Author: Stanley Jaskiewicz

We are a “get’er done” society. We embrace challenges – and applaud those who complete them promptly. Nothing exemplifies that attitude more than creating not one, but two COVID-19 vaccines, in less than a year. Another example has been funding relief for America’s businesses shuttered by the Pandemic.

From the $2.2 trillion CARES Act funding quickly passed in April, to the tentative deal for “just” $900 billion in the pending bill, our leaders have acted quickly to try to help our citizens and businesses get back on their feet, after a knockout punch no one saw coming.

But sometimes done is not “better than perfect”?

The aphorism about the benefits of completing a task, rather than obsessing over the failure to “dot i’s and cross t’s”, falls down when the “i’s and t’s” turn out to be just as important in the long run as the completed task.

The 5,593 page Consolidated Appropriations Act 2021 left out liability protection for employers, schools and businesses, despite many calls for such relief. A similar liability limit bill was vetoed in my state, Pennsylvania, for protecting even firms that ignored public safety requirements. Why should such concerns matter so much, when balanced against the overwhelming demand for speedy relief, both financial and legal?

Consider the tragedies of Pennsylvania meat plant employees, who died of COVID-19 early in the Pandemic, and of their employers who were sued for failing to prevent their deaths. Other similar cases have been reported, particularly for health care workers. While the facts will be determined in the litigation, the allegations are predictable. The employers claim that employees were infected even though they had protective equipment. If the employers complied with all applicable safety rules, at the time, what more could they have done?

Why should an employer pay for an illness it couldn’t prevent, even though it tried, using all of the public health guidance available? Of course, those rules have evolved as science has learned more about the virus. But no one wants to hold employers to a standard they couldn’t have known at the time of the alleged violation.

Or do they?

Whether due to adverse publicity, a genuine desire to compensate the family of a fallen employee, or a cold, liability carrier’s cost benefit analysis of the expense of settlement against the slow burn of legal fees, counsel for an injured or deceased employee will often invest in lengthy litigation, in search of a large award.

It is easy to understand why the possibility of future lawsuits became less pressing to lawmakers than the actual needs of individuals and businesses alike for cash, whether to pay bills, or simply to stay alive in the hope for a “new post-vaccine normal”. Yet the cost of defending claims for harm allegedly caused by COVID-19, both spurious and legitimate, could be overwhelming – especially after businesses have already invested heavily in personal protective equipment and facilities modifications to try to stop the spread of the disease.

Moreover, keeping up with the flood of safety guidance from many sources during the Pandemic, especially as it has evolved with understanding of the virus, has been a challenge for those focusing on that question, much less for a business owner struggling to stay open and pay employees.

From a different perspective, will anyone remember the cash stimulus benefits after paying legal fees to defend claims from injured or deceased employees? If the philosophy of our relief efforts has been “no questions asked” compensation for businesses harmed by the virus, should funding for its human victims perhaps have been included as well?  After all, our society does compensate some harms without fault, such as auto accidents (in some states), or injuries caused by vaccines.

Such a compensation system would not multiply the tragedy of an employee death from COVID-19 to include the collapse of the firm that could not prevent it, especially if the employer tried to protect its employees under all safety guidelines.

(Of course, employers which cavalierly ignore safety rules should not get any liability protection.)

To paraphrase Martin Luther King, no one is healed until we are all healed, individuals and businesses alike. When Congress returns in January, balanced COVID-19 liability limitation should be as high on its agenda as stimulus checks for individuals.

0

Businesses that obtained Paycheck Protection (“PPP”) Act refundable loans above $2 million may soon find themselves in the unenviable position of defending themselves against potential federal criminal prosecution.

The Small Business Administration, which administered the PPP, quietly submitted “Loan Necessity Questionnaires”, including a “liquidity assessment”, to the Office of Management and Budget (“OMB”) for approval in late October. The forms demand very specific financial data about access to funds at the time the loan was made, to allow “SBA loan reviewers to evaluate the good-faith certification that (the Borrower) made on (its) PPP Borrower Application (SBA Form 2483 or Lender’s equivalent form) that economic uncertainty made the loan request necessary”.

The new questions even ask about such normally confidential business matters as revenue declines and shutdowns of the business by government order (in connection with the Pandemic). In addition, PPP recipients must describe their spending to control the spread of COVID-19, and even capital spending plans.

The draft form also asks the PPP borrower to identify for each question whether a response is “customarily kept confidential”.  However, that designation now appears moot, after the SBA was ordered to reveal all details of its major stimulus loan programs by a federal judge, including specific borrowers and loan amounts.  https://bankingjournal.aba.com/2020/11/court-orders-disclosure-of-all-ppp-eidl-loan-recipients-by-nov-19/

Although the SBA has not yet posted the forms itself (presumably pending OMB approval), you can easily find both versions of the form (3509 for for-profit firms, and 3510 for nonprofits) by searching the internet by the form numbers.

In addition, draft versions of the 9 page forms mentioned in the Federal Register notice about them (https://www.govinfo.gov/content/pkg/FR-2020-10-26/pdf/2020-23594.pdf) are now available on the news site www.politico.com, at https://www.politico.com/f/?id=00000175-7c07-d665-a1ff-fe0fd5390000.

A tax site also provides a lengthy description of the forms.  (https://www.currentfederaltaxdevelopments.com/blog/2020/10/31/sba-announces-will-create-questionnaire-to-determine-need-for-ppp-loans-purported-copies-being-circulated-online)

Although the SBA has not announced its rationale for requiring this form – nor does it have to – the “fund now, ask questions later” strategy of the initial PPP rollout likely provides an explanation.  https://www.sgrvlaw.com/the-paycheck-protection-program-what-a-long-strange-trip-its-been/

To inject cash into the economy at the start of the shutdown, quickly, the SBA simply required borrowers to certify that the “current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant”.  No further justification – or financial data – was required.

In my experience, small businesses accustomed to providing extensive financial information to bank lenders were skeptical about getting significant funding without comparable documentation.  It now seems that they were correct – the request was just delayed.

Unfortunately, the ease of applying for PPP funding led to many well publicized abuses by recipients, which likely explains the new forms.  However, one study found such potentially fraudulent loans represented only 0.01 percent of all PPP funding.  https://cepr.net/new-york-times-reports-that-0-01-percent-of-the-paycheck-protection-program-was-fraudulently-spent/

Formally, the SBA will issue requests for the new forms to lenders who submit forgiveness applications – suggesting another reason for borrowers to consider delaying a forgiveness application.

Despite the uncertainty about this enforcement effort, the detailed accounting questions on the draft forms provide a roadmap for planning your defense now with your CPA, before the prosecutor calls – especially since a response will be due just ten days after you receive the request for the form.

  • Assemble information on how the PPP funds were used, particularly for preserve jobs.
  • Document your expenses and other sources of cash, if any, at the time you applied for the PPP loan.

Since no specifics are yet available about this program – it was discovered only through the request for approval of the “necessity” certification  forms – monitoring online sources remains the best way to stay current (as it has been throughout all the Pandemic relief programs).

Unfortunately, the latest PPP twist confirms the old adage (and small business common sense), “There’s no such thing as free money”.

0

A coalition of business groups and local politicians faced down Pennsylvania Governor Tom Wolf’s aggressive COVID-19 rules – and won.

In Butler v. Wolf, federal judge William Stickman blocked many restrictions imposed on Pennsylvania businesses early in the pandemic to halt the spread of the coronavirus.

But not all of them – the severe capacity limits on restaurants, for example, remain in force. Although those challenging the rules were businesses harmed by their effect, the court did not rely upon the rules’ practical impact. Instead, it relied heavily upon prior case law, and complex legal analysis. Not surprisingly Governor Wolf immediately appealed – and the federal appeals court immediately halted (for now) the effect of Judge Stickman’s original ruling.

“There’s no sense debating a ruling that will be appealed — two of three federal judges upheld what we did. But what’s not up for debate is that our early and decisive action saved lives.”

Unfortunately for the business opponents of Wolf’s aggressive limits on the state’s economy, the appeal will likely succeed, in the view of constitutional law scholars. Both a case cited by the Butler court, and the judicial philosophy of the ruling, were considered out of date when I studied constitutional law – 40 years ago. In fact, the cases reaching that result date from the 1930’s, and predate the New Deal era governmental intervention in the economy that we take for granted today.

(In the short run, however, Judge Stickman denied the stay almost immediately because of what he viewed as a lack of evidence justifying the need for restrictions on gatherings, and the inconsistency of their application to different types of events.)

Nonetheless, the far-reaching ruling 6 months into the crisis raises many questions, not only practical ones for both businesses and their customers, but also legal issues that could quickly undermine the ruling.

  • Why does this matter now, since many of the restrictions have already been relaxed? The court highlighted that Wolf’s rules have only been “suspended”, not rescinded.
  • Should a court even get involved in the middle of a public health emergency? The court answered that it had to protect constitutional rights.

Formally, the court ruled that public health concerns do not get “judicial deference” six months into the crisis, especially when many businesses were permitted to remain open even under Wolf’s stringent rules, notwithstanding the health concerns.

  • Were the state’s unilateral decisions on which businesses were “life-sustaining” – and therefore allowed to remain open, even when similar or nearby firm were not – arbitrary? The court agreed, applying constitutional principles of equal protection and due process.
  • Will ruling affect Philadelphia’s own strong rules? Not for now – the plaintiffs were all from western PA, and did not challenge Philadelphia’s rules.

So should businesses go back to the ways things were before the crisis?

Certainly not.

At a practical level, the virus is still here. I don’t think the virus has read Judge Stickman’s opinion yet – and would not care about it even if a virus could read. Its sole purpose is to infect another cell, to propagate itself. While many mitigation efforts have helped, Pennsylvanians are still becoming infected and dying – including a clergyman I greatly admired. More importantly, both the CDC and many local governments have issued safety rules, which remain in effect, independently of limits on the state’s rules.

In addition, the CDC acknowledges that it is constantly learning about the virus and its risks. Today’s recommendations and prohibitions may be different by tomorrow. In fact, there have been so many new rules concerning COVID-19 that professional advisors with whom I speak agree that it has been difficult to keep up with all of them.

One thing hasn’t changed, however – the economic effect of the virus. Many businesses may never return, especially in sectors most affected by safety concerns, such as hotels, or restaurants.

Just as occurred in March, at the start of the crisis, Congress is considering significant stimulus relief. After spending trillions to avoid a crash earlier this year, no one wants to slip backward for want of another few billion here or there. Of course, election year politics and other pressing virus related issues have complicated closing the next stimulus deal – unemployment benefits, liability protection for businesses and schools that reopen, and blanket PPP forgiveness, among others.

So our next steps in Pennsylvania will resemble what we have all done for the last six months – watching each day for glimmers of hope in the latest news.

0

Have you read the Small Business Administration’s latest revision of the rules for its Paycheck Protection Program (“PPP”) yet? If not, that’s OK – the rules just changed again.

I am exaggerating, but not by much.  At times, rules were issued and revised on almost a daily basis. Major changes occurred in the night, or over weekends. But was that any way to spend $659 billion – one of the largest economic programs in our history? Congress certainly didn’t plan to save the economy on an ad hoc basis, when it first began to act in April. Similarly, many states’ planned on closings measured in weeks – over six months ago. But as job losses kept rising, Congress was ready to try anything that might work – and to change when it the economy continued to sputter.

For example, the Paycheck Protection Flexibility Act in early June fixed some of the problems that arose in the early funding, particularly requirements to rehire employees – even though many businesses were closed by government order. But giving money away wasn’t easy. In just six months, 24 separate PPP “interim” final rules were announced, according to a lenders’ trade group.  https://www.naggl.org/resource/resmgr/ppp/IFR_Chart.docx

Of course, the PPP wasn’t the only effort to spend our way out of the problems.  So many federal, state and local relief efforts were approved that it became difficult to keep up with all of them. So what have 5,212,128 approved PPP loans, totalling $525,012,201,124 bought us?

(The data is through the program close on August 8, 2020, according to the SBA’s PPP dashboard.  https://www.sba.gov/funding-programs/loans/coronavirus-relief-options/paycheck-protection-program.)

Not much, apparently. But Congress worked so much that the legislators needed a vacation. As a result, President Trump reacted by to bypassing Congress with Executive Orders of questionable legal legality to try to fix some of the problems, and avoid further economic meltdown. But across the nation, businesses remain closed.

One respected political journal proclaimed, “The Paycheck Protection Program Was a Flop”.  (https://slate.com/business/2020/07/paycheck-protection-program-was-a-flop.html)

At the same time, PPP fraud became a stumbling block to further relief.  “Paycheck Protection Fraud Is Massive and Unsurprising”, as massive fraud became apparent in loans to ineligible borrowers, or without any job preservation.  (www.forbes.com/sites/peterjreilly/2020/08/29/paycheck-protection-fraud-is-massive-and-unsurprising/#7dfbb8ac4df6)

Despite their pain, larger businesses ignored significant relief programs, particularly the Main Street Lending program perceived to be expensive and onerous. Schools that tried to reopen have switched to online learning – with all of the problems it presents for students from families without reliable internet access, or for those with disabilities. On a positive note, the national unemployment rate climbed fell from a high of 14.7% in April, to 8.4% in August, perhaps as a result of the PPP largesse.

Continuing its frenetic pace, Congress will likely consider another massive relief bill when it returns from its recess. However, further aid must overcome political disputes over key provisions:

  • Maintaining increased unemployment benefits that ended in late July.
  • “Liability reform” to protect reopening schools and businesses against claims by both employees, students and customers who may contract the virus.
  • Restoring lost business deductions for routine expenses paid with PPP funds – causing increased taxes for businesses already hammered by the effects of the virus.
  • Another round of PPP grants and stimulus payments – they worked so well the first time, why not spend again?
  • Blanket PPP forgiveness for borrowers under $150 million (85% of all such loans), to avoid the delays and expense of manual review of millions of loans for compliance with the complex program rules.
  • Emergency relief for hospitality and transit firms, as safety concerns discourage both business and personal travelers.
  • Support for the Postal Service, critical for both Presidential voting and shopping “by mail”.

Despite all of the stops and starts since March, one thing has become absolutely clear: “man plans, the virus laughs”. Until a vaccine has been finalized and tested for safety, the virus is in control. Business and political planning can only remain a hope – contingent on the success of our public health efforts, and universal compliance with its recommendations. Clear rules will also help – conflicts between states and federal leaders’ advice don’t help to build a national consensus on how to beat the virus. We need the same unanimity our country had in times of crisis, such as World War 2, or the oil shortages of the 1970s.

With US coronavirus deaths alone approaching 200,000, our leaders, political and cultural, must now help build that consensus to restore our economy and our health. Without it, as the Grateful Dead once sang, “Ain’t it a shame?”

P.S.: While you were reading this, the PPP rules changed again.

0

Was your business lucky enough to get a Paycheck Protection Loan?

If so, I am sure that you appreciated the cash relief.

But it wasn’t free money.

You – and your accountant – should be planning, now, for how to repay it.

The program’s rules have already been amended many times, without notice.

In other words, you must pay attention, to make certain that you will be able to obtain loan forgiveness, by showing that you used the funds for their intended purpose – to maintain payroll.

Certainly, you should ask your bank lender what it will require – but the bank may not yet know either.

Even worse, regulators have already announced audits of borrowers.

In response, many borrowers have already given back their loan proceeds. No one wants a call from a federal inspector, and the bad publicity that will come with it.

One rule even created a safe harbor for giving the money back – and the deadline has already been extended once, to May 14.

With loan rules seemingly being made up day to day, SGRV business lawyer Stanley Jaskiewicz recommends that borrowers plan, now, to keep detailed records of precisely how they used the funds, speaking in a series of interviews with a CBS affiliate news radio show. https://kcbsradio.radio.com/articles/answering-your-questions-about-small-business-aid

To simplify that process, he also recommended keeping all loan funds in their own, separate account.

Please contact Stanley Jaskiewicz directly at 215-241-8866, or sjaskiewicz@sgrvlaw.com, if you have questions about your Paycheck Protection Program loan, or other effects of the COVID-19 Stay at Home Orders on your businesses.

In addition to assisting clients with the Paycheck Protection Program, Jaskiewicz has also drafted letters for employees of essential businesses to carry while commuting to work in locations where such travel is otherwise prohibited.

The purpose of this email is to provide you with general information about current developments in the law that may be of interest to you. This information does not, and is not intended to, constitute legal advice or opinion. DO NOT send us any information concerning any potential legal matter or situation until you speak with a SGRV lawyer first and get authorization to send the information as directed by the lawyer. An unauthorized email sent to a SGRV lawyer will not be a confidential attorney-client communication and will not create an attorney-client relationship. An attorney-client representation is established only through our formal client acceptance and agreement process.

0

This year’s flood of privacy policy updates seem like déjà vu all over again, to quote the noted American intellectual, Yogi Berra.

Such notices to US businesses hit their stride in 2017, ahead of the May 25, 2018 effective date of the GDPR, the European data privacy law known officially as the “General Data Protection Regulation”. 

However, many correctly (in my opinion) chose not to do anything in response.  Whether the result of legal advice, or simple “why should I care” attitude, a purely domestic US business probably had no obligation to act under the European rule.

This year’s boom of such notices, however, hits much closer to home. 

The California Consumer Privacy Act was passed in June, 2018.  It regulates many firms that obtain personal information about “consumers”, defined as California residents – over 12% of everyone in the US, according to recent US Census data.  https://www.census.gov/popclock/?intcmp=w_200x402

Since California is the world’s fifth largest economy, according to recent US government data, US businesses can’t ignore its requirements.

Although California law’s doesn’t become effective until 2020 – seemingly leaving plenty of time for changes, or typical legislative postponements, especially after the law’s hasty passage in June – compliance could take some time.

•             Any business that sells to California consumers must give accurate privacy policy notices.

•             Businesses must police their supply chain for compliance with California’s law, whether or not the suppliers are located in California.

•             The law gives consumers the right to know what personal information about them is collected, how it is used, and even to require that it be eliminated from business records – the so-called “right to be forgotten”.

•             The law also gives consumers the right to sue for violations, including in class actions.

But why should businesses be concerned about yet another “urgent” call to action, or dire warning? 

After all, no one who spent money on Y2K compliance wants to repeat that fiasco.

But this time should be different:

•             Businesses today collect more and more data in the ordinary course, whether online, or through smartphone apps. 

•             After many highly publicized data breaches, consumers and lawmakers alike will demand more protection as the price of giving up that data for free.

•             The e-commerce revolution has led to much more data collection, regardless where a business or consumer may actually be located.

•             California regulators are known to be relentless.

•             The breadth of duties under the new law could take some time and considerable expense.

So, to answer the question in the title of this article – what to do now? – businesses should begin to understand what data they collect, where it is stored, and, more importantly, how it is protected.

For further guidance in this area, please contact Stanley P. Jaskiewicz, Esquire, at 215-241-8866 or sjaskiewicz@lawsgr.com or Ned Dunham, Esquire, at 215-241-8802 or edunham@lawsgr.com.

 

0