Lawyers have a saying, “Bad Facts Make Bad Law.” Recent Small Business Administration guidance regarding the Paycheck Protection Program proves it true in one more case.
Even as Congress moves to approve additional funds to the Paycheck Protection Program, the SBA issued a new FAQ in response to news stories about public companies receiving PPP money. The FAQ states that “a public company with substantial market value and access to capital markets” may not receive PPP funding. While understandable with respect to the companies in the headlines, it is concerning that the SBA could apply the guidance more broadly. Doing so would cause more delays or denial in funding for smaller enterprises, and defeat Congress’ intent to support employee retention by private employers.
This is the new FAQ:
Question: Do businesses owned by large companies with adequate sources of liquidity to support the business’s ongoing operations qualify for a PPP loan?
Answer: In addition to reviewing applicable affiliation rules to determine eligibility, all borrowers must assess their economic need for a PPP loan under the standard established by the CARES Act and the PPP regulations at the time of the loan application. Although the CARES Act suspends the ordinary requirement that borrowers must be unable to obtain credit elsewhere (as defined in section 3(h) of the Small Business Act), borrowers still must certify in good faith that their PPP loan request is necessary. Specifically, before submitting a PPP application, all borrowers should review carefully the required certification that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Borrowers must make this certification in good faith, taking into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business. For example, it is unlikely that a public company with substantial market value and access to capital markets will be able to make the required certification in good faith, and such a company should be prepared to demonstrate to SBA, upon request, the basis for its certification. Lenders may rely on a borrower’s certification regarding the necessity of the loan request. Any borrower that applied for a PPP loan prior to the issuance of this guidance and repays the loan in full by May 7, 2020 will be deemed by SBA to have made the required certification in good faith.
We understand the political motivation behind the guidance. We also believe applying a strict standard based on a company’s value or a company’s access to outside capital or “other sources of liquidity” is perverse. Congress intended the PPP to motivate companies to retain employees. Valuable companies with reserves and access to capital will still furlough or release employees, as demand for their services or products drops. For even those companies, the PPP is therefore “necessary to support ongoing business operations,” because given the current economic landscape they would not deplete reserves or access other sources of liquidity to retain unprofitable employees. Understanding Congress wanted employers to retain their employees, we interpret the FAQ narrowly. We hope the SBA will as well.
Attorney James-Allen McPheeters contributed to this post.