Several lawsuits have emerged in the last week involving the Small Business Administration’s Paycheck Protection Program (PPP). “The Paycheck Protection Program is a loan designed to provide a direct incentive for small businesses to keep their workers on the payroll.”1 The listed criteria for eligibility is very broad. Companies that have 500 employees or less, pay salaries or payroll taxes and were in operation on Feb. 15, 2020, are eligible to apply.2
Businesses large and small have been affected by the coronavirus crisis. It seems that no industry has been spared economic hardship. As many states prepare to reopen their economies, there are some businesses that will not be able to resume operations—it is too little, too late. Even with massive spending by the federal government to counteract the economic downturn, it appears that a large number of business bankruptcies may be on the horizon.
The Federal bank regulators which supervise banks have made a statement encouraging workouts necessitated by the coronavirus. Loans which would otherwise be classified as TDRs (Troubled Loan Restructurings) will not have to be classified as such under certain conditions. For example, if the workout was necessitated by the pandemic and if the loan was otherwise in good standing as of December 31, 2019. The government’s intent is clear: Everyone gains more by a workout or restructuring than by liquidation or litigation. Value is often severely diminished in bankruptcy or in a liquidation.
In Shameeka Ien v. TransCare Corp., et al. (In re TransCareCorp.), Case No. 16-10407, Adv. P. No. 16-01033 (Bankr. S.D.N.Y. May 7, 2020) [D.I. 157], the Bankruptcy Court for the Southern District of New York recently refused to dismiss WARN Act claims against Patriarch Partners, LLC, private equity firm (“PE Firm“), and its owner, Lynn Tilton (“PE Owner“), resulting from the staggered chapter 7 bankruptcies of several portfolio companies, TransCare Corporation and its affiliates (collectively, the “Debtors“).
The combined effects of the coronavirus pandemic and falling oil prices have resulted in a surge of US bankruptcy petitions. Although the nation’s ports remain open for business, many retail and energy businesses have been unable to overcome the volatile economic climate and are seeking relief in US Bankruptcy Courts.
The Small Business Reorganization Act (“SBRA”) was signed into law in August 2019 and became effective in February 2020. The SBRA makes Chapter 11 bankruptcy more accessible and less expensive for small businesses by establishing a process for small business debtors under Chapter 11 that is similar to the bankruptcy process under Chapter 12 for family farmers and Chapter 13 for individuals.
A Marijuana Related Business (or MRB), whether a plant-touching operation or a provider of goods and services to a plant-touching operations cannot seek protection from the Bankruptcy Court as Bankruptcy Court is a Federal Court and Cannabis remains illegal at the Federal level. As such, an MRB does not have the benefit of an court approved restructuring as provided by Chapter 11 of the Bankruptcy Code and does not receive the benefit of an orderly liquidation as provided by Chapter 7 of the Bankruptcy Code.
Historical Considerations
Courts reviewing a bankruptcy court’s decision to approve a chapter 11 reorganization plan over the objections of an interested party must consider not only the merits, but also (if implementation of the plan was not stayed) potential injury to the reliance interests of other parties relying on the plan. These issues are confronted in Drivetrain, LLC v. Kozel (In re Abengoa Bioenergy Biomass of Kansas), 2020 WL 2121449 (10th Cir.
One of the landmark protections enacted by the Coronavirus Aid, Relief and Economic Security, or CARES, Act on March 27 was the Paycheck Protection Program, or PPP. Under the program, small businesses (e.g., those with fewer than 500 employees) — and certain other businesses in specific industries — are eligible to receive loans that will be fully forgiven if utilized under the terms of the program, including applying at least 75% of the funds received from the loans to payment of payroll expenses.