Sullivan
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Biography

Jeff leads Sullivan’s Finance Practice Group. He advises both public and private clients in a range of corporate matters with a focus on financing transactions and securities law compliance.

He has more than a decade of experience representing financial institutions, public and private companies involved in a variety of industries, family offices and high net-worth individuals in secured and unsecured credit facilities, including large syndicated facilities and single-lender financings.

Jeff also counsels real estate investment trusts and other domestic and international companies in public equity and debt offerings and regularly advises clients regarding general disclosure and securities compliance matters. His clients vary in size from smaller reporting companies to well-known seasoned issuers.

Jeff was recognized from 2016 through 2020 as a “Rising Star” by Massachusetts Super Lawyers, and has been quoted in The Boston Globe and the Boston Business Journal. He presented at the inaugural live Q&A for The Boston Globe’s Small Business Community, as well as at multiple panels and webinars for the Association of Corporate Counsel, Northeast Chapter, the Massachusetts Society of CPAs and Massachusetts Lawyers Weekly.

Jeff formerly taught as an adjunct professor in the first-year legal writing program at Boston University School of Law from 2014 to 2017, and has been an active guest lecturer on various transactional and other topics at Boston University School of Law, Syracuse University College of Law and Notre Dame Law School.

He previously served as a member of the Board of Directors of the Massachusetts Bar Association, Young Lawyers Division, and as Co-Chair of the Recently Elected Partners Forum of the Boston Bar Association.

Jeff served as the Chair of Sullivan’s Hiring Committee from 2021 through 2024 and as the Director of Sullivan’s Summer Associate Program from 2019 through 2021.

During law school, he served as judicial intern for the Honorable Frank M. Ciuffani, J.S.C., Superior Court of New Jersey.

Education
  • Syracuse University College of Law (J.D., cum laude)
  • Emory University (B.A.)
Bar & Court Admissions
  • Massachusetts
  • New York
Professional Qualifications
  • Co-Chair, Recently Elected Partners Forum, Boston Bar Association (2019-2021)
  • Board of Directors, Massachusetts Bar Association, Young Lawyers Division (2011-2017)
  • Adjunct Professor, First-Year Legal Writing Program, Boston University School of Law (2014-2017)
  • Accelerator Program, Association for Corporate Growth (2014-2015)
  • Business Editor, Syracuse Law Review (2008-2009)
Awards & Honors
  • Ranked in The Legal 500 Boston Elite for Banking and Finance (Including Restructuring) (2026)
  • "Rising Star," Massachusetts Super Lawyers (2016-2020)
  • Justinian Honor Society
Languages
  • Spanish
Viewpoints
All Viewpoints
Are Syndicated Term Loans Securities? The Second Circuit Says No.
On February 20, 2024, the United States Supreme Court denied a petition for certiorari over this case, thereby leaving in place the decision of the Second Circuit Court of Appeals that syndicated term loans are not securities. On August 24, 2023, the Second Circuit Court of Appeals determined in the highly anticipated case, Kirschner v. JP Morgan Chase Bank N.A., et al., that syndicated term loans are not securities. The Court upheld the district court’s decision and affirmed the market’s long-standing expectation that syndicated term loans are not securities.   Why Does It Matter? When it comes to their most basic mechanics, bonds and loans are essentially the same – one party gives money to another party with the expectation that the receiving party will pay it back at some agreed time with interest. Now, that is of course an extreme oversimplification, as bonds and loans differ greatly from one another – one significant difference being that bonds have generally been considered to be securities whereas loans have not – but why does that matter? Among many other reasons, being a loan versus being a security subjects the parties involved in the transactions to different rules and regulations. So, when a case came forward that opened the door to a finding that a loan is a security, thereby potentially subjecting the parties involved in loan transactions to securities laws, people paid attention.  What Happened? We won’t go too far into the weeds on the case itself, but suffice it to say, the Court’s decision hinged on whether the term loans at issue were securities. To make that determination, the Court applied the following four-factor test laid out by the United States Supreme Court in Reves v. Ernst & Young: 1.    Motivations of the Seller and Buyer. Simply put, the Court found that the lender’s motivation for entering the transaction was for investment purposes (suggesting more of a securities vibe) whereas the borrower’s motivation was for commercial purposes (suggesting less of a securities vibe). In the end, the Court leaned more heavily on the lender’s motivation on this first factor, but as we note below, it was not enough to outweigh the Court’s findings on the remaining three factors. 2.    The plan of distribution of the debt instrument. Because the term loans were only offered to sophisticated institutional entities with restrictions on transfer that rendered the term loans unavailable to the general public, as opposed to offering and selling the term loans to a broad segment of the public, the Court weighed this factor in favor of the term loans not being securities.  3.    The reasonable expectations of the investing public. The Court concluded that the lenders involved in this loan transaction received sufficient notice regarding the details of the term loans and had certified that they were sophisticated and experienced in this type of lending transaction and had done their own due diligence into the borrower. The applicable instruments also referred to the buyers as “lenders” more frequently than as “investors,” tipping the analysis in favor of a finding that the term loans were not securities. 4.    Whether another regulatory scheme exists that reduces the investment risk of the instrument, making securities regulation unnecessary. Because the term loans were secured by collateral and subject to federal banking regulators who have issued guidance regarding syndicated term loans, the Court found that there was another regulatory scheme in place that reduced the investment risk of the term loans, thereby making securities regulation unnecessary.  As a result, the Court held that while the first factor weighed in favor of a finding that the term loans were securities, the other three factors weighed in favor of a finding that the term loans were not securities, and these factors were sufficient to affirm the lower court’s finding and the market’s long-standing practice of not treating term loans as securities. What Did We Learn? At the end of the day, the syndicated loan market can rest easy knowing that their existing market practices generally conform to the test set forth above. Nevertheless, the Court did not determine that all syndicated term loans are not securities, so these factors should be considered in detail when entering into any new syndicated term loan transaction to help reduce the risk of inadvertently trading in securities and becoming subject to securities laws. 
Cooking Up Pandemic Relief: the Restaurant Revitalization Fund and Grants to Food and Beverage Providers
In March 2021, the American Rescue Plan Act of 2021 (the “Act”) was signed into law. The Act provides for $1.9 trillion of relief to many individuals and businesses overcoming the economic impact caused by the COVID-19 pandemic. Among the Act’s intended recipients are food service providers and adult beverage producers, who may be eligible for grants under the newly established Restaurant Revitalization Fund (the “Fund”). The Small Business Administration (“SBA”) will administer the Fund and distribute up to $28.6 billion in grants to eligible restaurants and similar establishments, $5 billion of which is preliminarily earmarked for eligible businesses with gross receipts during 2019 of not more than $500,000. Which Businesses are Eligible? As you might guess from the name of the Fund, restaurants are of course eligible. Eligible to receive a grant in addition to conventional restaurants are food stands, food trucks and carts, caterers, bars and saloons, taverns, inns, lounges, brewpubs, tasting rooms, taprooms, licensed facilities or premises of a beverage alcohol producer where the public may taste, sample or purchase products, or other similar places of business in which the public or patrons assemble for the primary purpose of being served food or drink, including those located in an airport terminal or businesses that are tribally-owned. As a result, the Fund may prove critical for many businesses, including struggling craft breweries, distilleries and wineries. While many businesses are eligible for a grant from the Fund, businesses with more than twenty locations, public companies and government-operated providers are ineligible. In addition, some live venue operators who applied for certain grants under the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act are also ineligible. How much Money can a Business Receive from the Fund and How must it be Spent? A single-location business may receive a grant in an amount of up to $5 million. A business with two or more locations may receive a grant in an amount of up to $10 million. Generally, the amount a business will receive will be equal to the pandemic-related revenue loss of the business. In calculating the amount of the grant to a business, the SBA will generally compare a business’ 2019 and 2020 revenues. Funds may be used in a similar manner to those funds received for Paycheck Protection Program (“PPP”) loans. That is, funds from a grant must be spent on certain payroll costs, payments of principal or interest on mortgage obligations, rent payments, utilities, maintenance expenses, supplies, food and beverage expenses, covered supplier costs, operational expenses, paid sick leave and any other expenses the SBA determines to be essential to maintaining the business. It is also important to note that funds must be used by December 31, 2021 or may need to be returned to the U.S. Treasury. Can PPP Loan Recipients Receive Grants from the Fund? Yes, an otherwise eligible business may receive a Fund grant even if it previously received a loan under the PPP; the SBA will deduct any PPP loan amounts from such grant, however. It is important to note that the Fund’s distributions are grants. By contrast, previous relief programs, such as the PPP, generally provided loans (though potentially forgivable loans) to eligible businesses. How can a Business Apply for a Grant? The SBA will administer the Fund’s distribution. Unfortunately, as of the date of this advisory, the SBA’s application process is not yet open. Nonetheless, we expect the application to be available on the SBA’s website and, once available, that applications will be submitted directly through the SBA’s website (as opposed to being submitted through approved banks as is the case for the PPP). Similar to that for the PPP, however, applicants will need to make a good faith certification along with their application that the uncertainty of current economic conditions makes necessary the grant request to support the ongoing operations of the business. In addition, businesses owned and controlled by women and veterans and certain other socially and economically disadvantaged small businesses will receive priority for the first three weeks of the application period. Even if your business is not expected to receive priority, any eligible business should prepare to submit its application as soon as possible, as grants are otherwise made on a first-come first-served basis. Your business can prepare for the Act’s application process and keep up-to-date on other pandemic relief programs by consulting with your primary Sullivan attorney or reaching out to the authors of this advisory.
Sullivan & Worcester Ranked in The Legal 500 Boston Elite 2026
Boston, MA – Sullivan is excited to announce that its practice groups and attorneys have been ranked in The Legal 500 Boston Elite 2026. The Boston Elite rankings highlight attorneys in the Boston region who are widely regarded for their substantive experience and client service in their respective fields. Sullivan's lawyers received the following rankings: William Hanson - Banking and Finance (Including Restructuring) Jeffrey Morlend - Banking and Finance (Including Restructuring) Duncan O'Brien - Banking and Finance (Including Restructuring) Amy Zuccarello - Banking and Finance (Including Restructuring) Laura Steinberg - Commercial Disputes; White-Collar Crime Zachary Hyde - Intellectual Property Thomas Meyers - Intellectual Property The firm was also recognized as a “Leading Law Firm” in the Banking and Finance (Including Restructuring) practice area. About Sullivan & Worcester LLP Sullivan & Worcester (Sullivan) is a premier international law firm with lawyers in Boston, London, New York, Tel Aviv and Washington, D.C. Sullivan’s clients, including Fortune 500 companies, leading financial services firms and asset managers, boards of directors, real estate companies, and emerging businesses, rely on Sullivan’s ability to navigate complex legal and operational landscapes, the impeccable judgment of its lawyers, and its commitment to best-in-class client service.
SBA has Opened its PPP Forgiveness Portal. Here's Why Many Small Businesses Will Have to Wait
Jeffrey Morlend was quoted in the article "SBA Has Opened its PPP Forgiveness Portal. Here's Why Many Small Businesses Will Have to Wait," which was published in the Boston Business Journal [sub. req'd]. Jeff comments on how banks are taking a wait-and-see approach to what has become a series of changing PPP requirements and shifting guidance and the expectation of additional changes in the future. He states that "they want to see how things go, and if guidance does come out or if the application is revised then they want to be able to wrap their heads around it and get their internal processes up to date before they start accepting applications. The number of applications that are going to flood in once the gates are open is pretty significant."

Jeffrey B. Morlend

Jeff leads Sullivan’s Finance Practice Group. He advises both public and private clients in a range of corporate matters with a focus on financing transactions and securities law compliance.

He has more than a decade of experience representing financial institutions, public and private companies involved in a variety of industries, family offices and high net-worth individuals in secured and unsecured credit facilities, including large syndicated facilities and single-lender financings.

Jeff also counsels real estate investment trusts and other domestic and international companies in public equity and debt offerings and regularly advises clients regarding general disclosure and securities compliance matters. His clients vary in size from smaller reporting companies to well-known seasoned issuers.

Jeff was recognized from 2016 through 2020 as a “Rising Star” by Massachusetts Super Lawyers, and has been quoted in The Boston Globe and the Boston Business Journal. He presented at the inaugural live Q&A for The Boston Globe’s Small Business Community, as well as at multiple panels and webinars for the Association of Corporate Counsel, Northeast Chapter, the Massachusetts Society of CPAs and Massachusetts Lawyers Weekly.

Jeff formerly taught as an adjunct professor in the first-year legal writing program at Boston University School of Law from 2014 to 2017, and has been an active guest lecturer on various transactional and other topics at Boston University School of Law, Syracuse University College of Law and Notre Dame Law School.

He previously served as a member of the Board of Directors of the Massachusetts Bar Association, Young Lawyers Division, and as Co-Chair of the Recently Elected Partners Forum of the Boston Bar Association.

Jeff served as the Chair of Sullivan’s Hiring Committee from 2021 through 2024 and as the Director of Sullivan’s Summer Associate Program from 2019 through 2021.

During law school, he served as judicial intern for the Honorable Frank M. Ciuffani, J.S.C., Superior Court of New Jersey.

Viewpoints
All Viewpoints
Are Syndicated Term Loans Securities? The Second Circuit Says No.
On February 20, 2024, the United States Supreme Court denied a petition for certiorari over this case, thereby leaving in place the decision of the Second Circuit Court of Appeals that syndicated term loans are not securities. On August 24, 2023, the Second Circuit Court of Appeals determined in the highly anticipated case, Kirschner v. JP Morgan Chase Bank N.A., et al., that syndicated term loans are not securities. The Court upheld the district court’s decision and affirmed the market’s long-standing expectation that syndicated term loans are not securities.   Why Does It Matter? When it comes to their most basic mechanics, bonds and loans are essentially the same – one party gives money to another party with the expectation that the receiving party will pay it back at some agreed time with interest. Now, that is of course an extreme oversimplification, as bonds and loans differ greatly from one another – one significant difference being that bonds have generally been considered to be securities whereas loans have not – but why does that matter? Among many other reasons, being a loan versus being a security subjects the parties involved in the transactions to different rules and regulations. So, when a case came forward that opened the door to a finding that a loan is a security, thereby potentially subjecting the parties involved in loan transactions to securities laws, people paid attention.  What Happened? We won’t go too far into the weeds on the case itself, but suffice it to say, the Court’s decision hinged on whether the term loans at issue were securities. To make that determination, the Court applied the following four-factor test laid out by the United States Supreme Court in Reves v. Ernst & Young: 1.    Motivations of the Seller and Buyer. Simply put, the Court found that the lender’s motivation for entering the transaction was for investment purposes (suggesting more of a securities vibe) whereas the borrower’s motivation was for commercial purposes (suggesting less of a securities vibe). In the end, the Court leaned more heavily on the lender’s motivation on this first factor, but as we note below, it was not enough to outweigh the Court’s findings on the remaining three factors. 2.    The plan of distribution of the debt instrument. Because the term loans were only offered to sophisticated institutional entities with restrictions on transfer that rendered the term loans unavailable to the general public, as opposed to offering and selling the term loans to a broad segment of the public, the Court weighed this factor in favor of the term loans not being securities.  3.    The reasonable expectations of the investing public. The Court concluded that the lenders involved in this loan transaction received sufficient notice regarding the details of the term loans and had certified that they were sophisticated and experienced in this type of lending transaction and had done their own due diligence into the borrower. The applicable instruments also referred to the buyers as “lenders” more frequently than as “investors,” tipping the analysis in favor of a finding that the term loans were not securities. 4.    Whether another regulatory scheme exists that reduces the investment risk of the instrument, making securities regulation unnecessary. Because the term loans were secured by collateral and subject to federal banking regulators who have issued guidance regarding syndicated term loans, the Court found that there was another regulatory scheme in place that reduced the investment risk of the term loans, thereby making securities regulation unnecessary.  As a result, the Court held that while the first factor weighed in favor of a finding that the term loans were securities, the other three factors weighed in favor of a finding that the term loans were not securities, and these factors were sufficient to affirm the lower court’s finding and the market’s long-standing practice of not treating term loans as securities. What Did We Learn? At the end of the day, the syndicated loan market can rest easy knowing that their existing market practices generally conform to the test set forth above. Nevertheless, the Court did not determine that all syndicated term loans are not securities, so these factors should be considered in detail when entering into any new syndicated term loan transaction to help reduce the risk of inadvertently trading in securities and becoming subject to securities laws. 
Cooking Up Pandemic Relief: the Restaurant Revitalization Fund and Grants to Food and Beverage Providers
In March 2021, the American Rescue Plan Act of 2021 (the “Act”) was signed into law. The Act provides for $1.9 trillion of relief to many individuals and businesses overcoming the economic impact caused by the COVID-19 pandemic. Among the Act’s intended recipients are food service providers and adult beverage producers, who may be eligible for grants under the newly established Restaurant Revitalization Fund (the “Fund”). The Small Business Administration (“SBA”) will administer the Fund and distribute up to $28.6 billion in grants to eligible restaurants and similar establishments, $5 billion of which is preliminarily earmarked for eligible businesses with gross receipts during 2019 of not more than $500,000. Which Businesses are Eligible? As you might guess from the name of the Fund, restaurants are of course eligible. Eligible to receive a grant in addition to conventional restaurants are food stands, food trucks and carts, caterers, bars and saloons, taverns, inns, lounges, brewpubs, tasting rooms, taprooms, licensed facilities or premises of a beverage alcohol producer where the public may taste, sample or purchase products, or other similar places of business in which the public or patrons assemble for the primary purpose of being served food or drink, including those located in an airport terminal or businesses that are tribally-owned. As a result, the Fund may prove critical for many businesses, including struggling craft breweries, distilleries and wineries. While many businesses are eligible for a grant from the Fund, businesses with more than twenty locations, public companies and government-operated providers are ineligible. In addition, some live venue operators who applied for certain grants under the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act are also ineligible. How much Money can a Business Receive from the Fund and How must it be Spent? A single-location business may receive a grant in an amount of up to $5 million. A business with two or more locations may receive a grant in an amount of up to $10 million. Generally, the amount a business will receive will be equal to the pandemic-related revenue loss of the business. In calculating the amount of the grant to a business, the SBA will generally compare a business’ 2019 and 2020 revenues. Funds may be used in a similar manner to those funds received for Paycheck Protection Program (“PPP”) loans. That is, funds from a grant must be spent on certain payroll costs, payments of principal or interest on mortgage obligations, rent payments, utilities, maintenance expenses, supplies, food and beverage expenses, covered supplier costs, operational expenses, paid sick leave and any other expenses the SBA determines to be essential to maintaining the business. It is also important to note that funds must be used by December 31, 2021 or may need to be returned to the U.S. Treasury. Can PPP Loan Recipients Receive Grants from the Fund? Yes, an otherwise eligible business may receive a Fund grant even if it previously received a loan under the PPP; the SBA will deduct any PPP loan amounts from such grant, however. It is important to note that the Fund’s distributions are grants. By contrast, previous relief programs, such as the PPP, generally provided loans (though potentially forgivable loans) to eligible businesses. How can a Business Apply for a Grant? The SBA will administer the Fund’s distribution. Unfortunately, as of the date of this advisory, the SBA’s application process is not yet open. Nonetheless, we expect the application to be available on the SBA’s website and, once available, that applications will be submitted directly through the SBA’s website (as opposed to being submitted through approved banks as is the case for the PPP). Similar to that for the PPP, however, applicants will need to make a good faith certification along with their application that the uncertainty of current economic conditions makes necessary the grant request to support the ongoing operations of the business. In addition, businesses owned and controlled by women and veterans and certain other socially and economically disadvantaged small businesses will receive priority for the first three weeks of the application period. Even if your business is not expected to receive priority, any eligible business should prepare to submit its application as soon as possible, as grants are otherwise made on a first-come first-served basis. Your business can prepare for the Act’s application process and keep up-to-date on other pandemic relief programs by consulting with your primary Sullivan attorney or reaching out to the authors of this advisory.
Sullivan & Worcester Ranked in The Legal 500 Boston Elite 2026
Boston, MA – Sullivan is excited to announce that its practice groups and attorneys have been ranked in The Legal 500 Boston Elite 2026. The Boston Elite rankings highlight attorneys in the Boston region who are widely regarded for their substantive experience and client service in their respective fields. Sullivan's lawyers received the following rankings: William Hanson - Banking and Finance (Including Restructuring) Jeffrey Morlend - Banking and Finance (Including Restructuring) Duncan O'Brien - Banking and Finance (Including Restructuring) Amy Zuccarello - Banking and Finance (Including Restructuring) Laura Steinberg - Commercial Disputes; White-Collar Crime Zachary Hyde - Intellectual Property Thomas Meyers - Intellectual Property The firm was also recognized as a “Leading Law Firm” in the Banking and Finance (Including Restructuring) practice area. About Sullivan & Worcester LLP Sullivan & Worcester (Sullivan) is a premier international law firm with lawyers in Boston, London, New York, Tel Aviv and Washington, D.C. Sullivan’s clients, including Fortune 500 companies, leading financial services firms and asset managers, boards of directors, real estate companies, and emerging businesses, rely on Sullivan’s ability to navigate complex legal and operational landscapes, the impeccable judgment of its lawyers, and its commitment to best-in-class client service.
SBA has Opened its PPP Forgiveness Portal. Here's Why Many Small Businesses Will Have to Wait
Jeffrey Morlend was quoted in the article "SBA Has Opened its PPP Forgiveness Portal. Here's Why Many Small Businesses Will Have to Wait," which was published in the Boston Business Journal [sub. req'd]. Jeff comments on how banks are taking a wait-and-see approach to what has become a series of changing PPP requirements and shifting guidance and the expectation of additional changes in the future. He states that "they want to see how things go, and if guidance does come out or if the application is revised then they want to be able to wrap their heads around it and get their internal processes up to date before they start accepting applications. The number of applications that are going to flood in once the gates are open is pretty significant."

Jeffrey B. Morlend

Jeffrey B. Morlend

Jeff leads Sullivan’s Finance Practice Group. He advises both public and private clients in a range of corporate matters with a focus on financing transactions and securities law compliance.

He has more than a decade of experience representing financial institutions, public and private companies involved in a variety of industries, family offices and high net-worth individuals in secured and unsecured credit facilities, including large syndicated facilities and single-lender financings.

Jeff also counsels real estate investment trusts and other domestic and international companies in public equity and debt offerings and regularly advises clients regarding general disclosure and securities compliance matters. His clients vary in size from smaller reporting companies to well-known seasoned issuers.

Jeff was recognized from 2016 through 2020 as a “Rising Star” by Massachusetts Super Lawyers, and has been quoted in The Boston Globe and the Boston Business Journal. He presented at the inaugural live Q&A for The Boston Globe’s Small Business Community, as well as at multiple panels and webinars for the Association of Corporate Counsel, Northeast Chapter, the Massachusetts Society of CPAs and Massachusetts Lawyers Weekly.

Jeff formerly taught as an adjunct professor in the first-year legal writing program at Boston University School of Law from 2014 to 2017, and has been an active guest lecturer on various transactional and other topics at Boston University School of Law, Syracuse University College of Law and Notre Dame Law School.

He previously served as a member of the Board of Directors of the Massachusetts Bar Association, Young Lawyers Division, and as Co-Chair of the Recently Elected Partners Forum of the Boston Bar Association.

Jeff served as the Chair of Sullivan’s Hiring Committee from 2021 through 2024 and as the Director of Sullivan’s Summer Associate Program from 2019 through 2021.

During law school, he served as judicial intern for the Honorable Frank M. Ciuffani, J.S.C., Superior Court of New Jersey.

Viewpoints
All Viewpoints
Are Syndicated Term Loans Securities? The Second Circuit Says No.
On February 20, 2024, the United States Supreme Court denied a petition for certiorari over this case, thereby leaving in place the decision of the Second Circuit Court of Appeals that syndicated term loans are not securities. On August 24, 2023, the Second Circuit Court of Appeals determined in the highly anticipated case, Kirschner v. JP Morgan Chase Bank N.A., et al., that syndicated term loans are not securities. The Court upheld the district court’s decision and affirmed the market’s long-standing expectation that syndicated term loans are not securities.   Why Does It Matter? When it comes to their most basic mechanics, bonds and loans are essentially the same – one party gives money to another party with the expectation that the receiving party will pay it back at some agreed time with interest. Now, that is of course an extreme oversimplification, as bonds and loans differ greatly from one another – one significant difference being that bonds have generally been considered to be securities whereas loans have not – but why does that matter? Among many other reasons, being a loan versus being a security subjects the parties involved in the transactions to different rules and regulations. So, when a case came forward that opened the door to a finding that a loan is a security, thereby potentially subjecting the parties involved in loan transactions to securities laws, people paid attention.  What Happened? We won’t go too far into the weeds on the case itself, but suffice it to say, the Court’s decision hinged on whether the term loans at issue were securities. To make that determination, the Court applied the following four-factor test laid out by the United States Supreme Court in Reves v. Ernst & Young: 1.    Motivations of the Seller and Buyer. Simply put, the Court found that the lender’s motivation for entering the transaction was for investment purposes (suggesting more of a securities vibe) whereas the borrower’s motivation was for commercial purposes (suggesting less of a securities vibe). In the end, the Court leaned more heavily on the lender’s motivation on this first factor, but as we note below, it was not enough to outweigh the Court’s findings on the remaining three factors. 2.    The plan of distribution of the debt instrument. Because the term loans were only offered to sophisticated institutional entities with restrictions on transfer that rendered the term loans unavailable to the general public, as opposed to offering and selling the term loans to a broad segment of the public, the Court weighed this factor in favor of the term loans not being securities.  3.    The reasonable expectations of the investing public. The Court concluded that the lenders involved in this loan transaction received sufficient notice regarding the details of the term loans and had certified that they were sophisticated and experienced in this type of lending transaction and had done their own due diligence into the borrower. The applicable instruments also referred to the buyers as “lenders” more frequently than as “investors,” tipping the analysis in favor of a finding that the term loans were not securities. 4.    Whether another regulatory scheme exists that reduces the investment risk of the instrument, making securities regulation unnecessary. Because the term loans were secured by collateral and subject to federal banking regulators who have issued guidance regarding syndicated term loans, the Court found that there was another regulatory scheme in place that reduced the investment risk of the term loans, thereby making securities regulation unnecessary.  As a result, the Court held that while the first factor weighed in favor of a finding that the term loans were securities, the other three factors weighed in favor of a finding that the term loans were not securities, and these factors were sufficient to affirm the lower court’s finding and the market’s long-standing practice of not treating term loans as securities. What Did We Learn? At the end of the day, the syndicated loan market can rest easy knowing that their existing market practices generally conform to the test set forth above. Nevertheless, the Court did not determine that all syndicated term loans are not securities, so these factors should be considered in detail when entering into any new syndicated term loan transaction to help reduce the risk of inadvertently trading in securities and becoming subject to securities laws. 
Cooking Up Pandemic Relief: the Restaurant Revitalization Fund and Grants to Food and Beverage Providers
In March 2021, the American Rescue Plan Act of 2021 (the “Act”) was signed into law. The Act provides for $1.9 trillion of relief to many individuals and businesses overcoming the economic impact caused by the COVID-19 pandemic. Among the Act’s intended recipients are food service providers and adult beverage producers, who may be eligible for grants under the newly established Restaurant Revitalization Fund (the “Fund”). The Small Business Administration (“SBA”) will administer the Fund and distribute up to $28.6 billion in grants to eligible restaurants and similar establishments, $5 billion of which is preliminarily earmarked for eligible businesses with gross receipts during 2019 of not more than $500,000. Which Businesses are Eligible? As you might guess from the name of the Fund, restaurants are of course eligible. Eligible to receive a grant in addition to conventional restaurants are food stands, food trucks and carts, caterers, bars and saloons, taverns, inns, lounges, brewpubs, tasting rooms, taprooms, licensed facilities or premises of a beverage alcohol producer where the public may taste, sample or purchase products, or other similar places of business in which the public or patrons assemble for the primary purpose of being served food or drink, including those located in an airport terminal or businesses that are tribally-owned. As a result, the Fund may prove critical for many businesses, including struggling craft breweries, distilleries and wineries. While many businesses are eligible for a grant from the Fund, businesses with more than twenty locations, public companies and government-operated providers are ineligible. In addition, some live venue operators who applied for certain grants under the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act are also ineligible. How much Money can a Business Receive from the Fund and How must it be Spent? A single-location business may receive a grant in an amount of up to $5 million. A business with two or more locations may receive a grant in an amount of up to $10 million. Generally, the amount a business will receive will be equal to the pandemic-related revenue loss of the business. In calculating the amount of the grant to a business, the SBA will generally compare a business’ 2019 and 2020 revenues. Funds may be used in a similar manner to those funds received for Paycheck Protection Program (“PPP”) loans. That is, funds from a grant must be spent on certain payroll costs, payments of principal or interest on mortgage obligations, rent payments, utilities, maintenance expenses, supplies, food and beverage expenses, covered supplier costs, operational expenses, paid sick leave and any other expenses the SBA determines to be essential to maintaining the business. It is also important to note that funds must be used by December 31, 2021 or may need to be returned to the U.S. Treasury. Can PPP Loan Recipients Receive Grants from the Fund? Yes, an otherwise eligible business may receive a Fund grant even if it previously received a loan under the PPP; the SBA will deduct any PPP loan amounts from such grant, however. It is important to note that the Fund’s distributions are grants. By contrast, previous relief programs, such as the PPP, generally provided loans (though potentially forgivable loans) to eligible businesses. How can a Business Apply for a Grant? The SBA will administer the Fund’s distribution. Unfortunately, as of the date of this advisory, the SBA’s application process is not yet open. Nonetheless, we expect the application to be available on the SBA’s website and, once available, that applications will be submitted directly through the SBA’s website (as opposed to being submitted through approved banks as is the case for the PPP). Similar to that for the PPP, however, applicants will need to make a good faith certification along with their application that the uncertainty of current economic conditions makes necessary the grant request to support the ongoing operations of the business. In addition, businesses owned and controlled by women and veterans and certain other socially and economically disadvantaged small businesses will receive priority for the first three weeks of the application period. Even if your business is not expected to receive priority, any eligible business should prepare to submit its application as soon as possible, as grants are otherwise made on a first-come first-served basis. Your business can prepare for the Act’s application process and keep up-to-date on other pandemic relief programs by consulting with your primary Sullivan attorney or reaching out to the authors of this advisory.
Sullivan & Worcester Ranked in The Legal 500 Boston Elite 2026
Boston, MA – Sullivan is excited to announce that its practice groups and attorneys have been ranked in The Legal 500 Boston Elite 2026. The Boston Elite rankings highlight attorneys in the Boston region who are widely regarded for their substantive experience and client service in their respective fields. Sullivan's lawyers received the following rankings: William Hanson - Banking and Finance (Including Restructuring) Jeffrey Morlend - Banking and Finance (Including Restructuring) Duncan O'Brien - Banking and Finance (Including Restructuring) Amy Zuccarello - Banking and Finance (Including Restructuring) Laura Steinberg - Commercial Disputes; White-Collar Crime Zachary Hyde - Intellectual Property Thomas Meyers - Intellectual Property The firm was also recognized as a “Leading Law Firm” in the Banking and Finance (Including Restructuring) practice area. About Sullivan & Worcester LLP Sullivan & Worcester (Sullivan) is a premier international law firm with lawyers in Boston, London, New York, Tel Aviv and Washington, D.C. Sullivan’s clients, including Fortune 500 companies, leading financial services firms and asset managers, boards of directors, real estate companies, and emerging businesses, rely on Sullivan’s ability to navigate complex legal and operational landscapes, the impeccable judgment of its lawyers, and its commitment to best-in-class client service.
SBA has Opened its PPP Forgiveness Portal. Here's Why Many Small Businesses Will Have to Wait
Jeffrey Morlend was quoted in the article "SBA Has Opened its PPP Forgiveness Portal. Here's Why Many Small Businesses Will Have to Wait," which was published in the Boston Business Journal [sub. req'd]. Jeff comments on how banks are taking a wait-and-see approach to what has become a series of changing PPP requirements and shifting guidance and the expectation of additional changes in the future. He states that "they want to see how things go, and if guidance does come out or if the application is revised then they want to be able to wrap their heads around it and get their internal processes up to date before they start accepting applications. The number of applications that are going to flood in once the gates are open is pretty significant."