

A related issue is the agreement to agree. The problem with agreeing to agree to later terms or documents is that—surprise! —both parties will eventually have to agree to the later terms or documents. If the parties are unable to agree at the beginning, when they are both excited about the new business and eager to work together, the likelihood of being able to agree on those terms once the realities of business ownership set in will probably be much lower, especially in the event of a business dispute.

Who’s Signing This Thing?

Many business owners choose to form multiple entities that will each focus on one portion of their larger business plan. This makes it important to keep track of exactly who is signing because one misplaced signature can put unintended people and entities at risk.

The signature blocks on any corporate document should be clear regarding the entity that is party to the contract. One entity breaching a business loan contract, for example, could endanger the assets of other entities under the same business umbrella if the contract is not clear on which entity entered into the contract. Other companies not intended to be responsible for the loan may be named in a lawsuit along with the breaching entity and may incur significant costs trying to remove themselves from the lawsuit.

Inaccurate signatures can even expose business owners to personal liability. If the incorrectly named entity does not exist, but the managers signing the contract do, a court or arbitrator may hold them personally liable for debts of the nonexistent entity. This absurd result – and the significant legal fees that may be incurred correcting this result – might be avoided by simply cross-referencing the contract with the Oregon Secretary of State business registry prior to signing.

Look (For A Lawyer) Before You Sign!

Signatures—even on initial, preliminary, or placeholder business documents—can carry far more weight than parties realize or intend. Litigation issues over signatures like these can be avoided by consulting with an experienced business attorney at the onset of a business, rather than waiting until litigation disputes arise when it can be too late. And, once litigation proceeds, it is crucial that the parties provide any and all signed business documents to their attorneys, no matter how unimportant or inconsequential the documents may seem, so that any potential contractual issues can be resolved as quickly and smoothly as possible.

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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: