The Saline County attorney who filed a federal class action suit earlier this year accusing Arkansas cultivators of conspiring with a Little Rock testing facility to inflate THC content on labels has asked that the suit be dismissed but says he intends to refile it.
Luther Sutter, the Benton lawyer representing three Arkansas medical marijuana cardholders, filed a motion in federal court in October asking judge Kristine Baker to dismiss the case without prejudice. Baker has not issued an order on the filing.
Dismissing the case without prejudice would allow the case to be refiled.
Sutter told Arkansas Cannabiz Wednesday that he intends to refile the case.
“The lawsuit will be refiled,” Sutter said via email. “I dismissed the lawsuit to give Steep Hill and their clients the chance to sell honest weed for a honest price.”
The day after Sutter’s filing, attorneys for the cultivator known as Natural State Medicinals filed a motion in support of the dismissal. Natural State had previously filed a motion to dismiss along with a 21-page supporting brief that argues Sutter failed to meet the standards for the allegations he made under the Racketeer Influenced and Corrupt Organizations (or RICO) Act.
In the lawsuit, Sutter claims Natural State Medicinals of White Hall, BOLD Team of Cotton Plant and Osage Creek Cultivation of Berryville conspired with Steep Hill, a marijuana testing company in Little Rock to inflate the amount of THC in the companies’ marijuana flower.
The flower actually contained 25% less THC on average and as much as 52% less THC than Steep Hill claimed it contained, according to the lawsuit. The suit also alleges that Steep Hill allowed testing samples to be chosen by employees of the cultivators.
The lawsuit also claims the defendants were operating in violation of the RICO Act, a 1970 act passed by Congress to fight organized crime. The suit calls for an injunction for the cultivators to stop violating federal drug laws. The suit states that federal law is superior to state law and that it is a felony under the Controlled Substances Act of 1970 “to deal in marijuana.”
The suit states that, although Arkansas claims to have legalized medical marijuana, only Congress can revise federal laws to allow for the commercial trade of marijuana. Natural State’s supporting brief argues that, if the plaintiffs’ argument were taken seriously, the court would also have to consider the plaintiffs to be active participants in the illegal scheme. The plaintiffs, Natural State argues, are medical marijuana cardholders and are admitting to violating federal law by purchasing marijuana.
The Arkansas Department of Health requires that all marijuana intended for use by a cultivation facility or dispensary must be tested in homogenous batches of 10 pounds or less by an accredited lab. The department requires labs to test for pesticides, water activity and moisture content, THC and CBD concentrations and heavy metals, according to a document provided by the Department of Health.
The plaintiffs in the case are Don Plumlee, Jakie Hanan and Pete Edwards. The defendants are Steep Hill and its owners Brandon Thonton and Brent Whittington as well as BOLD, Natural State Medicinals and Osage Creek. The suit also lists “John Does 1-10” as defendants and describes them as the law firms, accountants, financial entities and financial institutions that assisted in operating the alleged criminal enterprise.