Waiting for Biden: Law Firms Are Preparing for the Post-Trump Paradigm

The full policymaking implications of Joe Biden’s November triumph over Donald Trump in the presidential election remain to be seen but lawyers in the United States expect the 46th president to use the levers he has at his disposal to heighten supervision over the financial industry, along with health care and Big Tech.

And even if America’s stature has been decreased globally as a result of Trump’s impulses to isolationism and capricious treatment of U.S. allies, the transition will undoubtedly have an impact on law practices overseas. Attorneys both inside the U.S. and abroad are anticipating a trade environment less buffeted by unanticipated interventions, as well as new opportunities for dealmaking surrounding renewable energy.

At home, there’s a sense that litigation and regulatory work will tick upward during the Biden presidency.

“There is no question, in my view, that the regulatory/enforcement environment has been comparatively lax under the Trump administration, and the traditional focus on corporate fraud and wrongdoing has been replaced by a much more narrow, unpredictable and idiosyncratic set of priorities and far more lenient prosecution of, and far more modest penalties for, those found to have violated the law,” Brad Karp, the chairman of Paul, Weiss, Rifkind, Wharton & Garrison, says.

For the financial industry, even without any overarching legislative initiatives, anticipate that regulators will shift their sights to bigger institutions.

“As centrist as many people believe Joe Biden to be in his approach to things, I do think there are going to be changes in approach,” says Schulte Roth & Zabel co-managing partner Marc Elovitz. “The Securities and Exchange Commission during the Trump administration has been very focused on retail investors, retail fraud, and mom-and-pop investors, and I would expect the pendulum to swing back to the kinds of issues that have been front-and-center under past Democratic-appointed chairs at the SEC.”

That means that large Wall Street firms and other more sophisticated actors will find themselves under the microscope. And that focus on bigger fish will exist throughout the administration, with the Department of Justice and Federal Trade Commission likely to cast a careful eye on large-cap technology companies and health care players. Antitrust and privacy issues will be at the center of this concern.

“Everybody anticipates globally that the technology companies are going to be subject to scrutiny, perhaps similar on a comparative basis to what was happening with the oil industry at the turn of the 20th century,” says Haynes and Boone’s former managing partner Tim Powers.

In an area with both U.S. and international implications, opportunities for immigration practices will also expand.

“The Trump administration promulgated about 400 executive orders, most of which were to impose additional restrictions on immigration,” says Fred Cummings, managing partner of midsize New York firm Warshaw Burstein. “Biden has a 21-page plan to reverse some or all of these in the first 100 days.”

The incoming administration’s environmental policies will also have an impact both domestically and internationally, with renewable energy likely to be a major beneficiary. At home, O’Melveny & Myers partner Junaid Chida expects the Biden administration’s support for renewables to have a “profound impact” for the industry against a backdrop of existing bipartisan support.

Meanwhile, U.S.-based international trade practitioners anticipate a more normalized workflow to emerge after years of frenzied responses to abrupt policy shifts.

“We won’t be as busy putting out fires, but we will be as busy dealing with investments as a result of trade agreements and policy and also with disputes,” says Akin Gump Strauss Hauer & Feld public policy practice co-leader Brian Pomper, adding that work before the World Trade Organization, in particular, will grow.