Now, the Treasury Department is frantically trying to figure out how to recoup hundreds of millions of dollars from big companies that applied for loans and received them under the program’s initial terms.
On Tuesday, Treasury Secretary Steven Mnuchin made another attempt to deal with problems largely of his own making, as he tried to quickly funnel billions of dollars to businesses with vague guidelines. Threatening to hold big companies criminally liable if they did not meet the program’s revised criteria for accepting loans, he said the administration would audit any company that received more than $2 million.
“I never expected in a million years that the Los Angeles Lakers, which I’m a big fan of the team, but I’m not a big fan of the fact that they took a $4.6 million loan,” Mr. Mnuchin said on CNBC. “I think that’s outrageous.”
Congress created the Paycheck Protection Program as part of last month’s $2 trillion economic relief package, intending it as a lifeline for small shops so they could keep paying workers even if they had no customers. The money, which ultimately grew to $660 billion, came with strings attached, requiring businesses to keep their workers on the payroll for eight weeks if they wanted the loans forgiven, but the eligibility requirements were vague.
It was left up to the Treasury Department to figure out how to get the money out fast and how to structure the program. Mr. Mnuchin put banks in charge, relying on them — rather than the government — to make the actual loans. To facilitate the program, the Treasury Department issued guidance that required businesses to merely certify, or promise, that they faced “economic uncertainty” and that the loans were “necessary” to support current operations.
While some states are slowly reopening, economic uncertainty remains incredibly high, with the United States surpassing one million known coronavirus cases on Tuesday. More than 50,000 people have died, showing how an outbreak that began with a small trickle of cases in January has exploded into a national crisis.
On April 2, Mr. Mnuchin encouraged “all small businesses that have 500 or fewer people, please contact your lenders,” saying they could get a loan in a single day.
By last week, as it became clear that companies like Shake Shack, Potbelly and AutoNation had received loans while others struggled to get approved, the tone shifted drastically, with Mr. Mnuchin saying the program was not meant for certain companies and moving to tighten eligibility requirements. Companies with “substantial market value and access to capital markets” should be ready to demonstrate why they need the money, the Treasury Department said.
As of Tuesday afternoon, the Small Business Administration had approved a total of nearly two million loans. President Trump, eager to portray the program as a success, convened an event at the White House with recipients of the small-business loans.
“We’re processing loans at a pace never achieved before,” he said, adding that he was pleased that more loans appeared to be reaching smaller companies in the second round of the program. The president brought forward everyone from an owner of a seafood restaurant in Virginia to a coffee shop owner in North Carolina to say how grateful they were for the money.
More than 100 companies have disclosed loans of more than $2 million, yet most have chosen to keep the money. So far, only 22 private and public companies have disclosed returning their funds, including the Los Angeles Lakers. Most of the companies returning money insist they qualified under the Treasury Department’s initial terms, but opted to return the loans once it changed its guidance to avoid bad publicity.
The Lakers, which has about 300 employees, most likely qualified for the loan because the law made eligible businesses with 500 or fewer employees residing in the United States. Like the rest of the National Basketball Association, the team has taken a financial hit because games have been suspended for over a month. The management of the Lakers believed the team was in compliance with the terms of the program when it applied, according to a person with knowledge of the team’s thinking.
“The Lakers qualified for and received a loan under the Payroll Protection Program,” the franchise said in a statement, adding that it decided to return the money “once we found out the funds from the program had been depleted.”
DMC Global, an energy and industrial company based in Colorado, also said it believed it qualified for its $6.7 million loan, but chose to repay it “to avoid any further disputes at a time when the business environment is the most difficult.”
Other companies have made clear they have no intention of returning the money. Hotels, luxury resorts and management companies that funnel money back to Ashford Inc., an asset management firm based in Dallas, have received about $53 million in federal virus aid. Ashford said in a statement that it was keeping the money to “protect jobs, as the legislation intended.” Fiesta Restaurant Group, which has received $15 million, said in a regulatory filing that it was reviewing the new guidance.
Mr. Mnuchin has continued to defend the design of the program, saying it had helped 30 million workers, and blaming a handful of big businesses that for violating the spirit of the program and potentially breaking the law.
“I really fault the borrowers,” Mr. Mnuchin said. “It’s the borrowers who have criminal liability if they made this certification and it’s not true.”
Yet pursuing criminal claims against those who were approved for funds based on the government’s own rules at the time will be a heavy lift.
“The problem for businesses applying for P.P.P. loans was there was no specific guidance on how exactly the loan applicant should determine — and certify — that a loan was ‘necessary,’” said Peter S. Hyun, a lawyer at Wiley who represents companies facing government enforcement actions.
Mr. Mnuchin’s threat of legal action is likely to further complicate a program that has been marred by confusion and errors since it was first rolled out over a week in early April. Bank industry groups said on Tuesday that the Small Business Administration’s systems remained balky and that many lenders were getting locked out after 10 minutes of submitting applications. The Treasury Department’s effort to claw back some of the money has only compounded the problems, adding another layer of confusion for financial institutions that were encouraged by the government to get out loans fast.
“The number one thing Treasury wanted us to do was to get money out the door,” said Richard Hunt, the president of the Consumer Bankers Association, noting that money was not always going where Congress intended because banks were instructed to honor the certifications made by borrowers. “It’s not like you can just open up the vault and say, ‘Here you go, America.’”
In retrospect, he said, the government should have given money directly to businesses or offered even more generous economic stimulus payments or unemployment insurance.
Megan Jeschke, a defense lawyer at Holland & Knight, said it was not clear that large companies or the banks were at fault for applying for loans.
“I do think there is some ambiguity in the certification requirement to show necessity to maintain ongoing operations,” she said. “It doesn’t say the company has to be facing furloughed employees, it doesn’t require that they be facing imminent closure and it didn’t require them to seek capital from other locations.”
Adding to the pressure on Mr. Mnuchin is that the program is quickly running out of funds again and it is not clear whether Congress will refill the pot like the last time.
Lawmakers have already expressed concern about the program, with House Democrats notifying bank executives this month that they will be requesting documents and are worried “megabanks” are favoring certain customers and shutting out others.
Senator Marco Rubio of Florida, the Republican chairman of the Senate Committee on Small Business and Entrepreneurship, said last week that he would use subpoena power to oversee the program and determine if companies made false certifications to the federal government to receive loans.
On Tuesday, Senator Josh Hawley, a Republican from Missouri, criticized the Small Business Administration for failing to fix its technology problems and appearing to give preference to big banks.
“My patience has run out with the mismanagement of the PPP,” Mr. Hawley said on Twitter. “Small banks AGAIN locked out for hours at a time while their small customers wait.”
On a conference call with the Senate Democratic Caucus on Tuesday, Senator Chuck Schumer of New York, the minority leader, said that Democrats must demand oversight hearings about the small-business program with Mr. Mnuchin as a witness.
“We must hold the administration accountable for the mistakes they are making on the Small Business program, hospitals, testing, and more,” Mr. Schumer said, according to a person who was on the call.
Democrats had pushed for more money to be allocated to the program at the start and they sought to bolster the Small Business Administration’s disaster grant fund so the agency would be less reliant on banks as intermediaries.
“Treasury was wrong,” Senator Ben Cardin of Maryland, the top Democrat on the Senate Committee on Small Banking and Entrepreneurship, said in an interview. “They misjudged the cost of the program from the beginning.”
David McCabe contributed reporting