Court filing
SBA's Response to Plaintiffs' Statement of Material Facts — WP Co. v. SBA
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The defendant's response to the plaintiffs' statement of undisputed material facts in WP Company LLC d/b/a The Washington Post v. U.S. Small Business Administration, Case No. 1:20-cv-01240 (JEB), in the U.S. District Court for the District of Columbia, filed September 22, 2020 as Document 20-1. Submitted under Federal Rule of Civil Procedure 56, it answers the statement filed with the plaintiffs' summary judgment motion at Doc. 18-2, setting out each numbered paragraph and the agency's response. It states that most of the 25 paragraphs are not material to the pending motions for summary judgment, or state legal conclusions, so no response is required. The paragraphs addressed include the plaintiffs' figures of $525,012,201,124 in approved Paycheck Protection Program loans and $188,022,021,024 in disaster loans. The 13-page filing is signed by attorneys of the Department of Justice.
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No. 1:20-cv-01240-JEB · Doc. 20-1 · Docket on CourtListener
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Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 1 of 13
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WP COMPANY LLC d/b/a THE
WASHINGTON POST, BLOOMBERG
L.P., DOW JONES & COMPANY, INC.,
PRO PUBLICA, INC., THE NEW YORK
TIMES COMPANY, AMERICAN
BROADCASTING COMPANIES, INC.
d/b/a ABC NEWS, AMERICAN CITY
BUSINESS JOURNALS, CABLE NEWS
NETWORK, INC., NBCUNIVERSAL
MEDIA, LLC d/b/a NBC NEWS, THE
ASSOCIATED PRESS, THE CENTER FOR
INVESTIGATIVE REPORTING
d/b/a REVEAL,
Case No. 1:20-cv-01240
(JEB)
Plaintiffs,
v.
U.S. SMALL BUSINESS
ADMINISTRATION,
Defendant.
DEFENDANT’S RESPONSE TO
PLAINTIFFS’ STATEMENT OF UNDISPUTED MATERIAL FACTS
Dated: September 22, 2020
JEFFREY BOSSERT CLARK INDRANEEL SUR
Acting Assistant Attorney General JAMES BICKFORD
Trial Attorneys
ELIZABETH J. SHAPIRO
Deputy Branch Director Federal Programs Branch,
Civil Division
United States Department of Justice
P.O. Box 883
Washington, D.C. 20044
Telephone: (202) 616-8448
E-mail: Indraneel.Sur@usdoj.gov
Counsel for Defendant
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 2 of 13
Under Federal Rule of Civil Procedure 56, Defendant submits this response to
Plaintiffs’ statement of material facts in support of Plaintiffs’ motion for summary judgment
(Doc. 18-2). Defendant notes that this response is solely designed to respond to Plaintiffs’
statement of undisputed material facts (Doc. 18-2), by identifying which of the factual grounds
for Plaintiffs’ motion are not undisputed in Plaintiffs’ favor. In light of Defendant’s separate
motion for summary judgment, the use of the word “disputed” or similar references herein
should not be construed to mean that Defendant believes that there are genuine issues of fact
that would necessitate a trial. Rather, such language simply means that Defendant disputes
Plaintiffs’ statement regarding that matter. Defendant maintains its position that there are no
genuine issues of material fact with respect to the grounds entitling Defendant to summary
judgment.
Where Defendant represents herein that a statement of material fact is “undisputed” in
whole or in part, such a statement applies exclusively to this action and does not constitute an
admission for any other purposes, including any other administrative or judicial determinations
or proceedings.
Allegations and purported facts that are not material are not properly included in a
statement of undisputed material facts. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
48 (“As to materiality, the substantive law will identify which facts are material. Only disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude entry of summary judgment. Factual disputes that are irrelevant or unnecessary will
not be counted.”).
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 3 of 13
The format of this document is as follows. The text of the facts originally alleged in
Plaintiffs’ statement is set forth in italics at the beginning of each paragraph. The balance of
each numbered paragraph contains Defendant’s response as to that particular alleged fact.
1. To date, COVID-19 is believed to have infected at least 6,301,649 people and killed
189,226 people in the United States alone. See Johns Hopkins Univ. & Med., Coronavirus
Resource Center: Global Map, https://coronavirus.jhu.edu/map.html.
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required.
2. To date, the SBA reports having approved $525,012,201,124 in loans under the
Paycheck Protection Program (“PPP”). See SBA, Paycheck Protection Program (PPP)
Report: Approvals through Aug. 8, 2020, https://www.sba.gov/sites/default/files/2020-
08/PPP_Report%20-%202020-08-10-508.pdf at 2.
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required.
3. To date, the SBA reports having approved $188,022,021,024 in COVID-related loans
under the Economic Impact Disaster Loan (“EIDL”) program. See SBA, Disaster Assistance
Update: Nationwide EIDL Loans, https://www.sba.gov/sites/default/files/2020-
08/EIDL%20COVID-19%20Loan%208.24.20-508.pdf at 2.
2
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 4 of 13
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required.
4. Together, this $713 billion is more than the government spent on Medicaid in
Fiscal Year 2018, see Ctrs. for Medicare & Medicaid Servs., NHE Fact Sheet, Mar. 14, 2020,
https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-
Reports/NationalHealthExpendData/NHE-Fact-Sheet, and more than the President has
requested for the Department of Defense’s entire Fiscal Year 2021 budget, see Dep’t of Def.,
DoD Budget Request, https://comptroller.defense.gov/Budget-Materials/.
RESPONSE: This paragraph does not set forth facts that are material to the outcome
of the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-
48. Accordingly, no response is required.
5. Press reports have identified seemingly well capitalized public companies
among the PPP loan recipients. See, e.g., Inti Pacheco & Theo Francis, Public Companies Got
$500 Million in Small Business Loans, The Wall Street Journal, Apr. 22, 2020,
https://www.wsj.com/articles/these-are-the-public-companies-that-got-small-business-loans-
11587493742.
RESPONSE: This paragraph does not set forth facts that are material to the outcome
of the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-
48. Accordingly, no response is required. Moreover, news reports generally are
inadmissible hearsay and may not be considered for the truth of the proposition asserted
3
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 5 of 13
in support of a motion for summary judgment.
6. On May 8, 2020, the U.S. House of Representatives Select Subcommittee on the
Coronavirus Crisis sent letters to several PPP borrowers “demanding that [these] large, public
corporations immediately return taxpayer funds that Congress intended for small businesses
struggling to survive during the coronavirus crisis.” See House Comm. on Oversight & Reform,
In First Official Action, House Coronavirus Panel Demands That Large Public Corporations
Return Taxpayer Funds Intended for Small Businesses, May 8, 2020,
https://oversight.house.gov/news/press-releases/in-first-official-action-house-coronavirus-
panel- demands-that-large-public
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required.
7. The press and public have questioned whether businesses that were unable to
secure PPP loans were hindered in their attempts by race or geography. See, e.g., Ben Popken,
Why are so many black-owned small businesses shut out of PPP loans?, NBC News, Apr. 29,
2020, https://www.nbcnews.com/business/business-news/why-are-so-many-black-owned-small-
businesses-shut-out-n1195291; Aaron Glantz, Bailout money bypasses hard-hit New
York,California for North Dakota, Nebraska, Reveal, Apr. 23, 2020,
https://www.revealnews.org/article/bailout-money-bypasses-hard-hit-new-york-california-for-
north-dakota-nebraska/.
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
4
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 6 of 13
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required. Moreover, news reports generally are
inadmissible hearsay and may not be considered for the truth of the proposition asserted
in support of a motion for summary judgment.
8. On May 8, 2020, the SBA’s Office of Inspector General issued a “Flash Report”
on the agency’s implementation of the PPP, finding several “areas . . . that did not fully align
with the [CARES] Act’s provisions,” including that the “SBA did not provide guidance to
lenders about prioritizing borrowers in underserved and rural markets,” such that “these
borrowers, including rural, minority and women-owned businesses may not have received the
loans as intended.” See SBA Inspector Gen., Flash Report: Small Business Administration’s
Implementation of the Paycheck Protection Program’s Requirements, May 8, 2020,
https://www.sba.gov/sites/default/files/2020-05/SBA_OIG_Report_20-14_508.pdf at 4.
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required.
9. On May 5, 2020, the Department of Justice announced that “the first individuals
in the nation” had been “charged with allegedly defrauding the CARES Act SBA Paycheck
Protection Program.” See Dep’t of Justice, Two Charged in Rhode Island with Stimulus Fraud,
May 5, 2020, https://www.justice.gov/opa/pr/two-charged-rhode-island-stimulus-fraud.
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
5
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 7 of 13
Accordingly, no response is required.
10. To date, “[t]he Justice Department has made at least 41 criminal complaints in
federal court against nearly 60 people, who collectively took $62 million from the [PPP].” See
Stacy Cowley, Spotting $62 Million in Alleged P.P.P. Fraud Was the Easy Part, The New York
Times, Aug. 28, 2020, https://www.nytimes.com/2020/08/28/business/ppp-small-business-fraud-
coronavirus.html at 1.
RESPONSE: This paragraph does not set forth facts that are material to the outcome
of the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-
48. Accordingly, no response is required.
11. SBA Inspector General Hannibal Ware has characterized these prosecutions as
“the smallest, tiniest piece of the tip of the iceberg.” Id.
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required.
12. The SBA’s “fraud hotline, which received fewer than 800 calls last year, has
already had 42,000 reports about coronavirus-linked graft.” Id. at 2.
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required.
13. Representative Mary Gay Scanlon has asked the SBA to investigate whether
6
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 8 of 13
Buca Restaurants Inc. received PPP funds in connection with a restaurant located in the
Philadelphia suburbs that had been closed for seven years. See Jacob Adelman, Philly-area
congresswoman seeks answers on bogus report of PPP loan to long-closed Buca di Beppo
restaurant in Wynnewood, The Philadelphia Inquirer, Aug. 13, 2020,
https://www.inquirer.com/news/ppp-wynnewood-buca-di-beppo-scanlon-coronavirus-relief-
loan-trump-mnuchin-20200813.html.
RESPONSE: This paragraph does not set forth facts that are material to the outcome
of the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-
48. Accordingly, no response is required. Moreover, news reports generally are
inadmissible hearsay and may not be considered for the truth of the proposition asserted
in support of a motion for summary judgment.
14. Throughout April and May 2020, Plaintiffs submitted Freedom of Information
Act (“FOIA”) requests to the SBA for records about the SBA’s COVID-related loan programs,
including the PPP and EIDL. See Am. Compl. (Dkt. 5), Exs. 1, 2, 5, 9, 12, 13, 14, 18, 20, 24, 27,
29, 31, 33, and 35.
RESPONSE: Undisputed.
15. The SBA either failed to respond to these requests within 20 working days or it
issued responses stating that, at some indefinite point “[i]n the future,” the agency hoped “to
turn [its] efforts to providing loan specific data to the public.” See, e.g., Am. Compl., Ex. 3.
RESPONSE: This paragraph sets forth a legal conclusion rather than a statement of
fact. Accordingly, no response is required. To the extent a response is deemed required,
7
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 9 of 13
Defendant respectfully refers the Court to the correspondence between Plaintiffs and SBA for a
full and accurate statement of the contents of that correspondence.
16. The SBA’s responses to Plaintiffs’ FOIA requests provided no concrete
indication of what the data would include or when the data would actually be made available.
RESPONSE: This paragraph sets forth a legal conclusion rather than a statement of
fact. Accordingly, no response is required. To the extent a response is deemed required,
Defendant respectfully refers the Court to the correspondence between Plaintiffs and SBA for a
full and accurate statement of the contents of that correspondence.
17. Tens of thousands of non-profits received PPP loans, see Christian Berthelsen,
Carnegie Hall Is Among Cultural Sites That Got PPP Aid, Bloomberg, July 6, 2020,
https://www.bloomberg.com/news/articles/2020-07-06/carnegie-hall-whitney-museum-and-s-f-
symphony-got-ppp-loans, and these organizations annually report total salaries, other
compensation, and employee benefits on their IRS Form 990s, which in turn are made public,
see, e.g., Ken Schwencke et al., Nonprofit Explorer, ProPublica, June 17, 2020,
https://projects.propublica.org/nonprofits/.
RESPONSE: This paragraph does not set forth facts that are material to the outcome
of the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-
48. Accordingly, no response is required. Moreover, news reports generally are
inadmissible hearsay and may not be considered for the truth of the proposition asserted
in support of a motion for summary judgment.
18. PPP borrowers did not all receive the maximum loan amount available to them.
8
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 10 of 13
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required. Insofar as a response is deemed required, undisputed.
19. Businesses that pay salaries of greater than $100,000 received PPP loans.
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required. Insofar as a response is deemed required, undisputed.
20. The PPP loan application stated to potential borrowers that “[i]nformation
about approved loans will be automatically released,” including “the names of the borrowers”
and “the amount of the loan.” See SBA, Paycheck Protection Program Borrower Application
Form, https://www.sba.gov/sites/default/files/2020-07/PPP-Borrower-Application-Form-
508.pdf at 4.
RESPONSE: This paragraph sets forth a legal conclusion rather than a statement of
fact. Accordingly, no response is required. To the extent a response is deemed required,
Defendant respectfully refers the Court to the cited document for a full and accurate statement
of its contents.
21. The Federal Funding Accountability and Transparency Act of 2006 provides
that the Office of Management and Budget “shall” publish on the Internet the “name of the
entity receiving the award” and “the amount of the award” for “[f]ederal award[s]” of
$25,000.00 or more, where “[f]ederal award” is defined specifically to include “loans . . . and
other forms of financial assistance.” 31 U.S.C. § 6101 note § 2(a)(4) & (b)(1)(A)-(B).
9
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 11 of 13
RESPONSE: This paragraph sets forth a legal conclusion rather than a statement of fact.
Accordingly, no response is required.
22. The COVID-19 EIDL loan application stated to potential borrowers that FOIA
generally requires the SBA to release “information such as names of borrowers” as well as
“loan amounts at maturity.” See SBA, COVID-19 Economic Injury Disaster Loan Application,
https://www.sba.gov/sites/default/files/articles/SBA_Form_3501_Economic_Injury_Disaster_L
oan_Application.pdf at 12.
RESPONSE: This paragraph sets forth a legal conclusion rather than a statement of
fact. Accordingly, no response is required. To the extent a response is deemed required,
Defendant respectfully refers the Court to the cited document for a full and accurate statement
of its contents.
23. Congress established the Pandemic Response Accountability Committee “to
promote transparency and conduct and support oversight of covered funds and the Coronavirus
response” and, inter alia, “prevent and detect fraud, waste, abuse, and mismanagement.” See
Coronavirus Aid, Relief, and Economic Security Act, Public Law No. 116-136 § 15010(b).
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required.
24. Members of Congress are currently proposing “[t]o provide automatic
forgiveness for [PPP] loans under $150,000.” See Paycheck Protection Small Business
Forgiveness Act, S. 4117 & H.R. 7777, https://www.congress.gov/bill/116th-congress/senate-
10
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 12 of 13
bill/4117/text & https://www.congress.gov/bill/116th-congress/house-bill/7777/text.
RESPONSE: This paragraph does not set forth facts that are material to the outcome of
the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required.
25. The SBA gave “blanket approval” for “lawmakers, [SBA] staff, and other
federal officials and their families” to obtain PPP loans. See Jonathan O’Connell & Aaron
Gregg, SBA exempted lawmakers, federal officials from ethics rules in $660 billion loan
program, The Washington Post, June 26, 2020,
https://www.washingtonpost.com/business/2020/06/26/sba-exempted-lawmakers-federal-
officials-ethics-rules-660-billion-loan-program/ at 1.
RESPONSE: This paragraph does not set forth facts that are material to the outcome
of the parties’ pending motions for summary judgment. See Anderson, 477 U.S. at 247-48.
Accordingly, no response is required. Moreover, news reports generally are inadmissible
hearsay and may not be considered for the truth of the proposition asserted in support of a
motion for summary judgment.
11
Case 1:20-cv-01240-JEB Document 20-1 Filed 09/22/20 Page 13 of 13
Dated: September 22, 2020 Respectfully submitted,
JEFFREY BOSSERT CLARK /s/ INDRANEEL SUR
Acting Assistant Attorney General INDRANEEL SUR
Trial Attorney
ELIZABETH J. SHAPIRO
Deputy Branch Director JAMES BICKFORD
Trial Attorney
Federal Programs Branch,
Civil Division
United States Department of Justice
P.O. Box 883
Washington, D.C. 20044
Telephone: (202) 616-8448
E-mail: Indraneel.Sur@usdoj.gov
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