Cannabis Litigation: The Illegality Defense and Damages

Around this time last year, my colleague, Jesse Mondry, wrote about a District of Colorado case, entitled Sensoria, LLC et al. v. Kaweske, et al. , which involved a group of plaintiffs who sought to recover their investment in a cannabis business, Clover Top Holdings. The underlying set of facts involve an all-too-familiar cannabis investment scheme. And, the claims asserted included breach of contract, civil theft, fraud, breach of fiduciary duty. The case is notable though, because over the course of the past year, the plaintiffs ran into an unfortunate problem for this industry: the illegality defense.

What is the illegality defense in cannabis litigation?

We regularly cover the illegality defense on the blog, but for those who are unfamiliar, it comes down to this: “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” It is often the position of the federal courts that because marijuana remains a schedule I drug and is illegal under the Controlled Substances Act (“CSA”), they cannot award any relief that derives from those CSA violations.

How does the illegality defense operate in cannabis litigation?

In Sensoria, the plaintiffs tried not once, not twice, but three times to rewrite their complaint to avoid the illegality defense. As Jesse wrote, the amended pleadings sought to characterize their involvement in Clover Top Holdings as that of a passive investor whose intention was to invest in a lawful business that included aspects of cannabis and hemp that do not violate federal law. The court noted that the intention to invest in a lawful business did not render the illegality issue moot and, consequently, reframing the relationship did not by itself preclude dismissal. Some dicta of the Court is particularly demonstrative of how much it did not want to get involved:

“Key aspects of this lawsuit concern activities that represent either actual ongoing CSA violations (by Defendants) or the attempt to recover the investments in an enterprise (Clover Top Holdings, Inc.) whose activities implicate the CSA. Marijuana is not an indirect or tangential aspect of the dispute. It lies at the heart of the business and thus the lawsuit … [the Court] may not vindicate equity in or award profits from a business that grows, processes, and sells marijuana.”

Sensoria’s latest move

This week, a sub-set of the defendants filed a motion for summary judgment on the issue of damages (a motion for summary judgment says to the Court, “there are no disputed facts about X issue and it can be decided before trial as a matter of law”).

In Sensoria, the defendants have the upper hand because the Court had already observed that “the remedy, should [Plaintiffs] prevail, is limited to the investment principal’s return paid from non-marijuana assets.” It even went so far as to find that the defendants’ legal interest in buildings and land are unlawful and subject to criminal forfeiture because “they are being used for marijuana.” So overall, the Court has repeatedly stated that its hands are simply tied on this because of the illegality defense: since the plaintiffs are asserting claims where marijuana is at the heart of the lawsuit, and marijuana is illegal on the federal level, it cannot and will not award any damages that derive from it.

This is a big blow to the plaintiffs and why we regularly caution our clients to stay away from the federal courts. Otherwise, no matter how artfully allegations are pled, you may run into a situation where the Court cuts your remedies in half (at best) or dismisses your case entirely (at worst).

For our latest posts on the illegality defense, see: