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Five Reasons Paycheck Protection Program Participants Should Be Aware of FIRREA

As discussed in a recent Polsinelli white paper, the False Claims Act (“FCA”) is expected to be an essential tool in the Department of Justice’s arsenal to combat fraud, waste, and abuse under the Paycheck Protection Program (“PPP”). The PPP is a primary part of the Coronavirus Aid Relief and Economic Security Act (“CARES Act”). Managed through the Small Business Association, the federal government has allocated $659 billion in loans to help ailing businesses cover, among other things, payroll, mortgage interest payments, rent, and utility payments.

The U.S. Department of Justice (“DOJ”) is also likely to employ the civil money penalty provision of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”) to investigate and prosecute persons suspected of defrauding the PPP.  Enacted following the savings and loans crisis of the 1980s, FIRREA imposes civil penalties for a series of predicate offenses including bank fraud, false statements, and mail or wire fraud affecting a financial institution. The DOJ turned to FIRREA to combat the subprime mortgage crisis.

Importantly, FIRREA has a number of features making it a strong prosecution tool.  Below is a brief outline of five reasons PPP participants should be aware of FIRREA:

  1. FIRREA makes it easier to bring an enforcement action based upon conduct that is already actionable under the criminal code. Unlike in a criminal prosecution where the government must prove defendant’s guilt “beyond a reasonable doubt," civil liability attaches under FIRREA as long as the government can show that a defendant committed any predicate offenses by a “preponderance of the evidence.”   

  2. The statute of limitations for FIRREA civil enforcement is 10 years.  This lengthy limitations period means that participants in PPP may be subject to investigations long after the pandemic ends. 

  3. FIRREA’s large statutory penalties (over $1 million per violation, or over $5 million for continuing violations) enables enforcement actions to result in massive settlements.  FIRREA also allows the court to increase the penalty up to the amount of the pecuniary gain that any person derives from the violation, or the amount of pecuniary loss suffered by any person as a result of the violation. In 2018 and 2019 alone, the DOJ recovered over $9.5 billion under FIRREA. 

  4. Like the FCA, FIRREA (through the Financial Institutions Anti-Fraud Enforcement Act) allows for whistleblower suits. 

  5. The DOJ has regularly pursued FCA and FIRREA liability in the same action.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 148

About this Author

Andrew T. Fox Phoenix Polsinelli Government Investigations Labor and Employment Commercial Litigation Litigation and Dispute Resolution

As a member of Polsinelli’s Government Investigations practice, Andrew assists clients in all aspects of white collar criminal defense and internal corporate investigations. Working to understand each client’s unique situation, he helps guide clients through government inquiries and provides counsel that aligns to their business strategies. Andrew has experience drafting briefs, memoranda and responding to discovery requests.

Prior to joining Polsinelli, Andrew served as a law clerk to The Honorable Judge Douglas L. Rayes on the United States District Court for the District of...

Melissa S. Ho Shareholder Phoenix Antitrust, Antitrust - Health Care Compliance, Fraud and Abuse, Stark, Financial and Securities Litigation, Financial Technology, Regulation Government Investigations, Health Care Litigation

Melissa Ho is a trial attorney with a detailed understanding of government regulations and business litigation. A former prosecutor, she is sympathetic to the disruption and chaos a government inquiry and criminal investigation can cause. 

Melissa defends individual clients against a wide variety of criminal allegations, including health care fraud, qui tam, RICO violations, bank fraud, real estate fraud, mortgage fraud, foreign corrupt practices, securities fraud, water and air quality violations, government corruption, procurement and public fraud, professional misconduct, civil...