“Fake” is a popular word these days—I probably don’t need to tell you why. Part of our education, from our parents and teachers and peers, is learning how to avoid being taken by a fake. Spotting fakes is the survival skill that the gatherer uses to miss the poisonous berry, the merchant uses to buy the genuine article, and that the spy uses to flush out a double-agent.
What does any of this have to do with the law? Consider the United States Supreme Court. On the bench sit brilliant, well-educated, experienced legal minds. The scales of justice remind us that balancing things is a judge’s core role. How strong is one argument versus another? Which party met its burden of proof or persuasion by adding enough pebbles to its side of the scale? Citations of fact add weight to an argument; the amount of weight depends on a fact’s certainty plus its persuasiveness. But when a court can’t tell the truth from fiction, and a fake goes onto the scale, the law can tip in irrational, harmful ways.
The independent investigative journalism group ProPublica reports that Supreme Court opinions contain an unsettlingly high number of factual errors. The ProPublica team found many errors that, although embarrassing, are not always consequential—say, undercounting the number of U.S. states that have passed a given law.
Other errors are startling.
In one case, the Court recited a fact that “88 percent of all private companies in the country conduct [background] checks,” to deny a lawsuit by Caltech scientists who worked at the Jet Propulsion Laboratory on a contract basis. The scientists argued that the background checks (featuring intrusive questions about sensitive health matters, and questionnaires sent to scientists’ friends and family) were intrusive enough to infringe on protected rights. But the Court reasoned that a practice followed by 88 percent of private companies must not be very intrusive.
Here’s the problem—nobody knows where that number came from, including the attorneys who filed the amicus brief containing that “fact.”
Some errors are even worse. The Court cited fake data about drug-sniffing dogs to water down constitutional requirements for search and seizure. The Court cited a fake fact – that no-bail imprisonment of immigrants awaiting trial averaged 4 months – to validate the practice. But in truth, the average length of detention was 13 months.
Maybe we shouldn’t be too surprised. After all, the Supreme Court’s brilliant minds have gotten a lot of important things wrong over the years. Spotting what you might call fake logic – fallacies – is hard too for the sharpest people; the ability to do it is impaired by biases we carry through our lives. And yet, observation-based facts should be different and easier to keep straight. That is the promise of the scientific method. In the end, blame probably lies with the most pernicious fallacy of all – confirmation bias. People, judges included, don’t spot a fake where the fake matches their expectations or supports their values. “A man hears what he wants to hear and disregards the rest.”
The ProPublica piece referred to here is available at: https://www.propublica.org/article/supreme-court-errors-are-not-hard-to-find
Cannabis businesspeople have hoped, worked, and lobbied for a “safe harbor” for their industry. These tireless efforts have produced results, but the “safe harbor” which currently exists is, to extend the metaphor, filled with shallow water, difficult to enter, and has plenty of reefs.
Federal law is the supreme law of the land, and where it conflicts with state law, federal law controls. But if Congress refuses to budget money to the executive branch so that it can enforce a law, that law exists in a twilight state—it is unenforceable as a practical matter, but still “supreme.” That is what Congress has done in budget amendments in recent years with laws such as the Controlled Substances Act that would intrude on states’ medical cannabis laws. A recent opinion of the Ninth Circuit Court of Appeals has held that while the Controlled Substances Act is still the law, in-state California operators are (for now) beyond prosecution. So exactly how safe is the harbor under the circumstances?
First, the shallows: the federal government, via the DEA, FBI, financial crimes enforcement, and prosecutors at the Department of Justice, still has funding to go after recreational and “adult use” cannabis users, distributors, processors, and cultivators. Next, getting in: only medical cannabis enjoys the limited protection, regardless of state law. Finally, the reefs: the limited protection depends on Congress continuing to pass budgets that do not fund enforcement, and depends on strict compliance with state and local laws.
Stick with the picture of your cannabis business as a ship. Is your ship more exposed when it is off by itself, or when it is in a convoy? Through the ages, staying in tight formation has provided maximum protection from attacks. Putting this into practice in the cannabis business means doing a few things.
One, cannabis business leaders need to maintain the solidarity and camaraderie that have defined the industry for decades. Keeping in touch with your peers—staying plugged in—is key. Two, in an emerging industry, the standards for compliance with local and state law are being created and tested every day. Reliance on experts, officials, and knowledgeable insiders is essential to avoid inadvertently falling out of compliance with state law.
Finally, it means keeping an eye to the sky and a finger to the wind to sense new risks. Recently, the Rules Committee of the House of Representatives advanced an appropriations bill that would not, for the first time in years, any longer include the crucial amendment that prevents federal enforcement against state-legal medical cannabis operators. The House bill still must be reconciled with a Senate appropriations bill that includes the provision, so there is reason to stay hopeful.
On top of everything, cannabis businesses need to deal expertly with everything other businesses handle, from operations, to marketing, to public relations, to unique and general tax issues alike. The increasing public emergence of the industry creates more points of contact with the general public and with government.
As ever, we are in fast-changing times, but there is a great opportunity to stay on top of the state of the industry. Friedemann Goldberg LLP, a business law firm with offices in Santa Rosa, San Francisco, and Sacramento, has organized an event involving “cannabiz” industry leaders in Santa Rosa on Saturday, September 23, 2017. The lineup features John Friedemann, an attorney with decades of banking, business, litigation and real estate law experience, Jim Wood, a California Assemblymember and one of the principal architects in writing California’s marijuana regulations, Hezekiah Allen, Executive Director of the California Growers Association, Tawnie Logan, Chair of the Board for the Sonoma County Growers Alliance, Jamie Garzot, a highly regarded cannabis consultant with Roots Consulting, Tim Ricard, Program Manager with the Sonoma County Economic Development Board, Craig Litwin, Founder of the 421 Group, Jeffrey Titus, an industry tax attorney, and Daniel Garcia, Jr., an insurance broker with Vantreo.
Attendees will hear a full day of insight and have several opportunities to talk to speakers and attendees in a free-form environment. The event is from 9:00 AM to 4:30 PM and will be held at the Friedman Center in Santa Rosa. To register for the event, visit www.frigolaw.com or call (707) 543-4944.
If you’re a pet owner, chances are you love and care for your pets like they’re people. You might even care for them more than people. I’m not judging.
But you don’t have to be a pet owner to be a pet lover. Even if you don’t own pets, you likely understand the bond that exists between pets and their owners.
Of course, pets rely on their owners for all their needs, including food and shelter, exercise, affection, and overall health and well-being.
And like us, from time to time, pets need medical attention, including routine checkups and vaccinations, or for serious injuries or health issues. Veterinary bills can be an unexpected blow to your budget, especially for emergency surgeries and treatment. While our pets are worth the cost, the reality is that finances play a role in whether a person opts for medical treatment.
California has proposed a new law that would provide a substantial tax write off to pet owners for veterinary costs for dogs and cats. Assembly Bill No. 942, as amended, would provide a tax credit equal to one-half of the amount paid or incurred for qualified veterinary costs, not to exceed two thousand dollars. Qualified veterinary costs means amounts paid for medically necessary expenses paid to a licensed veterinarian, including, but not limited to, vaccinations, annual check-ups, surgeries, and drug prescriptions.
The proposed law would increase the health and quality of life of our pets by incentivizing pet owners to opt for medical treatments, including expensive surgeries and life-saving treatments. The proposed law would also encourage adoption of pets, including older pets more likely to require medical attention. Dogs and cats are not just pets, they are family. And, according to Jules from Pulp Fiction, “Dogs got personality. Personality goes a long way.”
Third party irrevocable spendthrift trusts are considered a means of asset protection for the beneficiaries; however, California already allows for many exceptions to the general rule that a creditor of a beneficiary cannot access the assets of such a trust.
Recently, in United States v. Harris, the Ninth Circuit held that any current or future distributions from an irrevocable trust to the beneficiary were subject to a continuing writ of garnishment payable to the United States as a result of a $646,000 restitution judgment owed by the beneficiary for a felony conviction.
In Harris, the defendant was the beneficiary of two California irrevocable trusts. By the terms of the trusts, the defendant could not assign his interest in the trusts and the trustee had the sole discretion to make or withhold distributions of principal and income.
The key issue was whether the garnishment statute in the Federal Debt Collection Procedures Act could be used to attach defendant’s interest in an irrevocable trust. In order to determine whether the asset fits within the definition of property, and are subject to attachment, the court looks at the asset and the laws of the state governing the asset.
The decision of the Ninth Circuit to allow a continuing writ of garnishment is generally consistent with California law and policy. California Probate Code Section 15305.5 discusses the availability of trust assets to satisfy a restitution judgment and subparagraph (c) specifically provides that “Whether or not the beneficiary has the right under the trust to compel the trustee to pay income or principal or both to or for the benefit of the beneficiary, the court may, to the extent that the court determines it is equitable and reasonable under the circumstances of the particular case, order the trustee to satisfy all or part of the restitution judgment out of all or part of future payments that the trustee, pursuant to the exercise of the trustees discretion, determines to make to or for the benefit of the beneficiary.”
However, in its analysis of California law, the Ninth Circuit did not focus on California Probate Code Section 15305.5 and instead based its decision on its finding that despite distributions being subject to the sole discretion of the trustee, the defendant had a right to compel distributions from the trust to fulfill the trust purpose. Empire Props. v. County of Los Angeles, 44 Cal. App. 4th 781 (1996), provides that a beneficiary of an irrevocable trust has a “vested and present beneficial interest in the trust property.” The Ninth Circuit found that under California law, a beneficiary has a right to compel a trustee to make a distribution using California Probate Code Section 17200. On that basis, the Ninth Circuit found that California state law creates a sufficient interest in a beneficiary of an irrevocable trust to satisfy the requirements of the federal lien provisions.
As a matter of California law, the discussion in the case regarding a beneficiary’s ability to compel distributions from an irrevocable discretionary trust, opens the door for an increase in the amount of petitions by beneficiaries to compel distributions despite specific language in the trust giving the trustee the sole discretion over distributions.
While the decision in Harris mentions that “the government is not attempting to compel distributions from the trusts” without any further discussion of whether such an action would be available, it leaves the question of whether a creditor of a beneficiary, including one with a federal lien, can seek to compel a trustee to make a distribution to a beneficiary if the creditor believes that the failure to make such a distribution is inconsistent with the terms of the trust. In Young v. McCoy, 147 Cal. App. 4th 1078 (2007), a creditor, holding a restitution judgment against the beneficiary of an irrevocable trust, sought to compel the trustee to make a discretionary distribution to the beneficiary. The decision in Young did not address whether a creditor had the standing to seek the relief, but decided that the trustee had not abused her discretion because the beneficiary was receiving adequate support from the state while in jail.
Henry Ford was not used to hearing “no.” But that is what the Michigan Supreme Court told him in 1919, when Ford tried to reinvest huge capital reserves of Ford Motor Company into wages and new facilities instead of shareholder dividends. Despite the “business judgment rule” that ordinarily prevents courts from overturning lawful business decisions, the Court did just that, finding that Ford altogether ignored the principle of maximizing shareholder value. Since this famous decision, business leaders have accepted shareholder value as the north star.
The idea that shareholder value was the only thing business leaders should care about was enshrined in the doctrines of Milton Friedman and the Chicago School of Economics - dominant for decades. But today’s business leaders often care about more: their employees, their customers, the environment, and their communities. When protecting these constituencies clashes with shareholder value, the custom has been to rely on the business judgment rule for protection by framing every decision as profit-maximizing regardless of true motive. Recognizing that semi-fiction, state legislatures have begun blessing “hybrid” corporations that operate for profit but may consider important outside concerns. In California, these are the “benefit” and “social purpose” corporations (“BC” and “SPC”). California introduced these hybrid forms beginning with the Corporate Flexibility Act of 2011, and has updated the law several times since. By way of example, two well-known benefit corporations are Kickstarter (Delaware) and Klean Kanteen (California). Though awareness of benefit and social purpose corporations has grown in the legal and business world, they still make up a tiny fraction of corporations overall.
BCs and SPCs are not non-profits, and they are taxed according to their general status (C or S corp.). Yet BC and SPC forms exist to protect business leaders whose choices defend important social values that may be in tension with a laser focus on maximizing profit.
As described by California’s Supreme Court, directors and officers have the duty “to refrain from doing anything that would work injury to the corporation, or to deprive it of profit or advantage which his skill and ability might properly bring to it.” Bancroft-Whitney Co. v. Glen, 64 Cal. 2d 327, 345 (1966). However, the statutes governing BCs and SPCs require directors and officers to consider matters above and beyond the shareholders’ profit interests. Because they must consider these matters, these statutes provide added protection from shareholders trying to impose liability for choices resulting in less-than-maximum profits.
Most California corporations have, in their articles of incorporation, generic statements of purpose that authorize the corporation to engage in all lawful activity. But BCs and SPCs must add statements about their public and social benefit purposes. The choice of language, particularly for SPCs, is critical in setting the scope of a director’s duties and protections.
BCs face stricter regulation than SPCs, are less flexible, and may give rise to greater exposure to claims than do SPCs. BCs provide more explicit statutory protections, however, for directors and officers who consider impacts on public stakeholders, particularly in the context of a potential takeover. SPCs are flexible, limited, and easier to administer. They offer more clarity to corporate leaders who can apply a more bright-line standard to corporate decisions than the very broad (almost limitless) set of concerns required to be considered by BCs.
BCs must consider many different social values, but SPCs are largely free to pick and choose among permissible values. A BC must analyze the impact of its major business decisions and strategies on not only shareholders, but also the environment, and society. Because the SPC can have narrowly-tailored public benefit purposes, its officers’ and directors’ duties are limited to considering just impact on those listed purposes.
The relative novelty and infrequent use of the BC and SPC forms leaves doubt as to how the statutory standards will be applied by courts in the future. Most questions will be matters of first impression, meaning that a court has little guidance from precedent. However, these innovations in law show that entrepreneurs are, more and more, trying to straddle the line between economics and politics.
Most of us were raised by our parents to say “please” and “thank you.” In today’s society, these simple words seem to be used less and less. Worryingly, this trend includes the country’s political discourse which has become increasingly harsh and insensitive.
This lack of civility overlooks the power of these magic words. Saying “please” makes a respectful request of the other person and empowers that person to respond to your request. Studies show that using the word makes it much more likely that your request will be granted. More fundamentally, it demonstrates a basic recognition of the human dignity of the other person.
Saying “thank you” is the simplest form of practicing gratitude. It helps prevent the other person from feeling under-appreciated and taken for granted. Like with saying “please,” studies show that saying “thank you” makes people more willing to do something for you again in the future.
This creates a cycle of good will which can be very powerful. Indeed, in at least one extreme situation, it made the difference between life and death.
During a polar expedition between 1914 to 1916, an Englishman, Ernest Shackleton, and his crew became trapped in the ice on their boat. Months went by and the ice still held. Eventually, the pressure of the ice crushed the hull of the ship and left the men trapped on the ice. Their epic adventure to survive was only beginning. It is an inspiring story. I apologize for ruining the ending, but everyone made it home safely, which is my point.
Shackleton proved himself to be an amazing leader in many respects. However, one trait in particular kept the group cohesive. He was always polite to the men and expected them to be polite to each other as well. The social lubricant that this created helped keep the men civil to and cooperative with each other, which literally saved their lives.
This is an obviously extreme example, but our ability to sincerely say “please” and “thank you” has a dramatic and beneficial impact on how we relate to each other. Besides, it will make your parents proud of you!
Thank you for reading my submission. I appreciate it.
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