What to Expect from DOJ under the Biden Administration 

February, 2021 - JD Thomas

Given the upheaval and intense focus on the Department of Justice (DOJ) during the last four or more years and the recent events in Washington, D.C., the Biden administration is inheriting a host of thorny legal issues. So, what can the Nashville business community expect from the DOJ on a national and local level for the next four years? In short, increased enforcement.


What can we expect from the DOJ?


First, it makes sense to consider the people being appointed to lead the Department. Not unexpectedly, President Joe Biden has turned to DOJ veterans. Merrick Garland, the choice for Attorney General, is widely respected both inside and outside the department and brings deep, varied experience as a federal prosecutor and DOJ official.


Biden’s selection of Lisa Monaco as deputy attorney general and Vanita Gupta as Associate Attorney General, among others, show an intent to staff the Department with experienced and aggressive prosecutors who are comfortable with progressive causes and aren’t afraid to use the courts to press an ambitious and expansive regulatory agenda. Above all, however, Biden’s DOJ picks have an abiding commitment to a strong and independent DOJ. They also know the ins and out of the Department and its varied functions.


From a policy perspective, we can expect a less politicized and more autonomous Department, with a past-is-prologue focus on the type of investigations and prosecutions which were more common in previous administrations, both Democratic and Republican. Because of the change of control in the Senate, we can expect a quick and painless confirmation of Garland and his top deputies.


While some of the transition issues that have been reported will almost certainly impact the DOJ changeover, these expected quick confirmations will speed the implementation of any changes.


What does this mean for white-collar and corporate enforcement nationally?


First, white-collar prosecutions, which declined under the Trump administration, are sure to increase. Expect this to run the gamut, from economic crimes to healthcare fraud to public corruption. The renewed focus on white-collar crime will likely include a reinvigoration of False Claims Act investigations and prosecutions, and whistleblower counsel, who drive many of these prosecutions, are sure to take notice.


Second, expect areas of focus from prior Democratic administrations to make their way to the fore in both civil and criminal investigations. This includes civil rights, voting rights, environmental crimes, and disability and elder justice issues.


It is also fair to assume that areas of focus under the Trump administration will endure. For example, more aggressive anti-trust enforcement is likely here to stay. Silicon Valley and the tech behemoths have been the most prominent targets of some of these enforcement actions, but we have also seen the prosecution of smaller middle-market companies, including recent indictments in the healthcare space related to an alleged antitrust conspiracy stemming from supposed “non-poaching” agreements.


Opioids will also remain a focus of DOJ resources, both as it relates to nationwide manufacturers, distributors and sellers, as well as against individual doctors, pharmacists and other providers.


 


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