Gary Goldberg

PRESIDENTIAL PREVIEW: The Battle for 1600 Pennsylvania Ave

With a weekend to go before election day, the Dentons Public Policy team looks at the political climate, the polling, the battlegrounds and how and when the nation could learn the winner in our presidential preview, “The Battle for 1600 Pennsylvania Ave Report.” We believe the outcome of the presidential election will depend, to a significant degree, on whether voters view the race as a choice between two alternatives, each with positive and negative factors, or as a referendum on the President’s leadership. Pre-pandemic, President Trump was prepared to run hard on his record. But the pandemic robbed him of his strongest argument for re-election—a booming economy—leaving him no choice but to focus on Joe Biden’s flaws. 

Whether the American people are buying this line of attack remains to be seen, but recent polls suggest it is not working.

On Wednesday morning, November 4, our Public Policy team will be issuing a detailed report on the election results that are then available. We will be updating this report later in the day, and on succeeding days as necessary, to provide not only the presidential results but a comprehensive picture of what the next US House and Senate will look like. 

Whatever the outcome of the elections, once it becomes clear who will be taking the oath of office on January 20, 2021, and who will control the Congress, we also will be releasing additional reports that profile many of the people who are expected to play key roles in the next administration and that explore the central elements of, and prospects for, the legislative agenda of the winning presidential candidate.   

US HOUSE AND SENATE ELECTIONS PREVIEW – The Battle For Control Of Congress

Dentons’ Public Policy team has developed a US House and Senate Elections Preview to provide the latest developments as we approach the November elections.

SECTION BY SECTION REVIEW OF COVID RELIEF BILL

Last night, the US Senate passed what is being dubbed as the Phase 3 COVID-19 Emergency Economic Relief Package. It provides over $2.2 trillion in financial assistance to public and private entities. The Senate has now adjourned until April 20 and the House is scheduled to take up the bill and pass it by a voice vote tomorrow. The President is expected to sign the bill tomorrow evening. Click here to view the bill.

Dentons has assembled a section by section summary of the bill. 

Updates from Washington, D.C. on the Federal Stimulus Package

Dentons Senior Policy Director Gary Goldberg discusses the pending stimulus legislation.

Senate Approves US$350 billion for Small Business Grants

The Senate has passed a bill that will provide up to US$350 billion in forgivable loans to small business concerns, non-profit and veterans organizations and self-employed individuals to cover their expenses during the COVID-19 crisis.

Select Updates

  • Size test is the greater of (a) 500 employees or (b) the size standard by industry sector (NAICS code) established by the SBA
  • Employees defined to include individuals employed full-time, part-time or other basis (includes gig economy workers)
  • Small businesses that were not in business during 2019 can calculate monthly payroll costs using average from January 1, 2020 and February 29, 2020
  • SBA regulations may require affiliated companies’ employees (and their portfolio companies) to be combined for purposes of eligibility.  Implications to VC/PE backed companies.
  • Maximum loan amount remains 250% of monthly payroll costs (including commissions) plus any amount outstanding on an Economic Injury Disaster Loan (EIDL) originated during the period from January 31, 2020 until the date of origination of the new loan
  • Use of proceeds that are permitted now include interest payments on mortgages and/or other debts but not principal payments
  • Previously originated EIDL loans may be refinanced into forgivable loans
  • Eligibility considerations no longer include whether the applicant has been substantially impacted by public health restrictions related to the Coronavirus

Small Business Loan/Grant Support working its way through Congress

Negotiations ongoing for currently proposed US$350 Billion in loans as part of the Third Economic Relief Bill

  • Who – US small businesses and certain other organizations who employ no more than 500 employees. Also independent contractors and self-employed individuals.
  • What – Forgivable loans up to 2.5 times monthly payroll expenses, capped at $10 million
  • When – Bill signing expected before March 27, 2020 with funds available TBD in April
  • Where – Anywhere in the United States
  • Why – To support small businesses, non-profits, veterans organizations, independent contractors and self-employed individuals through the COVID-19 crisis.
  • For What – Funds to be used to retain workers, maintain payrolls and/or make mortgage, lease and utility payments.
  • Loan Forgiveness – Up to 100% of the loaned amount may be forgiven under certain circumstances if workers are retained through June 30, 2020

Executive Summary

The coronavirus outbreak and resulting quarantine measures have led to widespread business disruptions in the United States. As part of the federal response, the Congress is expected to approve this week a bill that would provide relief of up to $350 billion in forgivable loans to small business concerns, non-profit and veterans organizations and self-employed individuals to cover their expenses during the crisis.

This alert is based on draft legislative language as of March 22, 2020 and remains subject to revisions during the legislative process. There will most certainly be changes and revisions to the current proposal, as negotiations are ongoing with respect to, among other things, size and scope, before the Congress considers and passes the third economic relief bill.

Stay tuned for further developments.  We will be hosting a briefing call
Thursday, March 26, 2020 at 2 p.m. EST. Please RSVP here.

As soon as the bill becomes law, we can work with you to identify SBA-approved lenders and assist in the preparation and submission of a business interruption loan application. It is critical to leverage our experienced public policy experts in D.C. to best position applications for success, including guiding them through the approval process, given the expected intense competition for limited resources, as well as working with you to sort through the interplay with business interruption insurance, existing credit arrangements and other related complexities. We will keep you posted as the bill moves through the Senate, the House and then as it is signed into law, and provide further details so you may access the program, if you are eligible.

Details

Eligibility

Any small business concern, non-profit organization or veterans organization1 is eligible provided that it employs no more than 500 employees and was in operation on February 15, 2020.2 In addition, any applicant that meets certain size standards established by the SBA may be eligible. All prospective borrowers are presumed to have been adversely impacted by COVID-19.

Self-employed individuals, sole proprietors and independent contractors are also eligible if they have documented payroll tax filings with the IRS. In addition, business concerns with more than one (1) physical location are eligible if they employ not more than 500 employees per physical location and they operate in the hotel, restaurant and/or bar sectors.3

Maximum Amount

The maximum loan amount to be guaranteed is an amount equal to two and a half (2.5) times the borrower’s total monthly payments for payroll (calculated as an average per month over the 12 months prior to the date of the applicable loan)4, capped at $10,000,000.00 per borrower. The SBA will waive all fees or reduce fees to the maximum extent possible.

Payroll costs are defined as the sum of all payments for compensation, including salary, wage, cash tips, paid time off (vacation, parental, sick leave), severance, health care benefits, state or local taxes. For sole proprietors or independent contractors, payroll costs are defined as the sum of all compensation payments including wages, commissions or similar compensation capped at $100,000 per year. Payroll costs shall not include compensation of any individual employee in excess of $100,000, any compensation of an employee whose principal place of residence is outside the United States, or any sick leave or family leave covered under the Families First Coronavirus Response Act.

Use of Proceeds

The loan proceeds can be used to provide payroll support, including paid sick leave, group health care benefits, employee salaries, mortgage payments, rents, utilities and payments on other debt obligations. The SBA will require lenders to provide complete payment deferment relief for a period of not more than 1 year.5 The program covers the period from February 15, 2020 through June 30, 2020.

Other Matters

The proposed bill provides other details, including with respect to loan forgiveness, an increase in SBA guarantee to 100% until January 1, 2021 and eligibility details.

In order to qualify for full loan forgiveness, a borrower must maintain, during a period beginning on February 15, 2020 and ending on June 30, 2020 an average monthly number of employees that is not less than the average monthly number of employees for the same period in 2019.

The bill is still under negotiation and this summary does not describe all of the details that may be applicable to any specific borrower. Please reach out to your Dentons contact for information specific to your circumstances.

Illustrative Example

By way of illustration, a company applies for a loan with fewer than 500 employees, $200,000 in monthly payroll and $100,000 in monthly rent and utilities. Its total loan may be for 2.5 times the company’s payroll, or in this instance, $500,000. If workers are retained, lender will be required to forgive an amount determined pursuant to a formula that takes into account the number of employees retained, equal to up to eight weeks of the companies expenses, including payroll, rent, mortgage and/or utilities (approximately $600,000). By retaining employees, the company would not have to repay the loan and the lender will be covered by the SBA’s guarantee.


1 As defined in Section 501(c)(19) of the Internal Revenue Code.

2 A small business is ineligible under this program if it already receives assistance under section 7(b)(2) of the Small Business Act relating to COVID-19. A non-profit organization is ineligible if it qualifies under Medicaid for payments for certain items and services furnished under a State plan.

3 Business concerns are eligible if they are assigned a North American Industry Classification System code beginning with 72 at the time of disbursal. https://www.bls.gov/iag/tgs/iag72.htm

4 Seasonal employers will average payroll expenses by month over the period from February 15, 2019 or March 1, 2019 through June 30, 2019.

5 Subject to guidance from the SBA to be drafted no later than 30 days after passage of this legislation.

US Federal Coronavirus Update Administration Blueprint for Third Economic Relief Package

On March 18, the Department of the Treasury released a term sheet describing key terms of a proposed coronavirus economic relief package. The blueprint is broad by design, leaving considerable room for Congress to make changes.

For its part, Congress continues to speed forward in response to the pandemic with the Senate passing the Families Coronavirus Relief Act and Senate Leader McConnell announcing that the Senate will not leave Washington until it has finished work on the next package.

To that end, Leader McConnell announced the formation of three republican task forces to examine major aspects of any economic relief legislation and draft a bill that can then be negotiated with Senate democrats and the House.

Treasury Term Sheet

  1. $200 billion for the Treasury Department’s Exchange Stabilization Fund
    • $50 billion for an Airline Industry Secured Lending Facility for U.S. passenger and cargo air carriers at a private interest rate and other terms and conditions determined by the Treasury Department
    • $150 billion for secured lending or loan guarantees to assist other critical sectors of the US economy experiencing severe financial distress due to the COVID-19 outbreak.
  2. Temporary Permission to Use The Treasury Exchange Stabilization Fund to Guarantee Money Market Mutual Funds
    • The proposal would temporarily suspend the statutory limitation on the use of the Exchange Stabilization Fund for guarantee programs for the United States money market mutual fund industry with a sunset on the authority to establish any new money market mutual fund guarantee program upon the conclusion of the March 13th Coronavirus National Emergency declaration
  3. Economic Impact Payments
    • This provision would authorize and appropriate funds for two rounds of direct payments to individual taxpayers, to be administered by the IRS and Bureau of the Fiscal Service.
    • Payment amounts would be fixed and tiered based on income level and family size.
      • $250 billion to be issued beginning April 6
      • $250 billion to be issued beginning May 18
    • Each round of payments would be identical in amount.
  4. A $300 Billion Appropriation for a Small Business Interruption Loan Program
    • To provide continuity of employment through business interruptions, this provision would authorize the creation of a small business interruption loan program and appropriate $300 billion for the program
    • The US government would provide a 100% guarantee on any qualifying small business interruption loan
    • Qualifying loan terms:
      • Eligible borrowers: Employers with 500 employees or less (phased out)
      • Loan amounts: 100% of 6 weeks of payroll, capped at $1540 per week per employee (approx. $80,000 annualized)
      • Borrower requirement: Employee compensation must be sustained for all employees for 8 weeks from the date the loan is disbursed
      • Lender: US financial institutions
      • Streamlined underwriting process: Lender verifies the previous 6-week payroll amount and later verifies that the borrower has paid 8 weeks of payroll from date of disbursement.
      • Authority for the Treasury Department to issue regulations establishing appropriate interest rate, loan maturity, and other relevant terms and conditions