Learn about the challenges faced by distressed cannabis companies dealing with financial distress and bankruptcy limitations. Explore the importance of bankruptcy law, liquidation preference, and the unique challenges for cannabis businesses in accessing federal courts. Discover alternative options such as state-level receiverships and contractual measures for protection. Explore the limitations faced by cannabis companies in terms of federal bankruptcy protections and discuss potential solutions. Gain insights into the challenges faced by distressed cannabis companies in managing the fragmented industry.
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Quick takeaways
Cannabis companies in financial distress have limited options due to federal bankruptcy restrictions, leading to complex cases and higher costs.
Protective measures for cannabis businesses and investors include secured lending, contractual precautions, and proactive planning for potential insolvency.
Deep dives
Overview of Corporate Bankruptcy Law
Corporate bankruptcy law differentiates between economic and financial distress, aiming to assist firms in each category. Economic distress occurs when a business has no future prospects and should be shut down. Financial distress, on the other hand, arises from balance sheet issues like excessive debt or unfavorable contracts. Bankruptcy helps maximize recoveries for creditors and reallocates capital efficiently by liquidating economically distressed firms and reorganizing financially distressed ones.
The Importance of Liquidation Preferences
Liquidation preferences in bankruptcy provide priority to certain equity holders in the event of liquidation. These preferences ensure more secure repayment for investors with liquidation preferences, as they receive their principal back before other equity holders and may receive additional profits. However, the value of liquidation preferences depends on the debt and value of the company. The inclusion of liquidation preferences in contracts can be beneficial for equity holders.
Challenges of Cannabis Bankruptcies in Federal Courts
Cannabis companies are typically unable to access federal bankruptcy courts due to the federal illegality of marijuana. This limits their ability to benefit from federal bankruptcy protection, such as automatic stays on litigation and collection efforts. Without access to bankruptcy, cannabis companies face more complex cases, higher financing costs, and inefficiencies in the market. State-level receiverships, UCC collections, foreign bankruptcies under Chapter 15, and out-of-court workouts are alternative options, but they have limitations and uncertainties.
Protective Measures for Cannabis Businesses and Investors
Amid a potential recession, cannabis businesses and investors should consider several protective measures. They can focus on secured lending, where secured debt holders can foreclose on assets without being affected by the lack of bankruptcy access. Contractual precautions such as liquidation preferences, sale leaseback financing agreements, and specific lease protections can also be helpful. Convertible debt, collateralization of inventory or licenses, and proactive planning for potential insolvency are other strategies worth considering. However, the evolving regulatory landscape and unresolved legal issues in the cannabis industry contribute to the complexity of these protective measures.
Cannabis companies can find themselves in financial distress but are generally locked out of the federal bankruptcy courts. What are their options? Perkins Coie Associate Tommy Tobin sits down with Billy Organek, program fellow at Harvard Law School’s Bankruptcy Project, to discuss the importance of bankruptcy law and options companies can seek outside of the federal bankruptcy process.
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