What To Expect for White Collar Criminal and Regulatory Enforcement Under the Biden Presidency

Illustration by Hanna Barczyk

Anyone who specializes in white collar defense knows that white collar investigations, prosecutions, and fines severely dropped off in the Trump administration. The Transaction Records Access Clearinghouse data reflects a 30% drop in fraud and antitrust violations under the Trump administration. Additionally, corporate fines fell 76% in the first 20 months of Trump’s administration as compared to the last 20 months of the Obama administration. Further, CBS News reported that white collar prosecution hit the lowest level in 33 years. But for those of us that work in this field, this is old news. 

What is new and expected is that this will change drastically under the Biden administration. I think people believe that the prosecutorial and regulatory environment that existed under President Obama will be revived under the Biden administration. While I am sure there will be many similarities between the approach of the Biden and Obama administrations, I also expect that there will be a backlash from the Trump administration’s lack of focus, which will result in an expanded focus on Corporate America, the financial sector, and environmental crimes.

There are many predictions about what types of crimes the Justice Department will focus on, including tax crimes, FCPA offenses, Environmental Crimes, and the obvious Paycheck Protection Program (“PPP”) Frauds. There is also an expectation that the SEC’s focus will shift to a more prosecutorial approach, more like Mary Jo White’s “broken windows” strategy of pursuing even minor violations to send a message that no violations will be tolerated. Some expect more focus on broker-dealer violations, insider trading violations, and accounting violations. The appointments of both the Attorney General and the Chairman of the SEC will have a lot to do with guiding the future focus of law enforcement. 

Many lawyers and law firms working in this sphere have joined in the prediction that white collar matters will increase, and some firms have already started to expand their white-collar departments in anticipation of the additional work. There are a number of articles and video presentations summarizing the expected changes, such as those by the Cleary Enforcement Watch,  Baker Botts, and Arnold Porter.

Since white collar investigations typically take longer, sometimes years, we may not see a huge influx of new cases immediately. However, I do expect to see an increase in PPP fraud cases more quickly to demonstrate the new Justice Department’s commitment to pursue injustices related to COVID-19 aggressively. 

Between the changes to our practices as a result of COVID-19, and the change in administration, white collar attorneys and practices will have to continue to adapt. As we noted in one of our most recent posts, women are uniquely well-equipped to shift in the face of change. The changes also bring a great opportunity for us to communicate and collaborate to the benefit of our clients. I look forward to continuing to work collaboratively with this community of women as we once again face changes and challenges in the field.