In the last year, the Department of Justice (DOJ) has brought more than 100 criminal cases relating to Paycheck Protection Program (PPP) Fraud. These criminal prosecutions started at a blistering pace, with the first indictments coming within the very first months of the program’s inception. This wave of criminal prosecutions and convictions related to some of the more flagrant abuses – individuals who fraudulently obtained funds from the program and then went on spending sprees for things like Lamborghinis, mansions, and private jet travel.
These prosecutions focused on individuals and organized groups who obtained or used PPP funds fraudulently, often including charges for false statements (18 U.S.C. § 1001), aggravated identify theft (18 U.S.C. § 1028A(a)(1)), false statements in a loan application (18 U.S.C. § 1014), wire fraud (18 U.S.C. § 1343), bank fraud (18 U.S.C. § 1344), and Title 26 tax charges. Along with these prosecutions came significant resources, including new fraud coordinators and data analytics teams across the country.
Now, we are starting to see the first civil enforcement actions relating to the program. This signals a new phase of enforcement for the DOJ and all organizations who benefited from the program must pay close attention.
Background on PPP
The Coronavirus Aid, Relief, and Economic Security (CARES) Act was enacted on March 27, 2020, to provide emergency assistance to individuals, families, and businesses affected by the coronavirus pandemic. Section 1102(a)(2) of the CARES Act 2 amended Section 7(a) of the Small Business Act to establish the PPP. 15 U.S.C. § 636(a)(36). The Small Business Administration (SBA) administers the PPP to provide relief to small businesses that experience economic hardship as a result of the pandemic. The program was intended to distribute money quickly, so more typical hurdles like verification or substantial documentation upfront were not required. Instead, the program relied on self-certification by participating individuals and organizations.
Potential Liability under the FCA
As detailed in this previous post, organizations and individuals may be subject to significant liability under the False Claims Act (FCA) in connection with the PPP program. Applicants for CARES Act relief must certify or attest to certain facts relevant to their eligibility to participate in the CARES Act’s various programs, including that the current economic uncertainty makes the loan necessary to support operations and that certain documentation about the organizations’ employees, costs, and expenses are correct.
False certifications, failure to make reasonable efforts to ensure the accuracy of the certifications, or the submission of false information can subject these organizations to treble damages and civil monetary penalties under the FCA.
Recent PPP Settlements
In 2021, we are starting to see the first civil settlements out of the PPP. On January 12, 2021, the DOJ announced the settlement resolving allegations against SlideBelts, Inc., a California e-retailer, and its President and CEO, Brigham Taylor. Taylor and SlideBelts agreed to pay $100,000 in monetary penalties and return the $350,000 PPP loan the company received to resolve allegations that they made false statements to federally insured banks in violation of the FCA and Financial Institutions Reform, Recovery and Enforcement Act.
According to the settlement agreement, SlideBelts made several applications to banks for PPP loans that included a statement that the company was not involved in a bankruptcy proceeding, which was not correct. One of the banks raised this issue with SlideBelts, who responded that it was an “oversight,” but also that the bankruptcy question was an “overreach.” Even after the issue was raised, SlideBelts applied for yet another loan at a different bank, including the same misrepresentation on bankruptcy status. The day after it received funds, SlideBelts informed its lender that it may have provided an incorrect answer on the application.
The issue was ultimately raised in bankruptcy court, where SlideBelts requested that the court give retroactive approval for the PPP loan, while again failing to disclose the misrepresentation. The SBA and the lender opposed the company’s motion. In response, SlideBelts asked the bankruptcy court to dismiss its case so that the company could “apply for [PPP] funds while the case is dismissed.” During the hearing, the SBA reiterated its position that SlideBelts was obligated to immediately return the loan. More than two months after receiving its PPP loan, SlideBelts ultimately returned the $350,000 to the lender.
What Does This Settlement Tell Us?
This is very likely the tip of the iceberg. Given the enormous push to distribute funds due to the pandemic and policy choice to favor distribution over more guarded access combined with the significant resources dedicated by DOJ, it will likely chase these cases for years to come. Organizations must be confident in their submissions and be prepared for the audits and enforcement actions that are now beginning.
In addition, the settlement identifies the clear risk for individuals – officers, directors, or board members – who may have signed off on certifications. Given the historic preference for individual accountability for corporate wrongdoing, these individuals may also be in the crosshairs.
Finally, this settlement shows the value of proactive identification and repayment. Although SlideBelts appeared reticent to pay back the money initially, it may have avoided significant additional penalties by repaying the money when it did. Organizations that are aware of potential misstatements on their applications should obtain counsel to assist with appropriately navigating any disclosures and payback before DOJ comes knocking.
If you have questions about PPP funding or whether your organization may be at risk for enforcement activity contact the author or a member of the Bass, Berry & Sims Healthcare Fraud Task Force.