On February 28th, I moderated our firm’s “Distressed Cannabis Businesses” webinar. In that webinar, Griffen, Ethan, Vince, and I discussed the current financial and economic pressure the entire cannabis industry is facing today. We covered reorganization, litigation, dissolution, M&A, receivership, secured interests, and liquidation. And we of course discussed how state-by-state cannabis regulations impacts all of the foregoing. If you missed distressed cannabis businesses webinar, here are the highlights:
Because cannabis remains federally illegal, filing for bankruptcy in U.S. federal court isn’t really an option for a distressed or insolvent cannabis business. However, as Ethan explained in the webinar, the case is less clear when the debtor is just an ancillary cannabis business. This is a nuanced, fact-specific area of law, with courts coming to seemingly inconsistent conclusions across jurisdictions.
Bankruptcy is a distressed business tool for re-organization in order to survive. Without it, the cannabis industry is left with a few (often inadequate) alternatives to deal with financial fall out.
Court-appointed receivers are neutral, third-parties that will take over a distressed cannabis business’s operations. A receiver’s sole purpose is to preserve and protect the business during a problematic period – and, if you take care to ensure that your receiver is well-versed in the cannabis industry, he, she or it can typically handle everything from sales to personnel to accounting (their powers can be very broad).
Keep in mind that the point of the receiver is not to run the business for the benefit of creditors or even to re-structure–it’s to run the business until the underlying legal proceedings are concluded. The appointment of receivers and their treatment by cannabis regulators is also going to change from state to state (see here for Oregon, for example) with things like disclosures, changes to the license, and continued reporting.
Assignment for the benefit of creditors
An assignment for the benefit of creditors (“ABC”) is controlled by state statutes. An ABC is a contract by which an economically troubled entity (“Assignor”) transfers legal and equitable title, as well as custody and control, of its assets and property to an independent third party (“Assignee”) in trust, who is required to apply the proceeds of sale of the property to the assignor’s creditors in accord with priorities established by law. ABCs really only make sense if there are significant assets to liquidate.
ABCs are most successful when the Assignor, Assignee and creditors cooperate but can be imposed even if the creditors are not supportive. Further, like a receivership action, ABCs do not result in a reorganization of a company. While ABCs may technically be available to the cannabis industry, they don’t make a ton of practical sense. This is mainly because of all of the regulatory reporting and regulatory prohibitions around the sale of licenses, inventory, and/or cannabis cash. Still, they’re on the table for distressed cannabis businesses.
The Uniform Commercial Code (UCC)
Many cannabis companies offered up security interests to lenders in order to score some cash. And now, in this financial climate, no loan is going out to a cannabis company without some kind of collateral. To have a valid security interest, you need to follow the UCC, and pay attention to any state variances under state UCC laws.
Article 9 of the UCC covers secured transactions. In a secured transaction, the parties are typically the debtor and the creditor. The creditor’s goal with a cannabis company security interest is to attach and then perfect its interest in the collateral so that the creditor can later take possession of that collateral in the event of a default (without having to go to court). The creditor then liquidates the collateral and takes from the proceeds the remainder of whatever it lent in order to make itself whole. The rest then goes to junior creditors, if any, and then back to the debtor (which seldom happens). For more on the structure of UCC-1s in cannabis, see here.
Lots of cannabis companies are looking to sell now before they lose everything they’ve put into the business. This presents a unique opportunity for certain buyers who may be looking at deeply discounted cannabis business purchases. For a distressed cannabis business, like any other business, buyers need to run serious M&A due diligence. Particularly though for distressed cannabis businesses, due diligence is crucial when it comes to things like litigation, contract breaches (non-performance, insolvency, and/or breaches of operating covenants), and encumbrances on various assets.
It’s not pretty out there right now in the cannabis economy, and we sincerely hope that this phase of distressed cannabis businesses can pass quickly without too much blood in the water.