Kabbage Inc. Agrees to Resolve Allegations That the Company Defrauded the Paycheck Protection Program

The Justice Department announced today that now-bankrupt financial technology company Kabbage Inc., doing business as KServicing, has agreed to resolve allegations that it violated the False Claims Act (FCA) by knowingly submitting thousands of false claims for loan forgiveness, loan guarantees, and processing fees to the U.S. Small Business Administration (SBA) in connection with its participation in the Paycheck Protection Program (PPP). Kabbage is now winding down its operations as KServicing Wind Down Corp. after filing for Chapter 11 bankruptcy in the District of Delaware in October 2022. As part of the resolution announced today, the United States will receive a general unsecured claim in the bankruptcy proceeding.

Congress created the PPP in March 2020, as part of the Coronavirus Aid, Relief and Economic Security (CARES) Act, to provide federally guaranteed loans to small businesses suffering economic hardship due to the COVID-19 pandemic. The PPP is administered by the SBA. The CARES Act authorized private lenders to approve PPP loans for eligible borrowers who could later seek forgiveness of the loans so long as they used loan funds on employee payroll and other eligible expenses. Among other things, participating PPP lenders were required to confirm borrowers’ average monthly payroll costs by reviewing the payroll documentation submitted with the borrower’s application. Lenders were also required to follow applicable Bank Secrecy Act/Anti-Money Laundering (BSA/AML) requirements. Any unforgiven or defaulted PPP loans were guaranteed by the SBA so long as the lender adhered to PPP requirements. Lenders who originated PPP loans were paid a fixed fee calculated as a percentage of the loan amount by the SBA.

“The PPP was intended to provide critical assistance to businesses to alleviate the economic challenges imposed by the pandemic,” said Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Justice Department’s Civil Division. “The department is committed to holding accountable lenders that knowingly contributed to the misuse of such funds by approving PPP loans for ineligible borrowers or otherwise failing to comply with applicable program requirements.”

“When the nation was facing a pandemic-induced crisis, Kabbage received tens of millions of dollars through the PPP to help lend taxpayer funds to businesses in need. Instead of safeguarding those funds, Kabbage doled out inflated and fraudulent loans, in an effort to maximize its profits,” said Acting U.S. Attorney Joshua S. Levy for the District of Massachusetts. “Then, Kabbage sold its assets and left the remaining company so low on cash that it ultimately went bankrupt, leaving taxpayers to take the loss for Kabbage’s conduct. This office will continue pursuing any company or individual, like Kabbage, that took advantage of the PPP.”

“Lenders who participated in PPP were trusted on their word that they would comply with PPP requirements and do their part in safeguarding taxpayer funds from fraudsters,” said U.S. Attorney Damien M. Diggs for the Eastern District of Texas. “PPP lenders and lender service providers who broke that trust should be held accountable, as they ignored signs of fraud, and chose profit at the expense of taxpayers and struggling small businesses badly hit by the COVID-19 pandemic. This settlement with Kabbage demonstrates our office’s firm commitment to pursuing all parties who played a part in committing PPP fraud.”

“The PPP Program provided those small businesses affected by the COVID-19 pandemic with forgivable loans for eligible payroll and non-payroll costs,” said General Counsel Therese R. Meers of the SBA. “SBA has made it a top priority to pursue participants in the PPP Program who committed fraud or otherwise abused the program.”

“Today we are sending a clear message that compliance with program rules is non-negotiable, especially when supporting the nation’s small businesses during the pandemic,” said Assistant Inspector General for Investigations Shafee Carnegie of the SBA Office of Inspector General. “This settlement highlights our dedication to preserving the integrity of the PPP and holding entities accountable for misusing taxpayer-funded programs. I want to thank the Justice Department and our law enforcement partners for their support and commitment to pursuing justice in this case."

“It is imperative that entities like Kabbage, which cause harm to federal programs for their own profit, face the consequences of their actions,” said Executive Assistant Director Timothy Langan of the FBI’s Criminal, Cyber, Response and Services Branch. “The FBI and our partners will continue to relentlessly pursue companies that are unwilling to comply with requirements in accordance with the law.”

The resolution announced today addresses two different violations allegedly committed by Kabbage that resulted in the submission and payment of false claims. First, the United States alleged that Kabbage systemically inflated tens of thousands of PPP loans, causing the SBA to guarantee and forgive loans in amounts that exceeded what borrowers were eligible to receive under program rules. As part of the settlement, KServicing Wind Down Corp. admitted and acknowledged that Kabbage: (1) double-counted state and local taxes paid by employees in the calculation of gross wages; (2) failed to exclude annual compensation in excess of $100,000 per employee and (3) improperly calculated payments made by employers for leave and severance. The United States alleged that Kabbage was aware of these errors as early as April 2020, yet Kabbage failed to remedy all incorrect loans that had already been disbursed and continued to approve additional loans with miscalculations.

Second, United States alleged that Kabbage knowingly failed to implement appropriate fraud controls to comply with its PPP and BSA/AML obligations. In particular, the United States alleged that Kabbage removed underwriting steps from its pre-PPP procedures to process a greater number of PPP loan applications and maximize processing fees. The government further alleged that Kabbage knowingly set substandard fraud check thresholds despite knowledge of SBA’s concerns that fraudulent borrowers might seek to benefit from the PPP, relied on automated tools that were inadequate in identifying fraud, devoted insufficient personnel to conduct fraud reviews, discouraged its fraud reviewers from requesting information from borrowers to substantiate their loan requests and submitted to the SBA thousands of PPP loan applications that were fraudulent or highly suspicious for fraud.

As part of the government’s resolution of these claims, the government will receive a total allowed, unsubordinated, general unsecured claim in the bankruptcy proceeding of up to $120 million. The amount the government will recover on this claim will depend on the ultimate amount of assets available to the bankruptcy estate for distribution to unsecured creditors. The resolution also provides for Kabbage Inc. to receive a $12.5 million credit for payments previously returned to the SBA during the department’s investigation of the alleged misconduct.

The claims resolved by the resolution announced today include claims that were brought under the qui tam or whistleblower provisions of the False Claims Act in two actions: one by an accountant who submitted PPP loan applications to Kabbage and other lenders and the other by a former analyst in Kabbage’s collections department. Under the Act, a private party can file an action on behalf of the United States and receive a portion of any recovery. The qui tam cases are captioned U.S. ex rel. Berteletti v. Kabbage, Inc., et al., No. 1:20-cv-12114 (D. Mass.), and U.S. ex rel. Pietschner v. Kabbage, Inc., et al., No. 4:21-cv-110-SDJ (E.D. Tex.).

On May 17, 2021, the Attorney General established the COVID-19 Fraud Enforcement Task Force to marshal the resources of the Justice Department in partnership with agencies across the federal government to enhance efforts to combat and prevent pandemic-related fraud. The Task Force bolsters efforts to investigate and prosecute the most culpable domestic and international actors committing civil and criminal fraud and assists agencies tasked with administering relief programs to prevent fraud by, among other methods, augmenting and incorporating existing coordination mechanisms, identifying resources and techniques to uncover fraudulent actors and their schemes and sharing and harnessing information and insights gained from prior enforcement efforts. For more information on the department’s response to the pandemic, please visit www.justice.gov/coronavirus.

Tips and complaints from all sources about potential fraud affecting COVID-19 government relief programs can be reported by visiting the webpage of the Civil Division’s Fraud Section, which can be found here. Anyone with information about allegations of attempted fraud involving COVID-19 can also report it by calling the Justice Department’s National Center for Disaster Fraud (NCDF) Hotline at 866-720-5721 or via the NCDF Web Complaint Form at: www.justice.gov/disaster-fraud/ncdf-disaster-complaint-form.

The government’s investigation of Kabbage was a coordinated effort among the Justice Department’s Civil Division, Commercial Litigation Branch, Fraud Section, the U.S. Attorney’s Office for the District of Massachusetts and the U.S. Attorney’s Office for the Eastern District of Texas, with valuable assistance provided by the FBI; Federal Reserve Board, Office of Inspector General; Federal Deposit Insurance Corporation, Office of Inspector General and SBA’s Office of General Counsel and Office of the Inspector General. The United States is represented in the bankruptcy proceeding by the Justice Department’s Civil Division, Commercial Litigation Branch, Corporate/ Financial Litigation Section

Fraud Section Trial Attorney Sarah E. Loucks; Assistant U.S. Attorneys Brian M. LaMacchia and Diane Seol for the District of Massachusetts and Assistant U.S. Attorney Betty Young for the Eastern District of Texas handled the matter. Corporate/ Financial Litigation Section Trial Attorneys Alastair Gesmundo, Stanton McManus and Shane Huang represent the United States in the bankruptcy proceeding.

The claims asserted in the settlements are allegations only, and there has been no determination of liability.