Category: Business Organizations

10 Reasons Why FCPA Compliance Is Critically Important for Businesses

  • The Foreign Corrupt Practices Act (“FCPA”) prohibits companies from bribing foreign officials in an effort to obtain or retain business, and it requires that companies maintain adequate books, records, and internal controls to prevent unlawful payments.
  • The FCPA was passed in response to an increase in global corruption costs.
  • Implementing an effective FCPA compliance program can benefit companies financially and socially, and it can help companies seize opportunities for business expansion.
  • In drafted and implemented appropriately, an FCPA compliance program will: serve as an invaluable tool against corruption, promote ethical conduct within the company, reduce the societal costs of corruption, and foster business expansion domestically and globally.
  • Company leaders should consider hiring experienced legal counsel to provide advice and representation regarding FCPA compliance.

What is the Foreign Corrupt Practices Act?

Enacted in 1977, the Foreign Corrupt Practices Act (“FCPA”) is a federal law that prohibits bribery of foreign officials in an effort to obtain or retain business. It also requires companies to maintain adequate books, records, and internal controls in their accounting practices to prevent and detect unlawful transactions.

Congress passed the FCPA in response to growing concerns about corruption in the global economy. The FCPA includes provisions for both civil and criminal enforcement; and, over the past several decades, FCPA enforcement proceedings have resulted in billions of dollars in penalties, disgorgement orders, and other sanctions issued against companies accused of engaging in corrupt transactions with government entities.

What are the Risks of FCPA Non-Compliance?

The U.S. Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) are the primary agencies tasked with enforcing the FCPA. These agencies take allegations of FCPA violations very seriously, motivated in large part by the damage that bribery and corruption of foreign officials can cause to the interests of the United States. Prosecutions under the FCPA have increased in recent years, with both companies and individuals being targeted.

Due to the risk of federal prosecution, companies that do business with foreign entities must implement compliance programs that are specifically designed to prevent, detect and allow for appropriate response to transactions that may run afoul of the FCPA. In addition to helping to prevent and remedy FCPA violations, adopting a robust compliance program also demonstrates intent to follow the law and can create a positive view of your company in the eyes of federal authorities.

“Implementing an effective FCPA compliance program serves a number of important purposes. Not only can companies mitigate the risk of their employees engaging in corrupt practices, but they can also discourage corrupt conduct by other entities and demonstrate to federal authorities that they are committed to complying with the law.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

If your company is targeted by the DOJ or SEC for a suspected FCPA violation, it will be important to engage federal defense counsel promptly. Having counsel available to represent your company during an FCPA investigation is crucial for protecting your company and its owners, executives, and personal against civil or criminal prosecution.

Why Should Companies Implement FCPA Compliance Programs?

Here are 10 of the most important reasons why companies that do business with foreign entities need to adopt comprehensive and custom-tailored FCPA compliance programs:

  1. The FCPA is an invaluable tool in the federal government’s fight against foreign corruption.
    • The FCPA is a massive piece of legislation that is designed to allow the DOJ and SEC to effectively combat corruption and bribery involving foreign officials. Ultimately, enforcement of the FCPA is intended to eliminate the costs of foreign corruption to the United States.
    • An effective and robust FCPA compliance program promotes these objectives while also protecting companies and individuals against civil liability and criminal prosecution.
  2. Anti-corruption laws like the FCPA promote ethical conduct.
    • Companies that have comprehensive policies against bribery and corruption send a strong message to other companies and foreign officials that they are committed to aiding in the federal government’s fight against corruption.
    • Foreign officials are less likely to ask for bribes from companies that promote an anti-corruption corporate environment through their compliance policies and procedures.
    • Compliance with anti-corruption laws promotes positive morale among company personnel who feel the pride of working for a company that is committed to transparency and ethical conduct.
  3. The FCPA allows companies to develop strong internal controls and avoid a slippery slope toward an unethical culture.
    • Companies that regularly utilize bribes in their business operations are likely to eventually encounter multiple problems, both in the U.S. and abroad.
    • Once a foreign official knows that a company is willing to pay bribes, that foreign official will request larger bribe amounts. In order to continue business operations in the relevant jurisdiction, company personnel may continue to accept the foreign official’s terms and pay larger bribes.
    • If left unchecked, corrupt practices can become so prevalent that they create enormous liability exposure for the company.
    • Maintaining a focus on FCPA compliance allows companies to develop effective internal controls that promote efficiency in their business operations.
  4. The FCPA reduces the societal costs of corruption.
    • Corruption increases costs to society. This includes political, social, economic, and governmental costs resulting from unethical business conduct.
    • By adopting and enforcing strong FCPA compliance programs, companies can help reduce these costs.
  5. The FCPA reduces the internal business costs of corruption.
    • Corporate success depends on certainty, predictability, and accountability. An environment where corruption is rampant costs companies time and money, and it can lead to disruptions in the continuity of their business operations.
    • FCPA compliance instills predictability in investments, business transactions, and dealings with foreign officials.
  6. Corruption and bribery create an unfair business environment.
    • Companies are more likely to be successful in an environment that emphasizes fair competition, and in which all competitors sell their products and services based on differentiation, pricing, and efficiency.
    • Corruption and bribery allow for unfair results in the marketplace. For instance, companies that utilize bribes can achieve increased sales and increased market share despite offering an inferior product at an uncompetitive price.
  7. The penalties under the FCPA encourage compliance and accurate reporting.
    • The penalties imposed under the FCPA incentivize the disclosure and reporting of statutory violations. These penalties include fines, imprisonment, disgorgement, restitution, and debarment.
    • Whistleblowers can receive between 10% and 30% of amounts the federal government recovers in FCPA enforcement litigation, and this provides a strong incentive to report violations as well.
    • The risk of significant penalties is an important factor for companies to consider when deciding how much time, effort, and money to invest in constructing an FCPA compliance program.
  8. Anti-corruption laws foster business expansion and stability both domestically and globally.
    • For companies that plan to expand domestically or internationally, success depends on the existence of a competitive environment in which companies compete fairly based on product differentiation, price, and other market factors.
    • Fair competition and growth opportunities are hampered when competitors can simply bribe their way to success. Therefore, FCPA enforcement is essential to maintaining fair competition.
    • DOJ and SEC investigations can severely disrupt efforts to maintain stability and predictability, and they can lead to significant financial and reputational harm.
  9. Corruption leads to human rights abuses.
    • Companies that regularly utilize corruption and bribery to achieve their business goals often resort to other illegal practices as well. This includes forced labor and child labor.
    • These types of human rights abuses are commonplace in countries where corruption and bribery are widespread.
    • To reduce the risk of these human rights abuses, it is crucial for company personnel to be educated on the potentially disastrous consequences of corruption and bribery.
    • Developing a robust compliance policy is the best way to educate personnel, reduce the risks of corruption and bribery, and eliminate the human rights abuses associated with these risks.
  10. The FCPA encourages open communication between companies and their legal counsel.
    • With regard to FCPA compliance, it is a legal counsel’s job to represent the best interests of the company and help the company foster an environment of ethical conduct. Achieving these objectives requires open and honest communication between the company and legal counsel.
    • Due to the severe sanctions imposed under the FCPA, companies are incentivized to hire counsel to advise them with regard to compliance and to adopt and implement effective FCPA compliance programs.

Effective FCPA Compliance Programs Help Companies Avoid Costs, Loss of Business Opportunities, and Federal Liability

Working with legal counsel to develop robust FCPA compliance policies and procedures can help prevent company personnel from offering bribes and engaging in other corrupt practices while also encouraging the internal disclosure of suspected violations. Failing to maintain adequate internal controls and foster a culture of compliance can be detrimental to a company’s operations, and FCPA violations can lead to civil or criminal prosecution at the federal level. As a result, all companies that do business with foreign entities would be well-advised to work with legal counsel to develop comprehensive FCPA compliance policies and procedures.

Oberheiden P.C. © 2020

For more on the Foreign Corrupt Practices Act see the National Law Review Criminal Law & Business Crimes section.

Keeping Eyes Wide Open When New Members Join the Pack: A Cautious Approach to the Addition of New Business Partners

There are many reasons for business owners to consider adding new partners, including to secure additional capital, to add needed expertise to help grow the company, to bring family members or close friends to join in building the business and to put a succession plan in place. Adding new partners can, therefore, provide a boost to the company’s revenues, lighten the load carried by the founder, and put the business on course for long-term success.  But this decision is not without risk because the new business partners may create conflicts, disrupt the business and insist on making changes that put the company’s existence in peril.

If after carefully weighing the pros and cons, business owners decide to move forward in adding new partners, this post reviews important steps they can take to protect themselves and the business from the decisions and actions of these new stakeholders in the company.

Equity Ownership Can Be Conditional or Subject to Cancellation

One protective step business owners can take when adding a new partner is to make the addition of a new partner’s conditional or subject to cancellation. This approach permits the owner to wait to grant the ownership interest in the company to the new partner until he or she has met specified business goals by a certain date or to cancel the grant of equity to the new partner if the specific goals have not been achieved by the agreed date.

The addition of a new business partner is conditional when the partner does not receive equity in the business until the prescribed business goals are met. For example, if a new partner is tasked with generating new investments or growing sales for the business, the partner will not receive any equity in the company unless these business targets are met by the stated date. This conditional arrangement prevents a potential new partner from becoming an owner if he or she has failed to deliver on important goals right from the outset.

Under a cancellation arrangement, the new partner may receive equity in the company initially, but the grant of this ownership stake is subject to being cancelled if the set goals are not met. Using the example above, if the new business partner is tasked with raising funds or with increasing sales for the company and cannot meet these goals by a specific date, the equity grant will be cancelled automatically or it can be made subject to cancellation. In the latter case, the business owner has discretion to extend the time for the new partner to meet the specified goals.

The use of a conditional or “cancelable” approach to adding a new business partner gives the business owner an “out clause.” These are contract rights that authorize the business owner to avoid adding a new partner who has failed to meet clear and defined expectations.

Securing a Buy-Sell Agreement Is Essential

We have written frequently about the importance of a Buy-Sell Agreement, which gives the business owner the right to redeem the ownership interest of a new partner.  This is a key provision to permit the majority owner to exercise rights to remove an investor as an owner of the business who has become disruptive or even adversarial.  Absent a Buy-Sell Agreement, a business owner may be “stuck” with a minority investor who cannot be removed, and who is demanding access to financial records and who may also assert claims against the owner for alleged breaches of fiduciary duty.

To avoid this situation, business owners should secure a Buy-Sell Agreement with all of their new partners at the time they become owners in the company.  The specific terms and the issues associated with Buy-Sell Agreements have been discussed in previous posts [here] and [here].

Consider Confidentiality Provisions and Restrictive Covenants

New business partners may not be employed by the company, but they will likely receive access to the company’s trade secrets and other business sensitive information. For this reason, all new business partners should be requested to sign confidentiality agreements to protect all of the company’s confidential information. This confidentiality agreement should be in force, of course, while partners have an ownership stake, as well as for at least some period of time after they no longer hold any interest in the business.  A majority owner will not want to be forced to compete with former business partners who are using the company’s confidential information immediately after they sever ties with the company.

For this reason—avoiding competition with former business partners—majority owners may want to require their new business partners to also agree to non-competition and non-solicitation agreements as a condition of becoming new owners of the company. These may not be multi-year agreements, but it is not unreasonable for a majority owner to require former partners not to engage in competition for a period of 12-18 months after departing as owners of the company. A non-compete agreement may not be warranted if the new partner will be holding only a small stake of less than 10% of the company. But for partners who receive a substantial ownership stake in the business, the majority owner will want to consider requesting some type of non-compete and non-solicitation agreement with these partners.

Allow Competition by Owners

As a final note, Texas law permits the duty of care to be eliminated as fiduciary duty by officers, directors and managers and that duty should therefore be removed from the company’s governance documents.  Texas law does not permit company owners, however, to eliminate the fiduciary duty of loyalty owed by governing persons, but the owners can agree that each of them are permitted to engage in competition with the business and they can agree that certain officers or managers are not required to devote full-time efforts to the business. Therefore, if a business owner wants the freedom not to work full-time for the company and/or the owner is engaging in activities that may be seen as competitive by other company owners, the company’s governance documents should expressly provide for the majority owner to have this type of flexibility.

Conclusion

A majority owner’s decision to add new business partners to the company can rejuvenate the business by providing financial capital, critical new vision, and helpful support. But these new business partners may also challenge the owner and create disruptive conflicts that harm the company and its prospects.  Business owners should therefore be cautious when they decide to add new partners, and the addition of these new owners should be structured in ways that will ensure that the business remains successful.  If things do not work out, as a last resort, the Buy-Sell Agreement that the majority owner should obtain from all new partners will enable the owner to exercise redemption rights to remove these new partners from the business when their presence threatens the company’s continued existence.

© 2020 Winstead PC.

For more on business partner considerations, see the National Law Review Corporate and Business Organizations law section.

SBA Rulemaking and Guidance Challenged in Federal Lawsuits in Connection with PPP Loan Guidance

The Coronavirus, Aid, Relief, and Economic Security Act (the “CARES Act”) was signed into law by the President on March 27, 2020. Title I of the CARES Act, named “Keeping American Workers Employed and Paid” by Congress, appropriated $659 billion for loans guaranteed by the Small Business Administration (“SBA”) under the Paycheck Protection Program (“PPP”).

Section 1114 of the CARES Act instructs the SBA to issue regulations “to carry out this title and the amendments made by this title” within fifteen days and without regard to the usual notice requirements, which the SBA did in the form of Frequently Asked Questions (the “FAQs”). 15 U.S.C. §§ 9001(1), 9012.

While ostensibly intended to clarify uncertainty in the CARES Act, two recent federal lawsuits challenge certain rulemaking and guidance promulgated by the SBA. The question before the courts is whether such rulemaking and guidance is a lawful interpretation of the CARES Act or, as the plaintiffs argue, amounts to illegal rulemaking.

Agencies are prohibited by the Administrative Procedures Act from taking action “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). The validity of an agency’s interpretation of a statute is reviewed by a court using the two-step framework outlined in the landmark case, Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). The first question reviewed in the Chevron analysis is, “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43.

The plaintiffs argue that certain elements of the SBA guidance did not give effect to the unambiguously expressed intent of Congress and, as a result, are unlawful and unenforceable.

DV Diamond Club of Flint v. SBA

DV Diamond Club of Flint LLC (“DV Diamond”) is a strip club in Flint, Michigan, which feared that it would be denied a PPP loan by lenders as a result of guidance from the SBA that is not consistent with the CARES Act. DV Diamond’s initial complaint, dated April 8, 2020, was amended on April 17, 2020 to add forty-one new co-plaintiffs (collectively with DV Diamond, the “Plaintiffs”), each of which claims to operate a legal sexual oriented business which meets the eligibility requirements under the CARES Act. The Plaintiffs argue that the CARES Act is unambiguous as to what businesses are eligible for PPP loans and the SBA, therefore, has no right to assert additional eligibility requirements or disqualifiers. See DV Diamond Club of Flint, LLC v. U.S. SBA, 20-cv-10899, 2020 U.S. Dist. LEXIS 82213, at *27 (E.D. Mich. May 11, 2020).

The U.S. District Court for the Eastern District of Michigan (the “District Court”) issued an injunction in favor of the Plaintiffs, noting that Congress unambiguously stated that the SBA may not exclude from eligibility for a PPP loan guarantee a business that met the CARES Act’s size standard for eligibility. Id. at *27.

The District Court agreed with the Plaintiffs that, “under step one of Chevron that the PPP Ineligibility Rule conflicts with the PPP and is therefore invalid.” Id. at *42.

“Congress provided temporary paycheck support to all Americans employed by all small businesses that satisfied the two eligibility requirements—even businesses that may have been disfavored during normal times.” Id. at *4-5.

The Sixth Circuit Court of Appeals denied the SBA’s motion for a stay of the injunction, holding that the relevant factors, including the Plaintiff’s likelihood success, weighed in favor of the Plaintiff. DV Diamond Club of Flint, LLC v. SBA, No. 20-1437, 2020 U.S. App. LEXIS 15822, at *8 (6th Cir. May 15, 2020).

Zumasys, Inc. v. SBA

Zumasys and two affiliated companies (collectively, “Zumasys”) received PPP loans but are concerned that they may subsequently be deemed ineligible as a result of “improper, and legally impermissible, underground regulation” promulgated by the SBA. (Zumasys, Inc. v. U.S. SBA et al., Dkt. No. 20-cv-008511, Dkt. 1 (the Zumasys Complaint) ¶ 58.)

Zumasys claims to have acted in reliance on the CARES Act by obtaining—and spending—what they expected to be forgivable PPP funds under the terms of the CARES Act rather than furloughing or terminating their employees. Subsequently, guidance set forth in questions 31 and 37 of the SBA’s Frequently Asked Questions, according to Zumasys, might require their loans to be repaid. Zumasys claims that being forced to repay their loans will place them in a worse financial position than had it never sought the PPP funds.

The SBA’s “credit elsewhere” test, which requires a borrower to demonstrate that the needed financing is not otherwise available on reasonable terms from non-governmental sources, was expressly excluded as an eligibility requirement to obtain a PPP loan by Congress. Zumasys alleges, however, that the FAQs “purport to re-impose the “credit elsewhere” requirement in contravention of” the CARES Act. (Id. ¶ 66.)

As a result, in an argument similar to that made by DV Diamond and its co-plaintiffs, Zumasys asserts that the FAQs “are not in accordance with the law and exceed Defendants’ authority under the CARES Act,” and asks that the SBA should be enjoined from enforcing them by the court. (Id.)

Subsequent to the filing of the Zumasys lawsuit, on May 13, 2020, the SBA issued guidance in question 46 in the FAQs that any borrower that, together with its affiliates, received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.

While this development, on its face, would seem to alleviate the concerns of Zumasys, a great deal of uncertainty remains for borrowers in connection with the guidance that has been released by the SBA since the passing of the CARES Act into law. Furthermore, there is no guarantee that subsequent guidance from the SBA will not contradict the guidance currently being relied upon, and in FAQ 39 the SBA noted that it will review all loans in excess of $2 million and in subsequent rulemaking it noted that with respect to a PPP Loan of any size, the “SBA may undertake a review at any time in [the] SBA’s discretion.”

Conclusion

The challenges by DV Diamond, Zumasys and other plaintiffs will hinge on whether or not the applicable courts determine that the guidance issued by the SBA is inconsistent with the unambiguously expressed intent of Congress.

To the extent that borrowers and applicants continue to believe that problematic discrepancies exist between the law and guidance being delivered by the SBA, and the SBA subsequently determines that a borrower is ineligible for a PPP loan or forgiveness of such loan, the courts may in the future be called upon again to apply the Chevron analysis to the SBA’s actions in connection with the PPP.

The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Sills Cummis & Gross P.C.

© Copyright 2020 Sills Cummis & Gross P.C.
For more on SBA’s PPP loans, see the National Law Review Coronavirus News section.

Federal Courts Side With Strip Clubs in Opposing the SBA’s Ineligibility Rules for the Paycheck Protection Program, Possibly Signaling a Broader Trend

Recent rulings from federal courts enjoined the US Small Business Administration (SBA) from applying its April 2, 2020 Interim Final Rule (April 2 IFR) to limit the types of businesses that can participate in the Paycheck Protection Program (PPP) under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Some of these rulings are expressly limited to the named plaintiffs that had been denied PPP loans and do not directly impact any other businesses that have or might apply for a PPP loan. Irrespective of any limitations in these cases, such decisions may signal a broader trend. In increasing numbers, federal courts are agreeing with arguments made by small businesses facing COVID-19-related challenges that the SBA’s PPP business eligibility limitations are inconsistent with Congress’ intention to help “any business concern” during this unprecedented time.

Financial services businesses that are deemed ineligible under the April 2 IFR need to pay close attention to cases that challenge the SBA’s incorporation of its existing list of “prohibited businesses” into eligibility requirements for a PPP loan. Even without court rulings, it also is possible (although not likely) that Congress or the SBA could suspend or revise the April 2 IFR to broaden PPP eligibility to include some or all of the currently designated “prohibited businesses.”

This advisory will explore:

  • the SBA’s April 2 IFR restricted eligibility in the PPP to certain financial services businesses that were ineligible for SBA-guaranteed loans under existing federal programs;

  • a recent Sixth Circuit ruling challenging the April 2 IFR as well as other federal court cases may signal a trend by federal courts to adhere to the text of the CARES Act; and

  • whether other federal courts will follow the Sixth Circuit’s view, or whether Congress or the SBA will suspend or revise the April 2 IFR to broaden PPP eligibility.

The April 2 IFR and Subsequent SBA Rules and Guidance

The PPP was one of several measures enacted by Congress under the CARES Act to provide small businesses with support to cover payroll and certain other expenses for an eight-week period due to the economic effects of the COVID-19 pandemic. As noted in a prior Katten Financial Markets and Funds advisory, the SBA published the April 2 IFR on the evening before lenders could accept PPP applications, determining that various businesses, including some financial services business, were ineligible to apply for PPP loans under the CARES Act.1

The April 2 IFR limited the types of businesses eligible for the PPP by specifically incorporating an existing SBA regulation and guidance document that lists the types of businesses that are ineligible from applying for Section 7(a) SBA loans. In particular, the April 2 IFR provides, in part, that: “Businesses that are not eligible for PPP loans are identified in 13 CFR 120.110 and described further in SBA’s Standard Operating Procedure (SOP) 50 10, Subpart B, Chapter 2.”2

Some of the ineligible financial services businesses listed in the SBA’s Standard Operating Procedure 50 10 (SOP) include, without limitation:

  • banks;
  • life insurance companies (but not independent agents);
  • finance companies;
  • investment companies;
  • certain passive businesses owned by developers and landlords, which do not actively use or occupy the assets acquired or improved with the loan proceeds, and/or which are primarily engaged in owning or purchasing real estate and leasing it for any purpose; and
  • speculative businesses that primarily “purchas[e] and hold[ ] an item until the market price increases” or “engag[e] in a risky business for the chance of an unusually large profit.”

With respect to last category in this list, the SBA provided further clarity regarding certain investment businesses and speculative businesses that were applying for PPP loans. In an April 24, 2020 Interim Final Rule (April 24 IFR), the SBA expressly clarified that hedge funds and private equity firms are investment and speculative businesses and, therefore, are ineligible to receive PPP loans.3 However, the April 24 IFR created an exception for portfolio companies of private equity firms, which were deemed eligible for PPP loans if the entities met the requirements for affiliated borrowers under the April 2 IFR.4

Recent Sixth Circuit Case

As noted above, the SBA’s SOP did not only deem financial services businesses ineligible to receive PPP loans. Other types of businesses, including without limitation, legal gambling businesses, lobbying firms, businesses promoting religion and businesses providing “prurient sexual material” also were deemed ineligible. Believing that these limitations were inconsistent with a plain reading of the text of the CARES Act, some of these businesses have challenged the SBA’s restrictions imposed pursuant to the April 2 IFR.

On May 11, 2020, the US District Court for the Eastern District of Michigan preliminarily enjoined the SBA from enforcing the April 2 IFR to preclude sexually oriented businesses from PPP loans under the CARES Act.5 Plaintiffs were primarily businesses that provided lawful “clothed, semi-nude, and/or nude performance entertainment,” which were considered ineligible businesses for the PPP under the April 2 IFR due to their “prurient” nature.6 The district court found that the CARES Act specifically broadened the class of businesses that are PPP eligible,7 determining that it was clear from the text of the statute that Congress provided “support to all Americans employed by all small businesses.”8 The district court, however, limited the injunction to the plaintiffs and intervenors in the case, noting that it was “not a ‘nationwide injunction’ and did not restrict any future action the SBA may take in connection with applications for PPP loans.”9 The SBA appealed to the US Court of Appeals for the Sixth Circuit and requested a stay of the injunction.10

The Sixth Circuit ultimately denied the SBA’s stay, and agreed with the district court’s interpretation of the CARES Act’s eligibility requirements.11 Specifically, the Sixth Circuit held on May 15 that the CARES Act conferred eligibility to “any business concern,” which aligned with Congress’s intent to provide support to as many displaced American workers as possible. The SBA pointed out that the CARES Act explicitly listed “nonprofit organizations” as eligible for PPP loans, even though “they are ineligible for ordinary SBA loans.”12 The SBA argued that if Congress wanted to include previously ineligible businesses for PPP loans, like sexually oriented businesses, the CARES Act would have listed such entities.13 The Sixth Circuit stated that it was “necessary to specify non-profits because they are not businesses,” which further supported the district court’s expansive interpretation of the CARES Act.14

The Sixth Circuit’s opinion only requires the SBA to issue loans to the businesses that were a party to the underlying lawsuit. The ruling does not require the SBA to make PPP loans to any other businesses that are defined as ineligible in its April 2 IFR. However, as a practical matter, this opinion could be used to support a small business located in Ohio, Pennsylvania or Michigan (i.e., the states within the jurisdictional reach of the Sixth Circuit) in a federal court proceeding initiated prior to the submission of a PPP application requiring the SBA to defend its eligibility criteria in connection with such small business’s specific facts. (Note that an application should not be made without first obtaining a similar legal result as the small business applicant would not otherwise be able to make the certifications necessary to apply for a PPP loan.)

Cases in Other Circuits

In addition to the Sixth Circuit, several other federal courts have struck down the SBA’s imposition of its ineligibility criteria on PPP applicants engaged in sexually oriented businesses. For example, the US District Court for the Eastern District of Wisconsin on May 1 preliminarily enjoined the SBA from enforcing the April 2 IFR to preclude “erotic dance entertainment” companies from obtaining a PPP loan.15 The SBA argued that because Congress removed some conditions that would ordinarily apply to Section 7(a) SBA loans (such as the PPP eligibility for non-profits), “it must have intended for the SBA to enforce all other conditions.”16 Similar to the Sixth Circuit, the district court found the SBA’s interpretation “highly unlikely” given “Congress’s clear intent to extend PPP loans to all small businesses affected by the pandemic.”17 Additionally, the SBA failed to identify any purpose of either the CARES Act or Section 7(a) that is furthered by the SBA’s exclusion of sexually oriented businesses.18 The SBA appealed to the US Court of Appeals for the Seventh Circuit and requested a stay of the injunction pending appeal. The Seventh Circuit denied the request for a stay on May 20, 2020, but has yet to rule on the merits of the appeal.19

Implications

As of May 21, 2020, roughly $100 billion PPP funds are still available.20 In its recent statutory amendments to the PPP, Congress decided not to address PPP eligibility issues.21 Notwithstanding Congress’s decision not to take action on these issues more recently, financial services businesses deemed ineligible under SBA regulations for PPP loans under the CARES Act should still pay close attention to these cases and whether federal court rulings influence Congress or the SBA to revisit the April 2 IFR.22

1 See US Small Business Administration, Interim Final Rule: Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Fed. Reg. 20811, (Apr. 15, 2020).

2 See Interim Final Rule at 8, citing 13 C.F.R. § 120.110 and Small Business Administration Standard Operating Procedure 50 10 Subpart B, Chapter 2.

3 See US Small Business Administration, Interim Final Rule: Business Loan Program Temporary Changes; Paycheck Protection Program – Requirements – Promissory Notes, Authorizations, Affiliation, and Eligibility, __ Fed. Reg.___, available.

4 According to the April 24 interim final rule, the affiliation requirements are waived if “the borrower receives financial assistance from an SBA-licensed Small Business Investment Company (SBIC) in any amount. This includes any type of financing listed in 13 CFR 107.50, such as loans, debt with equity features, equity, and guarantees. Affiliation is waived even if the borrower has investment from other non-SBIC investors.” Id.

5 DV Diamond Club of Flint, LLC, et al. v. SBA, et al., No. 20-1437 (6th Cir. Apr. 15, 2020).

6 Id. at 2.

7 DV Diamond Club of Flint LLC v. SBA, No. 20-cv-10899 (E.D. Mich. May 11, 2020), at 2. The district court stated that 15 U.S.C. § 636(a)(36)(D) of the CARES Act specifically “broadened the class of businesses that are eligible to receive SBA financial assistance.” Id. at 9. This section provides, in relevant part, that “‘[d]uring the covered period, in addition to small business concerns, any business concern . . . shall be eligible to receive a covered [i.e., SBA-guaranteed] loan’ if the business employs less than 500 employees or if the business employs less than the size standard in number of employees for the industry,” which is established by the SBA. Id. See also 15 U.S.C. §§ 636(a)(36)(D)(i)(I)-(II).

8 DV Diamond Club, No. 20-cv-10899 (E.D. Mich. May 11, 2020), at 2.

9 Id. at 45.

10 DV Diamond Club, No. 20-1437 (6th Cir. Apr. 15, 2020), at 1.

11 Id. at 4. The Sixth Circuit interpreted the CARES Act under the Supreme Court’s ruling in Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). Id. In Chevron, the Supreme Court stated that if a federal statute can be facially interpreted, “the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43.

12 DV Diamond Club, No. 20-1437 (6th Cir. Apr. 15, 2020), at 5.

13 Id.

14 Id. US Circuit Judge Eugene E. Siler Jr. dissented, stating that the CARES Act was ambiguous and the district court’s injunction should be stayed to give time to decide on the merits. Id. at 6. He noted that the CARES Act requires “PPP loans to be administered ‘under the same terms, conditions and processes’” as the SBA’s section 7(a) loans, which would exclude sexually oriented businesses from PPP eligibility. Id. See also 15 U.S.C. § 636(a)(36)(B).

15 Camelot Banquet Rooms, Inc., et al. v. SBA, et al., No. 20-C-061 (E.D. Wis. May 1, 2020), at 27-28. A similar case, filed early May 2020, is currently pending in the US District Court for the Northern District of Illinois. See Admiral Theatre Inc. v. SBA et al., No. 1:20-cv-02807 (N.D. Ill May 8, 2020).

16 Camelot Banquet Rooms, No. 20-C-061 (E.D. Wis. May 1, 2010), at 15.

17 Id. at 16. In contrast to the Eastern District of Michigan, the Wisconsin federal court did not explicitly limit its injunction to the parties. In light of the potentially serious penalties for ineligible applicants, businesses that are ineligible for the PPP under the April 2 IFR should be cautious about applying for a PPP loan without exploring all options and consequences with counsel.

18 Id.

19Camelot Banquet Rooms, Inc., et al. v. SBA, et al., No. 20-1729 (7th Cir. May 20, 2020). In contrast to the Sixth and Seventh Circuit rulings, the US District Court for the District of Columbia denied an injunction to enjoin the SBA from making an eligibility determination for the PPP under the CARES Act. Am. Ass’n of Political Consultants v. SBA, No. 20-970 (D.D.C. April 21, 2020). Plaintiffs, a trade association of political consultants and lobbyists, argued that the denial of PPP loans under the SBA’s April 2 IFR due to the political nature of their businesses violated plaintiffs’ First Amendment rights. Id. at 1-2. The district court ruled that it was constitutionally valid for the SBA to decide “what industries to stimulate” with PPP loans. Id. at 11. The plaintiffs filed a notice of appeal on April 22, 2020. Am. Ass’n of Political Consultants, Notice of Appeal, ECF No. 22 (D.D.C. April 22, 2020).

20 Kate Rogers, More than half of small businesses are looking to have PPP funds forgiven, survey says, CNBC News (May 21, 2020), available at https://www.cnbc.com/2020/05/21/more-than-half-of-small-businesses-are-looking-for-ppp-forgiveness.html.

21 On June 3, 2020, Congress passed the Paycheck Protection Program Flexibility Act (“PPP Flexibility Act”), which modified certain provisions of the PPP. H.R. 7010, 116th Cong. (2020), available at https://www.congress.gov/bill/116th-congress/house-bill/7010/text?r=12&s=1. At a high level, the PPP Flexibility Act: 1) extends the PPP to December 31, 2020; 2) extends the covered period for purposes of loan forgiveness from 8 weeks to the earlier of 24 weeks or December 31, 2020; 3) extends the covered period for purposes of loan forgiveness from 8 weeks to the earlier of 24 weeks or December 31, 2020; 4) increases the current limit on non-payroll expenses from 25% to 40%; 5) extends the maturity date on the portion of a PPP loan that is not forgiven from 2 years to 5 years; and 6) defers payroll taxes for businesses that take PPP loans.

22 IFRs are subject to public comment under the Administrative Procedures Act. The particular comment period of the April 2 IFR expired on May 15, 2020.

©2020 Katten Muchin Rosenman LLP

For more on business’ PPP loan eligibility, see the National Law Review Coronavirus News section.

Paycheck Protection Program Flexibility Act of 2020 – Changes To The CARES Act

On Wednesday, June 3, 2020, the U.S. Senate passed the Paycheck Protection Program Flexibility Act of 2020 (“Act”) by voice vote.  The bill had passed the U.S. House on May 28 nearly unanimously.  It now heads to the President’s desk for signature.

Summary of Key Provisions

The Act provides important new flexibility to borrowers in the Paycheck Protection Program (“PPP”) in a number of key respects:

Loan Maturity Date: The Act extends the maturity date of the PPP loans (i.e. any portion of a PPP loan that is not forgiven) from 2 years to 5 years.  This provision of the Act only affects borrowers whose PPP loans are disbursed after its enactment.  With respect to already existing PPP loans, the Act states specifically that nothing in the Act will “prohibit lenders and borrowers from mutually agreeing to modify the maturity terms of a covered loan.”

Deadline to Use the Loan Proceeds: The Act extends the “covered period” with respect to loan forgiveness from the original 8 week period after the loan is disbursed to the earlier of 24 weeks after the loan is disbursed or December 31, 2020.  Current borrowers who have received their loans prior to the enactment of the Act may nevertheless elect the shorter 8 week period.

Forgivable Uses of the Loan Proceeds: The Act raises the cap on the amount of forgivable loan proceeds that borrowers may use on non-payroll expenses from 25% to 40%.  The Act does not affect the PPP’s existing restrictions on borrowers’ use of the loan proceeds to eligible expenses: payroll and benefits; interest (but not principal) on mortgages or other existing debt; rent; and utilities.

Safe Harbor for Rehiring Workers: Loan forgiveness under the PPP remains subject to reduction in proportion to any reduction in a borrower’s full-time equivalent employees (“FTEs”) against prior staffing level benchmarks.  The Act extends the PPP’s existing safe harbor deadline to December 31, 2020: borrowers who furloughed or laid-off workers will not be subject to a loan forgiveness reduction due to reduced FTE count as long as they restore their FTEs by the deadline.

New Exemptions from Rehiring Workers: The Act also adds two exemptions to the PPP’s loan forgiveness reduction penalties.  Firstly, the forgiveness amount will not be reduced due to a reduced FTE count if the borrower can document that they attempted, but were unable, to rehire individuals who had been employees on February 15, 2020 (this codifies a PPP FAQ answer discussed on a previous post) and have been unable to hire “similarly qualified employees” before December 31, 2020.  Secondly, the forgiveness will not be reduced due to a reduced FTE count if the borrower, in good faith, can document an inability to return to the “same level of business activity” as prior to February 15, 2020 due to sanitation, social distancing, and worker or customer safety requirements.

Loan Deferral Period: The Act extends the loan deferral period to (a) whenever the amount of loan forgiveness is remitted to the lender or (b) 10 months after the applicable forgiveness covered period if a borrower does not apply for forgiveness during that 10 month period.  Under the unamended PPP, a borrower’s deferral period was to be between 6 and 12 months.

Payroll Tax Deferral: The Act lifts the ban on borrowers whose loans were partially or completely forgiven from deferring payment of payroll taxes.  The payroll tax deferral is now open to all PPP borrowers.

Summary

The Act provides much-needed flexibility to businesses who needed to spend PPP loan proceeds but could not open in order to do so.  As with the initial rollout of the PPP, it will be up to the Department of the Treasury and the Small Business Administration to provide regulations with respect to the Act.

© 2020 SHERIN AND LODGEN LLP

For more on the PPP, see the National Law Review Coronavirus News section.

How Business Owners Can Watch For Fraud

Fraud can quickly take down a successful business, or at the very least create significant issues for you to deal with. As a business owner, it’s important that you know how to watch for fraudulent activities by your employees. Here are a few tips for approaching the subject in your business:

Be careful who you hire

Preventing fraud begins before you even hire your employees. As you work through the selection process, be sure to investigate your potential hires, especially those who deal with finances. You can use a background check, credit report and social media check to look for any red flags.

Protect your business with anti-fraud policies

You should always have company policies in place that state that fraud is not accepted and that includes specific procedures to help prevent and deal with fraud.

Consistent analysis

Use data analysis to double-check the transactions of your business. This can help catch any errors or possible instances of fraud.

Educate your employees

Though you may have the definition of fraud and your stance against it in your company policies, that doesn’t mean that your employees are aware. Especially for new hires, create fraud education and training for them to complete.

Make it easy for whistleblowers to come forward

Create a company culture that is honest and open. This can help draw employees who are willing to call out fraud when they see it. Create procedures that allow whistleblowers to feel safe coming forward and reporting misconduct.

Watch for red flags

As an employer, it’s important to keep an eye on your employees. You have a unique opportunity to spot red flags like employees that live beyond their means or have significant financial struggles.

Don’t let any suspicious activity slide. Be sure to quickly and thoroughly address anything that you notice that could be indicative of fraud.

© 2020 by Raymond Law Group LLC.

Once COVID-19 is Contained– Visioning What’s Next For Offices and White Collar Businesses

When you push a pause button on a computer, it shuts down. When you push a pause button on a human, as is occurring now in the midst of the Coronavirus pandemic gripping most of the world, we do not rest. We think, refresh, imagine, and try to adapt to a new world order once the pandemic abates. Darwin surmised that it is not necessarily the strongest or smartest that survive. Rather, the survivors succeed in being flexible and adapting to new environments. Zhou Enlai, when asked by Henry Kissinger what impact the French Revolution had on China, reflected “it’s too soon to tell.”  Given the pressing necessity to re-connect our lives and economies, while at the same time staying healthy and safe, we do not have the luxury to reflect. Rather, we must plan for a future that is being quickly thrust upon us, or existing trends accelerated, at warp speed. This article imagines how that new world order might impact our office’s finance department. The survivors will successfully be flexible and adapt.

A recent paper on fifteen major pandemics and armed conflicts since the thirteenth century postulated that the major after-effects of those events lasted over forty years. Real rates of return were more substantially depressed during the period ravaged by pandemics, more so than due to wars, due to the significant precautions and adjustments business and society took after pandemics but not after wars. The postulate is that after wars, most countries just rebuild and, while they may have changed institutional frameworks, do not reassess ways of doing business and conducting their day to day lives.

This article offers possible post-Coronavirus changes to our office environment. While many alterations such as modifications to social relationships, office structure, technology, marketing, and the role of government are inevitable, this article will focus on new approaches to financial management and legal focus. To paraphrase Winston Churchill, I hope these thoughts may help us not waste this crisis and prepare for a brighter future.

Financial Management in Companies After COVID-19

The monetary seismic aftershocks of the pandemic will reverberate our financial management in many ways, some of which are noted below.

More Cash on Hand

The social disruption caused by abruptly coasting at full employment one moment and, in a flash, jolting to a 14.5% unemployment rate profoundly alters the loyalty workers have to their employer (or former employer). While most intellectually always recognized that the office was a business and not a true social and family organization, no one could have foreseen the sudden radical separation of workers from either their jobs or office environments or both.  Repairing that emotional and physical trauma will take time.  One way to gradually restore the pre-pandemic security workers felt in their office environments is to provide a better sense of community overpay as a lure to attract and retain employees. Alternatively, businesses could set aside a “rainy day reserve fund”, on top of the usual 401(k) and other retirement plans, where a portion of an employee’s pay, or company profits, could be placed in a fund to which it is used only to retain employees in situations where mass layoffs were warranted. An employee would receive his or her share of the funds upon retirement or being terminated in such a circumstance if they were not used before then.

Obviously, these funds are not a panacea but a means to dedicate some resources and provide some comfort to workers concerned for their employers and their own financial security. Moreover, businesses might manage their finances more conservatively and always agree to have some minimum level of cash, say a three months reserve, to assuage employees that it can stay afloat for some reasonable period of time in case another disaster strikes.  Further, businesses may consider not living too close to the edge and consider keeping on hand at least two to three months’ reserve to pay rent, payroll, utilities, and other critical fixed costs. This might be prudent fiscal discipline even in good times and a munificent marketing tool to give employees some comfort that they will not be reflexively jettisoned at the first sign of a downturn.

Focus on Higher Level of Health, Cleanliness, and Safety

Office environments may soon stress their focus on and sensitivity to health, cleanliness, and safety.  This necessity will significantly increase employer costs.  Return on investment on intensifying the cleanliness and sanitization of the office is not quantifiable.

These attributes, always taken for granted and never really promoted in attracting and keeping workers, may now catapult to the forefront to comfort workers’ anxieties. For example, disinfectant wipes and hand soap can become omnipresent.  Coffee machines, soda machines, food dispensers, and other purveyors of sustenance as well as countertops, printers, copiers, file cabinets will be wiped after every use. The issue of how to open the washroom door without touching the doorknob may be solved by replacing doorknobs, counter space, copier buttons, coffee put handles with virus-free coatings. We might increase the scope of services our cleaning services providers to enhance disinfecting.  A CFO will just have to bite the bullet and sign off on these vital necessities heretofore considered excessive.

Office Design and Use

Costs will increase to reconfigure office space design so workers feel safer. For example, office pools or closely clustered desks may be rethought or need to be reconfigured to assured proper ventilation. Plexiglas dividers between office pool carrels and facing the open halls should be considered. Chairs for visitors in offices may need to be spaced out or removed to discourage proximity. Conference rooms, cafeterias, and other gathering spaces may also need to be redesigned so people keep at an appropriate distance while at the same time enjoy some social interaction and forge some sort of community.  HVAC and other ventilation systems may change to assure more optimal air circulation and toxin filtration. Meetings may be limited to a few attendees in person, spaced appropriately apart, with the other participants connecting by video. Just as we submit ourselves to baggage searches at airports, perhaps there could be random, or even routine, temperature checks either at building security or random tests at the office. Further, just as we pass a scanner to gain entrance to our elevator banks, perhaps we will all pass heat detectors to gauge whether we have a fever.  All this comes at a cost, again, unquantifiable to gauge the impact on return on investment.

Higher Level of Fee Earners in Relation to Assistants

The pandemic may finally accelerate the trend toward converting labor to capital.  Fee earners’ embrace of producing documents and other ways to become more self-sufficient have already increased the ratio of fee earners to assistants from maybe 1.5 or 2 to 1 ten years ago to 3 to 3.5 to 1 now. Needing to physically space assistants out more, perhaps alternate those working from home and at the office, combined with increasing proficiency of at office and at home fee earners suggest the trend is likely to accelerate to maybe 5 to 1 in the not too distant future. Some of the replaced assistants could become retooled to fee earning work, such as quasi paralegal work, especially as legal fees continue to increase with apparent inelasticity.

Office Space

The cost of office space will be another financial aspect under greater elasticity and change. The cumulative effect of more people working remotely and less office staff suggests the need for less overall office space and thus less cost.  The size of offices has trended toward the small size in recent years, with an average size of around 140 square feet. Some are suggesting the downward trends will continue unabated, perhaps to 125 square feet per office. A countervailing offset to that trend, however, may be the requirement for more space due to the need for greater distance between and among workers and conferees and perhaps fewer employees out of the office by virtue of not traveling as much.  Even if office sizes are smaller or the same, the trend toward office hotels and using more conference rooms where proper distancing is desired is likely to continue.

Wellness Programs

This will be yet another unquantifiable but necessary cost of the new office environment. Taking an interest in the health of the office environment is but one component of health and safety. Another is the employee’s personal health. Wellness programs have proliferated in recent years, as well as access to gyms and health clubs. These trends will only accelerate, provided that gyms and health clubs can provide sufficient comfort regarding cleanliness and social distance.

Technology Costs

Expenditures for technology are likely to increase but consider that technology pricing usually declines over time with scale and adoption so perhaps that will not be as dramatic. The crucial need for workers to be connected all the time everywhere and possibly need to be remote for long periods of time underscores the recognition that it is not prudent to be miserly with tech spending. The need for broadband, cabling, wi-fi, bandwidth, data storage, data compression, backhaul, caching, routers, hubs, processing power, internet of things, bits and bytes will be the lubricant to this generation reducing if not replacing the role of oil in previous generations. Remote working will increase the risk of hacking and the heightened need for secured networks fortified against cyber theft and introductions of malware. Further, the adoption of more sophisticated applications of technology such as AI and machine learning will accelerate. AI and machine learning will enable corporate and litigation document review more efficiently and conducted at remote locations. The need will intensify to support the seemingly insatiable demand for video and broadband service.

Decreased Travel and Entertainment Costs

Greater technology use may decrease other costs such as travel and ultimately the need for office space as more people regularly and systematically work remotely. Business trips, tradeshows, and even meals and entertainment are Petri dishes for breeding microbes. Sitting in a crowded basketball arena, constantly passing beers down the twenty seat row and then passing the germ-ridden money back to the vendor, or standing up at a theatre every time a patron wants to brush by you to get to her seat conjures up frightful images of too little social distancing. Recent income tax code revisions diminished deductions for some of these items and, unless reassessed, will only contribute to this declining tactic.

Higher Insurance Premiums

The cost of providing health care, not just to pay for all the Coronavirus cases but to underwrite future pandemics, will undoubtedly lead to higher insurance premiums. How employers share these increased costs with their employees is not only a financial matter but also a policy choice of the type of “safe” workplace image the employer desires to portray. Further, insurance premiums for business interruption coverage may also increase, even if the policyholder does not purchase pandemic coverage.

Higher Levels of Inventory

The 2000s introduced a virtual revolution in the efficiency of supply chains and improved just in time inventory management.  Purchasing managers could keep inventory lean and mean, knowing that replacements were just an order refill click away. Not anymore.  The confluence of trade wars, increased nationalism and now the pandemic have shattered the smooth functioning of inventory replenishment and certainty of seamless restocking. Not having to keep several months’ supply of Lysol wipes and other cleaning supplies, not to mention other basic necessities like copy paper and printer ink, saves countless dollars in working capital.  Concerns for delays and shortages have the opposite effect on working capital management and increases the cost of capital as well as decreases the businesses’ cash flow which is allocated to building inventory.

Migration to More Certain and Fixed Revenue Streams

To mitigate, if not avoid, the vicissitudes of hourly billing, professional service firms may consider more monthly fixed retainer models. This steady income, in good times and bad, could soften the slings and arrows of unpredictable cataclysms (assuming the clients stay solvent or do not renegotiate). The willingness of clients to pay fixed monthly retainers, however, may be problematic and, even if it is agreed to, may be reassessed at the first whiff of a downturn anyway. Ironically, many clients who had previously suggested a fixed cost arrangement with flat monthly retainers have recently started to see the benefits of a variable cost structure, which frees up monthly burdens during challenging times.

Possibly Lower Rent Costs

With more workers working remotely, less space will be needed. Of course, that need for lesser space may be offset by the required spreading out of personnel in the workspace, so maybe this will equalize itself.

More Zealous Monitoring of Cash Collection Cycle

Liquidity in the form of prompt receipts from clients and moderately stretched payments to vendors is essential to keep a business afloat and well-capitalized. Certainly, during any challenging economic set of circumstances, the cycle becomes elongated. The experience during the pandemic reinforced slavish devotion to the basic principles that Cash is King or Queen. I would expect businesses to pursue this truism more slavishly to avoid defaults or delayed payments from customers. Prudent financial management will require retainers, staying replenished, as well as security deposits and not permit advancing significant costs. Interest for late payments, late payment fees, early pay discounts, retainers, good relations, friendly but prompt reminder calls and follow-ups, credit card auto-pay, and abrupt cessation of work are some tactics a business could be quicker to pursue to avoid being used by their customers as a bank.

Increased Taxes

While the author is not an economist, the trillions of dollars of government stimulus, amounting to over 14% of our GDP, should be inflationary (although TARP and other excessive stimulus in 2007-08 did not lead to inflation). Increased taxes are a conventional tonic to drown deficit spending. This could both lead to great use of the multitude of income and estate tax planning services but at the same time decrease business activity. Financial managers will need to deal with greater tax claims on owners’ income and creative ways to minimize the bite.

Increased Regulation

The pandemic has unleashed a torrent of legislation addressing crucial pillars of our economy and business. These include lending, labor, employment, and executive compensation. Most of the legislation was written hurriedly to deal with the impending political and fiscal crisis and the need for interpretation and well as compliance creates work for the service industry.  Regulation always imposes cost, whether in the form of taxes or personnel or advisors to address the rules.

More Downtime Due to Pandemic Alerts

This pandemic will scar the psyche of many for decades to come and with the inevitable passing of stories down to the succeeding generations. Given the great disruptions a pandemic inflicts, the memories of which may become exaggerated and shibboleths as the years progress, and given the perceived slow and the less than energetic response the federal government provided, future leaders will view the efficient, competent and rapid response to even a whiff of a pandemic to be the prism through which their competence is judged. Therefore, the government will be expected to react with alacrity, not panic, and competence. Just as governors of states in hurricane regions lead efforts to warn citizens in advance of an impending hurricane and exhort them to board up their houses and head for higher ground, future national leaders, and even some state leaders, may closely monitor outbreaks of illnesses in faraway lands, just as we now monitor the formation of tropical depressions in the Caribbean, and perhaps prepare citizens and businesses well in advance. This may result in more precautionary business closures, some warranted and some like the putative hurricane that thankfully never develops or veers off course. Very few will blame a government for shutting down the office too soon rather than keeping it open too long. While we as a society balance economic health against physical health, this pandemic has slightly tilted the balance toward the latter. Therefore, business and financial models will need to add a closure cost and downtime “vacancy rate” lost revenue expense to prudently and conservatively prepare for this eventuality.

Some might say that all the talk of major transformational shifts due to the COVID-19 pandemic is an overreaction. After all, pandemics are rare black swan events.  Ideally, there will soon be a vaccine.  In theory,  there may already be a treatment. Many die every year during the flu season. Society has to balance health and safety against a booming productive economy. All of this is true. However, in the past twenty years, we have had several worldwide pandemics, like SARS, MERS, H1N1, avian flu, Ebola, to name a few. We have also had societal and business altering events like 9/11 and the financial pandemic in 2007-8. Some might even observe that these “black swans”, being not so rare, are more like “black ducks”.

Ignoring the trends of spreading diseases in a rapidly globalized world, as well as the likely occurrence of other truly unforeseeable occurrences, is to ignore the need to properly address the ramifications of these events and perhaps recognize ways to improve our ability to mitigate disruption in the future. While no one has a crystal ball, the possible responses to the pandemic may lead to profound changes or accelerate existing trends in our office environment in a broad panoply of areas, not the least of which includes those discussed above. Our future office and work environment, particularly in how we model our financial responses, will be as profoundly different in the future as was our country before and after the last world war. Once the Genie is out of the bottle, it is difficult to put back in.

The opinions and views stated herein are the sole opinions of the author and do not reflect the views or opinions of the National Law Review or any of its affiliates.

© The National Law Forum. LLC
ARTICLE BY Fred Tannenbaum Partner at Gould Ratner and The National Law Review’s Guest Contributors.
For more on COVID-19 recovery, see the National Law Review Coronavirus News section.

Get Closer With Your Contracts During the COVID-19 Pandemic

Contracts with customers, vendors, or other parties are a normal part of doing business.  Most businesses are party to numerous contracts and although it may seem that contracts are fairly standard documents, the reality is that each individual document is its own legally binding arrangement.  The parties to contracts often customize the arrangements to suit the particular business conditions or economics of the relationship.

Most businesses neither fuss over nor spend a lot of time on the contract provisions that allocate risk between the parties (outside of the major issues of payment and performance).  During extraordinary times, such as the current COVID-19 pandemic, business owners may not realize that the “roadmap” to their relationships with their business partners is usually in the often unread details of their business contracts.

Just as the Federal Emergency Management Agency (FEMA) provides guidance to prepare individuals, families and their households for natural disasters or political unrest, a well-prepared business owner has created a plan of their own for how their business will respond to unforeseen situations.  Understanding how a business might be impacted by the contracts they are party to should be part of that planning.  Even now, as we continue to face uncertainty as to when businesses will fully reopen as the pandemic begins to recede, it is not too late to assess how this may impact your contractual relationships.

Here are ideas and important things to keep in mind while reviewing your contracts:

  • Take stock of your most important contracts. Where are they located?  Are they easily accessible?  When was the last time they were reviewed?  Are you readily familiar with the provisions in each?  Now is a perfect time to organize those contracts into a system that allows those in your organization to quickly refer to them as needed.
  • Pay special attention to contracts with customers or vendors which are or may be impacted the most heavily by the economic uncertainty surrounding the COVID-19 pandemic.
  • Several remedies are available to contracting parties to enable them to excuse performance or protect themselves in a situation such as an epidemic, civil unrest or natural disaster. The “force majeure” clause is a well-known provision included in many contracts that excuses performance during certain unforeseen and highly adverse situations.  Included in the definition of force majeure is often a laundry list of events where a party’s performance obligation is excused.  I am seeing more efforts by parties in recent draft contracts to specifically exclude pandemics such as COVID-19 from the scope of force majeure, just as contracts written after the September 11, 2001 terrorist attack often specifically excluded terrorist events.  However, most force majeure clauses have a specific exclusion regarding payment obligations, which require the paying party to make payment to the other party regardless of the occurrence of a force majeure event.  It is important to review your contract to determine which contain force majeure clauses and under what particular circumstance a party is excused from performance.  If you are currently negotiating a contract, pay particular attention to the force majeure clause and how that may affect future unforeseen circumstances.
  • Rights of termination and damages for breach are often clearly spelled out in contracts. Be familiar with those triggering events and any provisions providing for damages, including liquidated damages.  Keep in mind that the normal business of the state court system has also been affected by this pandemic, so your ability to obtain relief or damages will be limited or delayed for the foreseeable future.  In light of that, alternative dispute resolution (such as mediation or arbitration), if permitted under the contract or as the parties otherwise agree, may be your best bet to get a prompt resolution.
  • Be careful about entering into any course of business that deviates from the written terms of the contract. This comes into play in two areas in particular.  First, if the parties agree to or engage in a course of practice that deviates from the written terms of the contract, it may be difficult for a party moving forward to enforce terms of the contract as written following that deviation.  The second scenario includes one of the parties waiving their right(s) in the contract (usually for a reason that makes good business sense in the current state of affairs).  Businesses will want to make sure that any departure from the written contract during the current pandemic, or otherwise, does not become the “new normal” and undercut important legal rights within their contract.
  • If the contract is silent on a particular aspect, the answer can often be found in statutory law. The Uniform Commercial Code (the “UCC”) provides “standard” rules for purchases and sales, leases, and other transactions.

Keep in mind that there is no requirement that a contract that is not beneficial to either or all parties be rigidly adhered to if the parties are willing to amend the contract or enter into a new contract altogether.  The key to staying afloat or even thriving in business in general, but especially during extraordinary times such as these, is flexibility and willingness to adapt.  Remember that contracts which have been altered to account for an event such as the COVID-19 pandemic may not be as sound once the economy bounces back, so do some mental visioning about where your business needs to be when returning to “business as usual” so that your contracts put you where you want to be.

If you have any concerns with how your contracts are being interpreted or administered during the COVID-19 pandemic, an attorney can be an important resource to prevent loss and ensure the continuing health of your business.

© 2020 Davis|Kuelthau, s.c. All Rights Reserved

Guide to Federal Reserve Main Street Loan Facilities and Primary Market Corporate Credit Facility

The Federal Reserve has created a number of programs to provide loans and other credit facilities to support the economy in response to COVID-19.  Several of these programs provide for new extensions of credit for small, medium and large businesses, including the Main Street Lending Program and the Primary Market Corporate Credit Facility.  The Main Street Lending Program creates three separate facilities (“MSLFs”):  (1) the Main Street New Loan Facility, (2) the Main Street Expanded Loan Facility and (3) the Main Street Priority Loan Facility.  Each of these facilities contemplates banks and other financial institutions making “new money” loans to eligible borrowers, and in turn selling participation interests in the loans to a Fed / Treasury special purpose vehicle.  The Primary Market Corporate Credit Facility (“PMCCF”) i contemplates a Fed / Treasury special purpose vehicle that will make new money extensions of credit to eligible borrowers by directly purchasing bonds issued by them, or by making loans to such eligible borrowers, whether as a direct lender or by purchasing loans to such borrowers under syndicated loan facilities.

The Federal Reserve released and then updated term sheets for the MSLFs and PMCCF in March and April 2020 and circulated an FAQ for the MSLFs in April 2020, and the Federal Reserve Bank of New York released and circulated FAQs for the PMCCF in April and May 2020.  The term sheets and FAQs provide a number of material terms and conditions for the facilities, but many questions and issues remain in terms of structuring and implementing these facilities generally and for agents, lenders, trustees, borrowers, issuers and other parties satisfying eligibility requirements for and participating in transactions under these facilities.

The MSLFs and PMCCF, which collectively represent hundreds of billions of dollars of new money financing for borrowers and issuers, are expected to launch by the end of May 2020.

A comprehensive summary of the MSLFs and PMCCF based on the term sheets and FAQs issued to date, market reconnaissance and strategic planning and considerations around these facilities can be accessed here.  We will periodically update and supplement the MSLF/PMCCF summary and separately provide additional alerts and guidance regarding these facilities generally and the parties qualifying for and participating in transactions under these facilities.

© 2020 Bracewell LLP

For more on Federal Reserve Main Street Loans, see the National Law Review Financial Institutions and Banking law section.

PPP Loan – Will You Be Forgiven?

The United States Department of the Treasury (Treasury) and the Small Business Administration (SBA) began issuing information, guidance and rules with respect to the forgiveness piece of the Paycheck Protection Program (PPP) and the loans available under it by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). These have been much anticipated, especially for those early borrowers in the PPP whose covered period is coming to an end. The SBA recently released the PPP Loan Forgiveness Application (this or the lender’s equivalent is the Application) which provides guidance and instruction on the calculation of the forgivable portion of a PPP loan. The Treasury and the SBA followed the Application up with interim rules “Loan Forgiveness” and “SBA Loan Review Procedures and Related Borrower and Lender Responsibilities” (collectively, First Forgiveness Interim Rules). The Application and the First Forgiveness Interim Rules shed light on a number of the issues surrounding the loan forgiveness process, calculations related to the same and the potential review of PPP loans by the SBA.

A. Loan Forgiveness Process

In order for a borrower to receive forgiveness on all or a portion of its loan amount, the borrower must complete the Application and submit it to its lender. After the lender has determined what portion, if any, of the borrower’s loan is entitled to forgiveness, the lender will advise the SBA of that determination. The SBA will remit the forgiveness amount to the lender (plus any accrued interest) no later than 90 days after receipt of the lender’s determination of the forgiveness amount; provided, however, that such 90 days is subject to extension if the SBA is reviewing the loan, the loan application or forgiveness calculation. The more material aspects of the submission and determination process include:

  • The lender has 60 days after its receipt of the Application to issue its determination to the SBA. That determination can be in the form of: (a) approval in whole or part; (b) denial; or (c) if directed by the SBA, a denial without prejudice due to a pending SBA review of the underlying PPP loan.
  • The SBA may review any PPP loan that it deems appropriate, and the review may include evaluation of: (i) the borrower’s eligibility (i.e., size of employees, accuracy of certifications, etc.); (ii) calculation of the loan amount and use of the proceeds; and (iii) the loan forgiveness determination.
  • The SBA may undertake a review of a PPP loan at any time, including within a 6 year period after the later of: (1) forgiveness of the loan; and (2) the date of repayment in full.  A borrower will be permitted to respond to questions raised by the SBA in its review of such borrower’s PPP loan. If the borrower fails to respond to an inquiry by the SBA, it risks being deemed ineligible for the loan in general or ineligible for forgiveness. A borrower will be able to appeal determinations of the SBA, and further rules will be issued on this process.
  • A borrower that is not eligible for a PPP loan will not receive forgiveness on any portion of the loan, and the SBA may pursue repayment of the loan and other remedies available to it.

Prior to the issuance of the First Forgiveness Interim Rules, it was unclear what role the lender would have in the forgiveness process. The lender is charged with confirming that: (A) borrower has completed the Application; (B) borrower has submitted all other required documentation (see Section C. below for more details); (C) the calculations for loan forgiveness match the supporting documentation; and (D) borrower correctly calculated what percentage of the requested loan forgiveness was used for payroll costs. The lender’s confirmations and review are to be done in good faith, and the lender may rely on the borrower’s representations and documents in conducting such review.

Key Takeaway – The SBA’s ability to review a borrower’s PPP loan will extend well past the forgiveness period process, and a borrower’s lender will be active in the review and submission of the Application. We expect many lenders to include certifications or attestations made by the borrower for the benefit of the lender with respect to the accuracy and completeness of the information and supporting documents provided with the Application.

B. Certifications

The Application requires a borrower to make additional certifications at the time of the loan forgiveness request.

Key Takeaway – The borrower is not recertifying that the economic uncertainty made the loan request necessary to support the ongoing operations of the borrower. The certifications, however, do include:

  • The dollar amount for which forgiveness is requested (a) was used to pay costs that are eligible for forgiveness; (b) includes all applicable reductions due to decreases in the number of FTE employees and salary/hourly wage reductions; (c) does not include non-payroll costs in excess of 25% of the amount requested; and (d) does not exceed 8 weeks’ worth of 2019 compensation for any owner-employee or self-employed individual/general partner, capped at $15,385 per individual. Key Takeaway – Although “owner-employee” is not defined in the Application, this limitation comes in previously issued rules, and more specifically as set forth in 85 CFR 21747, 21749 (April 20, 2020), and we believe it is limited to those employees that are self-employed for federal income tax purposes and file Form 1040, Schedule C, and not to employees who are also shareholders of corporations taxed as C-corporations or S-corporations for federal income tax purposes.
  • If the loan proceeds were knowingly used for unauthorized purposes, the government may pursue recovery of loan amounts and/or civil or criminal fraud charges.
  • Borrower accurately verified the payments for the eligible payroll and non-payroll costs for which forgiveness is requested.
  • The documentation required to verify payrolls costs, the existence of obligations and service (as applicable) prior to February 15, 2020, and eligible business mortgage interest payments, business rent or lease payments and business utility payments were submitted to the lender.
  • The information provided in the Application and information provided in all supporting documents and forms is true and correct in all material respects. The certifying party also certifies that it understands that knowingly making a false statement to obtain forgiveness is punishable under law, including by imprisonment and/or fine.
  • The tax documents submitted to the lender are consistent with those borrower submitted or will submit to the IRS and/or state tax or workforce agency.

C. Documentation

Borrowers are required to submit certain documents and information to its lender along with the Application. This includes the loan forgiveness calculation form and the PPP Schedule A that are part of the Application. In addition, borrowers must provide the following:

  • Documentation necessary to verify the cash compensation and non-cash benefit payments for the payroll costs paid or incurred, including:
    • Bank statements or third party payroll service provider reports documenting the compensation paid to employees.
    • Tax forms (or equivalent reports from third party payroll service providers) for the periods in question, such as (a) payroll tax filings (e.g., Form 941), and (b) state quarterly business or individual employee wage reporting and unemployment insurance tax filings.
    • Payment receipts, cancelled checks or account statements documenting borrower’s contributions to employee health insurance and retirement plans that are included in the forgiveness amount.
  • Documents showing the average number of FTE employees on the payroll per month employed by borrower between either (i) February 15, 2019 and June 30, 2019, or (ii) January 1, 2020 and February 29, 2020, as selected by borrower. A borrower that is a seasonal employer will use the time period it selected, which can be different than the two options above.
  • Documents verifying that existence of the obligations or services prior to February 15, 2020, and the eligible payments of those non-payroll costs included in the forgiveness amount, including where applicable:
    • Business mortgage interest payments, such as lender amortization schedules and receipts or cancelled checks verifying payments, or lender account statements for the relevant periods of time.
    • Business rent or lease payments, such as current lease agreement and receipts or cancelled checks verifying payments.
    • Business utility payments, such as copies of invoices and receipts or cancelled checks, or account statements verifying the payments for the relevant periods of time.

Each borrower should also have available, but it is not required to submit to the lender, such borrower’s PPP Schedule A Worksheet or equivalent, along with (1) documents supporting the listing of each employee in that worksheet, whether the listing is done for salary/hourly wage reduction or exclusion of individuals receiving an annualize rate of compensation of more than $100,000, (2) documents regarding any job offers and refusal, firings for cause, voluntary resignations and written requests by employee for reduction, if applicable, (3) documents supporting the FTE Reduction Safe Harbor calculation on such worksheet. Further, all records related to the borrower’s PPP Loan, such as its application, support for its certifications, its eligibility and support for forgiveness must be retained for 6 years after the later of the date of its loan forgiveness, and its repayment of the loan.

Key Takeaway – The documentation to be submitted to the lender for forgiveness is relatively light. However, the amount of supporting documents and backup that the borrower should have at the ready for a six year plus period is quite extensive.

D. Forgivable Expenses

The Application and the First Forgiveness Interim Rules set forth in greater detail than the CARES Act itself the expenses that a borrower pays or incurs that are eligible for forgiveness. Those expenses are grouped into two categories: (1) payroll costs, and (2) non-payroll costs. In general, to be forgiven, the enumerated expenses must be paid or incurred during the applicable 8-week period.

  1. Covered Period and Paid/Incurred. In general, payroll costs and non-payroll costs are eligible for forgiveness only if they are paid or incurred in the applicable covered period. The Application and new rules provide very meaningful guidance in this area.
    1. Covered Period. First, borrowers have the option of selecting which 8-week period will be used to measure the paid or incurred payroll costs. Borrowers can seek forgiveness for payroll costs for the 8-week period beginning on either: (i) the date of disbursement of the loan proceeds (Original Covered Period); or (ii) the first day of the first payroll cycle in the 8-week period in the Original Covered Period (Alternative Payroll Period). The Alternative Payroll Period provides flexibility to a borrower and helps it align the covered period better to its payroll cycle. The Alternative Payroll Period is not available for non-payroll costs.
    2. Paid/Incurred. The CARES Act indicated that the forgivable expenses of the borrower had to be paid and incurred in the covered period. This created questions surrounding how to measure the same, and whether or not the use of “and” was intended to be conjunctive or disjunctive in nature. The Application and rules greatly simplify the analysis on this front. In short, a borrower can seek forgiveness for appropriate payroll and non-payroll expenses that are paid during the applicable covered period, and for those 5 expenses incurred during the applicable covered period that are paid on the next regular payroll date, or for non-payroll costs on the next regular billing cycle. Payroll costs are considered paid on the day that paychecks are distributed or the day borrower originates an ACH credit transaction. Payroll costs are incurred on the day the employee’s pay is earned (i.e., the day the employee worked).

Key Takeaway – A borrower can submit expenses either paid or incurred in the applicable period so long as they are not double counted. And, unless changed by supplemental rules, a borrower gets the benefit of more than 8 weeks of payroll paid or incurred during the Original Covered Period or the Alternative Payroll Period, as applicable.

  1. Payroll Costs. The new guidance reiterates that forgivable payroll costs is the compensation to employees whose principal place of residence is in the United States during the applicable 8-week period. Compensation includes (a) salary, wages, commissions or similar compensation; (b) cash tips or equivalent (based on borrower’s records of tips or, if no such records, a reasonable good-faith estimate); (c) payment for vacation, parental, family, medical or sick leave; (d) allowance of separation or dismissal; (e) payment for the provision of employee benefits consisting of group health coverage, including insurance premiums, and retirement; (f) payment of state and local taxes assessed on compensation of employees; and (g) for an independent contractor or sole proprietor, wages, commissions, income or net earnings from self-employment or similar compensation. Key Takeaway – The First Forgiveness Interim Rules clarify that compensation payments to furloughed employees in the applicable 8-week period are eligible for forgiveness (subject to the $100,000 annualized cash compensation limitation). In addition, if an employee’s total cash compensation does not exceed $100,000 on annualized basis, the employee’s hazard pay and bonuses are eligible for forgiveness. Finally, the amount of forgiveness requested for owneremployees and self-employed individuals’ payroll compensation can be no more than the lesser of 8/52 of 2019 compensation or $15,385 per individual in total across the business (see commentary in Section B. on the definition of “owneremployee”).
  2. Non-Payroll Costs. While the Application and latest rules do not define payroll costs and non-payroll costs specifically, they do shed light on a few questions surrounding the items includable in those categories. Generally, the Application and the rules reiterate that non-payroll costs that are potentially forgivable are (a) interest payments on business mortgage obligations on real or personal property that were incurred before February 25, 2020 (but not any prepayment or payment of principal); (b) payments on business rent obligations on real or personal property under a lease agreement in force before February 15, 2020; and (c) business utility payments for the distribution of electricity, gas, water, transportation, telephone or internet access for which service began before February 15, 2020.

Key Takeaway – Payments under rental or lease agreements for personal property are eligible for forgiveness. And, the SBA confirmed prepayment of interest is not a forgivable use of PPP loan proceeds.

E. Reduction in Forgiveness Mechanics

The SBA also addressed and answered several outstanding questions related to the reductions for forgiveness required under the CARES Act and the rules promulgated thereunder, including those for reduction in work force (including furloughs and reduction in hours) or employees’ wages. Additionally, the SBA created several borrower-friendly exemptions in the process, relying on “administrative convenience” and the statutory authority to grant de minimis exemptions. Several of the First Forgiveness Interim Rule’s questions and answers are worthy of note, but with guidance still ever-changing and regulations still to follow, we advise seeking counsel and reviewing the most up-to-date guidance before calculating whether a PPP loan is subject to a reduction in forgiveness.

  1. Order of Application. There are specific instances where the amount of forgiveness can be reduced. Those instances are when there is a reduction in employee pay level, a reduction in the number of FTEEs, and more than 25% of the amount sought to be forgiven is related to non-payroll costs. Before issuance of the Application, it was not clear in what order these potential reductions were to apply, and how they would interact. Key Takeaway – The reductions are to be applied by first addressing the reduction in employee pay level, then the reduction for any decrease in FTEEs, and finally calculation of any reduction needed because more than 25% of the amount applied for forgiveness is attributable to non-payroll costs.
  2. Employees Who Refuse to Come Back to Work. Prior guidance indicated that if a borrower offered to restore an employee to its prior wage/hours/employment status and the employee refused, that employee would not be counted against the borrower in calculating forgiveness. This was codified in the First Forgiveness Interim Rules, which also applied this exemption to situations where the borrower had previously reduced the hours of the employee and offered to restore the employee to the same salary or wages. Key Takeaway – The First Forgiveness Interim Rules provided a five-part test for borrowers to qualify for the exemption. The test includes that the borrower must make a good faith offer to rehire or restore the reduced hours to the same salary or wages and same number of hours as earned by the employee in the last pay period prior to the separation or reduction in hours. The offer must be rejected by the employee, and the offer and rejection must be documented. The borrower must inform the state unemployment office of the rejected offer within 30 days of the employee’s rejection of the offer.
  3. Effect of a Reduction in Full-Time Equivalent Employees (FTEEs). When calculating a reduction in forgiveness based on a reduction in FTEEs, the borrower is to divide the average number of FTEEs during the Original Covered Period or the Alternative Payroll Period by the average number of FTEEs during the “reference period,” with the total eligible expenses available for forgiveness reduced proportionally by the percentage of reduction in FTEEs. In prior publications, the SBA had suggested that the borrower may not be able to choose the reference period (as had initially been suggested by the language of the CARES Act) and that borrowers that were in business prior to February 15, 2019 had to use February 15 to June 30, 2019 as the reference period.  Key Takeaway –The SBA made clear that the borrower will have a choice in selecting the reference period, which should allow most borrowers to choose the reference period that minimizes any reduction to forgiveness based on a reduction in workforce. Most borrows have two choices in determining the reference period to calculate any reduction of forgiveness due to a reduction in FTEEs: (a) February 15-June 30, 2019, or (b) January 1-February 29, 2020. Seasonal employers, however, could also choose any consecutive 12-week period between May 1 and September 15, 2019.
  4. Calculating FTEEs. FTEE calculations are determined on a 40 hour work week. Any employee who works 40 hours or more is considered one FTEE. However, the SBA creates two options for calculating FTEEs when it comes to employees who work less than 40 hours per week. The borrower must apply the option it selects consistently for calculating both the reference period and the Original Covered Period (or the Alternative Payroll Period), and for all employees. The first option is to calculate the actual numbers a part-time employee was paid per week and divide that number by 40. The second, alternative option—created for administrative convenience—is to use a full-time equivalency of 0.5 for each part-time employee, without concern to the actual hours the employee worked. Key Takeaway – The second option for calculating FTEEs will be significant for certain borrowers, like those in retail and restaurant industries, who are slowly re-opening at reduced capacity, and often have a significant portion of the staff working less than 40 hours a week. While we advise seeking counsel prior to making a choice between the two options provided, the creation of the second option may allow some borrowers to mask small reductions in hours for individual employees that are likely to occur as the borrower is reopening at reduced capacity. Of note, this option does not exempt these part-time employees from calculating a reduction in forgiveness due to a reduction in salary, nor does it change the requirement that at least 75% of the forgivable amount be actually spent on payroll costs.
  5. Effect of a Reduction in Employees’ Wages on Forgiveness. The SBA made clear that the reference period for calculation in wage-reduction was January 1 through March 31, 2020 and that the reduction is based on a per employee basis (not in the aggregate). Key Takeaway – Borrowers will not be doubly penalized for a reduction in FTEEs when calculating reductions in forgiveness. If a borrower merely reduces hours but does not change the salary/wage of the employee, the SBA indicates that the borrower will not also suffer a reduction in forgiveness for a reduction in wages. Likewise, terminating an employee should not also count as a reduction in wages to that employee. 
  6. Safe Harbor for Rehiring. The CARES Act provides for a safe harbor period for any borrower who saw a reduction in FTEEs or employee wages from February 15 through April 26 (30 days after the Act was enacted), but cures those reductions by June 30, 2020. Key Takeaway – The rules provide that a borrower who saw reductions to FTEEs or wages during the safe harbor period, but cures such reduction by June 30 will suffer no reduction in forgiveness for that employee. However, even with this 8 effort for clarity, borrowers should seek counsel before calculating safe harbor exemptions to reductions in forgiveness, as, for example, an employee who was laid off on February 14 is treated differently than one laid off on February 15, and an employee who had wages reduced on April 26 is treated differently than one whose wages were reduced on April 27.
  7. Employees fired for cause or voluntarily causes reduction in hours. The First Forgiveness Interim Rules give a borrower a better understanding of what employees or former employees count in the FTEE calculations, and certain terminations of employment will not be counted against the borrower. Key Takeaway – The SBA created an exemption not contemplated by the CARES Act. Specifically, when an employee is fired for cause, voluntarily resigns, or voluntarily requests a reduction of hours during the covered period, the borrower may count such employee as the same FTEE level as before the event when calculating the FTEE penalty. This would likely include employees who abandoned positions after being offered to return to work, even if the employee did not formally reject the offer as otherwise required in Section E.2 above. However, the SBA cautioned borrowers that the borrower must maintain records (for up to six years) demonstrating the employee was fired for cause, voluntarily resigned or requested a reduced schedule, and must provide the records upon request of the SBA.

F. Questions that Remain Unanswered.

While the Application and the First Forgiveness Rules addressed several issues surrounding the forgiveness aspects of the PPP, borrowers will be waiting and watching for further issuances by the Treasury and the SBA on questions not yet addressed. Some of those items are:

  • Will lenders be able to extend the 6 month deferment on the repayment of the PPP loan so as to allow the forgiveness process to be completed, or will a borrower need to start making payments based on the lender’s determination of forgiveness?
  • If a borrower has multiple payroll cycles (e.g., bi-weekly and monthly), does it only get to use the Alternative Payroll Period once, or can it elect to change the Original Covered Period for each payroll cycle?
  • Are retirement plan contributions, which are not monthly payroll cycle matches, but instead discretionary in nature, a forgivable expense if paid during the applicable covered period?
  • Is there a deadline for a borrower to make the request for forgiveness?
  • Can PPP loan proceeds be used for permissible purposes after June 30, 2020, or if not spent by then do they need to be returned to the lender? We expect even more guidance and interim rules on the loan forgiveness aspects of the PPP to be forthcoming.

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For more on SBA’s PPP loan see the National Law Review Coronavirus News section.