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Credit Cards & Crowdfunding – Some Considerations




The industry, at long last, has a credit card processor willing to service equity and debt crowdfunding. As portals, brokers and other people jump to do this, I want to take a moment to discuss a few things.

WHO: the credit card company only wants to sign “platforms”, as the underwriting process for a single small issuer is just too much and not worth their time. This means brokers, funding portals, and platforms who bring on numerous offerings per year. NOTE THAT THE PLATFORM IS THE “MERCHANT”, not the issuer (critical point, as I’ll discuss below).

FUNDS LANDING: Unless you are a trust company, bank or $250,000 net-cap broker-dealer you cannot touch the money that investors send. This means that your escrow relationship will need to accommodate you, as the merchant, delivering funds from investors to the escrow account. This will be enormously complicated for the escrow agent as they will have to be able to sort through the daily single-batch deposits to determine how much is from which investors and ensure those funds are accounted for, reconciled and reported.

RISK: there is significant risk for everyone involved, including the platform, the escrow agent and of course the credit card company. The card company will protect itself by pricing their fees at the risk, and by retaining a deposit for the duration of the risk period (which is 180 days). The escrow agent’s risk is that the chargeback account is likely the landing account (still tbd), in which case the card company would hit that particular bank account for chargebacks as far out as 6 months, which could result in a negative balance and thus hit the escrow agent’s capital (as funds would have been disbursed to the issuer, and likely already spent). The platform risk is obvious, as it is the “merchant” and thus ultimately bears all risk for all transactions, 100%.

DEPOSIT/HOLDBACK: tricky issue. Platforms would prefer that the credit card company hit the various transactions for a rolling 180 day deposit. However, regulators may take a dim view of that as it would mean, in effect, an investor sending, say, $500 to escrow would actually only get $475 (or whatever) delivered to the escrow account (which is then the amount the escrow agent would reflect on its books), and remember that the credit card company is not an escrow agent nor a party to the escrow agreement, so if they take any funds from the investors principal those are not considered in escrow. Regulations require all investor funds to be sent to escrow…not “most of” investor funds to be sent to escrow. Thus, I’m not sure how to work around this problem except for the portal (as the merchant) to put up, in advance, a very large deposit with the credit card company so they don’t take anything out of individual investment amounts.

BROKER/PORTAL COMP: broker-dealers and funding portals face a variety of regulations about how much compensation they can take on an offering. At times FINRA has been known to count things that, to most people, is obviously not broker-compensation but to the regulators, for whatever reason, they say it is. This has included things like legal fees, due diligence reimbursements, escrow fees, consulting fees, and other items. So, will FINRA view the fees a portal or broker-dealer may charge issuers (and/or investors) to recover costs of credit card processing as “broker comp”? That’s a very large question. If they do then it’ll likely affect how much they can earn as it will reduce variable comp against the cap.

BROKER NET-CAPITAL CALCULATIONS: brokers are subject to stringent net capital rules with a seemingly endless list of “haircuts” they have to take in performing their net-cap calculations. So, if a broker-dealer is the “merchant”, and distributes any funds to the issuer prior to the 180 day risk period expiring, what will be the required haircut against net-cap to offset this risk? And do they have to carry the risk on their balance sheets? This, I think, needs to be clarified before any broker can become a merchant and process credit card transactions for investors.

THIRD PARTY MERCHANTS: some people may simply open the merchant account in a different, non-FINRA-member entity. The thinking being that if the parent/holding company of the portal is the merchant instead of the portal itself then the potential fees and net-cap issues would not come into play. That might work, however keep in mind that this third-party entity, like the portal, isn’t the issuer of securities, it is acting as a payment facilitator and taking the risks of the transactions. Only regulated entities can act as payment processors, including trust companies, banks, $250K net-cap broker-dealers, and state chartered payment processors (e.g. PayPal, Stripe, et al). I believe that your third-party entity would need to get registered, obviously you should rely on your attorney for guidance.

OFFERING TYPES: credit cards are explicitly permitted under Reg CF (even though those reg’s don’t touch on, and provide no safe harbor for the broker/portal-comp or net-cap issues). But what about Reg A? Or Reg D? Well, I think this depends upon whether a broker-dealer is or isn’t involved in the offering. If it’s a direct-to-crowd offering by an issuer then they can likely accept investments via credit cards (check with your attorney, of course). But if a broker is involved, they are subject to regulations that can easily be interpreted as disallowing the use of credit cards by investors in Reg A or D securities; each broker’s CCO will need to evaluate this and make a decision for the firm.

TECHNOLOGY: don’t underestimate the engineering skills that portals and escrow agents are going to need to handle this business. The API’s of the credit card processor are excellent, and extensive, and writing into them to permit transactions, append transactions with offering codes, break down batch files and report by investor, and other things is going to take time. Naturally FundAmerica is committed to doing this for our escrow partner, Prime Trust in order to make things easy on our portal, broker and platform customers.

CONCLUSION: credit cards have arrived, and offerings can now be funded with simplicity and ease that goes far beyond ACH. However, it costs more (generally 3% – 5% plus $0.35) than ACH ($0.50/transaction regardless of size), and may have some tricky regulatory issues to navigate. But this industry will do that, and we’ll figure it out.

Oh, and if you need an introduction to the credit card company, let me know and I’ll be happy to do that.

Best Regards,



Jay-Z announces new line of cannabis products dubbed Monogram




Rapper and entrepreneur Jay-Z is launching his own cannabis brand in partnership with Caliva, the California-based weed company that hired the star as its chief brand strategist last year. 

Named Monogram, Jay-Z’s line of marijuana products launched its website and social media accounts on Friday.

“Monogram marks a new chapter in cannabis defined by dignity, care and consistency. It is a collective effort to bring you the best, and a humble pursuit to discover what the best truly means,” Monogram’s website highlights.

No further information on the specific products that will be sold under the Monogram brand has been released yet. 

However, according to the website, the flower used in Monogram’s products is grown in small batches, with a board of “cannabis experts” tasked with grading and hand-selecting each flower that goes into the line. 

The New York rapper joined Caliva in 2019 as a brand strategist, which entailed overseeing the creative direction of the company. Furthermore, Jay was focused on Caliva’s social equity efforts as he aimed to increase economic participation of people disproportionately harmed by marijuana prohibition in the newly legal industry. 

As for when consumers can expect to try Jay-Z new products, a spokesperson told the New York Daily News Monogram still hasn’t set its dispensary release schedule. The line will “definitely be available across all of California,” according to the spokesperson.

In other news, basketball star Shawn Kemp who played for the Seattle SuperSonics is also showing his love of pot. Kemp is set to open Seattle’s first black-owned marijuana dispensary this Friday. The Sonics legend named his dispensary Shawn Kemp’s Cannabis and is hoping to serve as a model for others in the black community who might be interested in foraying into the legal marijuana business in the area. 

“I’m looking forward to welcoming Sonics fans on a regular basis, starting with opening day. I hope that Shawn Kemp’s Cannabis will be an inspiration for people to get involved with the legal cannabis industry, especially people of color,” the Reign Man said in a press release. 


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Analysis: Legal weed in Texas would generate over $500 million in tax revenue per year




Legalizing marijuana in Texas could generate over half a billion dollars in tax revenue per year and create more than 40,000 new jobs, according to the results of a report released by Vicente Sederberg LLP earlier this month. 

Legal cannabis sales in Texas would reach about $2.7 billion annually based on the fact that there are more than 1.5 million residents over the age of 21 that consume pot on a monthly basis, the analysis calculated. 

The estimated tax revenue was calculated under the assumption Texas would tax marijuana sales at the same rate as Colorado at 20.6%. This would amount to $1.1 billion in taxes per biennium, while Texas could collect an additional $10 million per year through the issuing of marijuana business licenses.

The report notes Colorado has raised nearly $13 million on average per year just from license and application fees. Furthermore, the report indicated that current taxpayer dollars that go towards marijuana arrests and prosecutions amount to $311 million per year – money that Texas would save should it legalize pot.  

“States across the country are seeing the benefits of legalizing and regulating cannabis. It is inspiring lawmakers in prohibition states to reexamine the efficacy and costs of their current policies and take a closer look at the alternatives,” said Shawn Hauser, a partner at Vicente Sederberg.

“The goal of this report is to provide a snapshot of the economic benefits Texas would experience if it started treating cannabis more like alcohol for adults 21 years of age and older,” he commented on the new report

Aside from the tax revenue that legal weed in Texas could generate, the report highlighted marijuana’s job creation potential. An estimated 20,000 to 40,000 new jobs would be available in the newly legal industry, with tens of thousands of additional indirect positions, the report estimated.  

Hauser also pointed out the added economic benefits of legalization in Texas given current uncertainties provoked by the coronavirus pandemic.

“Texas is leaving an enormous amount of money on the table by keeping cannabis illegal,” according to him. 

Texas was once known for having the strictest drug laws in the U.S., but the state has softened its stance on cannabis in recent years. A very limited medical marijuana program was established in 2015, while, more recently, cannabis possession arrests in the state have been significantly declining after hemp became legal.   


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Cannabis Businesses Invest in Their Futures with Political Donations




Cannabis companies have been making political donations for years, and in 2020, those donations have continued to grow. In fact, some companies are investing aggressively to shape the future of the cannabis industry either by donating directly to campaigns and politicians or through political action committees (PACs) that support cannabis-friendly candidates and legislation.

So far in 2020, the Center for Responsive Politics reports that the leading cannabis companies, cannabis-related companies, and cannabis trade associations making donations to federal candidates, parties, and outside groups are (in order of 2020 donation amounts to date):

  1. Canty Ventures
  2. National Cannabis Industry Association (NCIA)
  3. Have A Heart
  4. Beyond Broadway LLC
  5. Sea Hunter Therapeutics
  6. Cannabis Trade Federation
  7. MedMen
  8. Dan Kopp & Co
  9. Acreage Holdings
  10. Weedmaps
  11. Trulieve

Compare that list to the list of large cannabis company donors in 2019, which included Curaleaf, Parallel Brands (formerly Surterra Wellness), Tweed Inc. (part of Canopy Growth Corporation), Canndescent, and Trulieve. Even ancillary cannabis companies like Dama Financial, WeedMaps, and Acreage Holdings donate large sums of money in 2019 according to data from the Center for Responsive Politics.

State Donations in 2020

There are a number of legalization (adult-use and/or medical use) and decriminalization measures on state ballots in 2020, and cannabis companies, ancillary companies, and professional associations have been actively donating directly to related campaigns and initiatives at the state level.

In Arizona, Harvest is the biggest donor in support of legalization (Prop. 207) followed by Curaleaf, MedMen, Cresco Labs, Copperstate Farms, Arizona Dispensaries Association, Herbal Wellness Center, and Oasis Dispensaries.

Mississippi’s medical marijuana initiative on the November ballot (Initiative 65) has received donations from the CEO of Heritage Properties (George Walker III), Ghost Management Group (which owns Weedmaps), and the owner of ABKO Labs (Robert Lloyde II).

Ghost Management Group and its Weedmaps subsidiary also donated to support Montana’s and New Jersey’s legalization initiatives. In addition, New Jersey’s legalization Question 1 on the November ballot received donations directly from The Scotts Company (the maker of Scotts Miracle Gro), Pashman Stein Walder Hayden (a New Jersey cannabis law firm), and Compassionate Care Research Institute (a New Jersey dispensary).

Keep in mind, these donations don’t include the donations that cannabis companies and ancillary businesses donate to PACs or that they invest in lobbying. The Center for Responsive Politics reports that the biggest investments in lobbying from cannabis companies, ancillary companies, and trade associations in 2020 have come from the Cannabis Trade Federation, National Cannabis Roundtable, Canopy Growth Corp, Curaleaf, Global Alliance for Cannabis Commerce, Parallel Brands, Cronos Group, Charlotte’s Web, NCIA, Acreage Holdings, Dama Financial, Trulieve, California Cannabis Association, and Oregon Cannabis Association.

Political Donations from Cannabis Interests Are Not New

One of the biggest political donation stories happened in California when cannabis businesses donated aggressively to former Lieutenant Governor Gavin Newsom’s campaign to become the state’s governor in the 2018 election. According to the Los Angeles Times, he secured hundreds of thousands of dollars in donations from cannabis cultivators, processors, and retailers.

By May 2018, Newsom had raised nearly $500,000 from cannabis companies, but he wasn’t the only politician in California to receive money from cannabis interests. At the time, the state’s Treasurer, John Chiang, and Attorney General, Xavier Becerra, also secured donations from the cannabis industry

And of course, these donation numbers don’t even include the many donations from PACs that businesses and individuals working in the cannabis industry donate to. Many of these funds go directly to specific candidate’s fundraising efforts. For example, the Coastal Pacific Political Action Committee held a fundraiser in June 2017, and six days later, the PAC donated $50,000 to Newsom’s campaign.

Another noteworthy political donation happened in Florida over the course of multiple years. The Miami Herald reported that Surterra donated $1.1 million to Florida political candidates and committees between the summer of 2016 and March 2018. Trulieve donated $564,000 during the same period, and Curaleaf donated $469,000.

In Illinois, the doors for cannabis companies to make political donations opened in March 2017 when a federal judge ruled an Illinois provision that did not allow marijuana companies to make campaign contributions in the state was unconstitutional.

According to the Chicago Tribune, the provision prevented contributions to political committees that were established for the purpose of promoting candidates for public office. Since that decision was made, cannabis companies like PharmaCann and Cresco Labs have donated significant amounts to the state’s political candidates and committees.

Business and individual donations to marijuana-friendly political candidates have also become standard in Nevada and Colorado. During the 2016 elections, dozens of marijuana cultivators, processors, and dispensaries donated $75,000 to Nevada legislators according to the Nevada Independent.

Looking back further in history, Florida Senator Rob Bradley received his first donation from a cannabis company in 2015 when Costa Farms donated $10,000 to his political committee.

Similarly, cannabis businesses have actively contributed to Colorado political campaigns for years, and many of those businesses have been holding political fundraisers to support their preferred candidates. PBS reported back in 2014 that Colorado’s congressional delegation had received $20,000 during the first nine months of 2014 from marijuana businesses. Also in 2014, a fundraiser to support political candidates that was held by Tripp Keber of Denver, Colorado’s Dixie Elixirs & Edibles generated $40,000 in donations.

What’s Next for Political Campaign Donations from Cannabis Businesses?

As the cannabis industry continues to grow and more states legalize medical and/or recreational cannabis, laws will continue to evolve. Cannabis businesses and ancillary businesses should absolutely be concerned about which politicians are making those laws.

With that said, it’s safe to assume that political donations from the cannabis industry will get larger and more frequent in the coming years. Let’s put the donations from cannabis companies to political campaigns into perspective. During the first half of 2019, the cannabis industry gave more than $200,000 to members of Congress, which was up from $248,504 donated throughout all of 2018. Compare that to the $42 million that pharmaceutical companies donated to political campaigns across the United States in 2018.

With those numbers in mind, it’s guaranteed that political donations from cannabis and cannabis-related companies will continue to grow. Savvy businesses are paying attention and getting involved in an attempt to influence the regulations that could make or break their companies’ futures.

Originally published 8/24/17. Updated 10/23/20.


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