Paycheck Protection Program (“PPP”)

Overview

Amid the COVID-19 pandemic, the Paycheck Protection Program (“PPP”) has provided anxious businesses with a crucial lifeline of potentially forgivable federal loans that are designed to keep employees on payroll. The borrowers who received these loans and the private financial institutions that underwrote and extended them face unprecedented issues including qualifying for loan forgiveness, responding to fraud investigations, and defending against potential class action liability.

With uniquely deep knowledge and experience in the many facets of the Small Business Administration (“SBA”) and other federal agencies that provide capital to small businesses, Blank Rome’s PPP team is well equipped to advise lenders, borrowers, and other stakeholders as they navigate the significant risks and challenges of this program.

Our attorneys have been recognized as thought leaders on the PPP since its outset, publishing their analysis of the program’s legislative development under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) and extension under the PPP Flexibility Act; the details of its regulatory implementation, enforcement, and oversight; and the latest cases and litigation trends interpreting its provisions.

What Sets Us Apart

  • Blank Rome’s PPP team is led by nationally recognized SBA finance attorney, Martin Teckler, one of the few attorneys in the country experienced in the programs of the SBA and other federal agencies that provide capital to small businesses. He has prepared significant securities transactions and interacted extensively with sources of lending and venture capital for small businesses, providing him with a firsthand perspective and multidimensional understanding of what is needed to successfully close numerous SBA-related transactions.
  • Ranked Tier 1 in 2020 U.S. News & World Report–Best Lawyers® (Woodward/White, Inc.) in national rankings for Commercial Litigation, Banking and Finance, Bankruptcy, Tax Law, and White Collar Litigation.
  • Chambers USA editors state Blank Rome is:
    • “Recognized as ‘one of the best’ for corporate finance work, this outstanding national practice is acclaimed for its ‘strong, business-minded lawyers’ and ‘focused and sophisticated’ work. ‘Their service is beyond compare.’”

How We Can Help

Our attorneys are advising a variety of parties on the implications of the PPP Loan Program:

Corporate Advisory

Key Contacts: Martin D. Teckler, Grant E. Buerstetta

As loan recipients apply for loan forgiveness, Blank Rome’s PPP team is helping clients navigate the maze of evolving SBA regulatory requirements for achieving forgiveness of PPP loans and other challenges, including assisting with determining:

  • Timing issues related to eligible expenses
  • Payroll vs. non-payroll costs
  • Reductions to the forgiven amount
  • Full-time equivalent employee (“FTE”) calculations
  • FTE reduction exceptions and safe harbor
  • Salary or wage reductions
  • Treatment of accrued interest
  • Borrower representations and certifications
  • Supporting documentation
  • Exemptions for rehires
  • Exemptions based on employee availability
  • Extensions of deferral period
  • Repayment options if not seeking forgiveness
 

 

Our attorneys are also assisting:

  • Originators and owners of loans originated under the PPP loan program to navigate their due diligence responsibilities and potential liabilities in structuring the terms of secondary-market transactions involving the acquisition and financing of PPP loans;
  • Parties in M&A transactions on how to account for the forgiveness or repayment of a PPP loan held by the seller;
  • Lenders who have made PPP loans that may be regulatorily deficient; and
  • Borrowers of PPP loans who may face civil or criminal inquiry because of representations made in the PPP loan application process.
White Collar Defense & Investigations

Key Contacts: Paul H. Tzur, Joseph G. Poluka

With increased scrutiny from federal investigators over allegations of fraud in connection with loan applications on the rise, our PPP team is guiding borrowers and lenders through the risks of oversight, investigations, and enforcement actions by the SBA, Internal Revenue Service, and Department of Justice. We are assisting PPP loan borrowers and lenders as investigators shift their focus from examining the disclosures and certifications in loan applications to reviewing eligibility for loan forgiveness.

Blank Rome’s white collar defense and investigations attorneys have broad experience advising financial institutions, businesses, and individuals facing criminal investigations, government investigations, congressional inquiries, whistleblower accusations, or self-discovered misconduct. We know the best defense for our clients requires skilled investigative tactics, top-notch litigation skills, savvy media relations, and effective negotiating strategies to mitigate damage to their reputation.

Class Action Defense

Key Contact: Roy W. Arnold

Blank Rome’s nationally renowned litigators are prepared to vigorously defend banks, financial institutions, and other businesses against potential class action litigation related to the PPP. These unprecedented issues include challenges to how loan applications were prioritized and claims for “agent” fees by accounting firms and financial advisers arising from their alleged assistance to borrowers submitting applications under the program.

Our class action defense attorneys seek swift dispositions and across-the-board victories. We focus on seeking early dismissal, summary judgment without class discovery, defeating class certification, and leveraging favorable settlements to ward off future claims and reduce risk for businesses. Our team also has extensive experience handling complex cases in coordinated, consolidated, and multidistrict litigation matters.

News & Views

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