What does Trump’s win mean for Biden’s regulatory targets?
What does Trump’s win mean for Biden’s regulatory targets?
Many businesses that have been the target of investigations or lawsuits by the Biden administration are evaluating whether to use this transition period to reach some kind of settlement with the outgoing administration, or sit back and wait for what could be a better deal from the Trump administration after inauguration day.
For example, earlier this year, the Biden administration sued Live Nation, the entertainment company that runs Ticketmaster along with concert venues, accusing it of antitrust violations — harming fans and performers by monopolizing the live music industry. But on Monday, during the company’s earnings call, President and CFO Joe Berchtold had a cautiously optimistic outlook on life under the incoming Trump administration.
“We are hopeful that we’ll see a return to the more traditional antitrust approach, where the agencies have generally tried to find ways to solve problems they see with targeted remedies that minimize government intervention in the marketplace,” said Berchtold. “At least some parts of [our] case, we think, reflects a much more intervention interventionist philosophy today than you’d expect of a Republican administration, obviously, the request to break up Live Nation and Ticketmaster would be an example of that highly interventionist approach. So, you know, we’ll obviously be ready to engage as soon as they are.”
It’s likely some companies may try to slow down the progress on their cases before the government during the transitions, according to John Coffee, a professor at Columbia Law School and an expert on corporate governance.
“They don’t know, but they are hoping that the incoming administrator of a given agency will be dramatically opposed to the positions of the predecessor administrator,” said Coffee. “This is particularly true at the SEC and the FTC, where they’ve had positions that Trump has publicly criticized.”
But not everything at the Securities and Exchange Commission and Federal Trade Commission will grind to a halt.
“Things like insider trading, accounting fraud, when people pay bribes to foreign officials. Those types of cases are going to continue,” said Haima Marlier, a partner at Morrison Foerster in New York who spent years in the SEC’s enforcement division. “Where I think we might see some changes would be in more topical areas, such as, say, maybe crypto or ESG (environmental, social, and governance) companies who are currently negotiating settlements in those areas may wish to adopt a wait and see approach.”
But whether or not waiting will pay off will depend on who President-elect Trump chooses to run these agencies, and how far Trump is able to go with efforts to turn career civil servants into political appointees.
“Many of those positions will end up being attorneys, and those attorneys are the ones who often are the ones that are negotiating with corporations and companies that regularly interact with the federal government,” said Jennifer Selin, an associate professor of law at Arizona State University.
Selin is concerned that while these attorneys are advocating for the government and their agencies, “in the back of their minds, they’ll also be thinking, ‘Well, this is what the Trump administration wants?’ And so if things are on the border, I’m going to have to really come down hard on what the Trump administration wants, because if I don’t, there is a chance that I could lose my job.”
Selin also pointed out that even if companies find a more accommodating environment at the federal level, there are still many states that could pursue similar actions to what the Biden administration has been trying to accomplish.
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