Resources

Client Alerts, News Articles, Blog Posts, & Multimedia

Everything you need to know about BMD and the industry.

CARES Act and Financial Institutions – Litigation Update

Client Alert

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.


Status Update: Physician Noncompete Agreements in Ohio

Noncompete agreements remain enforceable in Ohio if they meet specific legal requirements. While the AMA and FTC have challenged these restrictions, courts continue to uphold reasonable noncompete provisions for physicians. Recent cases, like MetroHealth System v. Khandelwal, highlight how courts may modify overly restrictive agreements to balance employer interests with patient care. With ongoing legal challenges to the FTC’s proposed ban, Ohio physicians should consult a healthcare attorney before signing or challenging a noncompete agreement.

Immigration Orders and Their Economic Impact on Small Business: Insights from Attorney and Former Immigration Judge Rob Ratliff

President Trump's recent executive orders, targeting immigration policies, could significantly impact small businesses in Ohio, particularly those owned by undocumented immigrants. With stricter visa vetting, halted refugee admissions, and potential deportations, these businesses face uncertainty, workforce disruption, and closures. Ohio's immigrant-owned businesses, especially in food services and transportation, contribute billions to the state economy, and any disruption could result in economic ripple effects.

Corporate Transparency Act Ruling from the U.S. Supreme Court

The U.S. Supreme Court recently ruled on the enforceability of the Corporate Transparency Act (CTA), lifting an injunction previously imposed by the Fifth Circuit. However, a separate nationwide injunction remains in effect, meaning businesses are still not required to comply with the CTA’s reporting requirements. FinCEN continues to accept voluntary reporting while enforcement remains paused.

Lead Paint Contamination and Resources for Ohio Landlords

Children are exposed to lead-based paint, which was used in most homes until it was banned in the US in 1978 and “can severely damage the brain and central nervous system causing coma, convulsions and even death.” Property owners and landlords should educate themselves on regulations and resources to mitigate their own liability.

Will Student-Athlete Collectives Survive NIL Changes?

By July 2025 the landscape of student-athlete funding will look nothing like the current landscape, so preparing now is a must. If you are a student-athlete, the parent of a student-athlete, a university/college, or “booster”, it behooves you to understand these evolving issues.