by Cristina Vicens, Sequor Law, P.A., Miami, Florida

What emergency measures in insolvency or restructuring legislation has the United States adopted to help businesses cope with the economic crisis caused by the COVID-19 pandemic? 

In March 2020, the U.S. Congress swiftly passed a series of stimulus packages to help stabilise the economy after COVID-19 forced many businesses to shut down and caused millions of Americans to become unemployed. The third (and latest) of these stimulus packages, the “Coronavirus Aid, Relief, and Economic Security Act” (CARES Act; P.L. 116-136), was a US$2 trillion stimulus packages passed on 25 March 2020. The CARES Act directs financial assistance to individual tax payers, expands unemployment benefits to persons that normally would not have qualified for unemployment benefits, provides for federal grants, loans, and other assistance for small businesses and other businesses disproportionately affected by the COVID-19 pandemic, and establishes a US$150 billion Coronavirus Relief Fund to make payments to states, tribal governments, and local governments as they respond to the public health emergency.

Specifically, with regard to insolvency or restructuring legislation adopted to help businesses cope with the economic crisis, the CARES Act provides for several amendments to the U.S. Bankruptcy Code. First, it increases the debt ceiling for businesses to be eligible to file under the small business provisions of Chapter 11 of the Bankruptcy Code from US$2,725,625 to US$ 7,500,000. The Small Business Reorganisation Act (“SBRA”), which took effect on 19 February 2020, just a few weeks before the national shutdown, provides a streamlined path through Chapter 11 for small business debtors. This increased threshold will potentially allow more businesses with access to the SBRA to survive. After one year, however, the debt ceiling increase reverts to US$2,725,625. Second, for a period of one year, the CARES Act amends the definition of “income” under Chapters 7 and 13 to exclude COVID-19 related payments from the federal government. Third, applicable to individuals rather than businesses, it clarifies that the calculation of disposable income under Chapter 13 does not include COVID-19 related payments; and, lastly, permits individuals and families in Chapter 13 proceedings to seek payment plan modifications in response to COVID-19 related financial hardship, including extending payments for up to seven years after their initial payment was due.

In addition, the CARES Act provides the authority to the Administrator of the U.S. Small Business Administration (“SBA”) to make loans under the Paycheck Protection Program (“PPP”) through the commercial banking market. The PPP is designed to provide a direct incentive for small businesses to keep their employees on the payroll and allows loans to be forgiven if all employees of a business are kept on the payroll for eight weeks and the loan proceeds are used for payroll, rent, mortgage interest, or utilities. While the CARES Act does not prohibit PPP loans or grants to be provided to Chapter 11 debtors, the SBA has taken the position that it does, creating uncertainty for companies operating under Chapter 11 protection and leading to litigation. [See Perspectives on COVID-19 Relief Funding and the Reopening of America, ABI Journal, July 2020, at 8.]

Further, small business owners are able to apply for Economic Injury Disaster Loans (“EIDL”) and receive an advance of up to US$10,000, designed to provide economic relief to businesses that are experiencing a temporary loss of revenue. 

Relevantly, the loan advance does not have to be repaid and recipients do not have to be approved for the loan in order to receive the Emergency Measures in Insolvency Legislation in Response to the COVID-19 Crisis AIJA Insolvency Commission 2020 68 advance. Contrary to the PPP loans, the SBA administers the EIDL program directly and not through the commercial banking market.

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