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Follow-up: Guide to Accessing Paycheck Protection Program for Small Businesses Affected by COVID-19

On April 24, 2020, President Trump signed the new “phase 3.5” emergency coronavirus relief package into law (the “Bill”). The Bill includes an additional $310 billion for the Paycheck Protection Program (the “PPP”). The PPP is a federal loan forgiveness program created under the CARES Act to assist small businesses struggling with payroll and operating expenses due to the economic fallout from the global COVID-19 pandemic. Though initially funded with an unprecedented $350 billion, the PPP is a “first come, first served” lending program and quickly ran out of funds within a matter of two weeks.

Banks may begin accepting PPP applications again as early as next week and if you missed out on the initial round of funding, it is crucial that you prepare for the new round of funding before the well runs dry. Notably, the Bill has specifically earmarked $60 billion of the new PPP funds for distribution by small credit unions and community banks. This is good news for the smallest of small businesses that struggled to obtain loan proceeds through big banks during the first round of funding.

For more information about whether your business qualifies for financial assistance under the PPP, see our previous blog on the topic or reach out to one of our business law experts for advice.

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Guide to Accessing Paycheck Protection Program for Small Businesses Affected by COVID-19

The federal Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) was signed into law on March 27, 2020 to provide assistance to individuals and businesses affected by the global COVID-19 pandemic.  Under Sections 1102 and 1006 of the CARES Act, the Small Business Administration (the “SBA”) is authorized to establish a new loan program known as the “Paycheck Protection Program” (the “PPP”) with $350 billion in funding and a goal to disburse loans as quickly as possible to small businesses to cover payroll and other operating expenses.  Importantly, the principal amount of PPP loans may qualify for forgiveness so long as certain requirements are met.  Because PPP loans are issued on a “first come, first served” basis, it’s crucial that eligible businesses apply now.

The PPP went “live” on April 3 and that same day, the SBA published its interim final rule implementing the program (the “Rule”).  The Rule is subject to a 30-day public comment period and subsequent amendments may follow.  If COVID-19 has affected your business, read our summary below to better understand the SBA PPP loan eligibility requirements and application process.

Is my business eligible for a PPP loan?

“Small business concerns” or certain tax-exempt nonprofit organizations that were in operation on February 15, 2020 and had 500 or fewer employees are eligible for a PPP loan.  A “small business concern” is a business that is independently owned and operated, not dominant in its field of operation, and does not exceed small business size standards listed in the North American Industry Classification System (“NAICS”).  The SBA has a webpage with a table of small business size standards that matches the NAICS codes.

Sole proprietors, individual contractors, or certain self-employed individuals operating as of February 15, 2020 are also eligible for a PPP loan on and after April 10, 2020.

Although these requirements are easy to meet for many small businesses, the SBA has a host of eligibility disqualifiers.  Ineligible types of businesses are listed in the SBA’s Standard Operating Procedure 50 10 5(K) published on April 1, 2019 (the “SOP”) and include, among others, businesses engaged in any illegal activity.

Despite most states with shelter-in-place orders deeming marijuana businesses as “essential” during this pandemic, marijuana is still classified as a Schedule 1 drug under federal law and the SBA specifically identifies “marijuana-related businesses” as engaged in illegal activity.  Both “direct marijuana businesses” (e.g.. businesses that grow, produce, process, distribute, or sell recreational or medical marijuana or marijuana products) and “indirect marijuana businesses” (e.g. businesses that derive any of their gross revenue from sales to direct marijuana businesses of products or services that could reasonably be determined to aid in the use, cultivation, or distribution of marijuana) are considered ineligible to receive a PPP loan.  However, businesses engaged in hemp-related activities consistent with the 2018 Farm Bill are eligible for a PPP loan.  We can advise on the eligibility of your business if you are unsure whether you qualify for the program.

How much can I borrow and what are the loan terms?

The maximum loan amount available to borrowers under the PPP is the lesser of $10 million or an amount determined using the payroll-based formula specified in the CARES Act.  The Rule contains an easy-to-use guideline for the payroll-based formula, but we recommend working with your accountant to aggregate payroll costs and determine the appropriate PPP loan amount.

The interest rate on a PPP loan is 1% and although loan payments are deferred for 6 months, interest accrues on the principal amount borrowed including during the deferment period.  If your business does not qualify for loan forgiveness, the maturity date for the loan is two years.

Do I qualify for forgiveness under the PPP?

The full principal and accrued interest on the PPP loan is forgivable so long as you use the loan proceeds for authorized purposes and maintain employees at their current compensation levels.  You can use the PPP loan proceeds to pay for payroll costs, costs related to group health care benefits and insurance premiums, mortgage interest obligations, rent payments, utility payments, and interest payments on debt obligations.  However, only up to 25% of the loan forgiveness amount can be attributable to non-payroll costs.

To apply for forgiveness, you must document the proceeds used for payroll costs and other non-payroll expenses during the 8-week period following the loan issuance.  If you use PPP loan proceeds for unauthorized purposes, the loan amounts will not be forgiven and must be repaid.  Furthermore, if you knowingly use the loan proceeds for unauthorized purposes, you may be subject to additional liability such as fraud charges.

Can I apply for a PPP loan if I already received an SBA EIDL loan?

You can still apply for a PPP loan if you already received an SBA Economic Injury Disaster Loan (“EIDL”). However, if you used your EIDL loan to cover payroll costs, your PPP loan must be used to refinance your EIDL loan.  Also, the $10,000 grant issued in connection with the EIDL will be deducted from the loan forgiveness amount on the PPP loan.

When and where should I apply for a PPP loan?

You have until June 30, 2020 to apply for a PPP loan.  However, PPP loans are “first come, first served” and lenders have been inundated with PPP loan applications since the program went “live.”  Therefore, we urge you to apply as soon as possible.

The Rule does not require a borrower to apply with the borrower’s current bank.  However, to prioritize applications, many banks are only lending to businesses with a pre-existing business banking relationship.  If your bank is not servicing PPP loans or you do not have a pre-existing business banking relationship at a bank, there are third-party loan marketplaces that route PPP loan applications to SBA lenders.  The SBA also has a helpful webpage listing participating PPP lenders.

If you do not qualify for a PPP loan, there may be state and local options available to you.  At Emerge Law Group, we strive to provide you with the important information you need to safeguard your business during the COVID-19 pandemic.  Please don’t hesitate to reach out for all of your business-related legal needs.

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FRANCHISE LAW

Franchisors

Franchise law is a heavily regulated area of law.  We help clients expand their businesses through franchising and other distribution methods. We have experience in many industries including, restaurants, health, and beauty, alcohol, and cannabis among others. Our representative services include the following:

Franchisees

We also help potential franchisees interested in buying a franchise. We are able to assist with evaluation of franchise opportunities with respect to:

Alternative Structures

However, not all businesses are suited to franchise. We are also experienced with helping clients structure alternative distribution methods to prevent classification as a franchise.

MERGERS AND ACQUISITIONS

Our M&A attorneys are highly experienced in counseling clients who are considering acquisitions or exit strategies.  We have many years of experience handling deals of various types and sizes, ranging from sales of small closely-held business, private companies, and publicly-traded corporations.  We have represented business owners, private equity firms and investment banks in a wide range of industries. 

We have a deep business bench, and Emerge attorneys have handled transactions of all shapes and sizes.  Whether your deal is valued at $100,000 or $100,000,000, our experienced attorneys will guide you through the deal process.

We understand the intensity, technical skill and judgment needed to get deals done, and we provide our clients with timely, practical and cost-effective legal advice.  We are highly capable in all aspects of M&A, including the following:

CANNABIS INDUSTRY

Emerge Law Group is highly experienced in the cannabis industry.  We have helped many clients obtain state licenses and local permits to operate cannabis businesses throughout California, Oregon, and Washington.

Emerge attorneys were instrumental in the drafting and passage of Oregon Measure 91, legalizing marijuana in the State of Oregon, and have represented cannabis businesses well before many law firms were willing to enter the cannabis industry. As a firm that has provided legal services in the cannabis space for many years, we are familiar with the unique and complex issues businesses and individuals face in an emerging and highly regulated industry.

We regularly help clients with:

Cannabis laws and rules are also regularly changing.  Members of our team are dedicated to attending legislative hearings, state agency and local city and county meetings to stay up-to-date on any new changes and how to adjust to any new changes.

See our Cannabis Industry page for more information.

PSYCHEDELICS

There is tremendous excitement about the potential for psychedelic drugs to benefit a wide variety of populations, including terminally ill patients suffering with anxiety and depression. Until recently, psychedelic substances have been accessible only in the illicit market and are illegal under federal and state to manufacture, distribute, or possess. These substances have, since 1970, been treated as having no legitimate medical use, and no commercial application. As such, no one invested in this area or required legal services, outside of the criminal context.

Today, researchers in a multitude of clinical studies are proving the medical safety and efficacy of these medicines, with the objective of changing the treatment of these substances under the Controlled Substances Act. Companies are now actively raising money to develop intellectual property and seize market opportunities associated with psychedelic drugs.

In addition, advocates at the state and local levels are not waiting for the rescheduling of these substances and are active in undertaking efforts to decriminalize these substances and/or make them affirmatively legal under state and/or municipal law. Decriminalization already has occurred in cities including Denver, Oakland, Santa Cruz, and Ann Arbor. Oregon is poised to be the first state to make psilocybin therapy affirmatively legal. Emerge Law Group is working with a wide array of clients pushing forward in this emerging area.

See our Psychedelics Practice Group page for more information.

TAXATION

CORPORATE AND PARTNERSHIP TAX

Businesses of all kinds benefit from a customized but systematic approach to structuring legal relationships. Emerge Law Group helps businesses and business owners with a variety of tax planning matters.

Representative client services include:

ESTATE PLANNING

Estate planning encompasses everything from a will and power of attorney to combined estate and business succession planning. In almost all cases, the purpose of the plan is to help the client protect those they care about most in the event they can no longer be there for them.

Emerge Law Group has experience with a wide range of tools used in estate planning, including wills, trusts, and family business entity planning.

TAX CONTROVERSIES

Emerge Law Group can assist with the resolution of difficult tax controversies. Our areas of emphasis and experience include:

REAL ESTATE TRANSACTIONS

Emerge Law Group assists clients with a wide range of real estate transactional matters.  We regularly help clients with:

LAND USE

Emerge Law Group also assists clients with all aspects of local government land use and development processes, ranging from preliminary property analyses and building permit issues to complex land use reviews and hearings. Our attorneys are experienced in obtaining land use entitlements and development permits for a wide range of uses.

We regularly help clients with:

Above all, we understand the value of working with cities and counties to enhance communities while developing the land to its potential. We strive to create solutions to land use issues that serve to better our clients and the communities in which they live and work.

LITIGATION AND ALTERNATIVE DISPUTE RESOLUTION

The attorneys in Emerge Law Group’s Litigation and Alternative Dispute Resolution practice group litigate commercial, intellectual property, and public interest matters in state and federal courts, as well as private mediation and arbitration proceedings.  Our lawyers have represented national and regional financial institutions, major media, entertainment and technology companies, and other Fortune 500 companies in a broad array of high-stakes disputes.  Our team of litigators has handled leading cases that have shaped the law in cutting-edge business, technology, free speech, and public interest impact lawsuits in trial and the courts of appeal.

We have particular expertise in handling civil litigation and regulatory enforcement matters in the cannabis and psychedelic industries.  While many firms claim expertise in the these industries, few have our depth of experience successfully litigating contract, trademark, partnership, shareholder, land use, and real estate disputes in court and arbitration.  Even fewer firms have our level of experience handling writ of mandate proceedings against the government regulators.

Our litigators practice in California, Oregon, and Washington, but have appeared in state and federal courts nationwide.  Our knowledge of our clients’ businesses, goals and concerns, and our experience litigating at the highest levels, give us unique insight into possible outcomes and pitfalls as we continuously confront issues of new impression.

No matter what the industry, we pride ourselves in achieving our clients’ objectives through efficient and creative solutions primarily designed to avoid disputes in the first place—which is always the best litigation strategy.  Many times, our clients obtain excellent outcomes before or at the earliest stages of litigation because our adversaries quickly recognize the challenges they will face in litigating against us.  When litigation is unavoidable, however, we work hard to provide our clients with both cost-efficient and “big firm” quality representation.

 

INTELLECTUAL PROPERTY

Your intellectual property (or “IP”) strategy can harness your most valuable information and intangible assets including your name, your brand, your designs, your content, your services, and your products — what makes your business stand apart in a competitive world.  We can help you evaluate and build your IP portfolio, then secure it, monetize it, and protect it.

IP encompasses multiple areas of law and different types of information or material.

Our Intellectual Property practice focuses on:

TRADEMARK

Trademarks include names, signs, logos, designs, phrases, slogans, expressions, and sometimes even colors, sounds, or smells that identify or distinguish one business compared to others.  Trademark protection is fundamental in securing your “brand.”

COPYRIGHT

Copyright covers original works of creative authorship fixed in a tangible medium of expression.  This includes literary, dramatic, musical, and artistic works, such as poetry, novels, designs, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.  Depending upon the type of work, “moral rights” (such as the right of attribution) may be implicated as well.

TRADE SECRET

Trade secret laws can vary somewhat between states, but generally trade secrets cover information, including drawings, cost data, customer lists, formulas, recipes, patterns, compilations, programs, devices, methods, techniques or processes that derive economic value from not being generally known and are the subject of efforts that are “reasonable under the circumstances” to maintain secrecy.

PRIVACY

Depending upon where you live or operate, there is a special patchwork of laws and regulations that protect and regulate personal information.  If you are handling or giving out personal or potentially sensitive information, you may be implicating privacy laws.

PUBLICITY

Publicity rights address the commercial use of an individual’s face, name, image, or likeness.  These rights vary state-to-state.  Marilyn Monroe, for example, lived in multiple states which created complex questions about her publicity rights.

Our Intellectual Property services include:

FINANCIAL INSTITUTIONS

In states where new cannabis banking opportunities exist, Emerge Law Group has the proven expertise in creating canna-banking programs to efficiently capitalize on those opportunities. Our Banking Practice Group specializes in working with banks and credit unions to develop regulatory compliant programs and operational best practices. We also train banking staff to become experts in canna-banking so they can effective understand and manage the risk affiliated with canna-banking.

We regularly help clients with:

EMPLOYMENT LAW

At Emerge Law Group, we recognize that employees are the heart and soul of any successful business.  Our Employment Law Practice Group works with employers to help them effectively manage their workforce, navigate the complex web of federal, state and local employment laws and, if necessary, defend against claims before administrative agencies and in court.

We regularly help clients with:

CORPORATE FINANCE AND SECURITIES

Our corporate finance and securities lawyers are experienced attorneys who have practiced at large law firms, worked as in-house counsel for public companies and investment banks, and owned and operated start-up companies. We work with clients to help achieve their financing goals while safely navigating the highly technical securities law landscape. 

In addition to representing issuers, we also routinely represent institutional and individual investors, including in connection with fund formation and investments.

Our expertise includes:

We have a deep understanding of the financing options available to businesses, including simple unsecured loans, asset-backed financing, convertible debt, common and preferred equity, crowdfunding and various other structures.  We work closely with our clients to understand their business and financing needs, ensure they are prepared to approach investors and choose the right partners, structure and negotiate terms, navigate the due diligence process and successfully close the deal.

COMPLIANCE AND LICENSING

ALCOHOL AND BEVERAGE INDUSTRY

Emerge attorneys have represented businesses in the alcohol and beverage industry, including wineries, breweries, distilleries, restaurants, bars, movie theaters, golf courses, and gas stations.  We can help you vet new locations, acquire existing locations, and apply for the appropriate liquor license.  We also provide training to comply with applicable rules and regulations, prepare operating procedures, submit renewals, and keep clients protected in the event of any potential violations or administrative hearings.

CANNABIS INDUSTRY

Emerge Law Group is highly experienced in the cannabis industry.  We have helped many clients obtain state licenses and local permits to operate cannabis businesses throughout California, Oregon, and Washington.  We regularly help clients with:

Cannabis laws and rules are also regularly changing.  Members of our team are dedicated to attending legislative hearings, state agency and local city and county meetings to stay up-to-date on any new changes and how to adjust to any new changes.

See our Cannabis Industry page for more information.

PSYCHEDELICS INDUSTRY

Emerge Law Group is a leader in the psychedelics industry.  There is tremendous excitement about the potential for psychedelic drugs to benefit a wide variety of populations, including veterans struggling with PTSD and terminally ill patients suffering with anxiety and depression.  Until recently, psychedelic substances have been accessible only in the underground; they are illegal under state and federal law to manufacture, distribute, or possess.  These substances have, since 1970, been treated as having no legitimate medical use, and no commercial application.  As such, businesses have not invested in this area or required legal services, outside of the criminal context.

Today, psychedelics are proceeding toward legalization on multiple paths.  Researchers in a multitude of clinical studies are proving the medical safety and efficacy of these medicines, with the objective of changing the treatment of these substances under the federal Controlled Substances Act, opening legal access to them.  Private and public companies are now actively raising money to develop intellectual property and capitalize on the market opportunities associated with psychedelic drugs.  Opportunities to be early actors in this new arena are tremendous.

See our Psychedelics Practice Group page for more information.

BUSINESS AND CORPORATE

Our business transactions team is made up of highly experienced transactional attorneys who have practiced at large law and accounting firms, worked as in-house counsel for public companies and investment banks, and owned and operated start-up companies. We understand complex legal matters and provide high quality legal services in a cost-effective manner.  Our clients value our experience, knowledge and judgment.

ENTITY FORMATION

Our team routinely advises clients regarding:

CORPORATE GOVERNANCE

Emerge attorneys also advise on-going concerns with: