PPP Lawsuits Allege Banks Favored Larger Customers, A Second Round Of Funding Likely

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Jason B. Freeman

Jason B. Freeman

Managing Member

214.984.3410
jason@freemanlaw.com

Mr. Freeman is the founding member of Freeman Law, PLLC. He is a dual-credentialed attorney-CPA, author, law professor, and trial attorney.

Mr. Freeman has been named by Chambers & Partners as among the leading tax and litigation attorneys in the United States and to U.S. News and World Report’s Best Lawyers in America list. He is a former recipient of the American Bar Association’s “On the Rise – Top 40 Young Lawyers” in America award. Mr. Freeman was named the “Leading Tax Controversy Litigation Attorney of the Year” for the State of Texas for 2019 and 2020 by AI.

Mr. Freeman has been recognized multiple times by D Magazine , a D Magazine Partner service, as one of the Best Lawyers in Dallas, and as a Super Lawyer by Super Lawyers, a Thomson Reuters service. He has previously been recognized by Super Lawyers as a Top 100 Up-And-Coming Attorney in Texas.

Mr. Freeman currently serves as the chairman of the Texas Society of CPAs (TXCPA). He is a former chairman of the Dallas Society of CPAs (TXCPA-Dallas). Mr. Freeman also served multiple terms as the President of the North Texas chapter of the American Academy of Attorney-CPAs. He has been previously recognized as the Young CPA of the Year in the State of Texas (an award given to only one CPA in the state of Texas under 40).

PPP Lawsuits Allege Banks Favored Larger Customers, A Second Round Of Funding Likely

As previously published in Forbes by Jason B. Freeman on April 23, 2020.

 

A class of plaintiffs sued Wells Fargo WFC in federal district court just days ago, alleging that the bank improperly “reshuffled” Round 1 PPP applications to favor larger borrowers in an effort to “maximize profits for the bank”—all at the expense of smaller businesses.  Banks, the plaintiffs claim, received “nearly $6 billion in fees while hundreds of thousands of loan applicants got nothing.”  The plaintiffs, an automotive repair shop and a frozen yogurt vendor, have asked for millions in damages against the banking giant.  The case is part of the first wave of lawsuits that big banks will face in the fallout of the PPP loan initiative and is substantially similar to suits brought in the same court against Bank of America BAC, JP Morgan Chase JPM, and U.S. Bank.

The PPP Loan Initiative and the Potential Second Round of Funding

The Paycheck Protection Program, also known as the PPP, is a federally-backed loan program that was established under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”).  That Act provided for $349 billion in federally-guaranteed loans to small businesses.  PPP loans were designed to provide small businesses with a cash infusion that would provide roughly eight weeks of payroll and other costs in an effort to encourage employee retention during the crisis.  Most notably, loan recipients who properly use the PPP funds will qualify for complete forgiveness, meaning that the “loan” functions more like a tax-free grant for many.

Sounds pretty good?  Indeed, it’s good work if you can get it.  The problem is, many could not.  Many applicants did not receive funds in the first round.  The initial $349 billion in PPP funds ran dry just 13 days after banks opened the door to loan applications.  Now, Congress is eyeing a second round of appropriations and appears poised to fund another $310 billion into the program.

Interestingly, the rollout of a second round could provide some fodder for the pending lawsuits.  For example, if the banks deliberately change their approach in Round 2, does that imply some recognition of wrongdoing in the first round?  Certainly, the lawsuit plaintiffs will argue that it does.  But if banks do not change, they will likely face increased PR pressures and—if the public outcry continues—potential congressional inquiries.  Banks will be weighing the lesser of two evils.

The Wells Fargo Lawsuit

In the class-action complaint, the plaintiffs allege that the bank “prioritized [PPP] applications seeking higher loan amounts” in an effort to originate higher loan fees under the federal loan program.  The plaintiffs allege that the bank “received thousands of applications and chose to prioritize higher loans for bigger companies, despite the SBA requiring a first-come, first-serve distribution of funds.”