Shifting Scrutiny: State AG Practices Prepare for New Priorities Under Biden
For the last four years, state attorneys general practices at law firms have been operating and growing in a space where leading state prosecutors were often working against the federal government. That dynamic is about to change, and it will only further their growth and activity.
Big Law state attorneys general practices are anticipating President-elect Joe Biden’s administration to strengthen the regulatory powers of state AGs through greater collaboration in areas such as civil rights, environmental and antitrust enforcement.
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State AG practices have become an increasingly popular practice area in Big Law. The growing list of firms with this offering includes Holland & Knight, Crowell & Moring; Blank Rome; O’Melveny & Myers; Cozen O’Connor; Wilmer Cutler Pickering Hale and Dorr; Squire Patton Boggs; Cadwalader, Wickersham & Taft; King & Spalding; and Alston & Bird. Attorneys who head these practices represent clients that are regulated by AGs, in industries including technology, retail and pharmaceuticals. Suvor and O’Melveny, for example, represent Johnson & Johnson, which is facing roughly 2,000 lawsuits, including those brought by a coalition of Democratic and Republican AGs.
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In May, for example, Becerra sued the U.S. Environmental Protection Agency and the U.S. Department of Transportation after the Trump administration put forth fewer protections in its revisal of the National Environmental Policy Act. Democratic AGs have also been active in fighting Trump administration rollbacks in the Clean Water Act and offshore drilling.
“If you look at the EPA and the different federal environmental law enforcement under the Trump administration, it wasn’t executed in good faith,” said Jonathan Scott Goldman, a Blank Rome partner and former executive deputy attorney general under Pennsylvania Attorney General Josh Shapiro. “When all of a sudden the EPA is being run by a former mining lobbyist and historical polluters are all of the sudden running the legal response, [regulation] just wasn’t happening.”
A more environmentally friendly Biden administration means those resources can be repurposed to other consumer protection goals, such as cracking down on financial fraud and issues stemming from the pandemic, such as price gouging.
And the proverbial “genie” may not be able to be put back in the bottle: Many will keep staffing levels the same and will benefit from increased collaboration between the federal government and the states, which Goldman says will have an exponential effect on regulation.
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“Shifting Scrutiny: State AG Practices Prepare for New Priorities Under Biden,” by Dylan Jackson, was published in the National Law Journal on January 3, 2021.