Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

CARES Act and Financial Institutions – Litigation Update

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) and the Paycheck Protection Program (“PPP”) have allowed some businesses to remain operational during the COVID-19 pandemic. For these businesses, obtaining access to funds under these programs has proved vital.

The U.S. Small Business Administration (“SBA”) closed new applications for PPP funds on April 16, 2020, except for a brief re-opening period on April 29 for financial institutions with asset sizes less than $1 billion. Although the SBA is not accepting new PPP applications, for financial institutions, litigation risk remains.

This alert provides an update on current CARES Act financial services litigation and issues on the horizon for Ohio financial institutions.

Does the CARES Act Contain a Private Right of Action for PPP Applicants?

Though it is still early, at least one court has determined that the CARES Act itself does not contain an explicit or implied private right of action. In Profiles, Inc. v. Bank of America Corp., No. CV SAG-20-0894, 2020 WL 1849710, at *8 (D. Md. Apr. 13, 2020), the plaintiffs brought suit against Bank of America for allegedly refusing to process their applications for PPP funds, and, thus, improperly restricting their access to the PPP funds.

Under the CARES Act, lenders “shall consider” whether the borrower (1) “was in operation on February 15, 2020,” and (2) either “had employees for whom the borrower paid salaries and payroll taxes,” or “paid independent contractors.” P.L. No. 11-136, § 1102(a)(2). In Profiles, Inc., Bank of America required additionally that the plaintiffs seek PPP applications though other institutions with which they had previous credit relationships, its so-called “credit elsewhere” requirement.

The U.S. District Court for the Maryland District determined that the CARES Act does not contain a private right of action, but, even if it did, Bank of America’s actions did not run afoul of the Act. The court stated that Bank of America’s “credit elsewhere” eligibility disqualifier was not contrary to the CARES Act language, and, thus, the plaintiffs' claims for injunctive relief were meritless.

Other pending cases will have to address whether the CARES Act contains a private right of action. See Scherer v. Wells Fargo Bank, N.A., 2020 WL 1864840 (S.D.Tex. filed April 11, 2020) (including claims under the CARES Act as a private cause of action). As Profiles, Inc. is currently on appeal and Scherer is pending, it will be interesting to see how the private right of action issue plays out.

If the CARES Act does not contain a private right of action, Ohio financial institutions still may face litigation risk for CARES Act issues through conventional litigation vehicles, such as:

  • Contractual theories
  • Ohio’s deceptive trade practices law (R.C. 4165.01, et seq.)
  • Unfair or Deceptive Acts or Practices (“UDAP”) claims
  • Fair lending laws claims
  • Fraudulent concealment
  • False advertising

Debt Collection Issues

If the financial institution engages in debt collection or mortgage services, realize that COVID-19 related Fair Debt Collection Practices Act and state collection law violations are likely inevitable, and be prepared for inability to pay requests and additional (sometimes, federal- and state-mandated) flexibility around repayment.

Some states have already tried to ban all debt collection proceedings during the pandemic. See ACA Int'l v. Healey, No. CV 20-10767-RGS, 2020 WL 2198366, at *10 (D. Mass. May 6, 2020) (enjoining the Massachusetts Attorney General from enforcing a law prohibiting all debt collection proceedings during the pandemic). Whether any state can successfully ban debt collection proceedings during the COVID-19 pandemic remains to be seen.

Finally, in Taylor v. JPMorgan Chase Bank, N.A., No. 17-3019, 2020 WL 2079164, at *7 (7th Cir. Apr. 30, 2020), the court affirmed dismissal of the plaintiff mortgagor’s breach of contract, promissory estoppel, and fraud claims, among others. The mortgagor’s claims were based on a proposed loan modification plan for payments during the 2008-2009 housing crisis that Chase Bank sent to him, but that Chase later did not execute. Chase Bank argued that its execution of the application materials was a condition precedent to the modification contract.

The Taylor dissent noted that this decision could have relevance in light of the COVID-19 pandemic. The dissent further stated that there could have been enough for the mortgagor to sustain his claims in light of Chase Bank’s representations, the loan modification application materials, and whether Chase Bank’s execution of the documents was a true condition precedent to the parties’ modification contract.

These cases provide some insight into how courts may tackle COVID-19 pandemic with respect to financial institutions, but the coming weeks will tell us much more about COVID-19 and CARES Act litigation.

Richard L. Hilbrich is a member of Brennan, Manna & Diamond’s Litigation team and is available to assist you with minimizing litigation risk. Richard can be reached at 330.253.4766, or rlhilbrich@bmdllc.com.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.