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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.

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.

Property Owner Protection from Tax Valuation Challenges

New legislation provides significant new protections for commercial property owners against challenges to valuation primarily by local school boards and prohibiting side agreements to avoid tax valuation changes. The Ohio Legislature has approved House Bill 126 which will go into effect July 2022 but will effectively apply to the 2023 tax valuation year.