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Client Alert

New Paycheck Protection Program (PPP) Loan Forgiveness Applications and Interim Final Rule Issued

June 19, 2020

Steven S. Poindexter, Steven C. Drapekin

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Updated on June 19, 2020 to clarify that the Alternative Payroll Covered period is only available to borrowers with a bi-weekly (or more frequent) payroll schedule.

On June 16, 2020, the Small Business Administration (SBA) issued a significantly revised PPP Loan Forgiveness Application Form 3508 (the “Full Loan Forgiveness Application”), together with a streamlined PPP Loan Forgiveness Application Form 3508EZ (the “EZ Loan Forgiveness Application”) and instructions for each form. The forms and instructions are available here and here.

SBA also issued a new interim final rule that amends the Interim Final Rule on Additional Eligibility Criteria and Requirements for Certain Pledges of Loans (the “Third Interim Final Rule”), posted on SBA’s website on April 14, 2020 and published in the Federal Register on April 20, 2020 (85 FR 21747), and the Interim Final Rule on Disbursements (the “Sixth Interim Final Rule”), posted on SBA’s website on April 28, 2020 and published in the Federal Register on May 4, 2020 (85 FR 26321). These changes were made to reflect the amendments to the PPP made by the Paycheck Protection Program Flexibility Act (the “PPP Flexibility Act”). Generally speaking, these revisions reflect the changes previously discussed in our prior alert on the PPP Flexibility Act (for all of our prior alerts relating to PPP, click here).

This alert discusses how SBA has implemented the PPP Flexibility Act’s changes to the PPP through modifications to the Full Loan Forgiveness Application and its instructions, and the issuance of the EZ Loan Forgiveness Application and its instructions.

Key Takeaways

EZ Loan Forgiveness Application: A Streamlined Application for Eligible Borrowers

The EZ Loan Forgiveness Application is a streamlined version of the Full Loan Forgiveness Application available to borrowers that:

  • are self-employed and have no employees; or
  • did not reduce the salaries or wages of their employees by more than 25%, and did not reduce the number of employees or the average paid hours of their employees; or
  • experienced reductions in business activity as a result of health directives related to COVID-19, and did not reduce the salaries or wages of any of their employees by more than 25%.

Covered Periods/Alternative Payroll Covered Period

The “Covered Period” is either: (1) the 24-week (168-day) period beginning on the PPP Loan Disbursement Date; or (2) if the borrower received its PPP loan before June 5, 2020, the borrower may elect to use an 8-week (56-day) Covered Period. This 8-week Covered Period is the “Alternative Covered Period” referenced in the PPP Flexibility Act. In no event may the Covered Period extend beyond December 31, 2020.

The instructions confirm that the Alternative Payroll Covered Period is still available to borrowers with bi-weekly (or more frequent) payroll schedules. Any such borrower can elect as its “Alternative Payroll Covered Period” either a 24-week (168-day) period or an 8-week (56-day) period, in either case beginning on the first day of the first pay period following the borrower’s PPP Loan Disbursement Date.[1] A borrower’s Alternative Payroll Covered Period cannot extend beyond December 31, 2020.

60%/40% Test for Forgiveness

SBA made various changes to reflect the PPP Flexibility Act’s increase in the maximum amount of Eligible Nonpayroll Costs that a borrower can include in its total loan forgiveness amount from 25% to 40%.

Timing for Filing Forgiveness Application

The instructions clarify that a borrower must use the earlier of December 31, 2020 and the date the borrower submits its forgiveness application to determine whether the FTE Reduction Safe Harbor 2 and Salary/Hourly Wage Reduction Safe Harbor (both described below) apply. In doing so, the new instructions confirm that a borrower does not need to wait until the end of its Covered Period to apply for loan forgiveness, at least where both the FTE Reduction Safe Harbor 2 and the Salary/Hourly Wage Reduction Safe Harbor apply. If one of the safe harbors does not apply, however, then it would appear that the borrower would need to wait until the end of its Covered Period to apply for forgiveness, because it cannot calculate the Salary/Hourly Wage Reduction or the FTE Reduction until after the end of its Covered Period.

The CARES Act, the PPP Flexibility Act, the interim final rules, the official guidance, and the forgiveness applications and instructions do not explicitly state a deadline for submission of a forgiveness application. However, the PPP Flexibility Act extends the deferral period (principal, interest, and fees) until the earlier of: (1) the date on which the amount of forgiveness is remitted to the lender; and (2) the date that is 10 months after the end of the borrower’s Covered Period. It is unclear whether borrowers will be permitted to seek forgiveness after the date that is 10 months after the end of their Covered Period.

Eligible Payroll Costs

Cash Compensation

The maximum cash compensation for each employee eligible for forgiveness is capped at:

  • $46,154 for borrowers with a 24-week Covered Period; and
  • $15,385 for borrowers with an 8-week Covered Period.

Cash compensation consists of gross salary, gross wages, gross tips, gross commissions, paid leave (vacation, family, medical or sick leave, not including leave covered by the Families First Coronavirus Response Act), and allowances for dismissal or separation paid or incurred during the Covered Period or the Alternative Payroll Covered Period. Based on prior guidance, bonuses and hazard pay are also part of cash compensation subject to these limitations.

Owner Compensation

SBA increased the cap on forgiveness for amounts paid to owner-employees, self-employed individuals, or general partners as follows:

  • for borrowers using the 24-week Covered Period, the cap is the lesser of:
    • $20,833 (the 2.5-month equivalent of $100,000 per year) for each individual (this was $15,385 if using an 8-week Covered Period ); and
    • the 2.5-month equivalent of their applicable compensation in 2019 (this was the 8-week equivalent); and
  • for borrowers using the 8-week Covered Period, the cap is the lesser of:
    • $15,385 (the 8-week equivalent of $100,000 per year) for each individual; and
    • the 8-week equivalent of their applicable compensation in 2019.

The Instructions for PPP Schedule A appear to confirm that “owner-employee” includes an S-corporation shareholder.

The maximum amount of employer contributions to employee retirement plans made on behalf of owner-employees is 2.5 months’ worth of the 2019 contribution amount.

FTE Reduction Safe Harbor

There are now two FTE Reduction Safe Harbors that exempt borrowers from any FTE Reduction.

  • FTE Reduction Safe Harbor 1: the borrower, in good faith, can document that it was unable to operate between February 15, 2020, and the end of the Covered Period at the same level of business activity as before February 15, 2020, due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020, by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration, related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19. This FTE Reduction Safe Harbor 1 is from the PPP Flexibility Act.
  • FTE Reduction Safe Harbor 2: both of the following conditions are met: (a) the borrower reduced its FTE employee levels in the period beginning February 15, 2020, and ending April 26, 2020; and (b) the borrower then restored its FTE employee levels by not later than the earlier of December 31, 2020 and the date of its PPP Loan Forgiveness Application to its FTE employee levels in the borrower’s pay period that included February 15, 2020. For purposes of calculating the FTE Reduction Safe Harbor 2, the borrower must compare its total FTE as of the earlier of December 31, 2020 and the date the PPP Loan Forgiveness Application is submitted. This FTE Reduction Safe Harbor 2 is the original FTE Reduction Safe Harbor.

FTE Reduction Exemptions

The following exemptions (which do not result in FTE Reductions) apply to the FTE Reduction:

  1. any positions for which the borrower made a good-faith, written offer to rehire an individual who was an employee on February 15, 2020 and the borrower was unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020[2];
  2. any positions for which the borrower made a good-faith, written offer to restore any reduction in hours, at the same salary or wages, during the Covered Period or the Alternative Covered Period and the employee rejected the offer; and
  3. any employees who during the Covered Period or the Alternative Payroll Covered Period (a) were fired for cause, (b) voluntarily resigned, or (c) voluntarily requested and received a reduction of their hours.

Salary/Hourly Wage Reduction Safe Harbor

Unless Salary/Hourly Wage Reduction Safe Harbor applies, a borrower’s loan forgiveness amount will be reduced if the borrower reduced the salary or hourly wages of any employee by more than 25% during the Covered Period (or the Alternative Payroll Covered Period) as compared to the period from January 1, 2020 to March 31, 2020. For purposes of determining whether the Salary/Hourly Wage Reduction Safe Harbor applies, the borrower compares the average annual salary or hourly wage as of the earlier of December 31, 2020 and the date the borrower submits its Full Loan Forgiveness Application. It appears this is a “day of” calculation, as the Full Loan Forgiveness Application does not indicate that such average annual salary or hourly wage should be for a specified period, such as the most-recently ended payroll period of the borrower as of December 31, 2020 or the date it submits its loan forgiveness application. This clarification confirms a borrower does not have to wait to apply for forgiveness.

Changes to the Full Loan Forgiveness Application

SBA’s revisions to the Full Loan Forgiveness Application include, among others:

  • removing the instructions from the Full Loan Forgiveness Application (the instructions can now be found in a separate document);
  • replacing the 75% (or 0.75) references with 60% (or 0.60) in each instance;
  • updating the PPP Loan Forgiveness Calculation Form to reflect changes to limitations on amounts paid to owner-employees or self-employed individuals/general partners;
  • updating the PPP Schedule A to:
    • clarify in lines 6, 7 and 8 that amounts incurred, in addition to amounts paid, should be included for non-cash compensation payroll costs; and
    • reflect changes to the FTE Reduction Safe Harbors, instructing borrowers to skip lines 11 and 12 and enter 1.0 on line 13 for the FTE Reduction Quotient (which would mean there is no FTE Reduction) if any of the following criteria are satisfied:
      • the borrower has not reduced the number of employees or the average paid hours of its employees between January 1, 2020 and the end of the Covered Period;
      • FTE Reduction Safe Harbor 1 (introduced by the PPP Flexibility Act): the borrower was unable to operate between February 15, 2020, and the end of the Covered Period at the same level of business activity as before February 15, 2020 due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020, by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19; or
      • FTE Reduction Safe Harbor 2 (this is the original FTE Reduction Safe Harbor): both of the following conditions are met: (a) the borrower reduced its FTE employee levels in the period beginning February 15, 2020, and ending April 26, 2020; and (b) the borrower then restored its FTE employee levels by not later than December 31, 2020 to its FTE employee levels in the borrower’s pay period that included February 15, 2020. For purposes of calculating the FTE Reduction Safe Harbor 2, the borrower must compare its total FTE as of the earlier of December 31, 2020 and the date the PPP Loan Forgiveness Application is submitted. This FTE Reduction Safe Harbor 2 is the original FTE Reduction Safe Harbor; and
  • adding the following new certification:

“If the Borrower has checked the box for FTE Reduction Safe Harbor 1 on PPP Schedule A, the Borrower was unable to operate between February 15, 2020 and the end of the Covered Period at the same level of business activity as before February 15, 2020 due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020, by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration, related to the maintenance of standards of sanitation, social distancing, or any other work or customer safety requirement related to COVID-19.”

SBA also updated PPP Schedule A Worksheet to clarify that for purposes of calculating the FTE Reduction Safe Harbor 2, the borrower must compare its total FTE as of the earlier of December 31, 2020 and the date the PPP Loan Forgiveness Application is submitted.

Changes to the Instructions to the Full Loan Forgiveness Application

As noted above, SBA removed the instructions from the Full Loan Forgiveness Application and created a separate document with those instructions, which SBA has modified to reflect the changes to PPP implemented by the PPP Flexibility Act and SBA’s interpretation thereof.

Covered Period

SBA updated the instructions to the PPP Loan Forgiveness Calculation Form to reflect the extension of the Covered Period from 8 weeks to 24 weeks, and that borrowers whose PPP Loan Disbursement Dates are before June 5, 2020 can choose an 8-week Covered Period instead of the 24-week Covered Period. In no event may the Covered Period extend beyond December 31, 2020. For example, if the borrower is using a 24-week Covered Period and received its PPP loan proceeds on Monday, April 20, 2020, the first day of the Covered Period is April 20, 2020 and the last day of the Covered Period is Sunday, October 4, 2020. The term “Covered Period,” as used in the Full Loan Forgiveness Application, refers to either the 24-week Covered Period or, if applicable, the 8-week Alternative Covered Period.

Alternative Payroll Covered Period

The instructions to the PPP Loan Forgiveness Calculation Form confirm that the Alternative Payroll Covered Period is still available to borrowers. The Alternative Payroll Covered Period was introduced in the original Full Loan Forgiveness Application and described in the Interim Final Rule on Forgiveness. The SBA updated the instructions to:

  • add an option to elect a 24-week (168-day) period, in addition to the 8-week (56-day) period previously allowed. Both periods begin on the first day of the first pay period following the borrower’s PPP Loan Disbursement Date; and
  • provide that the Alternative Payroll Covered Period cannot extend beyond December 31, 2020.

Other Changes to the Instructions to the PPP Loan Forgiveness Calculation Form

SBA’s changes to the PPP Loan Forgiveness Calculation Form include the following changes, among others:

  • clarifying that amounts incurred, in addition to amounts paid, should be included for non-cash compensation payroll costs;
  • replacing the 75% (or 0.75) references with 60% (or 0.60) in each instance;
  • making conforming changes to reflect the availability of a 24-week (168-day) Covered Period or 8-week (56-day) Covered Period; and
  • increasing the maximum amount of Eligible Nonpayroll Costs that can be included in the total forgiveness amount from 25% to 40%.

Health Benefits

SBA updated the instructions for line 6 of the PPP Schedule A to clarify that employer health insurance contributions made on behalf of self-employed individuals, general partners, or owner-employees of an S-corporation should not be included in the amount entered into line 6 of PPP Schedule A for the total amount paid or incurred by the borrower for employer contributions for employee health insurance.

Retirement Benefits

SBA updated the instructions for line 7 of the PPP Schedule A to clarify that employer retirement contributions made on behalf of self-employed individuals or general partners should not be included in the amount entered into line 6 of PPP Schedule A for the total amount paid or incurred by the borrower for employer contributions for employee health insurance. Note, however, that unlike line 6 (employer contributions for employee health insurance), employer retirement contributions made on behalf of owner-employees of an S-corporation should be included in the amount entered in line 7 for employer contributions to employee retirement plans.

The EZ Loan Forgiveness Application states that the maximum amount of employer contributions to employee retirement plans made on behalf of owner-employees is 2.5 months’ worth of the 2019 contribution amount. This limitation does not appear to be included in the Full Loan Forgiveness Application, but there appears to be no basis for not applying this limitation to borrowers that file for forgiveness using the Full Loan Forgiveness Application.

Owner Compensation

SBA updated the instructions for line 9 of the PPP Schedule A to:

  • reflect the 24-week Covered Period;
  • for borrowers using the 24-week Covered Period, increase the cap on forgiveness for amounts paid to owners (owner-employees, a self-employed individual, or general partners) to the lesser of (i) $20,833 (the 2.5-month equivalent of $100,000 per year) for each individual (this was $15,385 for an 8-week Covered Period) and (ii) the 2.5-month equivalent of their applicable compensation in 2019 (this was the 8-week equivalent); and
  • for borrowers using the 8-week Covered Period, confirm the cap on forgiveness for amounts paid to owners (owner-employees, a self-employed individual, or general partners) is the lesser of (i) $15,385 (the 8-week equivalent of $100,000 per year) for each individual and (ii) the 8-week equivalent of their applicable compensation in 2019.

Cash Compensation

The instructions for the PPP Schedule A Worksheet confirm that the maximum cash compensation (consisting of gross salary, gross wages, gross tips, gross commissions, paid leave (vacation, family, medical or sick leave, not including leave covered by the Families First Coronavirus Response Act), and allowances for dismissal or separation paid or incurred during the Covered Period or the Alternative Payroll Covered Period) for each individual employee that is eligible for forgiveness is capped at:

  • $46,154 for borrowers with a 24-week Covered Period; and
  • $15,385 for borrowers with an 8-week Covered Period.

FTE Reduction Safe Harbors

SBA updated the instructions for the PPP Schedule A Worksheet to refer to FTE Reduction Safe Harbor 1 and FTE Reduction Safe Harbor 2 (described above under "Key Takeaways") that exempt certain borrowers from any loan forgiveness reduction based on a reduction in FTE employee levels.

FTE Reduction Exemptions

SBA updated the instructions for the PPP Schedule A Worksheet to account for the following exemptions:

  1. any positions for which the borrower made a good-faith, written offer to rehire an individual who was an employee on February 15, 2020 and the borrower was unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020 (this is from the PPP Flexibility Act);
  2. any positions for which the borrower made a good-faith, written offer to restore any reduction in hours, at the same salary or wages, during the Covered Period or the Alternative Covered Period and the employee rejected the offer; and
  3. any employees who during the Covered Period or the Alternative Payroll Covered Period (a) were fired for cause, (b) voluntarily resigned, or (c) voluntarily requested and received a reduction of their hours.

These exemptions only apply if the relevant employees’ position was not filled by a new employee. If one of the foregoing exemptions apply, any FTE reductions in these cases do not reduce the borrower’s loan forgiveness.

Salary/Hourly Wage Reduction Safe Harbor

SBA updated the instructions for the PPP Schedule A Worksheet to reflect the borrower may elect a 24-week Covered Period or an 8-week Covered Period and to clarify that for purposes of determining whether the Salary/Hourly Wage Reduction Safe Harbor applies, the borrower compares the average annual salary or hourly wage as of the earlier of December 31, 2020 and the date the borrower submits its Full Loan Forgiveness Application.

Additional Documentation Requirements

Borrowers are instructed to maintain:

  • documentation regarding any employee job offers and refusals, refusals to accept restoration of reductions in hours, firings for cause, voluntary resignations, written requests by any employee for reductions in work schedule, and any inability to hire similarly qualified employees for unfilled positions on or before December 31, 2020; and
  • documentation supporting the certification, if applicable, that the borrower was unable to operate between February 15, 2020, and the end of the Covered Period at the same level of business activity as before February 15, 2020 due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020 by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration, related to the maintenance of standards of sanitation, social distancing, or any other work or customer safety requirement related to COVID-19. This documentation must include copies of the applicable requirements for each borrower location and relevant borrower financial records.

Differences between the Full Loan Forgiveness Application and the EZ Loan Forgiveness Application

The EZ Loan Forgiveness Application is a streamlined version of the Full Loan Forgiveness Application. A borrower can apply for forgiveness of its PPP loan using the EZ Loan Forgiveness Application if:

  1. (i) the borrower is a self-employed individual, independent contractor, or sole proprietor (ii) who had no employees at the time of the PPP loan application and (iii) did not include any employee salaries in the computation of average monthly payroll in the Borrower Application Form (SBA Form 2483); or
  2. (i) the borrower did not reduce annual salary or hourly wages of any employee[3] by more than 25% during the Covered Period or the Alternative Payroll Covered Period compared to the period between January 1, 2020 and March 31, 2020, and (ii) either:
    • the borrower did not reduce the number of employees or the average paid hours of employees between January 1, 2020 and the end of the Covered Period;[4] or
    • the borrower was unable to operate during the Covered Period at the same level of business activity as before February 15, 2020, due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020 by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration, related to the maintenance of standards of sanitation, social distancing, or any other work or customer safety requirement related to COVID-19.

The EZ Loan Forgiveness Application greatly simplifies the Full Loan Forgiveness Application by removing the following elements of the Full Loan Forgiveness Application:

  • Adjustments for Full Time Equivalency (FTE) and Salary/Hourly Wage Reductions;
  • the PPP Schedule A; and
  • the PPP Schedule A Worksheet.

The EZ Loan Forgiveness Application adds the following new certification:

“The Borrower did not reduce salaries or hourly wages by more than 25 percent for any employee during the Covered Period or Alternative Payroll Covered Period compared to the period between January 1, 2020 and March 31, 2020. For purposes of this certification, the term “employee” includes only those employees that did not receive, during any single period during 2019, wages or salary at an annualized rate of pay in an amount more than $100,000.”

The Authorized Representative of the borrower must certify at least one of the following two items:

“The Borrower did not reduce the number of employees or the average paid hours of employees between January 1, 2020 and the end of the Covered Period (other than any reductions that arose from an inability to rehire individuals who were employees on February 15, 2020, if the Borrower was unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020, and reductions in an employee’s hours that a borrower offered to restore and were refused).”

“The Borrower was unable to operate between February 15, 2020, and the end of the Covered Period at the same level of business activity as before February 15, 2020 due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020, by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration, related to the maintenance of standards of sanitation, social distancing, or any other work or customer safety requirement related to COVID-19.”

The EZ Loan Forgiveness Application requires borrowers to maintain the following documentation to support the certifications made in the EZ Loan Forgiveness Application:

  • documentation supporting the certification that annual salaries or hourly wages were not reduced by more than 25 percent during the Covered Period or the Alternative Payroll Covered Period relative to the period between January 1, 2020 and March 31, 2020, including payroll records that:
    • separately list each employee;
    • show the amounts paid to each employee during the period between January 1, 2020 and March 31, 2020; and
    • show the amounts paid to each employee during the Covered Period or Alternative Payroll Covered Period; and
  • documentation supporting the certification, if applicable, that the borrower did not reduce the number of employees or the average paid hours of employees between January 1, 2020 and the end of the Covered Period (other than any reductions that arose from an inability to rehire individuals who were employees on February 15, 2020, if the borrower was unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020), including payroll records that:
    • separately list each employee; and
    • show the amounts paid to each employee between January 1, 2020 and the end of the Covered Period.

Conclusion

The updated Full Loan Forgiveness Application and the new EZ Loan Forgiveness Application are welcome developments for borrowers and lenders that are now focused on applying for and reviewing loan forgiveness applications. Borrowers should be aware, however, that lenders are free to develop their own versions of the loan forgiveness forms, and that lenders may require those forms be submitted electronically online. We anticipate additional interim final rules and guidance will be issued, particularly a modification to the Interim Final Rule on Loan Forgiveness (which was originally posted on May 22, 2020). Lewis Rice will continue to monitor these developments and provide updates as needed. If you would like to sign up to receive client alerts via email, you can do so here.

Our attorneys are closely monitoring these developments as they occur and will make regular updates to our COVID-19 Resource Center. If you have any questions about the implications and disruptions of COVID-19 on your business, please reach out to one of the authors above or another member of the Task Force.

[1]The “PPP Loan Disbursement Date” is the date that a borrower received its PPP loan proceeds from its lender. If loan proceeds were received on more than one date, the first date on which the borrower received PPP loan proceeds is the PPP Loan Disbursement Date.

[2]It appears that a borrower would have to wait until after December 31, 2020 to apply for forgiveness in order to take advantage of this exemption.

[3]For this purpose of this statement, “employees” means only those employees that did not receive, during any single period during 2019, wages or salary at an annualized rate of pay in an amount more than $100,000.

[4]For the purpose of determining whether the borrower reduced the number of employees or the average paid hours of employees between January 1, 2020 and the end of the Covered Period, borrowers are instructed to: (1) ignore reductions that arose from an inability to rehire individuals who were employees on February 15, 2020 if the borrower was unable to hire similarly qualified employees for unfilled positions on or before December 31, 2020; and (2) ignore reductions in an employee’s hours that the Borrower offered to restore and the employee refused.

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    Litigation under the Illinois Biometric Information Privacy Act (“BIPA”) is increasingly and very recently focused on one category of biometric data that many organizations may overlook: voiceprints. Recent lawsuits have focused on AI-powered transcription, speaker recognition, and voice analytics tools as an unlawful use of participants’ voiceprints without proper consent. Voiceprints Are Expressly Covered by BIPA BIPA defines “biometric identifiers” to include voiceprints. Unlike general audio recordings, a voiceprint involves the analysis of unique vocal characteristics to identify or distinguish a speaker. Plaintiffs are alleging that software creates biometric identifiers subject to the statute when it attributes speech to specific individuals using speaker recognition technology. To comply with BIPA, a company collecting voiceprints must: Provide written notice that biometric data is being collected or stored; Inform the individual in writing of the purpose and duration of collection; and Obtain a written release before collection. The collecting company must also publish a publicly available written retention and destruction policy. As discussed in our recent client alert, statutory damages are significant: $1,000 per negligent violation and $5,000 per reckless or intentional violation with potential accrual on a per-scan basis under Cothron v. White Castle System, Inc. AI Meeting Assistants and Speaker Recognition: Ambient Listening a part of the allegations in recent lawsuits. In Cruz v. Fireflies.AI Corp., filed on December 18, 2025 in Illinois District Court, the plaintiff alleges that an AI meeting assistant violated BIPA by recording virtual meetings and using speaker recognition technology to distinguish between participants. According to the complaint, the software automatically joins meetings when enabled by a host, records and transcribes conversations, identifies and labels individual speakers, and stores the resulting data. The plaintiff alleges that these functions necessarily involve creating voice-derived identifiers and that meeting participants, who never created accounts and never signed any written release, were not provided BIPA-compliant notice or consent. The case, which has just began litigation, reflects a growing theory of liability: even where a company does not market its product as “biometric,” functionality that distinguishes speakers based on vocal characteristics may qualify as voiceprint collection under Illinois law. Voiceprint-related risk is not limited just to AI transcription vendors. Employers and organizations may face exposure where they deploy tools such as voice authentication systems, call center voice analytics tools, meeting transcription software, productivity monitoring software, or security systems using vocal identification. Out-of-state technology providers may also face jurisdictional exposure if their tools are used by Illinois entities or affect Illinois residents. Similar to the allegations in Fireflis.AI Corp, in Basich et al. v. Microsoft Corp., plaintiffs allege that consent from one user (such as a meeting host) is insufficient for other participants whose voiceprints are captured during an AI live transcription feature in Microsoft’s Teams product while the participants are physically located in Illinois. The complaint focuses on a specific background process known as “diarization” which creates real-time meeting transcripts by distinguishing who is speaking using unique vocal characteristics, which plaintiffs contend is a collection of a “voiceprint”. Key Takeaways Recent filings confirm that voice-enabled AI tools are a developing frontier of BIPA litigation. Organizations operating in Illinois, or interacting with Illinois residents, should carefully evaluate whether any technology they deploy analyzes or distinguishes speakers based on vocal characteristics (i.e., create “voiceprints”). If voiceprints are implicated, strict compliance with BIPA’s notice, written release, and retention policy requirements is essential to avoid potentially significant statutory exposure. For questions regarding voiceprint-related compliance, AI deployment, or BIPA risk assessment, please contact one of our Data Privacy & Cybersecurity attorneys.

  • Firm News

    Lewis Rice Obtains $532,226 in Compensation for Landowners in Dutchess and Putnam Counties

  • Case Study

    Securing a Legislative Victory for the American Car Rental Association

    Lewis Rice member David W. Sweeney represented the American Car Rental Association (ACRA) in its effort to shape legislation governing the operations of Turo, an online car-sharing platform, at St. Louis Lambert International Airport. The initial bill would have permitted Turo to operate in airport garages within walking distance of passenger terminals, a proposal opposed by members of the St. Louis Airport Commission due to competitive concerns. David engaged with stakeholders to negotiate a revised agreement that addressed these objections while protecting the interests of ACRA. The final legislation limits Turo’s operations to three designated parking areas west of Terminal 1. The measure was opposed by the St Louis Airport Director but  approved unanimously by the St. Louis Board of Aldermen, marking a significant milestone in the legislative process. This outcome preserved competitive balance in the airport rental market and aligned with ACRA’s policy objectives. The case demonstrates how strategic advocacy and effective negotiation can deliver tangible results for industry associations facing complex regulatory challenges.

  • Publication

    Fifth Circuit Order Reverts HSR Filings to Old Form

    On March 19, 2026, the U.S. Court of Appeals for the Fifth Circuit denied the Federal Trade Commission’s (“FTC”) motion for a stay pending appeal in the ongoing litigation challenging the recent February 2025 expansion of pre-merger reporting requirements under the Hart-Scott-Rodino (“HSR”) Antitrust Improvements Act of 1976. Previously, in a February 12, 2026 Order, a Texas federal court ruled that the expanded requirements “exceed[] the FTC’s statutory authority because the agency has not shown that the rule’s claimed benefits will ‘reasonably outweigh’ its significant and widespread costs.” Shortly thereafter, the FTC filed an appeal with the Fifth Circuit and sought an emergency stay of the District Court’s Order pending the outcome of their appeal. On February 19, 2026, the Fifth Circuit granted an administrative stay “until further order of [the] court” while it reviewed but ultimately decided in its most recent Order that the stay should not be maintained pending a final outcome of the appeal. As a consequence of this decision, the expanded requirements that were imposed by the updated HSR form have been vacated, although there is a chance that they could be reinstated if the FTC is successful on appeal. In accordance with the Order, the FTC has announced that it will begin accepting HSR filings on the prior, pre-February 2025 HSR Form although it will continue to accept filings submitted on the new HSR form on a voluntary basis. Parties preparing to submit HSR filings should consult with counsel to assess the best approach in light of this new HSR filing framework. The Lewis Rice HSR team is available to advise and will continue to monitor developments as the FTC’s appeal proceeds.

  • Publication

    Supreme Court Clarifies Contributory Liability Standard in Copyright Infringement

    In a decision with broad implications for internet service providers and generative AI, on March 25, 2026, the United States Supreme Court unanimously held in the Cox Communications, Inc. v. Sony Music Entertainment that an internet service provider is not contributorily liable for copyright infringement solely on a provider’s knowledge of infringement and failure to take sufficient action to prevent infringement. Rather, liability arises only where the provider intended that its service be used to facilitate infringement. What Happened? Cox Communications is an internet service provider serving six million subscribers. Sony Music is a major music copyright owner. Sony sent Cox over 163,000 notices identifying IP addresses of Cox subscribers associated with infringing activity. Sony then sued Cox in federal district court, advancing claims of secondary copyright liability. The jury originally found in favor of Sony Music on both theories and awarded $1 billion in statutory damages. The Fourth Circuit affirmed, reasoning that knowledge that the recipient of the service will use the service to infringe copyrights is sufficient for contributory infringement. The Supreme Court reversed that decision. The Supreme Court’s Decision The Court held Cox was not contributorily liable for the individual users’ infringement because Cox did not intend that its internet service be used for infringement. Such intent can be shown only if the service provider induced the infringement or provided a service that is tailored to infringement. The Court further held that inducement can only be shown through specific acts, such as promoting or marketing the service as a tool to infringe, and that a service is tailored to infringement only if it is not capable of a substantial or commercially significant non-infringing use. Importantly, the Court held that a service provider’s failure to take affirmative steps to prevent infringement by users, even though it was aware of and profiting from that activity, is not sufficient for secondary liability. The opinion emphasized that it may be difficult for a service provider to determine that its services were used for infringement. For example, many internet service subscribers provide connections to multiple different people (e.g., a household, coffee shop, or college dormitory), and network traffic from all such users will ordinarily originate from a single internet address. The Court reasoned that it would be extremely difficult, in many cases impossible, for a service provider to determine which individual was infringing. The Court also noted that a service provider cannot directly control how subscribers use their services. Thus, without evidence of express promotion, marketing, or intent to promote infringement, a service provider’s mere knowledge that infringement was occurring through its services was insufficient to hold the service provider contributorily liable for it. Justice Sotomayor, joined by Justice Jackson, concurred in judgment only, holding the majority unnecessarily limited secondary liability even though common-law theories, such as aiding and abetting, could be applicable to copyright cases, and that the majority dismantled the statutory incentive structure created in the Digital Millennium Copyright Act (“DMCA”). Why it Matters This decision limits the scope of contributory copyright liability for internet service providers in key respects. By requiring evidence of express promotion, marketing, or intent to promote infringement, rather mere knowledge of it and the failure to stop infringing activity, the decision shifts much of the burden of policing the internet for copyright infringement from service providers to copyright holders. Major commercial service providers are unlikely to meet the newly articulated standard for liability. Copyright owners have noted for some time that the DMCA’s balance is tilted too far in favor of service providers. This decision will tilt the scales further. Copyright owners thus will be increasingly dependent on their own policing efforts in pursuing individual infringers directly, which is logistically difficult for similar reasons to those noted by the Court. Once infringing content is removed, on-line infringers can simply re-post it with the push of a button, requiring copyright owners to send repeated takedowns, and the service providers have little legal incentive to disable such accounts. This may result in greater emphasis on enforcement strategies that leverage technical limitations, rather than legal remedies, which could make copyrighted material more difficult to obtain and use electronically.  It should be recognized that the DMCA safe harbor framework, including notice and takedown obligations, remains in place. Thus, service providers still must comply with the DMCA’s notice-and-takedown procedures to enjoy the benefits of the so-called “safe harbor” provisions, which immunize service providers from contribution infringement claims in certain circumstances. Further, the quantity of takedown requests may increase due to this ruling.  If you have questions about copyright infringement or secondary liability in light of this decision, please contact a member of our Intellectual Property team to discuss how these developments may affect your business, compliance obligations, and enforcement strategies going forward.