2021 Insights: Regulatory

Skadden's 2021 Insights

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.

Post-Brexit, a More Demanding UK Merger Review Process
On January 1, 2021, the U.K. Competition and Markets Authority became a merger regulator independent of the European Commission. The CMA promises to be a competition authority to watch in global M&A in 2021.

Impact of Brexit on UK and EU Sanctions Frameworks
The U.K. adopted an autonomous financial sanctions regime post-Brexit. The U.K. and EU have both stated that they intend to coordinate sanctions policy as much as possible. And with the U.K. having historically played a role in shaping EU sanctions policy, we expect it to continue to take a proactive approach under the new regime.

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.

As Blockchain Technology and Cryptocurrency Mature, so Do Their Regulation and Enforcement
This past year marked a turning point for blockchain technology and cryptocurrency, as successful projects in areas such as “stablecoins” and "decentralized finance" sparked increased regulatory scrutiny and enforcement activity. The coming year promises to further develop the contours of regulation and enforcement in this emerging area.

Under Biden, Energy Policy May 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.

Major Developments Continue To Reshape the Global Privacy Landscape
Over the past year, new laws, regulations and court rulings reshaped the privacy landscape across the globe. Key developments included two California laws that impose requirements similar to those of the GDPR and a ruling from the Court of Justice of the European Union that set forth new obligations on the transfer of personal data out of the European Economic Area.

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.

Growing Complexity in the Tax Aspects of Transactional Negotiations
U.S. tax laws have in recent years undergone an unparalleled number of sweeping changes that have profoundly impacted corporate and partnership transactions. Taking stock of the transformative effect of laws including the Tax Cuts and Jobs Act and the CARES Act can help prepare companies for the types of novel complexities, opportunities and challenges on the horizon.