2021 Insights: Biden Administration Priorities

Skadden's 2021 Insights

Biden Administration Signals Its Intention To Be Tougher on Corporate Crime
The Biden administration has signaled its intention to bolster enforcement of corporate crime. Corporations should expect DOJ policies and priorities that emphasize individual culpability and incentivize robust corporate compliance to remain unchanged, while policies that suggest a more business-friendly approach to corporate prosecutions are likely to be amended or abandoned.

The State of Congressional Investigations in 2021
Under the Biden administration, corporations can expect the DOJ and congressional investigations to place greater focus on the private sector. Democrats in the 117th Congress likely will focus on issues including the response to the COVID-19 pandemic, environmental concerns, drug pricing and antitrust questions surrounding Big Tech.

Transition From Trump to Biden May Bring Less Change to Antitrust Enforcement Than Expected
Over the past four years, the DOJ's Antitrust Division and the FTC applied novel theories to increase scrutiny of vertical mergers or acquisitions of potential or nascent competitors, particularly in the technology sector. In doing so, they paved the way for continued aggressive enforcement by the Biden administration.

Fair Lending Enforcement Poised To Increase Under Biden Administration
The Biden administration is expected to replace the leadership of key agencies and ramp up administrative enforcement and litigation against the consumer financial services industry, particularly in the area of fair lending enforcement. A return to an Obama-era aggressive enforcement posture is likely in agencies such as HUD, the CFPB and the DOJ.

Under Biden, Energy Policy To Shift to Carbon Reduction
The Biden administration appears intent on reducing carbon emissions. To do so, the administration will likely rely on the Federal Energy Regulatory Commission, which has broad regulatory control over the electric industry. Despite Democratic control of the Senate, regulation and not legislation seems likely to become the main battleground.

Climate Change Should Drive Energy and Environmental Policy
Significant changes in federal energy and environmental policy are expected in 2021, propelled by a desire to meaningfully address climate change. The Biden administration is likely to utilize executive actions and rulemaking authority to create a foundation for longer-term implementation of its broader climate plan, and as a means of supporting ongoing carbon-reduction initiatives.

Biden Administration’s Expected Impact on Health Care and Life Sciences Enforcement
In 2021, the health care industry generally, and the life sciences sector in particular, is evaluating the potential impact of a change in administration on regulatory and law enforcement. Companies in the sector should remain vigilant in maintaining ethical corporate cultures and strong corporate compliance programs. Should an increase in regulatory and enforcement commence, both of these attributes should help clients weather the storm.

Changes in Store for Employers Under Biden Administration
President Biden has made many proposals that will affect employers, including changes to the federal minimum wage, immigration policies, worker classification and other labor laws. How these changes are implemented, as well as their breadth and permanency, remains to be seen, but the possible impacts will be significant.

US-China Trade and Enforcement Issues: What’s Next?
As the U.S. changes administration, there is significant interest in how the country’s relationship with China may evolve with respect to trade, national security and government enforcement. Although some modifications in tone and approach under the Biden administration are possible, fundamental changes in these areas appear unlikely.

Priorities To Shift for Biden’s SEC
The Biden SEC is expected to prioritize ESG disclosure, regulation of foreign-based issuers and share repurchases, and enforcement of insider trading and company disclosure violations.

Presidential Inauguration Webinar

On January 19, Skadden presented its 2021 Presidential Inauguration virtual programming, which focused on the new legal landscape ahead. The program included an executive briefing moderated by NBC News’ Andrea Mitchell and featuring Joshua Bolten, former White House chief of staff to George W. Bush, and Jacob Lew, former White House chief of staff to Barack Obama. Skadden partners Raquel Fox, Mike Leiter, Jessie Liu, Eric Sensenbrenner and Dave Wales presented an analysis of the Biden administration's anticipated regulatory and enforcement agenda, and partners Boris Bershteyn, Shay Dvoretzky and Jocelyn Strauber looked at important Supreme Court cases still to be decided this term as well as other court-related priorities expected under the new administration.