Can businesses obtain a Paycheck Protection Program (PPP) loan to fund their chapter 11 bankruptcy cases? This question has been looming over companies facing bankruptcy and in immediate need of financing. On April 15, the Small Business Administration (SBA) issued its answer.
On April 24, 2020, the Paycheck Protection Program and Health Care Enhancement Act was signed into law and provided an additional $310 billion for the Paycheck Protection Program (PPP). The Small Business Administration (SBA) resumed accepting PPP loan applications on April 27, 2020. In light of the quick exhaustion of initial PPP loan funds, eligible businesses should apply for PPP loans soon to increase the likelihood of receiving available funds.
The SBA has also provided additional guidance for entities applying for loans.
The global COVID-19 pandemic continues to wreak havoc on the U.S. economy. Stay at Home orders issued by governors in all but a handful of states required, with certain exceptions, closure of all but those businesses deemed to be “essential.” While Congress has passed a series of measures meant to stem and mitigate financial impacts, a very large percentage of American small businesses will struggle to survive as states, counties and cities slowly lift restrictions and permit businesses to reopen.
How does one go bankrupt? Two ways — gradually and then suddenly.
(Paraphrase of Hemmingway, by way of CFTC Chairman Heath Tarbert)
Disagreeing with the much-critiqued SDNY opinion in Enron, the SDNY bankruptcy court disallowed claims brought by secondary transferees because the original claimants allegedly received millions of dollars in fraudulent transfers and preferences from the Debtors that have not been repaid. Deepening the district spilt on the nature of Section 502(d) of the Bankruptcy Code, the Court held that the defense barring fraudulent transfer-tainted claims focuses on claims—not claimants—and cannot be “washed clean” by a subsequent transfer in the secondary market.
The policies implemented to address the COVID-19 will have far reaching economic consequences. While federal and state governments are doing what they can to ease the short term impact, the fact remains that businesses of all sizes are addressing crises caused by a lack of consumption and a disruption of most all of the other factors that keep an economy afloat.
While it did not focus on bankruptcy relief, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act contained provisions relating to small bankruptcy debtors.
With courts and government agencies around the world enacting emergency measures in response to the Covid-19 pandemic – ranging from complete shutdowns to delays and limitations – advancing the ball in dispute resolution is more challenging than ever. Because fraud investigations and complex asset recovery matters are typically managed by litigation counsel and often follow litigated claims, clients have a tendency to see the effort through a litigation lens.
The U.S. Court of Appeals for the Eighth Circuit recently affirmed the denial of bankruptcy discharge for a Chapter 7 debtor due to the debtor’s failure to keep adequate records.
In particular, the Eighth Circuit focused on a sudden and financially significant return of hundreds of thousands of dollars’ worth of high-end watches and jewelry that left significant unanswered questions as to the whereabouts of the assets and the legitimacy of the creditor jeweler’s claim.