The Paycheck Protection Program (PPP) presents various risks to banks, including litigation from customers, prospective customers, and third parties, as well as enforcement actions from the government and bank regulatory agencies.

An analysis of the several dozen lawsuits filed in the months after the enactment of the Coronavirus Aid, Relief, and Economic Security (CARES) Act reveals that PPP litigation is trending in five preliminary categories: PPP eligibility restrictions, PPP loan prioritization, agent fees, default on debt, and False Claims Act, each detailed below with other litigation risks.

The PPP also presents regulatory risk to banks, including but not limited to nonpayment of guarantee by the US Small Business Administration (SBA), fair lending risk, Bank Secrecy Act (BSA) compliance risk, and PPP compliance risk, each detailed below.


Continue Reading Litigation and Regulatory Risks to Banks from Paycheck Protection Program

On May 19, OSHA released updated enforcement guidance for inspections related to COVID-19 complaints, referrals and severe illness reports.

In response to the reopening of many parts of the country, OSHA plans to operate within the following framework:

  • In areas where community spread of COVID-19 has significantly decreased, OSHA will return to its regular

On May 19, the Occupational Safety and Health Administration (OSHA) revised its policy for when employers have to record COVID-19 cases in their injury and illness logs.

Under the revised policy, employers who are otherwise required to keep OSHA logs must make a determination as to whether workers’ COVID-19 cases are job-related. Previously, OSHA took the position that only healthcare employers, corrections facilities, and emergency-response providers were required to make that determination.


Continue Reading OSHA Issues Revised Enforcement Guidance for Recording Cases of COVID-19

In our previous article “COVID-19 and the Shipowner’s Legal Obligations,” published in The Maritime Executive, and through our participation in a Zoom webinar on potential vessel operator liabilities hosted in conjunction with Greater New Orleans Barge Fleeting Association, we discussed the standard of reasonable care owed under the Jones Act and an employer’s obligation to provide a reasonably safe place to work. An owner has a duty to provide a seaworthy vessel under the General Maritime Law.

Recently, a COVID-19-related wrongful death lawsuit was filed against a vessel owner/Jones Act employer in the Eastern District of Louisiana titled, Kathy Norwood v. Rodi Marine LLC, et al., Civil Action No. 2:20-cv-01404. This case has been assigned to Judge Eldon Fallon and will test the legal obligations owed by vessel owners.


Continue Reading COVID-19-Related Jones Act Suit Filed

Companies and organizations worldwide are facing a difficult question: As the fight against the COVID-19 pandemic shifts gears from emergency to maintenance, how can we reopen and run our businesses — from Day One and beyond — in a manner that preserves jobs and generates revenue without risking the health and safety of our employees and customers? The answers to this question are not simple, nor is there a one-size-fits-all solution.

Continue Reading COVID-19 Back-to-Work Toolkit: Helping Businesses Protect Lives and Livelihoods

On May 15, 2020, the Mississippi Gaming Commission issued its Order Authorizing Reopening (authorizing the reopening of Mississippi casino properties at 8:00 a.m., on Thursday, May 21, 2020) under the limitations described in Industry Letter 2020-01.

Please click here to review Industry Letter 2020-01 from the Mississippi Gaming Commission.

Please click here to review the

In a press release from Washington, DC, on April 17, 2020, US Secretary of Agriculture Sonny Perdue announced the existence of the Coronavirus Food Assistance Program (CFAP). This new US Department of Agriculture (USDA) program will take a number of actions to render direct aid to American farmers, ranchers, and consumers in response to the COVID-19 pandemic. President Trump directed the USDA to craft this immediate relief program to provide critical support to US farmers and ranchers, to maintain the integrity of the food supply chain, and to ensure Americans continue to have access to the food they need. The CFAP will receive $19 billion in funding from the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Families First Coronavirus Response Act (FFCRA), as well as from other USDA-related entities such as the Commodity Credit Corporation (CCC) and the Farm Service Agency (FSA).


Continue Reading USDA Announces New Coronavirus Food Assistance Program to Farmers, Ranchers, and Consumers

In a significant, and overall welcome, development, on May 13, 2020, the Small Business Administration (SBA) issued additional guidance regarding the required certification by applicants for a Paycheck Protection Program (PPP) loan that the “current economic uncertainty makes th[e] loan request necessary to support the ongoing operations of the Applicant.”

Borrowers applying for a PPP loan are required to make the certification in good faith, and the SBA had previously issued guidance stating that all PPP loans of more than $2 million would be subject to audit to determine whether the borrower had an adequate basis for making the certification. This prior guidance also established that any borrower that repaid the PPP loan in full on or prior to May 7, 2020 (subsequently extended to May 14, 2020, and now further extended to May 18, 2020), would be deemed to have made the certification in good faith (see FAQ 31, FAQ 37, Interim Final Rule on Extension of Limited Safe Harbor with Respect to Certification Concerning Need for PPP Loan Requested dated May 8, 2020, and FAQ 47).


Continue Reading SBA Offers Further Guidance — and Certainty — Regarding Good Faith Certification of PPP Loan; Further Extends Safe Harbor Repayment Date

The Coronavirus Aid, Relief, and Economic Security (CARES) Act provides for, among other things, an “employee retention tax credit” for employers that are forced to suspend operations or experience a financial downturn. The CARES Act disqualified employers that received Paycheck Protection Program (PPP) loans from taking the employee retention tax credit. Some employers that received PPP loans are now contemplating repaying the loans based on recently released guidance clarifying the scope of employers that are eligible for the PPP. The guidance allows employers that received PPP funds to repay the funds by May 14 without penalty.


Continue Reading Employers That Repay PPP Funds by May 14 Are Eligible for Employee Retention Tax Credit