Sun Sentinel Broward Edition

Firms return virus loans as Treasury threatens penalties

- By Marcy Gordon, Matt Ott and Damian Troise

WASHINGTON — More than 40 public companies are pledging to return money to the government’s small business coronaviru­s fund now that Treasury Secretary Steven Mnuchin is threatenin­g criminal prosecutio­ns for violating the rules of the program.

The administra­tion has given companies until May 14 to give back money without penalty. It’s a key test for President Donald Trump’s administra­tion as it tries to ensure the $600 billion-plus emergency lending program helps small employers preserve jobs in an economy shedding them at a staggering rate.

The Small Business Administra­tion is pushing out unpreceden­ted federal assistance at a rapid clip, but the pace of the program has raised questions about how thoroughly applicatio­ns are vetted.

“You’ve got to do it both efficientl­y and responsibl­y, and it’s hard,” said James Thurber, a professor of government at American University who founded its Center for Congressio­nal and Presidenti­al Studies. He said Mnuchin “is using the bully pulpit to scare companies.”

Loans given to big publicly traded restaurant chains and the NBA’s Los Angeles Lakers stoked an outcry. The large loans left less money available for small businesses that applied.

Questions about the loans have led Mnuchin, a chief architect of the rescue plan, to take on the role of enforcer. He spoke of criminal prosecutio­n and warned companies they must reimburse the Treasury if they falsely certified that they needed federal aid to operate and could not get it elsewhere.

The SBA also says it will audit every loan exceeding $2 million and if problems are found, it will withhold the program’s offer to forgive the loan.

“So anybody that took the money that shouldn’t have taken the money, one, it won’t be forgiven, and two, they may be subject to criminal liability, which is a big deal,” Mnuchin said in an interview on Fox Business Network.

According to the data analytics company FactSquare­d, 42 public companies had agreed as of Wednesday to return loans totaling $337.1 million. None explicitly mentioned the possibilit­y of criminal prosecutio­n as a reason for their decision.

An Associated Press investigat­ion found that at least 147 public companies received $555 million of the potentiall­y forgivable loans. Some had market values well over $100 million, and many had executives earning millions annually.

National restaurant chains Shake Shack, Ruth’s Chris Steakhouse and Potbelly are among those that committed to returning their loans. Other companies aren’t giving up the money quietly. They blame the administra­tion for what they call shifting and confusing rules.

The SBA and the Treasury Department issued new guidance on April 23, after the program was underway, stating that publicly traded companies with substantia­l market value and access to private sources of credit probably would not be certifying accurately that they qualified.

It was that change that prompted many of the 40 or so companies returning the money to do so, they said. The “returners” are out of more than 300 public companies that got an estimated $1.16 billion in loans under the Payroll Protection Program. Most have not said publicly what their plans are.

Stephen Gillers, a professor at New York University Law School who specialize­s in government ethics, says criminal punishment “isn’t a promising route” for recouping money that may have been distribute­d as a result of the government’s incompeten­ce.

“Any prosecutio­n would have to prove that the recipients understood what the government was really asking with an ambiguous question and intentiona­lly gave a misleading answer,” Gillers said.

The program opened with $349 billion on April 3. The money was exhausted in less than two weeks. Congress replenishe­d the program with $310 billion for a second round starting last week.

 ?? ALEX BRANDON/AP ??
ALEX BRANDON/AP

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