'The combination of this and Brexit means we expect to be busy' – Trump victory set to reshape regulatory landscape
What impact will Trump's shock election have on business prospects for law firms?
November 09, 2016 at 06:47 AM
7 minute read
As Donald Trump's victory over Hillary Clinton was confirmed, stock futures fell sharply. However, Trump's election could be a gift to banks opposed to a continuation of the Obama administration's regulatory and enforcement policies.
In a speech this August, Trump said he would call for a moratorium on new financial regulations, while on the campaign trail Trump often called for "dismantling" the Dodd-Frank financial reform law that created the Consumer Financial Protection Bureau (CFPB), an agency that has rankled Republicans since it arose from the ashes of the financial crisis. Republican leaders are pushing legislation that would replace the Bureau.
Trump is set to take control of the White House as Republicans keep majorities in the US Senate and House, giving his administration a powerful position to pursue domestic and international goals and make US Supreme Court picks.
Trump opposed the Trans-Pacific Partnership trade pact and has said he would renegotiate other existing trade agreements. "America will no longer settle for anything less than the best," Trump said in his victory speech in New York.
US law firm leaders in London said they will be closely tracking Trump's business and regulatory positions, including international trade policy.
"As a firm that is very focused on international cross-border transactions, we will keep a close eye on how the US continues to engage in its international trade relations," said Nick Buckworth, London managing partner of Shearman & Sterling. "Donald Trump has expressed certain views on international trade, so we'll see how things will adjust."
Mike Goetz, London managing partner of Ropes & Gray, said it was "too early to formulate what it all means – it doesn't make sense right now".
To the extent the Trump administration is friendly to business, Goetz said: "Generally speaking, Republican presidents are viewed as good for business in the US. Assuming that Trump gets into that 'business-friendly' category, people aren't going to be too concerned. It's like Brexit – it will take some time for people to absorb it and understand what the implications are."
The outcome, which defied predictions of a Clinton win, will prompt market uncertainty, said Gibson Dunn & Crutcher London corporate chair Charlie Geffen. "The political consequences are much more significant than the economic – he's a person. One does lead to the other though, so it will take time for people to have confidence in the policy direction," he said. "This is another layer of uncertainty that's unwelcome and could affect activity levels."
However, Hogan Lovells global chairman Nicholas Cheffings sounded an optimistic note: "Once again, a popular vote has defied predictions. The combination of this result and Brexit means we expect to be busy advising clients around the world on the likely policy implications and changes in the regulatory environment," he said. "Our transatlantic capabilities and our strong regulatory practice in Washington DC mean we are uniquely well placed to do that. As with Brexit, we have been anticipating this possible outcome and last week we launched an online US election hub for clients."
The spotlight in the coming months will turn to Trump's transition team, headed by New Jersey governor Chris Christie. Republican veterans Rudy Giuliani, a partner at Greenberg Traurig, and Newt Gingrich, who recently joined Dentons as a senior adviser on public policy and regulation, are under consideration for the US attorney general and secretary of state roles respectively, according to NBC News.
Trump is mutable on many issues, but his calls to roll back or repeal Dodd-Frank have remained consistent. Foreshadowing a platform that would call for the near-destruction of Dodd-Frank, Trump told Reuters in May that the law "is a very negative force, which has developed a very bad name". Trump said then that Dodd-Frank "has made it impossible for bankers to function".
Indeed, the Republican platform approved at the Cleveland convention called for the repeal of Dodd-Frank and the elimination of the CFPB. For Richard Cordray, the agency's director, that plank of the party platform could spell trouble. An appeals court panel's decision last month said the president has the power to remove the CFPB director at will, rather than only "for cause". The agency is expected to challenge the decision.
The forecast for Trump's enforcement approach is unclear. He has pushed back against the notion of breaking up banks. In his steadfast criticism of settlements, Trump called JP Morgan CEO James Dimon the "worst banker in the US" for reaching a $13bn settlement with the Justice Department in 2013. But he has also blamed the financial sector for creating "tremendous problems" and said he would "tax Wall Street".
Trump will also face what veteran antitrust lawyer Bill Baer of the Justice Department recently called a "merger wave" of corporate tie-ups. The Obama administration's Justice Department and Federal Trade Commission have ramped up antitrust enforcement in recent years, taking an aggressive approach to thwart mega-deals. The Justice Department is challenging a pair of proposed deals in the healthcare insurance industry that critics contend would restrict competition.
Republicans are generally seen as gentler than Democrats in antitrust enforcement. But Trump has signalled he would take a tough stand against major M&A. He pledged recently to fight AT&T's acquisition of Time Warner, which he said would put "too much concentration of power in the hands of too few".
Trump could also push for policy changes in the healthcare arena and on the employment front. He has advocated the repeal of the Affordable Care Act – also known as Obamacare – a move that could, if it were successful, jar the employer community and healthcare and insurance industries. He has kept relatively quiet on other employment issues but he has advocated possible increases in the minimum wage to be determined on a state-by-state instead of federal basis, as well as limited steps forward in the area of paid maternity leave.
Trump and the Supreme Court
The future of the Supreme Court is now in the balance. President Barack Obama's pick – Merrick Garland, chief judge on the US Court of Appeals for the DC Circuit – faces a hopeless battle for confirmation.
Trump, who will have a chance now to fill the vacancy created by the death of Antonin Scalia, has floated two shortlists for the US Supreme Court. He has bypassed naming any lawyers from major law firms. He promised to appoint justices in the mold of Scalia who "will protect our liberty with the highest regard for the Constitution". Trump's most recent list, announced in September, included largely state and federal judges.
At the final presidential debate, Trump predicted that landmark abortion ruling Roe v Wade would "automatically" fall if he successfully appoints two or three new justices.
Trump's election could pose an ethical dilemma for US Supreme Court Justice Ruth Bader Ginsburg, who in July questioned the Republican nominee's candidacy. "I can't imagine what the country would be," with Trump in the White House, Ginsburg said.
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