Following its sister court in Colorado the United States Bankruptcy Court for the District of Arizona recently held that the debtor’s operation of a business that it illegal under federal law mandates dismissal of an involuntary bankruptcy petition filed against the debtor. In re Medpoint Management, LLC, 528 B.R. 178 (Bankr. D. Az. 2015). Medpoint Management managed the operations of Arizona Nature’s Wellness (“ANW”), which held an Arizona Department of Health Services-issued Dispensary Certificate allowing it to operate a branded medical marijuana dispensary under the Arizona Medical Marijuana Act. In its capacity as manager, Medpoint owned ANW’s name and trademark under which ANW sold its marijuana products. When several of its creditors filed an involuntary bankruptcy petition against it Medpoint filed a motion to dismiss the petition. In the context of the motion to dismiss, the court analyzed the issue as “whether [the court] can or should enter an involuntary order for relief against Medpoint despite the fact that Medpoint’s current and former business affairs are illegal under applicable federal criminal statutes.”
Medpoint argued that the case should be dismissed because the trustee could not lawfully administer the bankruptcy estate’s marijuana-related assets without violating the Controlled Substance Act, 21 U.S.C. § 801 et seq. The petitioning creditors argued that an order for relief was not precluded under federal law because their claims against Medpoint were not related to it’s the actual proceeds of its marijuana sales, that Medpoint had received a federal tax identification number and maintained a bank account at an FDIC-insured bank, and that Consolidated and Further Continuing Appropriations Act (“Cromnibus Act”) prohibited the use of appropriated funds to “prevent Arizona from implementing its own law that authorizes the use, distribution, possession or cultivation of medical marijuana.”
The court decided to dismiss the case for cause. It was persuaded by the opinions from the Colorado bankruptcy court dismisses two marijuana related cases. The first, In re Arenas, held dismissal proper because the chapter 7 trustee could not take control of or administer the debtor’s assets without violating the Controlled Substance Act. The court in In re Rent-Rite Super Kegs held that dismissal was proper in a case where the debtor owned real property that was rented to a marijuana entity and that the debtor’s continuing lease with that entity constituted gross mismanagement of the estate. The Arizona court was persuaded by these decisions. The court determined that the bankruptcy trustee would be placed in an untenable position, with the debtor’s assets subject to the prospect of possible forfeiture or seizure by the federal government under the Controlled Substance Act. The fact that the Cromnibus Act prohibited the use of appropriations by the government under it to enforce the Controlled Substance Act did not persuade the court, as it noted the Department of Justice had other sources of funds from which it could prosecute violations of the Controlled Substance Act. In short, the court held that entering an order for relief would result in the trustee necessarily violating federal law in carrying out his or her duties under the Code. As a result, the court found cause existed to dismiss the involuntary petition.