Photo: Susan Montgomery/Shutterstock.com

A California-based medical marijuana company’s effort to file an amicus brief in a medical marijuana lawsuit in New York should be rejected, the five medical marijuana companies that were recently awarded a license by the state argued in court documents.

The intervenors in the lawsuit, New York Medical Cannabis Industry Association v. New York State Department of Health, No. 2848-17—who were granted licenses to grow and sell medical marijuana in New York in August (NYLJ, Aug. 1)—filed a memorandum of law late last week in opposition to West Sacramento Management Group LLC’s motion for leave to file an amicus curiae brief in the lawsuit against the state by the original five medical marijuana companies.

The New York Medical Cannabis Industry Association, a trade group composed of the initial medical marijuana companies, filed a lawsuit against the state in May arguing that allowing more companies to manufacture marijuana will cannibalize an industry that has struggled since its inception in 2016. Jennifer Kavney Harvey, a litigation partner at Albany-based Couch White, argued before the court earlier this month that the statute that created New York’s medical marijuana program in 2014 caps the number of manufacturing entities at five but allows the health commissioner to create additional dispensaries (NYLJ, Sept. 12).

West Sacramento Management Group’s motion to file an amicus brief in the lawsuit was not available at the Albany County Supreme Court on Thursday and efforts to reach the organization were not successful Thursday. An exhibit filed by Brian Butler, the chair of the litigation department at Syracuse-based Bond, Schoeneck & King—who is representing New York Canna, one of the newly awarded medical marijuana licensees—shows that West Sacramento Management Group filed an article of organization with the secretary of the state of California in February.

The California-based medical marijuana company’s proposed brief “violates the fundamental purpose of amicus curiae brief submissions in New York and its motion should thus be denied,” the newly awarded medical marijuana companies said in documents filed with the Albany County Supreme Court.

“It is evident that the lack of any unique legal analysis or authority in West Sacramento’s proposed amicus curiae brief that the true purpose of the brief is to alert this court to West Sacramento’s position and desired outcome with respect to the merits of this proceeding, in an improper attempt to sway its results. This too constitutes a patently improper use of an amicus curiae brief and is a separate group upon which West Sacramento’s motion should be denied,” the intervenors argued in a joint memorandum of law to Judge W. Brooks DeBow, who is presiding over the case.

“Finally, West Sacramento’s connection to this proceeding is tenuous at best. West Sacramento’s president and CEO refuses even to represent unequivocally that West Sacramento ever actually intended to apply for an RO [registered organization] registration in New York, and West Sacramento does not represent any interest of any entity other than itself,” the intervenors further argued. “Accordingly, West Sacramento’s proposed brief violates the basic purposes of amicus curiae submissions in New York and West Sacramento’s pending motion should be denied.”

The state has been criticized for the lack of transparency in awarding the additional licenses. Rather than open the bidding process to any company seeking a license to grow and sell medical marijuana, as it did in June 2015, the state’s Department of Health reached out to the bidders who initially applied in 2015 that ranked sixth through 10th on the state’s scoring rubric.

West Sacramento Management Group intended to apply for a registration to manufacture and dispense medical marijuana, the intervenors said, citing the proposed brief by the California organization.