On June 29th, the Federal Reserve issued a term sheet and commenced its program to support issuance of new debt by large employers. The Primary Market Corporate Credit Facility (PMCCF) will give companies access to credit by either (i) purchasing qualifying bonds as the sole investor in a bond issuance, or (ii) purchasing portions of syndicated loans or bonds at issuance. The term sheets details eligibility requirements and pricing. In addition to the PMCCF, the Federal Reserve is also operating the Secondary Market Corporate Credit Facility (SMCCF) (together, the CCFs). The combined size of the CCFs will be up to $750 billion.
On June 25, 2020, the GAO released its report assessing and evaluating the major federal actions in response to the COVID-19 pandemic, including the CARES Act expenditures. The report, critical of the delay in comprehensive reporting of government COVID-19 expenditures permitted by OMB, drew on data directly from agencies.
Among the key findings highlighted by the report:
(1) Appropriations: Approximately $2.6 trillion appropriated across the government: “Six areas—Paycheck Protection Program (PPP); Economic Stabilization and Assistance to Distressed Sectors; unemployment insurance; economic impact payments; Public Health and Social Services Emergency Fund; and Coronavirus Relief Fund—account for 86 percent of the appropriations.”
(2) Testing: Reporting to the CDC on viral testing remains inconsistent and incomplete across the country.
(3) IRS payments to deceased taxpayers: The IRS made stimulus payments totaling $1.4 billion (the $1200 payments) to 1.1 million deceased individuals. Although the IRS has access to Social Security death information, Treasury and its Bureau of the Fiscal Service (involved in disbursing payments) did not.
The report makes a series of recommendations on following topics including: (1) Paycheck Protection Program (PPP) integrity; (2) IRS and Treasury access to Social Security death data; (3) better data tracking in state unemployment programs on benefits claims to coordinate with the PPP (under which businesses are expected to rehire or retain workers to qualify for loan forgiveness); (4) Congressional action to direct the Department of Transportation to develop an aviation preparedness plan; and (5) Congress’ need to use revised Medicaid payment formulas to provide appropriate payments during an economic downturn.
In its assessment, the Board noted that “the stress brought on by the COVID event has been larger than anticipated,
affected sectors of the economy in a highly unusual way, and could result in an unusual relationship between the economic and financial factors and credit losses, in part because of extraordinary government actions.” The stress tests showed that in three downside scenarios, loan losses for the 34 banks ranged from $560 billion to $700 billion. Aggregate capital ratios declined from 12.0 percent in the fourth quarter of 2019 to between 9.5 percent and 7.7 percent in the three scenarios. Given the results, the Board took steps to “ensure large banks remain resilient despite the economic uncertainty from the coronavirus event.” For the third quarter of this year, no share repurchases will be permitted. The Board also capped dividend payments to the amount paid in the second quarter, with additional limits based on recent earnings. Banks are also required to re-evaluate their longer-term capital plans.
The CARES Act provides favorable tax treatment for coronavirus-related distributions of up to $100,000 to qualified individuals from their eligible retirement plans. Such distributions are not subject to the 10% additional tax otherwise generally applicable to distributions made before age 59 ½. The CARES Act also permits coronavirus-related distributions to be included in income in equal installments over a three-year period. Qualified individuals who take such distributions have three years to repay and undo the tax consequences of the distributions. The CARES Act also permits retirement plans to suspend certain plan loan repayments and temporarily increases the dollar limit on plan loans from $50,000 to $100,000. Notice 2020-50 expands the definition of a qualified individual to include additional factors such as reductions in pay, rescissions of job offers, delayed start dates, and being unable to work due to lack of child care due to COVID-19. The latest IRS guidance also permits factors such as adverse financial consequences to an individual arising from the impact of the COVID-19 coronavirus on the individual’s spouse or household member.
Recent policy action on the coronavirus front:
(2) TESTING: Senator Ted Cruz introduced a bill to provide tax incentives to businesses that test workers for Covid-19.
(3) OVERSIGHT: On Monday June 15, 2020, it was revealed that the inspectors general designated by the CARES Act to monitor spending — the Pandemic Response Accountable Committee — wrote to key Congressional committee chairs last week expressing concern that the administration’s recent legal rulings were blocking their ability to provide oversight of the spending programs.
(4) LIABILITY: States explore limiting liability for COVID-19 related claims, including Iowa legislation signed by the governor on June 18 that limits liability retroactive to January 1, 2020 and North Carolina’s limited liability bill that passed the senate.
(5) PRIVACY: The most recent round of proposed federal legislation aimed at protecting privacy in COVID-19 contact tracing apps, follows on the heels of earlier proposals as well as state level action on the privacy front (see e.g. California bill; Minnesota bill). Around the globe, countries have introduced contact tracing apps — including Japan’s introduction today (June 19, 2020) of its national tracing app.
The Paycheck Protection Flexibility Act, H.R. 7010, which extends the period to use Paycheck Protection Program funds to 24 weeks, passed with unanimous consent in the Senate, and passed the House last week 471-1. The legislation also reduces the level of Paycheck Protection Program funds that must be used for payroll to 60% from 75%.
In a June 1, 2020 letter in response to an inquiry from Senator Schumer, the CBO noted that it will take until 2030 for U.S. GDP to return to recover from the effects of the COVID-19 pandemic.
Specifically, the CBO projects with respect to nominal GDP: “Over the 2020-2030 period, cumulative nominal output will be $15.7 trillion less than what the agency projected in January . . . That different constitutes 5.3 percent of the value of the cumulative nominal GDP for that period that the agency predicted in January.”
And, with regard to real GDP the CBO now projects: “[O]ver the 11-year horizon, cumulative real output (in 2019 dollars) will be $7.9 trillion, or 3 percent of cumulative real GDP, less than what the agency predicted in January.”
On Thursday May 28, 2020, the House passed H.R. 7010, the Paycheck Protection Program Flexiblity Act of 2020 by a vote of 417-1. The legislation would relax various requirements for small businesses accessing the loans and loan forgiveness originally provided in the Paycheck Protection Program (PPP) enacted in H.R. 748 on March 27, 2020. In particular, H.R. 7010 would extend the period of time businesses have to spend their PPP loans and would reduce the percentage that must be spent on payroll (from 75% to 60%) to qualify for loan forgiveness. Additionally, for those loan funds that must be repaid, the bill delays and extends the repayment period.
On May 25, 2020, several Uber and Lyft drivers sued the NY Department of Labor contending that their claims for unemployment benefits have been delayed because the Department is incorrectly processing their claims as those of independent contractors not employees — even though The New York State Unemployment Insurance Appeal Board ruled in 2018 that three Uber drivers (and other similarly situated individuals) were employees for purposes of the State’s Unemployment Insurance Program. (State of New York Unemployment Insurance Appeal Board, Decision in the Matter of Uber Technologies, Inc. Appeal Board No. 596722, A.L.J. Case No. 016-234949 (July 12, 2018)).
This week’s plaintiffs explain the harm in the context of the current pandemic: “[Despite the State Unemployment Insurance Appeal Board rulings, the] DOL has continued to treat app-based drivers’ applications as though they are independent contractors, placing the burden on drivers to prove their earnings and employment status. As the DOL has not required app-based car service companies to supply their earnings data, drivers’ benefit rates cannot be determined, delaying the delivery of benefits to drivers by months.”
The CBO has updated its economic projections through the end of 2021 to account for the 2020 coronavirus pandemic. The CBO estimates that the real (inflation-adjusted) GDP will contract by 11 percent in the second quarter of 2020, which is equivalent to a decline of 38 percent at an annual rate. Furthermore, the number of people employed in the second quarter of 2020 will be almost 26 million lower than the number in the fourth quarter of 2019. The CBO also considers the effects of recent legislation, noting that “greater federal spending and lower revenues will cause real GDP and employment to be higher over the next few years than they would be otherwise.” However, in CBO’s assessment, “as long as some degree of social distancing remains in place, the economic boost that might be expected from recent legislation will be smaller than it would be during a period of economic weakness without social distancing.”
The report — “Questions About the CARES Act’s $500 Billion Emergency Economic Stabilization Funds” — focuses on the CARES Act’s provision of $500 billion to the Treasury Department for lending to businesses and to state and local governments. Notably, it finds that “Treasury has not disbursed any of the $46 billion it can use to provide loans and loan guarantees to the airline industry and businesses critical to maintaining national security.” Furthermore, “the Treasury has only disbursed $37.5 billion of CARES Act funds, which were invested in the Fed’s Secondary Market Corporate Credit Facility.” The report sets forth a list of “general and specific questions” for the Commission’s future work.
Late on Friday May 15, 2020, the most recent round of COVID-19 funding legislation, H.R. 6800, The Health and Economic Recovery Omnibus Emergency Solutions Act (“HEROES Act), passed the House by a mostly partisan vote of 208-199. The bill, which was introduced in the House earlier this week on May 12, 2020, includes approximately $3 trillion in relief for state and local governments, individuals, and the healthcare system.
On Wednesday May 13, 2020, the Wisconsin Supreme Court struck down Wisconsin’s COVID-19 stay-at-home order in a 4-3 decision (see page 31-32 of the court’s opinion). The stay-at-home order — Emergency Order 28 — had been issued Wisconsin Department of Health and Human Services Secretary Designee Andrea Palm on March 24, 2020.
Although the legislature had requested that the court delay any order by a week to provide time for new transition rules, the court declined saying:
‘We have declared rights under the law wherein we have concluded that Emergency Order 28 is invalid and therefore, unenforceable. Although a very unusual request, on April 21, 2020, the Legislature asked this court to issue a temporary injunction of Emergency Order 28 but then requested a stay of that injunction for at least six days. We perceive this request as being grounded in a concern for an orderly transition from Order 28 to a lawful rule.
However, more than two weeks have passed since we began our consideration of this case. Therefore, we trust that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin. People, businesses and other institutions need to know how to proceed and what is expected of them. Therefore, we place the responsibility for this future law-making with the Legislature and DHS where it belongs.” (At pages 30-31) (Emphasis added).
Without a delay period, the court’s decision immediately lifted the state-wide restrictions. Businesses, however, continue to face any local limits and stay-at-home orders, such as those imposed by Milwaukee. But some bars opened immediately on Wednesday after the court’s decision.
The next major round of COVID-19 legislation, H.R. 6800, The Health and Economic Recovery Omnibus Emergency Solutions Act (“HEROES Act), was introduced in the house today, May 12, 2020. The package includes approximately $3 trillion in relief for state and local governments, individuals, and the healthcare system.
According to the Democratic staff of the House Committee on Appropriations summary , the bill includes, just in its funding for governments and financial services:
State Fiscal Relief – $500 billion in funding to assist state governments with the fiscal impacts from the public health emergency caused by the coronavirus.
Local Fiscal Relief – $375 billion in funding to assist local governments with the fiscal impacts from the public health emergency caused by the coronavirus.
Tribal Fiscal Relief – $20 billion in funding to assist Tribal governments with the fiscal impacts from the public health emergency caused by the coronavirus.
Fiscal Relief for Territories – $20 billion in funding to assist governments of the Territories with the fiscal impacts from the public health emergency caused by the coronavirus.
CARES Act Coronavirus Relief Fund Repayment to DC – Provides an additional $755 million for the District of Columbia to assist with the fiscal impacts from the public health emergency caused by the coronavirus
Treasury Inspector Generals – $35 million for the Treasury Inspector General for oversight of Coronavirus Fiscal Relief Fund payments to state and local governments, and $2.5 million for the Treasury Inspector General for Tax Administration for oversight of IRS payments.
Community Development Financial Institutions (CDFI) – $1 billion for economic support and recovery in distressed communities by providing financial and technical assistance to CDFIs.
Tax Credit Implementation – $599 million for implementation of additional payments to individuals.
Assistance to Homeowners–$75 billion to states, territories, and tribes to address the ongoing needs of homeowners struggling to afford their housing due directly or indirectly to the impacts of the pandemic by providing direct assistance with mortgage payments, property taxes, property insurance, utilities, and other housing related costs.
Elections – $3.6 billion for grants to States for contingency planning, preparation, and resilience of elections for Federal office.
Broadband – $1.5 billion to close the homework gap by providing funding for Wi-Fi hotspots and connected devices for students and library patrons, and $4 billion for emergency home connectivity needs.
Assisting Small Businesses – $10 billion in grants to small businesses that have suffered financial losses as a result of the coronavirus outbreak. Office of Personnel Management Inspector General Office (OPM IG) – $1 million for the OPM IG to combat healthcare fraud associated with COVID-19.
General Services Administration Technology Modernization Fund – $1 billion in funding for technology-related modernization activities to prevent, prepare for, and respond to coronavirus.
Postal Service – $25 billion for revenue forgone due to the coronavirus pandemic, plus language providing additional protections to Postal workers. An additional $15 million is provided for the Postal Service Inspector General for oversight of this funding.
Back in March 2020, the Fed had announced a plan to engage in the purchase of corporate bonds as part of its pandemic response to help stabilize credit markets. On May 11, 2020, the Federal Reserve Bank of New York announced that “the Secondary Market Corporate Credit Facility (SMCCF) [would] begin purchases of exchange-traded funds (ETFs) on May 12.”
Per its April 9, 2020 term sheet, the “SMCCF may purchase U.S.-listed ETFs whose investment objective is to provide broad exposure to the market for U.S. corporate bonds. The preponderance of ETF holdings will be of ETFs whose primary investment objective is exposure to U.S. investment-grade corporate bonds, and the remainder will be in ETFs whose primary investment objective is exposure to U.S. high-yield corporate bonds.” (See N.Y. Fed Statement). The Primary Corporate Credit Facility is expected to become operational in the “near future.”