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Cannabis Law Now Podcast: Cannabis Companies and the Corporate Transparency Act

 

Published:

August 26, 2024
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The Corporate Transparency Act (CTA) seeks to increase corporate transparency and combat financial crimes in the U.S. such as money laundering and terrorist financing. Enacted in January 2021 as part of the National Defense Authorization Act, the CTA requires certain business entities to disclose their beneficial owners—individuals who ultimately own or control the company. Namely, corporations, limited liability companies, and similar entities must report their beneficial owners to the Financial Crimes Enforcement Network. Some entities, such as large operating companies, regulated entities (banks, insurance companies, etc.), and entities already subject to extensive federal regulation, are exempt from these reporting requirements. There are steep penalties for non-compliance or falsifying information, including fines and possible imprisonment. Even though cannabis companies are federally illegal, they are not exempt from reporting under the CTA. In this episode host Hilary Bricken, and Yuefan Wang, corporate, M&A, and securities partner at Husch Blackwell, discuss the mechanics of the CTA and how and when cannabis companies must comply, including consequences to cannabis companies if they fail to report. 

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[Music]

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[Applause]

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welcome I'm your host Hillary Bricken and

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this is the Cannabis law Now podcast

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where we regularly discuss issues

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related to the Cannabis industry

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including investment day-to-day

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operational issues and potential reform

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on the horizon that will impact all

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cannabis businesses and investors in the

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United

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[Music]

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States welcome everybody on today's

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episode I have one of my esteemed

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colleagues here at hush Blackwell with

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us we have yupon Wong yupon based out of

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Denver how you doing I'm great Hillary

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how are you I'm doing well too and we

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have you on the podcast today to

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specifically talk about which may be the

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majority of cannabis companies unless

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they've really been paying attention

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they don't know about it but it's the

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application of the corporate

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transparency act to them their existing

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businesses new businesses joint ventures

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that they seek to start and before we

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get into the corporate transparency act

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which I'm going to call the CTA why

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don't you give us an our listeners a

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little bit on your background because

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you're a corporate m&a and securities

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attorney but what does that really mean

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in the context of serving your cannabis

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clients and just give us a little bit of

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a history of your practice before we

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launch into CTA yeah sure thanks again

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for having me so I have been practicing

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in the Cannabis field and also with hush

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Blackwell for 5 years prior to that my

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background was in General corporate law

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private Equity public and private

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Acquisitions Investments and so forth I

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was actually at a big US law firm in

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Shanghai where I was helping a lot of

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American companies invest into um you

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know Chinese the Chinese PE space a lot

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a lot of Biotech work I actually thought

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out Steve LaVine and Marshall at husch

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blackwell because I really wanted to get

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into cannabis and I interviewed them

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from China and here I am so yeah a

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little bit interesting story so yeah I

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kind of bring you know just a general

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corporate skill set to the Cannabis

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space since I've been at hush and in

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Denver I've done a lot of transactions

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for you know all the big names here in

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Colorado one of the highlights would

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definitely be uh the sale of Live Well

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to pharmacan a couple years ago which

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was at that point the biggest cannabis

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Steel in the nation at over a billion

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dollars so my specialty is generally an

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acquisition type work so selling and

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buying dispensaries licenses and that

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stuff and also Equity Investments we see

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that a little bit less of course in the

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Cannabis space but I also have kind of a

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a non-cannabis practice where I do a lot

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of similar types of work in other other

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Industries and I have to say cannabis is

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volatile it's been that way from the

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jump it's highly unpredictable at times

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arbitrary state-by-state Patchwork quilt

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of Regulation that sometimes undermines

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or definitely informs all of these

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transactions including the m&a the only

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thing I could think of that might be

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more volatile and scary and arious would

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be doing business in China and I I can

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say that because my last Law Firm had a

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big China practice and I do recall many

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years ago they were getting their forms

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rejected because they didn't fill them

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out in blue ink even though it did say

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blue or Black Ink on the form but on

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that day Black Ink wasn't being accepted

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so I can only imagine the volatility

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that you've seen in your past and that

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you're quite conditioned to be able to

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help cannabis companies I'll say it's

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very relationship based one of the deals

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I actually did was helping a state don't

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ENT rise which is an entity created by

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the communist government in the

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acquisition of a semiconductor

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manufacturer in the US this was right

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before the Trump presidency and probably

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one of the last deals of that nature

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that will ever be done so yeah wow yes I

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do think that China transactional

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attorney is fit to practice in the

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Cannabis industry in the US more than

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probably the majority of other

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candidates okay so let's talk about the

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CTA as a corporate lawyer and I have a

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corporate practice as well this is

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infecting our practices with our clients

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unless they're exempt wanting to start

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new entities or even if they began

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entities last year could potentially

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apply can you just give us an overview

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of the CTA assuming that a lot of these

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listeners maybe haven't even heard of it

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let alone delved in to its elements yeah

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sure I think so I'm just going to give

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you a little background the three

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biggest takeaways I would say are that

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one the act it came into effect January

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1st of this year it applies to entities

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created before and after the effective

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date and when I say entities I mean

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virtually every single kind of entity

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you're going to be working with

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corporations trusts limited Partnerships

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except for a few very narrow types of

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entities like common law trusts that are

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we don't see much in the Cannabis space

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your entity is probably going to be

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affected unless it there's an exemption

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which I'll talk about in a second the

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second most important thing is that this

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requires reporting of natural persons so

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when you're filing at a company you're

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going to have to list your individual

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beneficial owners doesn't matter if you

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own your you know your primary license

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entity through a number of llc's or

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Partnerships or whatnot it goes all the

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way to the top third most important

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thing is the timing aspect for entities

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created prior to this year you have

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until the end of the year to file this

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report and comply with the law if you're

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creating a new entity going forward you

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have 90 days to comply that means the

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first batch if you create entity in

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January and you haven't reported yet

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technically you're in breach of the act

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the CTA I'm sorry and then I guess I'm

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just looking a fourth one in and there

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are criminal penalties involved up to

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two years of imprisonment for a willful

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violation so this isn't just like a slap

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on the wrist there could be you know

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very strong potential

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penalties so I'm just going to keep

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moving forward a little bit of

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background this was actually created as

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past as part of the anti-money

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laundering Act of 2020 and the purpose

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you hear anti-money laundering in canvas

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you might be a little spooked the

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purpose of this was kind of in reaction

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to the Panama papers back in 2016 just a

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a concern by the US government and

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treasury with the particular use of us

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entities as shell companies for you know

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illicit activities including money

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laundering and all that good stuff

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unlike a lot of other countries you know

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our entity creation system is State

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based so there's no federal registry of

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beneficial owners it's Most states don't

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even require you to report your your

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owners just an incorporator so that's

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why Congress saw fit to pass this pass

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this law moving to a few few other

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Concepts there's kind of three things

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you need to report on one is the company

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itself the reporting company so like I

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said pretty much every single entity no

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matter where it is in your chain of

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ownership is going to be considered a

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reporting company unless it meets an

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exemption there are 23 exemptions most

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of them do not apply to the Cannabis

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industry they are for industries that

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are other wise regulated by treasury

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like private investment advisers Banks

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Commodities exchange act registered

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participants stuff like that so the

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biggest one though that would apply to

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the cab is called the large operating

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company exemption and that basically

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says if you're a large legitimate

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company with operations in the US then

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you don't have to report and the

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requirements for those are one you

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directly employ 20 employees and that's

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important because if you have an

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affiliate that that employs 20 employees

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it doesn't it doesn't count account

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number two is you filed the tax return

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in the past year showing 5 million or

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more in gross sales or assets I

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interpret that as basically line 1A on

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the relevant form three is you have a

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physical operating presence in the US I

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think that the second and third probably

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will not be an issue for most of our

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larger cannabis uh clients especially

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having a physical presence but because

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of the nature of how companies are

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structured the employment part might be

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an issue because you're not directly

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necessarily employing 20 employees it

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might be an affiliate that's a reporting

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company and then what the reporting

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company also needs to report on are its

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beneficial owners and those are

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individuals who directly or indirectly

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exercise substantial control over a

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reporting company or who own or control

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at least 25% of the ownership interest

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in the reporting company substantial

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control just means you know your

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managers of your llc's but it also

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includes your senior officers your C

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suite and your GC and people that act in

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that capacity the ownership requirement

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is direct or indirect meaning that if

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you're at the top of you know a chain of

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corporate entities you're not just

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reporting your sole member LLC you're

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going all the way to the top to the

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human that owns interests so it could be

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kind of a math problem and this is

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really in my opinion the hardest part

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about figuring out this law is who the

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beneficial owners are it becomes a math

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problem sometimes and also you know

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you're looking at people that might not

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be officially listed as an owner but who

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nonetheless exert control so yeah that's

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kind of a quick and dirty overview

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there's obviously a lot of other issues

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there but you know wanted to answer that

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question I appreciate that overview

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obviously the state licensed cannabis

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industry is no stranger to copious

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amounts of disclosure and in the

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Cannabis industry from the regulatory

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perspective these quote unquote owners

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whether they're identified as true

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parties of Interest beneficial owners

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whatever the term of art is similar

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right where a certain position in the

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cap table or this idea of Direction

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control and management can trigger

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disclosure when you say substantial

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control under the CTA did Congress

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Define that term or is it left undefined

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to be determined by whatever body is

266
00:09:36,160 --> 00:09:41,800
going to enforce this and before you s

267
00:09:38,680 --> 00:09:43,680
go there who is enforcing this yeah good

268
00:09:41,800 --> 00:09:45,839
question this is actually enforced by

269
00:09:43,680 --> 00:09:47,880
finson which is the financial crimes

270
00:09:45,839 --> 00:09:50,480
enforcement Network they're kind of like

271
00:09:47,880 --> 00:09:52,279
an arm of Treasury and they're as

272
00:09:50,480 --> 00:09:54,640
implied by their name their their

273
00:09:52,279 --> 00:09:56,760
bandaid is mostly dealing with financial

274
00:09:54,640 --> 00:09:59,560
crimes like with banks so there if

275
00:09:56,760 --> 00:10:02,200
you've heard of the cdb the customers du

276
00:09:59,560 --> 00:10:04,360
Dil requirements for banks that is a

277
00:10:02,200 --> 00:10:06,959
finsen concept and they've actually

278
00:10:04,360 --> 00:10:08,640
applied it to the the the beneficial

279
00:10:06,959 --> 00:10:11,000
definition here so they're the ones

280
00:10:08,640 --> 00:10:12,640
enforcing it and sorry what was your

281
00:10:11,000 --> 00:10:14,160
second question when we talk about

282
00:10:12,640 --> 00:10:16,279
substantial control because this is

283
00:10:14,160 --> 00:10:19,880
always where where my cannabus clients

284
00:10:16,279 --> 00:10:21,839
get caught in a way where these

285
00:10:19,880 --> 00:10:23,959
Regulators are wise enough not to Define

286
00:10:21,839 --> 00:10:25,680
it because they know it when they see it

287
00:10:23,959 --> 00:10:28,279
and to your point you may have

288
00:10:25,680 --> 00:10:29,880
substantial control despite your title

289
00:10:28,279 --> 00:10:32,040
and you may not be listen listed in the

290
00:10:29,880 --> 00:10:34,240
SE Suite did they Define substantial

291
00:10:32,040 --> 00:10:36,320
control in the context of the CTA they

292
00:10:34,240 --> 00:10:38,480
do actually it's a pretty dialed in

293
00:10:36,320 --> 00:10:40,680
definition so there's four parts one is

294
00:10:38,480 --> 00:10:43,519
a senior officer and they give examples

295
00:10:40,680 --> 00:10:47,959
of that they say specifically presidents

296
00:10:43,519 --> 00:10:50,480
deos dfos doos and general counsel or

297
00:10:47,959 --> 00:10:52,560
anybody that acts in that capacity so

298
00:10:50,480 --> 00:10:54,200
you know those roles are often

299
00:10:52,560 --> 00:10:56,160
associated with a corporation but you

300
00:10:54,200 --> 00:10:58,160
could have a similar rule in an LLC

301
00:10:56,160 --> 00:11:00,560
besides a manager so anybody that acts

302
00:10:58,160 --> 00:11:02,399
in that capacity second part of that is

303
00:11:00,560 --> 00:11:04,560
anyone having the authority to appoint

304
00:11:02,399 --> 00:11:07,440
or remove a senior officer or a majority

305
00:11:04,560 --> 00:11:09,399
of the board so to me that's kind of

306
00:11:07,440 --> 00:11:11,320
duplicative of the ownership requirement

307
00:11:09,399 --> 00:11:13,519
because that implies to me an equity

308
00:11:11,320 --> 00:11:14,920
holder or a board member there was some

309
00:11:13,519 --> 00:11:16,600
debate about well do you have to list

310
00:11:14,920 --> 00:11:18,639
every single person on the board and I

311
00:11:16,600 --> 00:11:21,800
think it's pretty unequivocal that you

312
00:11:18,639 --> 00:11:24,639
do even if you have a 35 person board

313
00:11:21,800 --> 00:11:27,959
right that one person could be casting a

314
00:11:24,639 --> 00:11:30,079
deciding vote so over major you know um

315
00:11:27,959 --> 00:11:31,920
decisions in the company number three is

316
00:11:30,079 --> 00:11:34,600
anyone who has substantial influence

317
00:11:31,920 --> 00:11:36,600
over important matters and lastly it's

318
00:11:34,600 --> 00:11:38,920
anyone who has any other form of

319
00:11:36,600 --> 00:11:41,639
substantial control and those to me are

320
00:11:38,920 --> 00:11:44,560
a catch all they could include everybody

321
00:11:41,639 --> 00:11:46,959
I kind of think of the the last two as I

322
00:11:44,560 --> 00:11:47,959
like say the Tony Soprano rule where I

323
00:11:46,959 --> 00:11:50,120
don't know if you guys have seen

324
00:11:47,959 --> 00:11:51,680
Sopranos but um he had that Deli that he

325
00:11:50,120 --> 00:11:53,720
used to always be outside of right like

326
00:11:51,680 --> 00:11:56,560
drinking of espresso and he definitely

327
00:11:53,720 --> 00:11:58,760
was not on the title of that Deli right

328
00:11:56,560 --> 00:12:00,320
but he exerted a form of substantial

329
00:11:58,760 --> 00:12:02,760
control over that Deli like he

330
00:12:00,320 --> 00:12:05,200
definitely was running things but maybe

331
00:12:02,760 --> 00:12:07,000
not in official capacity and they really

332
00:12:05,200 --> 00:12:09,120
you know finson really added this catch

333
00:12:07,000 --> 00:12:11,040
all definition to catch the Bad actors

334
00:12:09,120 --> 00:12:13,399
who are otherwise not in the books begs

335
00:12:11,040 --> 00:12:15,800
the question if I were a to soprano why

336
00:12:13,399 --> 00:12:19,000
would I report on myself but that's

337
00:12:15,800 --> 00:12:21,199
another issue and this also often comes

338
00:12:19,000 --> 00:12:24,800
up with cannabis companies management

339
00:12:21,199 --> 00:12:26,320
companies and you know and I think we

340
00:12:24,800 --> 00:12:27,959
all know if you've been in the sector

341
00:12:26,320 --> 00:12:29,760
why you would have a management company

342
00:12:27,959 --> 00:12:32,279
there are many good strategic reasons

343
00:12:29,760 --> 00:12:34,639
but often times it is nefarious and for

344
00:12:32,279 --> 00:12:36,440
reasons that cut against transparency

345
00:12:34,639 --> 00:12:40,360
Etc and we're just talking about the

346
00:12:36,440 --> 00:12:43,199
formation stage so I form my new Co I'm

347
00:12:40,360 --> 00:12:44,800
not exempt I have to report if I know

348
00:12:43,199 --> 00:12:46,639
I'm going to have a management company

349
00:12:44,800 --> 00:12:48,240
come in and run my day-to-day often

350
00:12:46,639 --> 00:12:50,079
times like what we see with casinos

351
00:12:48,240 --> 00:12:51,519
casinos are rarely run by the people who

352
00:12:50,079 --> 00:12:53,440
actually own them they bring in a top

353
00:12:51,519 --> 00:12:55,399
tier management team that specializes

354
00:12:53,440 --> 00:12:57,360
insecurity and gaming is that management

355
00:12:55,399 --> 00:12:58,560
company disclosable in that context

356
00:12:57,360 --> 00:13:01,000
because they will be exerting

357
00:12:58,560 --> 00:13:03,680
substantial control over day-to-day Ops

358
00:13:01,000 --> 00:13:06,279
absolutely so after your initial filing

359
00:13:03,680 --> 00:13:09,240
you also have a duty to update any

360
00:13:06,279 --> 00:13:11,399
information within 30 days so back to

361
00:13:09,240 --> 00:13:13,320
your fact pattern right let's say when I

362
00:13:11,399 --> 00:13:15,600
report submit my initial report I might

363
00:13:13,320 --> 00:13:17,480
not list him as a beneficial owner but

364
00:13:15,600 --> 00:13:19,680
once I sign that management agreement I

365
00:13:17,480 --> 00:13:21,480
have to list not just you know not the

366
00:13:19,680 --> 00:13:23,480
the management company but the people

367
00:13:21,480 --> 00:13:25,320
actually running that company the people

368
00:13:23,480 --> 00:13:26,519
that the individuals that are exerting

369
00:13:25,320 --> 00:13:29,199
substantial control through that

370
00:13:26,519 --> 00:13:31,320
management company and also beyond that

371
00:13:29,199 --> 00:13:33,800
the management company itself would be a

372
00:13:31,320 --> 00:13:36,720
reporting company so they would also

373
00:13:33,800 --> 00:13:39,000
have to disclose their beneficial owners

374
00:13:36,720 --> 00:13:41,199
and hopefully those two reports align or

375
00:13:39,000 --> 00:13:45,800
otherwise there's something wrong there

376
00:13:41,199 --> 00:13:48,360
and are states adopting many ctas to

377
00:13:45,800 --> 00:13:50,399
remain lock step with the feds here

378
00:13:48,360 --> 00:13:53,279
unfortunately yeah that's a very good

379
00:13:50,399 --> 00:13:56,880
question New York just passed their own

380
00:13:53,279 --> 00:13:58,639
it's called the LLC transparency act and

381
00:13:56,880 --> 00:14:00,639
um in many ways it's quite a bit worse

382
00:13:58,639 --> 00:14:04,079
than the federal law so it's doesn't

383
00:14:00,639 --> 00:14:06,759
take into effect until January 1 2026 it

384
00:14:04,079 --> 00:14:09,480
applies to L just llc's as of right now

385
00:14:06,759 --> 00:14:11,199
but llc's formed or qualified to do

386
00:14:09,480 --> 00:14:13,639
business in New York which is I would

387
00:14:11,199 --> 00:14:15,680
say the majority of companies in the US

388
00:14:13,639 --> 00:14:17,680
and their reporting is you know unlike

389
00:14:15,680 --> 00:14:19,720
for example state blue skies law Blue

390
00:14:17,680 --> 00:14:22,120
Sky laws that are preempted by you know

391
00:14:19,720 --> 00:14:23,959
federal laws this is in addition to the

392
00:14:22,120 --> 00:14:27,079
CTA so you're going to have to make a

393
00:14:23,959 --> 00:14:29,279
report under the federal CTA and then

394
00:14:27,079 --> 00:14:31,120
also the New York transparency Act and

395
00:14:29,279 --> 00:14:32,800
they have some quirks too they rely on a

396
00:14:31,120 --> 00:14:34,839
lot of the same Concepts as the federal

397
00:14:32,800 --> 00:14:36,560
CTA they rely on the same definitions of

398
00:14:34,839 --> 00:14:39,680
substantial control and beneficial owner

399
00:14:36,560 --> 00:14:41,160
for example but one thing is under the

400
00:14:39,680 --> 00:14:42,880
federal CTA if you're exempt you just

401
00:14:41,160 --> 00:14:45,600
don't file you don't report it it's a

402
00:14:42,880 --> 00:14:48,000
Scouts Honor almost you have to certify

403
00:14:45,600 --> 00:14:49,560
which exemption you qualify for the good

404
00:14:48,000 --> 00:14:52,079
thing is there are only civil penalties

405
00:14:49,560 --> 00:14:54,560
involved but still additional thing and

406
00:14:52,079 --> 00:14:56,880
that's just New York California has two

407
00:14:54,560 --> 00:15:00,399
similar acts that are in its legislative

408
00:14:56,880 --> 00:15:02,360
body Maryland also o has a similar act

409
00:15:00,399 --> 00:15:04,440
going through you know its legislative

410
00:15:02,360 --> 00:15:06,800
body as well and then a bunch of other

411
00:15:04,440 --> 00:15:08,680
states are considering proposing these

412
00:15:06,800 --> 00:15:10,440
laws I think as a corporate lawyer we're

413
00:15:08,680 --> 00:15:12,680
all worried about Delaware right what if

414
00:15:10,440 --> 00:15:14,560
Delaware does this then pretty much 60%

415
00:15:12,680 --> 00:15:16,560
of American companies will have to

416
00:15:14,560 --> 00:15:18,680
report there as well so with the

417
00:15:16,560 --> 00:15:20,440
proliferation of these state laws I'm

418
00:15:18,680 --> 00:15:23,720
hoping that again there will be a blue

419
00:15:20,440 --> 00:15:26,160
sky law like concept where the federal

420
00:15:23,720 --> 00:15:27,360
law preempts individual State ones but

421
00:15:26,160 --> 00:15:29,759
right now it looks like you just have to

422
00:15:27,360 --> 00:15:31,480
make a bunch of filings for every state

423
00:15:29,759 --> 00:15:33,199
jurisdiction you're in yeah and I just

424
00:15:31,480 --> 00:15:35,079
want to emphasize for the cannabis

425
00:15:33,199 --> 00:15:37,399
companies this will be maybe the third

426
00:15:35,079 --> 00:15:39,000
or fourth interation of disclosure which

427
00:15:37,399 --> 00:15:40,920
is going to differ from your cannabis

428
00:15:39,000 --> 00:15:43,160
disclosures with your regulator because

429
00:15:40,920 --> 00:15:44,720
it's just a different set of priorities

430
00:15:43,160 --> 00:15:47,079
and Reporting obligations the

431
00:15:44,720 --> 00:15:50,040
substantial control issue alone is going

432
00:15:47,079 --> 00:15:51,800
to expand under the CTA whereas Most

433
00:15:50,040 --> 00:15:53,880
states in the Cannabis industry would

434
00:15:51,800 --> 00:15:55,920
dictate that it really only goes to this

435
00:15:53,880 --> 00:15:57,360
meaningful control and Authority without

436
00:15:55,920 --> 00:15:59,160
the catchall so that'll be a

437
00:15:57,360 --> 00:16:01,319
complicating Factor now let's talk about

438
00:15:59,160 --> 00:16:02,959
large operating companies our friends

439
00:16:01,319 --> 00:16:05,519
commonly known as The multi-state

440
00:16:02,959 --> 00:16:07,240
Operators on its face seems like they're

441
00:16:05,519 --> 00:16:09,560
not disclosable because they're probably

442
00:16:07,240 --> 00:16:11,800
netting the required Revenue per year

443
00:16:09,560 --> 00:16:14,480
and they've got 20 or more employees but

444
00:16:11,800 --> 00:16:17,000
if they start subsidiaries or they've

445
00:16:14,480 --> 00:16:19,639
got these related or affiliate companies

446
00:16:17,000 --> 00:16:22,000
that often hold a variety of assets real

447
00:16:19,639 --> 00:16:24,959
estate intellectual property equipment

448
00:16:22,000 --> 00:16:26,959
that they deploy to their cannabis asset

449
00:16:24,959 --> 00:16:28,720
companies are those companies going to

450
00:16:26,959 --> 00:16:31,040
be reportable despite the fact that

451
00:16:28,720 --> 00:16:33,639
maybe maybe their wholly own Subs great

452
00:16:31,040 --> 00:16:35,519
question so one of the exemptions I

453
00:16:33,639 --> 00:16:37,600
declined to discuss a second ago was the

454
00:16:35,519 --> 00:16:40,440
subsidiary exemption and that exemption

455
00:16:37,600 --> 00:16:42,160
is that for certain exempt entities

456
00:16:40,440 --> 00:16:44,319
their subsidiary including the large

457
00:16:42,160 --> 00:16:45,880
operating company exempt companies their

458
00:16:44,319 --> 00:16:47,959
wholly owned

459
00:16:45,880 --> 00:16:50,600
subsidiaries are also exempt from

460
00:16:47,959 --> 00:16:53,680
reporting I stress wholly own because if

461
00:16:50,600 --> 00:16:57,440
you have like a 99

462
00:16:53,680 --> 00:17:00,360
99.99% owner and a 0.01% owner that

463
00:16:57,440 --> 00:17:02,800
subsidiary is not exempt if the 0.01 is

464
00:17:00,360 --> 00:17:04,839
not exempt and as is common with these

465
00:17:02,800 --> 00:17:06,959
msos right the cobweb of ownership

466
00:17:04,839 --> 00:17:10,280
structures will mean that a lot of those

467
00:17:06,959 --> 00:17:12,919
subs are not exempt and then also just

468
00:17:10,280 --> 00:17:15,280
to put a finer point on it you know we

469
00:17:12,919 --> 00:17:17,480
think we say a company right reporting

470
00:17:15,280 --> 00:17:19,799
it's each individual entity in the

471
00:17:17,480 --> 00:17:21,799
company group so it's not just you know

472
00:17:19,799 --> 00:17:24,439
the MSO at the top right or whatever

473
00:17:21,799 --> 00:17:26,760
it's every single entity that is in that

474
00:17:24,439 --> 00:17:28,360
network is reporting so if you have a

475
00:17:26,760 --> 00:17:29,960
real estate owned company that has to

476
00:17:28,360 --> 00:17:32,640
report if you have a company that holds

477
00:17:29,960 --> 00:17:35,200
your IP that has to report itself and

478
00:17:32,640 --> 00:17:37,360
because of the the direct 20 employee

479
00:17:35,200 --> 00:17:39,039
requirement a lot of those entities are

480
00:17:37,360 --> 00:17:40,840
not going to qualify for either the

481
00:17:39,039 --> 00:17:42,840
large operating CET exemption or the

482
00:17:40,840 --> 00:17:45,360
subsidiary because they don't meet the

483
00:17:42,840 --> 00:17:47,799
it's it's a entity by entity call for

484
00:17:45,360 --> 00:17:50,200
the $5 million gross sales or tax you

485
00:17:47,799 --> 00:17:51,640
can consolidate you know entities so if

486
00:17:50,200 --> 00:17:53,559
you're filing as a consolidate group and

487
00:17:51,640 --> 00:17:55,720
each single entity in that filing group

488
00:17:53,559 --> 00:17:58,240
can Avail themselves of that for example

489
00:17:55,720 --> 00:17:59,400
a disregarded entity cannot because it

490
00:17:58,240 --> 00:18:01,520
doesn't file tax

491
00:17:59,400 --> 00:18:04,000
relies on a parent to do so a lot of

492
00:18:01,520 --> 00:18:05,760
kind of find kinks in this exemption

493
00:18:04,000 --> 00:18:08,720
that you definitely should have someone

494
00:18:05,760 --> 00:18:10,360
analyze closely wild it's just wild

495
00:18:08,720 --> 00:18:12,480
finen you mentioned the financial crimes

496
00:18:10,360 --> 00:18:15,280
enforcement Network they issued guidance

497
00:18:12,480 --> 00:18:16,720
to financial institutions back in 2014

498
00:18:15,280 --> 00:18:18,600
that essentially enable those

499
00:18:16,720 --> 00:18:20,360
institutions despite anti-money

500
00:18:18,600 --> 00:18:23,039
laundering laws in the bank secrecy act

501
00:18:20,360 --> 00:18:24,720
to service these federally illegal drug

502
00:18:23,039 --> 00:18:26,120
traffickers as the federal government

503
00:18:24,720 --> 00:18:29,679
would deem them under the Controlled

504
00:18:26,120 --> 00:18:31,799
Substances Act those guidelines hinge on

505
00:18:29,679 --> 00:18:34,080
these kyc rules these know your customer

506
00:18:31,799 --> 00:18:37,200
rules an enforcement M from the doj that

507
00:18:34,080 --> 00:18:40,280
no longer exists and they're very robust

508
00:18:37,200 --> 00:18:43,159
in kind of keeping eyes on cannabis

509
00:18:40,280 --> 00:18:45,080
operators essentially droning these

510
00:18:43,159 --> 00:18:46,880
financial institutions into doing the

511
00:18:45,080 --> 00:18:49,080
Dirty Work of the feds and there's a

512
00:18:46,880 --> 00:18:51,200
whole suspicious activity report filing

513
00:18:49,080 --> 00:18:52,559
system that was created specifically for

514
00:18:51,200 --> 00:18:54,120
cannabis companies out of those

515
00:18:52,559 --> 00:18:56,039
guidelines do you think there's an

516
00:18:54,120 --> 00:18:57,520
interplay here and this is speculative

517
00:18:56,039 --> 00:18:58,799
you can just say I don't know if you

518
00:18:57,520 --> 00:19:00,000
don't know but if you have an opinion

519
00:18:58,799 --> 00:19:02,559
and please share do you think there's an

520
00:19:00,000 --> 00:19:05,159
interplay here between those guidelines

521
00:19:02,559 --> 00:19:07,240
and the CTA given that it's the same arm

522
00:19:05,159 --> 00:19:10,360
of Treasury that's going to be the

523
00:19:07,240 --> 00:19:13,760
Watchdog and that this is going to

524
00:19:10,360 --> 00:19:17,080
further maybe hurt is a strong word but

525
00:19:13,760 --> 00:19:19,880
further impact these momand pop cannabis

526
00:19:17,080 --> 00:19:22,120
companies right rather than the msos I

527
00:19:19,880 --> 00:19:23,880
do I don't think any of this would you

528
00:19:22,120 --> 00:19:25,679
know targeting the cannabis companies I

529
00:19:23,880 --> 00:19:27,159
think it might just be an unfortunate

530
00:19:25,679 --> 00:19:30,720
byproduct but I think there's a

531
00:19:27,159 --> 00:19:33,240
possibility and here's why so the C the

532
00:19:30,720 --> 00:19:35,039
law passed by Congress had three parts

533
00:19:33,240 --> 00:19:37,679
one was to kind of Define The Beneficial

534
00:19:35,039 --> 00:19:40,200
ownership that needs to be collected two

535
00:19:37,679 --> 00:19:42,600
is which entities enforcement

536
00:19:40,200 --> 00:19:44,880
authorities can access information and

537
00:19:42,600 --> 00:19:47,880
number three is actually requiring

538
00:19:44,880 --> 00:19:51,760
Vinson to update their beneficial

539
00:19:47,880 --> 00:19:54,840
ownership rules CDD rules to match the

540
00:19:51,760 --> 00:19:56,880
to match a CTA actually so that kyc

541
00:19:54,840 --> 00:19:58,200
stuff is going to undergo a change to

542
00:19:56,880 --> 00:20:00,400
have their substantial ownership

543
00:19:58,200 --> 00:20:02,320
definition match this one so there's an

544
00:20:00,400 --> 00:20:05,280
interplay there where it seems like

545
00:20:02,320 --> 00:20:06,760
finson is kind of refining the concept

546
00:20:05,280 --> 00:20:08,240
of a beneficial owner and who needs to

547
00:20:06,760 --> 00:20:09,919
be reported who need to be monitored

548
00:20:08,240 --> 00:20:11,640
then kind of applying it retroactive to

549
00:20:09,919 --> 00:20:14,000
each other laws you know that's

550
00:20:11,640 --> 00:20:15,400
definitely somewhat concerning I'd say

551
00:20:14,000 --> 00:20:17,760
and number two and we haven't really

552
00:20:15,400 --> 00:20:18,919
talked about this much is the repository

553
00:20:17,760 --> 00:20:21,280
because all the stuff is going to be

554
00:20:18,919 --> 00:20:23,640
stored at finson and the good news is

555
00:20:21,280 --> 00:20:25,240
that it's not going to be it's not going

556
00:20:23,640 --> 00:20:27,320
to be public information it can't be

557
00:20:25,240 --> 00:20:29,000
subject to a fory request not you know

558
00:20:27,320 --> 00:20:30,520
Joe Schmo off the street can't just like

559
00:20:29,000 --> 00:20:33,320
log in finson website and check the

560
00:20:30,520 --> 00:20:35,400
ownership of you know some big MSO

561
00:20:33,320 --> 00:20:38,039
however there is a lot there are a lot

562
00:20:35,400 --> 00:20:39,760
of rules about who can access it there's

563
00:20:38,039 --> 00:20:43,039
a pilot program right now where it's

564
00:20:39,760 --> 00:20:46,679
just federal law enforcement so you know

565
00:20:43,039 --> 00:20:49,600
FBI Homeland Security NSA I'm assuming

566
00:20:46,679 --> 00:20:50,919
at some point maybe CIA I I don't know

567
00:20:49,600 --> 00:20:53,960
but it's going to be eventually rolled

568
00:20:50,919 --> 00:20:56,600
out to other regulatory bodies to State

569
00:20:53,960 --> 00:20:58,880
and local governments who you know based

570
00:20:56,600 --> 00:21:01,200
on certain access parameters and then to

571
00:20:58,880 --> 00:21:03,159
the banks and then even to foreign

572
00:21:01,200 --> 00:21:05,000
authorities those foreign authorities

573
00:21:03,159 --> 00:21:06,600
cannot directly access the database they

574
00:21:05,000 --> 00:21:08,559
have to have submit a request to a US

575
00:21:06,600 --> 00:21:11,360
law enforcement Authority which is

576
00:21:08,559 --> 00:21:13,919
obviously good but now we have this

577
00:21:11,360 --> 00:21:16,039
giant database theoretically of you know

578
00:21:13,919 --> 00:21:18,360
most median to small companies in the

579
00:21:16,039 --> 00:21:19,679
United States with all its owners and I

580
00:21:18,360 --> 00:21:21,400
didn't mention this before but you're

581
00:21:19,679 --> 00:21:23,080
having to submit your driver's license a

582
00:21:21,400 --> 00:21:25,320
copy of your driver's license your

583
00:21:23,080 --> 00:21:26,760
street address you know your real name

584
00:21:25,320 --> 00:21:29,799
all the stuff is going to be stored and

585
00:21:26,760 --> 00:21:31,440
associated with the company so right now

586
00:21:29,799 --> 00:21:35,520
of course federal government is not

587
00:21:31,440 --> 00:21:39,080
actively you know enforcing its the CSA

588
00:21:35,520 --> 00:21:40,960
but if for whatever reason one day you

589
00:21:39,080 --> 00:21:43,159
know legislation does not go the way we

590
00:21:40,960 --> 00:21:45,960
all hope it does the federal government

591
00:21:43,159 --> 00:21:48,600
now has access to this gigantic database

592
00:21:45,960 --> 00:21:51,360
where theoretically cannabis companies

593
00:21:48,600 --> 00:21:54,600
have put forth their owners names and

594
00:21:51,360 --> 00:21:56,200
addresses and Dage licenses which is

595
00:21:54,600 --> 00:21:58,640
accessible to you know your state

596
00:21:56,200 --> 00:22:01,200
regulator theoretically at some point so

597
00:21:58,640 --> 00:22:03,240
so given that cannabis is still I mean

598
00:22:01,200 --> 00:22:05,960
technically and very really you know

599
00:22:03,240 --> 00:22:09,400
very actually illegal I think there's

600
00:22:05,960 --> 00:22:10,600
potential for abuse here I'm with you in

601
00:22:09,400 --> 00:22:11,919
the past I've done a good amount of

602
00:22:10,600 --> 00:22:13,919
foreign direct investment into the

603
00:22:11,919 --> 00:22:15,919
Cannabis industry and rarely would you

604
00:22:13,919 --> 00:22:18,080
see Foreigners for a multitude of

605
00:22:15,919 --> 00:22:19,679
reasons directly invest in cannabis

606
00:22:18,080 --> 00:22:21,880
companies it's too on the nose for

607
00:22:19,679 --> 00:22:24,120
things like immigration and violations

608
00:22:21,880 --> 00:22:25,960
of rules in the Home Country so they

609
00:22:24,120 --> 00:22:27,679
often Place their investments in

610
00:22:25,960 --> 00:22:30,600
ancillary companies right and when we

611
00:22:27,679 --> 00:22:33,400
say ancillary we mean the classics IP

612
00:22:30,600 --> 00:22:35,320
real estate equipment Consulting Etc all

613
00:22:33,400 --> 00:22:38,760
of those companies will be on the hook

614
00:22:35,320 --> 00:22:40,559
for this reporting now and often times

615
00:22:38,760 --> 00:22:42,400
you would see in their corporate filings

616
00:22:40,559 --> 00:22:44,640
it'd be a situation where they maybe

617
00:22:42,400 --> 00:22:47,480
tell the some of the truth but not all

618
00:22:44,640 --> 00:22:49,279
of the truth but by Omission it's still

619
00:22:47,480 --> 00:22:50,799
valid in that they're a real estate

620
00:22:49,279 --> 00:22:52,159
company but they don't go so far as to

621
00:22:50,799 --> 00:22:54,360
say well we're a real estate company

622
00:22:52,159 --> 00:22:56,760
that leases exclusively to cannabis

623
00:22:54,360 --> 00:22:58,120
businesses right with this type of

624
00:22:56,760 --> 00:23:01,000
reporting do you think there's going to

625
00:22:58,120 --> 00:23:03,200
be a chilling effect on foreign direct

626
00:23:01,000 --> 00:23:05,760
investment because now where maybe you

627
00:23:03,200 --> 00:23:07,080
could have skirted the state regulator

628
00:23:05,760 --> 00:23:08,600
right because State regulator only cares

629
00:23:07,080 --> 00:23:12,559
about the canas company you are going to

630
00:23:08,600 --> 00:23:14,919
be in the crosshairs of finson if you're

631
00:23:12,559 --> 00:23:16,559
not exempt otherwise that's a really

632
00:23:14,919 --> 00:23:18,080
good question I've only thought about

633
00:23:16,559 --> 00:23:20,120
this really in the concept of data

634
00:23:18,080 --> 00:23:22,760
privacy laws but I want to kind of you

635
00:23:20,120 --> 00:23:24,480
know explore this because the I mean not

636
00:23:22,760 --> 00:23:26,440
theoretically actually if you're a

637
00:23:24,480 --> 00:23:27,919
foreigner and you're a beneficial owner

638
00:23:26,440 --> 00:23:29,520
you're going to need to be reported to

639
00:23:27,919 --> 00:23:31,880
fincent

640
00:23:29,520 --> 00:23:34,600
so let's say you're I don't know an

641
00:23:31,880 --> 00:23:36,960
investor from Kuwait or Saudi Arabia

642
00:23:34,600 --> 00:23:39,480
where cannabis is extremely illegal

643
00:23:36,960 --> 00:23:41,279
right you will if you're qualified as a

644
00:23:39,480 --> 00:23:44,200
beneficial owner of one of of a US

645
00:23:41,279 --> 00:23:46,760
cannabis company you will have to be

646
00:23:44,200 --> 00:23:48,840
reported and your information stored in

647
00:23:46,760 --> 00:23:51,320
the finson database including you know

648
00:23:48,840 --> 00:23:54,000
for foreigners a copy a a physical you

649
00:23:51,320 --> 00:23:55,360
know photo copy of your passport along

650
00:23:54,000 --> 00:23:58,200
with your name and your address and all

651
00:23:55,360 --> 00:23:59,960
that so finson now has this information

652
00:23:58,200 --> 00:24:01,600
let's say at some point when they roll

653
00:23:59,960 --> 00:24:04,159
this out to foreign law enforcement

654
00:24:01,600 --> 00:24:06,240
agencies the Kuwaiti authorities say hey

655
00:24:04,159 --> 00:24:07,880
this guy is suspicious can you you know

656
00:24:06,240 --> 00:24:09,720
because this is a violation of our laws

657
00:24:07,880 --> 00:24:11,279
for him to even own an interest in this

658
00:24:09,720 --> 00:24:13,799
company you know can we access your

659
00:24:11,279 --> 00:24:15,520
database and check the records now I

660
00:24:13,799 --> 00:24:16,880
mean there's all sorts of reasons

661
00:24:15,520 --> 00:24:19,320
perhaps why we wouldn't want to do that

662
00:24:16,880 --> 00:24:21,600
as a us right but theoretically since we

663
00:24:19,320 --> 00:24:23,400
do have that database let's say you know

664
00:24:21,600 --> 00:24:25,600
we want it to be on better terms to that

665
00:24:23,400 --> 00:24:27,360
that country we could give them full

666
00:24:25,600 --> 00:24:29,799
access to see every single one of their

667
00:24:27,360 --> 00:24:31,520
citizens who ow M interest alleged

668
00:24:29,799 --> 00:24:33,000
cannabis company so I think there are

669
00:24:31,520 --> 00:24:34,720
some issues there you know the data

670
00:24:33,000 --> 00:24:35,880
privacy ISS I was alluding to is for a

671
00:24:34,720 --> 00:24:38,600
lot of countries you have to give

672
00:24:35,880 --> 00:24:40,640
consent to transfer information across

673
00:24:38,600 --> 00:24:42,320
borders you know what is consent is them

674
00:24:40,640 --> 00:24:43,600
just merely giving you the information

675
00:24:42,320 --> 00:24:45,360
is that consent you need something

676
00:24:43,600 --> 00:24:46,279
affirmative all sorts of issues there

677
00:24:45,360 --> 00:24:47,799
when you're when you're talking about

678
00:24:46,279 --> 00:24:50,640
transferring information across borders

679
00:24:47,799 --> 00:24:53,360
and storing it to kind of round this out

680
00:24:50,640 --> 00:24:55,720
before I let you go um because this is

681
00:24:53,360 --> 00:24:57,679
fascinating to me in that it's even more

682
00:24:55,720 --> 00:25:00,080
surveillance more transparency in an

683
00:24:57,679 --> 00:25:01,600
industry comes from a paranoid place

684
00:25:00,080 --> 00:25:03,399
already and it applies to everybody

685
00:25:01,600 --> 00:25:05,760
number one the softball question just

686
00:25:03,399 --> 00:25:07,840
because cannabis is federally illegal

687
00:25:05,760 --> 00:25:10,799
that does not mean that you don't comply

688
00:25:07,840 --> 00:25:12,240
with the CTA right absolutely I guess

689
00:25:10,799 --> 00:25:13,840
there is a question of how are they

690
00:25:12,240 --> 00:25:16,159
going to go after the 32 million

691
00:25:13,840 --> 00:25:17,600
entities they think need to report if

692
00:25:16,159 --> 00:25:19,799
you're aware of this law which

693
00:25:17,600 --> 00:25:21,760
unfortunately now you are and you don't

694
00:25:19,799 --> 00:25:24,080
report then you have willfully violate

695
00:25:21,760 --> 00:25:25,919
violated this uh the CPA and you know

696
00:25:24,080 --> 00:25:28,799
you could face two years in jail

697
00:25:25,919 --> 00:25:30,960
fabulous number two is anybody

698
00:25:28,799 --> 00:25:33,279
challenging this because I don't see

699
00:25:30,960 --> 00:25:34,679
Corporate America loving this especially

700
00:25:33,279 --> 00:25:36,279
with the entrepreneurial spirit in the

701
00:25:34,679 --> 00:25:38,559
United States where we don't want to be

702
00:25:36,279 --> 00:25:40,679
bogged down by regulatory red tape

703
00:25:38,559 --> 00:25:42,840
public health and safety stuff set aside

704
00:25:40,679 --> 00:25:44,399
right like FDA and all of our consumer

705
00:25:42,840 --> 00:25:46,320
protection stuff is anybody going to

706
00:25:44,399 --> 00:25:47,919
overturn this is this going to last

707
00:25:46,320 --> 00:25:51,080
actually it's a very good and timely

708
00:25:47,919 --> 00:25:53,279
question so the N nsba the National

709
00:25:51,080 --> 00:25:55,279
Small Business Association I believe

710
00:25:53,279 --> 00:25:58,399
they represent around 200,000 small

711
00:25:55,279 --> 00:26:00,880
businesses in the US they sued in the

712
00:25:58,399 --> 00:26:03,679
Northern District of Alabama and they

713
00:26:00,880 --> 00:26:05,480
actually won as of March 1st the judge

714
00:26:03,679 --> 00:26:07,120
in the Northern District of Alabama

715
00:26:05,480 --> 00:26:09,360
found that the the Act was

716
00:26:07,120 --> 00:26:11,039
unconstitutional based on congress's

717
00:26:09,360 --> 00:26:12,360
article one Powers which is the Commerce

718
00:26:11,039 --> 00:26:14,360
Clause I'm sure you guys have heard

719
00:26:12,360 --> 00:26:15,799
about the Dorman commer Clause issue

720
00:26:14,360 --> 00:26:17,159
with you know New York and Michigan and

721
00:26:15,799 --> 00:26:19,279
so forth this is the you know

722
00:26:17,159 --> 00:26:21,279
non-dormant Commerce Clause and they

723
00:26:19,279 --> 00:26:22,919
basic the judge basically said there's

724
00:26:21,279 --> 00:26:25,120
the Congress exceeded its Commerce class

725
00:26:22,919 --> 00:26:27,360
authorities and this law is

726
00:26:25,120 --> 00:26:29,600
unconstitutional however not all puppies

727
00:26:27,360 --> 00:26:32,720
and rainbows did judge found that it

728
00:26:29,600 --> 00:26:36,279
only applied to the specific plaintiffs

729
00:26:32,720 --> 00:26:38,720
in the case so finsen issued a report

730
00:26:36,279 --> 00:26:42,159
the day after saying okay the members of

731
00:26:38,720 --> 00:26:45,000
the nsba as of the date of the decision

732
00:26:42,159 --> 00:26:47,080
don't need a file the implication being

733
00:26:45,000 --> 00:26:50,440
that everybody who joins afterwards and

734
00:26:47,080 --> 00:26:53,480
everybody else in the world must report

735
00:26:50,440 --> 00:26:55,240
there's another case which is the NSB

736
00:26:53,480 --> 00:26:56,640
the National Small buiness Association

737
00:26:55,240 --> 00:26:58,960
Michigan which is like an affiliate

738
00:26:56,640 --> 00:27:01,440
entity they're also suing that's kind of

739
00:26:58,960 --> 00:27:02,919
still going through the courts however

740
00:27:01,440 --> 00:27:05,159
I'm as surprised as you are that there

741
00:27:02,919 --> 00:27:08,159
are no other major challenges one to

742
00:27:05,159 --> 00:27:10,559
this law and two um based on this

743
00:27:08,159 --> 00:27:13,000
holding it doesn't apply broadly right

744
00:27:10,559 --> 00:27:16,399
it seems like you as an organization

745
00:27:13,000 --> 00:27:19,159
maybe like you know the nciaa would sue

746
00:27:16,399 --> 00:27:21,159
but that would only apply to the members

747
00:27:19,159 --> 00:27:23,440
then there's no kind of broad ranging

748
00:27:21,159 --> 00:27:25,320
relief right now and then 10 days after

749
00:27:23,440 --> 00:27:27,760
that decision treasury already you know

750
00:27:25,320 --> 00:27:29,320
appealed the rolling the 11 circuit so I

751
00:27:27,760 --> 00:27:30,960
was you know kind of before this

752
00:27:29,320 --> 00:27:32,480
decision came out I was kind of telling

753
00:27:30,960 --> 00:27:34,360
clients oh just wait and see maybe

754
00:27:32,480 --> 00:27:36,159
someone will overturn this but even

755
00:27:34,360 --> 00:27:39,120
though it was overturned the decision so

756
00:27:36,159 --> 00:27:40,799
narrow that I I don't see how how how

757
00:27:39,120 --> 00:27:43,279
how useful this would be to everybody

758
00:27:40,799 --> 00:27:46,200
else well fascinating all right folks

759
00:27:43,279 --> 00:27:48,799
the CTA is here to stay comply or perish

760
00:27:46,200 --> 00:27:51,799
and yupon thank you so much for your

761
00:27:48,799 --> 00:27:56,000
time and attention and insights it was

762
00:27:51,799 --> 00:27:58,200
both wonderful and terrifying thank you

763
00:27:56,000 --> 00:28:00,799
Hillary and that concludes today's

764
00:27:58,200 --> 00:28:04,790
episode of the Cannabis law Now podcast

765
00:28:00,799 --> 00:28:09,030
until next time stay alert stay alive

766
00:28:04,790 --> 00:28:09,030
[Music]

Professionals:

Hilary Bricken

Partner

Yuefan Wang

Partner