Biden-Harris Administration’s Policies and Priorities

The federal COVID-19 public health emergency’s (PHE) current expiration date is just one week away—July 14, 2022. While no official extension has been issued by the Biden-Harris administration yet, it is increasingly likely that the PHE will be extended for at least another 90 days. Previously, the federal government had pledged to states that it would announce an end to the PHE at least 60 days before its expiration. That 60-day time frame ended on May 16 with no indication from the US Department of Health and Human Services (HHS) that it was anticipating the end of the PHE.

The US House of Representatives recently passed HR 7694, the Strengthening Subcontracting for Small Businesses Act of 2022, which aims to amend the Small Business Act to require the federal government to consider prior compliance with a subcontracting plan when evaluating an offeror’s past performance. 

Another boost to the growing US offshore wind industry came on June 23, 2022, when the Biden-Harris administration and several cabinet secretaries announced new initiatives, including a partnership with 11 eastern states described as a “first-of-its-kind forum for collaboration between federal and state officials to accelerate offshore wind progress.”

The US Supreme Court released its opinion in Dobbs v. Jackson Women’s Health on June 24. The decision overturns prior Supreme Court decisions in Roe v. Wade and Planned Parenthood v. Casey, which held that the US Constitution prohibits states from banning abortion or unduly burdening access to abortion services in the initial phases of pregnancy. At least 24 states have laws that can now be enforced barring abortion or imposing conditions beyond those previously permitted by Roe and Casey. The decision may also open the door for further state regulation regarding reproductive rights.

The US Supreme Court’s June 21 order granting certiorari in Polansky v. Executive Health Resources signals the Court’s intention to settle a circuit court split on the procedure and standard by which the government can exercise its dismissal authority under 31 USC § 3730(c)(2)(A) of the False Claims Act in declined qui tam cases.

A new Morgan Lewis White Paper, Bipartisan Proposal Attempts to Provide Solutions for Comprehensive Regulation of Digital Assets, analyzes the proposed Responsible Financial Innovation Act (RFIA) in the United States from several different angles, including with respect to issues such as key definitions in this emerging space, jurisdiction, ancillary assets (which are not fully decentralized), stablecoin issuance, taxes, disclosures, and money transmission. 

On June 7, 2022, Senators Cynthia Lummis (R-WY) and Kirsten Gillibrand (D-NY) introduced the Responsible Financial Innovation Act (RFIA), a bipartisan effort to develop and provide greater regulatory clarity to the eclectic digital asset industry. Since releasing the text of the bill, Senators Lummis and Gillibrand launched a strong public lobbying campaign, discussing the bill at fundraisers, joint conference panel appearances, and other events as an opportunity for bipartisan cooperation and reassertion of US leadership in the distributed ledger technology fintech and investment space. The RFIA would create a more coherent and consistent regulatory framework for the digital asset industry, and encourage responsible financial innovation, flexibility, transparency, and robust consumer protection.

The Financial Industry Regulatory Authority recently filed two rule proposals—SR-FINRA-2022-011 and SR-FINRA-2022-013—with the US Securities and Exchange Commission and issued Regulatory Notice 22-12 in an effort to expand the TRACE reporting requirements for FINRA member firms in TRACE-eligible securities.

As the US Department of Labor (DOL) continues to contemplate the role of environmental, social, and governance (ESG) considerations in ERISA plan investing, ESG issues surrounding retirement plans are cropping up in another way: as a target for proxy vote proposals that seek to require companies to evaluate their ESG commitments in retirement plans.

The US Food and Drug Administration (FDA) has issued a proposed rule—“National Standards for the Licensure of Wholesale Drug Distributors and Third-Party Logistics Providers” (Proposed Rule)—pursuant to FDA’s obligations under the Drug Supply Chain Security Act (DSCSA or the Act) that, when finalized, would require all US wholesale drug distributors (WDDs) and third-party logistic providers (3PLs) to be licensed according to a national standard.

The US Equal Employment Opportunity Commission (EEOC) released guidance on May 12 addressing the application of the Americans with Disabilities Act (ADA) to employer use of algorithms and artificial intelligence (AI) during the hiring process. Produced as part of the Artificial Intelligence and Algorithmic Fairness Initiative launched in October 2021, the guidance reflects the agency’s growing interest in employer use of AI, including machine learning, natural language processing, and other emerging technologies in employment decisions.

A lawsuit filed by 17 states challenges California’s authority to implement climate change–related vehicle emission standards and zero-emissions goals, prompting 20 states to seek to intervene in order to defend California’s role in reducing greenhouse gas emissions.

The NRC recently issued its Allegation Program Annual Trends Report, analyzing regional, national, and site-specific allegation trends for calendar year 2021. The report’s top-line numbers show that allegations increased approximately 40% from 2020. The broad-based increase spanned reactor and materials licensees, as well as their vendors.

Morgan Lewis annually publishes a summary and analysis of the practices, developments, considerations, and enforcement actions of the US Securities and Exchange Commission (SEC). The following special reports by our securities enforcement and investment management teams highlight expected SEC priorities in 2022 while reviewing significant SEC enforcement matters of the past year.

After the US Securities and Exchange Commission spent several years focused on “Main Street” retail misconduct that left private funds largely out of the its crosshairs, Chairman Gary Gensler and the Divisions of Enforcement and Examinations are intent on shifting that focus in a way certain to affect hedge and private equity fund managers. As noted in the 2022 Examination Priorities, given the “size, complexity, and significant growth of this market,” private fund advisers will garner growing examinations resources, and that in turn will lead to more enforcement scrutiny in areas such as valuation, fees and expenses, insider trading, and special purpose acquisition company (SPAC) transactions.

The Internal Revenue Service (IRS) issued Notice 2022-24 on April 29 to provide the inflation-adjusted amounts for health savings accounts (HSAs) in calendar year 2023.

To address changing system needs, FERC ordered each Regional Transmission Organization and Independent System Operator (collectively, RTO/ISO) to submit information to the Commission regarding changes to wholesale markets within 180 days.

There have been a number of important recent developments, with more on the way, concerning emerging contaminants such as Per- and Polyfluoroalkyl Substances (PFAS) and 1,4-dioxane. It can be hard for companies to discern, respond to, and plan for the practical impact of these developments on their regulatory compliance, environmental cleanups, litigation, and day-to-day business operations.

Fraud stemming from the COVID-19 pandemic continues to be a criminal enforcement priority for the US Department of Justice (DOJ). On April 20, DOJ announced a new round of criminal charges against 21 defendants that stem from over $149 million in allegedly fraudulent billing to federal healthcare programs and pandemic assistance programs. The new cases raise DOJ’s total COVID-19-related enforcement stats to 35 defendants and over $290 million in fraudulent billing across 16 federal districts.

In the May 2022 Visa Bulletin, India EB-2 Final Action dates advance by two months, while China EB-2 Final Action dates remain unchanged.

The US Securities and Exchange Commission proposed rules on March 28 that would require certain market participants to register as broker-dealers or government securities dealers, and potentially be subject to oversight by self-regulatory organizations such as the Financial Industry Regulatory Authority. These proposed rules have the potential to bring a wide array of private funds, digital asset traders, certain exchange traded products, high frequency traders, and other proprietary traders within the definition of the term dealer (or government securities dealer), bringing an additional level of unnecessary costs and regulatory requirements to firms that generally do not have customers.

The US Department of Justice (DOJ) Antitrust Division announced significant guidance updates to its leniency program on April 4, 2022. Under the program, companies that self-report antitrust conspiratorial activity to the government (and then fully cooperate with the government in its investigation) can receive immunity from the significant fines — and criminal sentences — imposed under the antitrust laws and a de-trebling of civil fines after meeting certain requirements.

Perhaps signaling the increasing likelihood of a permanent telehealth solution for the Medicare program, the Office of Inspector General for the US Department of Health and Human Services (OIG) has established a “Featured Topics” resource page on its website dedicated to telehealth and OIG’s work in evaluating telehealth policies. This telehealth resource page serves as a compendium for all the reports OIG has completed or plans to undertake related to telehealth and virtual care technologies, including several audits and evaluations currently on OIG's 2022 work plan. In addition, the resource page provides a helpful overview of the manner in which telehealth fits into the larger Medicare regulatory framework.

President Biden on March 15 signed into law the Adjustable Interest Rate (LIBOR) Act, which aims to reduce uncertainty regarding the effect of ending LIBOR on existing USD LIBOR transactions, as part of an omnibus spending package.

Following a period of silence on whether the Americans with Disabilities Act requires websites to be accessible to persons with disabilities, the US Department of Justice released new guidance on March 18 focusing on covered entities’ obligations under Title II (public entities) and Title III (places of public accommodation) of the act. While not explicit, the new guidance suggests a resurgence of the department’s earlier views that all public-facing websites—including websites of web-only businesses—are subject to Title III and must be accessible to persons with disabilities, and sheds light on the standards businesses may use to determine web accessibility.

Per the Holding Foreign Companies Accountable Act, the US Securities and Exchange Commission has begun identifying public companies that retained audit firms that the Public Company Accounting Oversight Board has determined it cannot inspect completely due to a position taken by the authorities in a foreign jurisdiction.

The Nuclear Regulatory Commission recently issued SRM-SECY-21-0107, in which it approved the NRC Staff’s recommendation to delegate authority to the Atomic Safety and Licensing Board (ASLB) Panel—the independent trial-level adjudicatory body of the NRC—to conduct “mandatory” hearings for certain types of construction permit applications. However, the Commission also noted its intent to conduct such hearings itself in certain first-of-a-kind proceedings.

The US Securities and Exchange Commission has proposed new rules and amendments to mandate disclosure regarding cybersecurity risk management, strategy, governance, and incident reporting, including amendments to Form 8-K, Form 10-Q and Form 10-K. As proposed, these new rules and amendments require both current reporting and periodic reporting concerning cybersecurity matters.

The Consolidated Appropriations Act of 2022, which was signed March 15, again permits first-dollar coverage for telehealth services without jeopardizing health savings account (HSA) eligibility, effective April 1, 2022, through December 31, 2022.

A regional director of the US National Labor Relations Board recently ordered an election for physicians to vote on whether they want to unionize. The votes showed that a determinative majority of ballots had been cast overwhelmingly in favor of the union—of 43 eligible voters, 29 voted for the union, three voted against, and three ballots were challenged and not counted. On March 15, the National Labor Relations Board certified the union as the bargaining representative.

President Joseph Biden issued Executive Order 14068 on March 11 expanding prohibitions on trade with Russia and announcing new restrictions on Russian imports, exports, and investments—including luxury goods. This executive order, implemented through regulations issued by the Department of Commerce’s Bureau of Industry and Security, directly impacts many retailers, as it effectively restricts US retailers and businesses from suppling any luxury items, as defined by the regulations and the customs tariff codes to Russia. This edition of Morgan Lewis Retail Did You Know? analyzes the executive order—the latest in a series of regulatory actions targeting Russia as a result of the crisis in Ukraine—the Department of Commerce’s implementing regulations under the executive order, and the practical impact both have for retailers.

The White House issued an executive order on March 9 relating to the responsible development of digital assets in the United States. This executive order outlines the first ever whole-of-government approach to both addressing the risks of digital assets and maximizing the potential benefits.

State and local tax authorities are facing the same issues today as they did before the pandemic: determining how to use their arsenal of audit activities, interpreting existing tax laws, and crafting and passing new tax proposals to combat budget deficits and increase tax revenue. The electric vehicle (EV) industry is an area that is ripe for states to try to apply outdated tax laws to a cutting-edge business.

After four long years and a series of delays, the US Food and Drug Administration released its proposed rule for amending the Quality System Regulation to be harmonized with ISO 13485:2016. In a somewhat surprising move, the proposed rule eliminates the substance of the Quality System Regulation and incorporates ISO 13485:2016 by “reference.” As a result, the proposed rule retitles 21 C.F.R. Part 820 to “Quality Management System Regulation.”

As anyone in the electric vehicle sector is aware, network charging infrastructure is a threshold issue to be addressed in order to get more electric vehicles (EVs) on the roads in US markets.

While the Biden administration and US Congress continue to debate ways to address perceived prescription drug pricing concerns, the Food and Drug Administration (FDA) is taking action. Under its Drug Competition Action Plan (DCAP), administered by the Office of Generic Drugs (OGD), FDA has published approximately 24 guidance documents since 2017, directing industry stakeholders on how to develop, prepare, and submit abbreviated new drug applications (ANDAs), so that generic drugs can obtain timely FDA approval and more quickly reach the market. In January 2022, FDA published three more guidance documents in the DCAP series.

In response to the Russian Federation’s recognition of certain regions of Ukraine as independent states which followed an expansion of nearly 200,000 troops on the Ukrainian border, US President Joseph Biden authorized the imposition of additional sanctions against Russia and indicated that further sanctions were under consideration. This LawFlash summarizes these newly issued sanctions.

The US Senate voted on February 15 to confirm Dr. Robert M. Califf as the next commissioner of the US Food and Drug Administration (FDA), a position that has been filled since April 2021 by acting commissioner Dr. Janet Woodcock.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 passed by voice vote in the US Senate on February 10. The US House of Representatives approved the same measure with bipartisan support on February 7. President Joseph Biden has signaled his support for the bill and is expected to sign it into law.

The Infrastructure Investment and Jobs Act (IIJA) is slated to provide unprecedented levels of federal spending toward physical infrastructure, allocating $1.2 trillion not only for funding roads, bridges, and rails, but also for funding projects like high-speed internet, electric grid modernization, and an electric vehicle (EV) charging station network.

In the span of two weeks, the US Securities and Exchange Commission (SEC) has proposed rules that would significantly overhaul the regulation of the private fund industry. Specifically, on January 26, the SEC issued proposed amendments to Form PF reporting requirements for certain private fund managers and, on February 9, proposed new and amended rules under the Investment Advisers Act of 1940 that, if adopted, would impose new SEC and investor reporting requirements on certain private fund advisers.

FDA announced on February 2 that it would be resuming domestic surveillance inspections across all product types, beginning on February 7, in light of declining COVID-19 rates.

The US Departments of Labor, Health and Human Services, and Treasury issued their 2022 Report to Congress regarding their enforcement activities under the Mental Health Parity and Addiction Equity Act as required under the Consolidated Appropriations Act of 2021, which mandates that group health plans offering medical/surgical and mental health/substance use disorder coverage that impose non-quantitative treatment limitations on such benefits provide comparative analyses and documentation demonstrating compliance.

The US Patent and Trademark Office is implementing a pilot program to allow participating applicants to defer responding to subject matter eligibility rejections until the earlier of a final disposition of the application, or a withdrawal or obviation of all other outstanding rejections.

In an effort to attract global talent to strengthen the economy, the Biden-Harris administration recently announced several immigration policy expansions geared towards students in Science, Technology, Engineering, and Mathematics (STEM) academic fields. The policy changes also affect nonimmigrant visa categories, such as J-1 exchange visitors and O-1 nonimmigrant visa holders who demonstrate extraordinary ability in STEM academic fields, as well as afford additional provisions for those seeking lawful permanent residency under the National Interest Waiver program.

The US Department of Labor (DOL) issued a final regulation (Final Rule) on December 29, 2021, updating the 2021 Form 5500 to reflect certain statutory changes included in the Setting Every Community Up for Retirement Enhancement Act (SECURE Act). The Final Rule focuses primarily on changes to accommodate pooled employer plans (PEPs) and other defined contribution multiple employer plans (MEPs).

The HHS Office of Inspector General (OIG) recently announced its Office of Audit Services plans to conduct a nationwide review of hospice eligibility, focusing on those Medicare hospice beneficiaries who haven't had an inpatient hospital stay or an ER visit in certain periods prior to their start of hospice care.  

The US Departments of Labor, Health and Human Services, and the Treasury (collectively, the Departments) on January 10 published much-anticipated FAQs implementing President Joseph Biden’s announcement last month to expand free at-home COVID-19 testing for all Americans during the continued period of public health emergency.

On January 5, the Consumer Financial Protection Bureau (CFPB or Bureau) issued a report detailing consumer complaint deficiencies by the national credit reporting agencies (NCRAs). Specifically, the CFPB found that, in 2021, the NCRAs together reported relief in response to less than 2% of covered complaints, down from nearly 25% of covered complaints in 2019. The CFPB noted three fact patterns believed to lead to inaccurate consumer credit reporting and thus potentially the denial of credit or offer of credit on less favorable terms.

The Internal Revenue Service and the US Treasury Department have issued final regulations providing rules for taxpayers transitioning from interbank offered rates to qualified rates. These regulations provide financial institutions, counterparties, and investors with helpful guidance and clarification of the October 2019 proposed regulations by generally providing that modifications made in accordance with the final regulations will not be considered a taxable event, although certain questions remain unresolved.

On December 10, the NRC staff issued SECY-21-0105 seeking approval from the NRC commissioners to publish a notice of final rule that would officially replace the NRC's sensitive unclassified non-safeguards information (SUNSI) program with a Controlled Unclassified Information (CUI) program. The new rules would appear in 10 CFR Part 2, "Agency Rules of Practice and Procedure," and be consistent with the government-wide rules on CUI in 32 CFR Part 2002.

The US Senate and House of Representatives have both passed HR 6256, the bicameral, bipartisan Uyghur Forced Labor Prevention Act, with the Senate approving the measure by unanimous consent on December 16. The White House has indicated that President Joseph Biden will sign the legislation into law. At that time, parties seeking to import goods into the United States will have 180 days to ensure that their supply chains are not exposed to China’s Xinjiang Uyghur Autonomous Region or, if they are, that the importer can be issued an exception based on yet-to-be-written due diligence, supply chain tracing, and supply chain management provisions.

On December 17, the NRC published a report to Congress on the continuing need for and any potential modifications to the Price-Anderson Act (PAA). The NRC was required to submit the report, “Public Liability Insurance and Indemnity Requirements for an Evolving Commercial Nuclear Industry,” by the end of 2021.

The US Securities and Exchange Commission proposed new rules on December 15, 2021, with respect to security-based swaps that, if adopted as proposed, would prohibit fraud and manipulation, require reporting of large security-based swap positions, and protect the chief compliance officer of security-based swap dealers and major security-based swap participants.

On December 17, 2021, a divided panel of the US Court of Appeals for the Sixth Circuit granted the federal government’s emergency motion to dissolve the US Court of Appeals for the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s Emergency Temporary Standard. With the Sixth Circuit’s ruling, the standard is effective again for the first time since the day after it was published, although for how long remains to be seen.

The US government took another step toward further regulation of per- and polyfluoroalkyl substances (PFAS) on December 15 with the US Senate passing the National Defense Authorization Act for Fiscal Year 2022 by a vote of 88-11, sending the legislation to President Joseph Biden’s desk for signature. While the December 7 House-passed version of the bill removed a number of more stringent PFAS-related measures addressing the US Department of Defense’s procurement abilities and compliance with stricter state cleanup standards, the bill still calls for the implementation of important measures relating to the cleanup, disposal, and study of PFAS.

Some taxpayers are receiving automatically generated IRS notices of underpayments and penalties with respect to Form W-2 income tax and FICA withholdings, unemployment taxes, and backup withholding, as well as other year-end individual information returns. This LawFlash addresses some of the areas covered by these IRS notices relating to payroll taxes, equity compensation, and various types of information returns—including Forms 1099—and how taxpayers can resolve them.

The US Securities and Exchange Commission’s proposed Rule 10c-1 would create a sweeping new reporting and disclosure regime for participants in the securities lending markets. Among other things, the proposal increases the Financial Industry Regulatory Authority’s ability to look into the activities of non-broker-dealers, including the potential for near-real-time access to a market participant’s entire portfolio holdings of securities.

The US Department of Transportation’s Federal Highway Administration (FHWA) recently issued a notice seeking public comment on two new electric vehicle (EV) programs that will receive funding under the Infrastructure Investment and Jobs Act (IIJA), which was signed into law by President Biden on November 15, 2021.

As a result of the new Civil Cyber-Fraud Initiative, it is more important than ever that companies be prepared to manage legal issues concerning cyberattacks and anticipate and take steps to mitigate potential liability for noncompliance under contractual, statutory, and regulatory standards, including potential investigations and litigation under the civil False Claims Act.

This LawFlash summarizes key takeaways from the American Conference Institute’s (ACI’s) 38th International Conference on the Foreign Corrupt Practices Act (FCPA), where top government officials offered insight and clarification on recent policy announcements and other trends in FCPA enforcement. On the heels of the conference, the Biden-Harris administration issued a broad-based set of strategic initiatives for combatting corruption that reiterated themes from the conference and introduced new objectives and plans.

Many employers are likely to find the rules for repayment of employer-share social security tax deferrals under the Coronavirus, Aid, Relief and Economic Security (CARES) Act to be confusing. Employers may also be surprised to learn that a 10% penalty on the entire deferral is assessed in the case of underpayments and late deposits. Employers should plan to repay deferred amounts timely and be certain to designate the quarter for which each payment is intended.

Partners Daniel Skees and Stephen Spina and associate Arjun Ramadevanahalli authored an article for Law360 about the recently passed Infrastructure Investment and Jobs Act.

The Federal Trade Commission recently finalized a long-discussed update to its cybersecurity Safeguards Rule that includes more specific criteria for what financial institutions must implement as part of their information security programs. Among other key changes, many companies are likely to be impacted by an expansion of the rule’s scope to include “finders,” which may allow such businesses (including fintech firms) to avoid the current regulatory burden and confusion of state law requirements.

President Joseph Biden signed the Infrastructure Investment and Jobs Act (IIJA) into law on November 15, 2021. The IIJA will provide funding to overhaul the country’s physical infrastructure and will serve to give the nation’s roads and bridges a much-needed facelift, but squirreled away in the legislation are tweaks that will give defined benefit plans a bit of a nip and tuck too. The new law also provides further relief for taxpayers facing filing deadlines after a disaster and updates the list of such disasters to include wildfires.

The Internal Revenue Service has announced that the annual gift tax exclusion is increasing next year due to inflation. After four years of being at $15,000, the exclusion will be $16,000 per recipient for 2022—the highest exclusion amount ever. Further, the annual amount that one may give to a spouse who is not a US citizen will increase to $164,000 in 2022.

President Joseph Biden signed the $1.2 trillion Infrastructure Investment and Jobs Act (the Act) on November 15, 2021, which allocates $550 billion in new spending over the next five years to improve US infrastructure, including critical investments in the energy sector. These investments will cover power grid infrastructure, electric vehicles and charging stations, renewable energy, nuclear power, hydropower, and cybersecurity with the goal to strengthen the energy industry, support emission-free power generation, and bolster emerging technologies.

The Centers for Medicare & Medicaid Services released its CY 2022 Physician Fee Schedule final rule on November 2 reflecting the Biden-Harris administration’s goal of increasing access to and quality of care and reducing health disparities. The PFS also advances access to new remote therapeutic monitoring codes that expand on existing remote physiologic monitoring codes developed over the last few years.

The Fifth Circuit temporarily stayed the Occupational Health and Safety Administration’s Emergency Temporary Standard on COVID-19, placing it in legal limbo. In addition, state governments continue to take actions related to employer vaccine mandates that merit attention. In the past month, state legislatures in Alabama, Arkansas, Tennessee, West Virginia, and Iowa passed bills purporting to limit the ability of employers to mandate COVID-19 vaccination, and Florida will consider similar measures in a special session starting November 15. Illinois, in contrast, passed an amendment limiting the effect of a statute used by plaintiffs to challenge vaccine mandates.

US President Joe Biden’s Working Group on Financial Markets (PWG), along with the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC), released a report on the risks and legislative recommendations for stablecoins, recommending that issuers be limited to insured depository institutions.

Deputy Attorney General Lisa Monaco described important changes to the Department of Justice’s corporate criminal enforcement policies during her October 28, 2021 keynote address to the ABA’s 36th National Institute on White Collar Crime. Her address outlined the department’s enforcement priorities, new and altered guidance, and issues targeted for further study. In this LawFlash, the Morgan Lewis white collar litigation and government investigations team discusses its most significant points.

The Division of Examinations staff of the US Securities and Exchange Commission (SEC) published a risk alert on October 26, 2021, titled “Observations from Examinations in the Registered Investment Company Initiatives,” which summarized the observations of the staff coming out of a series of examinations from 2018 and 2019 that focused on mutual funds and exchange-traded funds (ETFs) and, specifically, on certain compliance areas that may impact retail investors.

The American Rescue Plan Act (ARPA) provided relief from certain annual notice and funding requirements to multiemployer plans reeling from COVID-19–related investment and experience losses. IRS Notice 2021-57, issued on October 8, 2021, gives plan sponsors a roadmap for electing relief.

Partners Elizabeth Goldberg, Julie Stapel, Lance Dial, Michael Richman, and Marla Kreindler, along with law clerk Rachel Mann, authored an article for Law360 on the US Department of Labor’s recent proposed rulemaking on how retirement plans can make investment decisions that consider environmental, social, and governance (ESG) factors.

The US Department of Labor on October 14 published in the Federal Register a “Notice of Proposed Rulemaking on Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights.” The proposed rule, if adopted in its current form, would be a significant revision of two controversial regulations adopted at the end of the administration of US President Donald Trump that were perceived by some as imposing new hurdles when considering environmental, social and governance (ESG) factors in making fiduciary investment decisions for US retirement plans and investors subject to ERISA.

The IRS recently issued guidance on the utility of and weight to be afforded informal “frequently asked questions” (FAQs) published on its website—clarifications that became necessary given the IRS’s heavy reliance on FAQs as the preferred form of guidance throughout COVID-19 in its attempt to swiftly clarify and interpret standards of newly enacted relief programs often administered by the IRS and the US Department of the Treasury.

Partners Elizabeth Goldberg, Michael Richman, Julie Stapel, and Lance Dial, along with associates Rachel Mann and Gena Yoo, authored an article for Practical Guidance on a recent proposed regulation from the US Department of Labor.

Senior attorney Pierce Blue and associate Alana Genderson authored an article for Bloomberg Law discussing how the rollout of COVID-19 booster shots can create potential legal issues for employers implementing vaccine policies.

As the Biden-Harris administration, state governments, and utilities prioritize addressing climate change through reduction of carbon emissions, the United States could soon rival Europe in its use of offshore wind turbines, explained partners Ella Foley Gannon and Dan Skees and associate Scott Clausen in an article written for Reuters.

The Safer Federal Workforce Task Force issued guidance on September 24 detailing the requirements that covered federal contractors and subcontractors must follow to comply with Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Covered contractors and subcontractors have until December 8 to ensure that covered employees—including those working from home—are fully vaccinated or qualify for a medical or religious accommodation.

Recently proposed tax legislation, if enacted, would fundamentally alter the taxation of exchange traded funds. This LawFlash discusses the potential consequences of such legislation on industry participants, including retail investors.

The US Federal Trade Commission (FTC) recently voted to withdraw its approval of the Vertical Merger Guidelines (the 2020 VMGs), which, as we covered in the past, the FTC and Department of Justice (DOJ) issued over a year ago on June 30, 2020. The vote on September 15, 2021 to rescind the policy statement broke along party lines, with the three Democratic commissioners—Chair Lina Kahn and Commissioners Rohit Chopra and Rebecca Slaughter—outweighing their two Republican colleagues—Commissioners Noah Joshua Phillips and Christine S. Wilson.

It has become increasingly clear that improving cybersecurity will be a main focus, and important goal, of the Biden-Harris administration.

FINRA is proposing to extend the ability of firms to have remote inspections until June 30, 2022. As discussed in the rule filing, FINRA Rule 3110.17 provide firms the option of satisfying their inspection obligations under Rule 3110(c) remotely for calendar years 2020 and 2021, subject to specified conditions. The rule was to automatically sunset on December 31, 2021. FINRA has extended the rule in light of the COVID-19 delta variant, inconsistent vaccination rates, and an uptick in infections. The filing includes a request for immediate effectiveness, with the rule change being operative on January 1, 2022.

As highlighted previously, three federal banking agencies (the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency) recently issued proposed risk management guidance regarding third-party relationships (Proposed Guidance). Among other things, the Proposed Guidance specifies that banking organizations should adopt third-party risk management processes that are commensurate with the identified level of risk and complexity from the third-party relationships, and with the organizational structure of each banking organization.

FINRA filed a proposed rule change with the US Securities and Exchange Commission (SEC) on August 26, 2021 to delay the effective date of changes to FINRA Rule 4210 that were previously implemented on December 15, 2016.

The American Rescue Plan Act of 2021 (ARPA) provides for a 100% COBRA premium subsidy for up to six months, from April 1, 2021 through September 30, 2021, for Assistance Eligible Individuals (AEIs) as defined under the guidance. Our prior blog posts, DOL Issues ARPA COBRA Subsidy Model Notices and FAQs and IRS Provides Second Round of FAQs on COBRA Subsidies, provide more information about the ARPA COBRA subsidy and the associated notice requirements.

Partner Michelle McCarthy and associates Jacob Oksman and Claire Rowland drafted an article for Practical Guidance about changes the IRS made to the Employee Plans Compliance Resolution System.

It’s been a big week for electric vehicles. Between the Biden-Harris administration’s August 5 executive order to encourage the development of electric vehicles (EVs) and $15 billion in funds in the Senate-approved infrastructure legislation, the growth outlook for EVs and other zero-emission transportation is strong.

As the automotive and mobility industry continues to grow under the watch of a new US presidential administration, it is important for key players to better understand the government agencies charged with enforcing the rules governing the market’s potentially criminal activities and the administration’s existing enforcement priorities. Here we discuss how the Biden-Harris administration’s enforcement priorities are likely to impact the automotive and mobility industry, as well as focus on special purpose acquisition companies (SPACs), possibly the newest frontier for parallel criminal and civil enforcement.

As we get closer to the September 30 expiration date of the COBRA premium subsidy provided under the American Rescue Plan Act (ARPA), the IRS has issued a second set of FAQs in Notice 2021-46 (Notice) to supplement its prior guidance and provide some specific answers to questions that remained unanswered. The first set of IRS FAQs were provided under Notice 2021-31, which we summarized in our previous LawFlash.

As we described in our August 31, 2020 LawFlash, the US Department of Labor (DOL) issued an Interim Final Rule (Rule) on August 18, 2020 outlining the requirement of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) for employers to provide “lifetime income illustrations” to defined contribution plan (e.g. 401(k), 403(b), etc.) participants. The purpose of the Rule is to provide participants with disclosures that will help them understand how their defined contribution plan accounts may translate into an income stream in retirement.

On July 16, 2021, the Internal Revenue Service (IRS) released Revenue Procedure 2021-30, which made several important changes to the Employee Plans Compliance Resolution System (EPCRS) and expanded the ability of plan sponsors to correct certain compliance failures under their retirement plans.

The National Labor Relations Board, in one of its most significant decisions in recent years on “union protest” issues, has substantially eroded the protection given to “neutral” parties when unions erect large inflatable rats and other displays targeting businesses that have no direct involvement in the underlying labor dispute. This ruling will likely promote more widespread tactics directed against such neutral businesses, which will predictably expand the scope of labor disputes beyond the particular employer whose actions gave rise to the dispute.

The US Departments of Treasury, Labor, and Health and Human Services (the Departments) along with the Office of Personnel Management (OPM) issued Requirements Related to Surprise Billing; Part I on July 1. This interim final rule (IFR) is the first in a series of regulations implementing the No Surprises Act, which was part of the Consolidated Appropriations Act, 2021 that was signed into law at the end of 2020.

In recent years, target retirement date funds (TDFs) have become a very popular investment option on participant-directed defined contribution plan investment lineups. But, as discussed in this LawFlash, as TDFs have grown in popularity, there are signs of increasing scrutiny around TDFs used in participant-directed defined contribution ERISA plan investment lineups. This increasing scrutiny is expected to raise new regulatory initiatives generating new questions and may favor increased process review by ERISA plan fiduciaries.

The US Department of State announced on July 6 that it has extended the validity of previously issued National Interest Exceptions (NIEs), and that going forward, NIEs will be granted for a validity period of one year for multiple entries to the United States.

Commissioner Annie Caputo has announced her plans to leave the NRC when her term expires next week, on June 30, 2021. This will leave the Commission with the bare minimum number of commissioners needed to conduct business.

On June 11, 2021, the US Department of the Interior’s (DOI’s) Bureau of Ocean Energy Management (BOEM) issued a proposed sale notice to sell commercial wind energy leases on the Outer Continental Shelf (OCS) in the New York Bight. The New York Bight is an area of shallow waters located between Long Island and the New Jersey coast that is adjacent to the greater metropolitan tristate area, which is home to more than 20 million people. BOEM proposes to offer for sale eight lease areas and to complete the lease sale by holding a public auction.

We repeatedly warned over the past few months (here, here, and here), that officials at the highest levels of the DOL were signaling that the DOL would begin an audit initiative focusing on retirement plan cybersecurity practices. Despite plan fiduciaries having had just a handful of weeks to digest the DOL’s only actionable guidance on cybersecurity and privacy matters, the wait is over. We can confirm that the DOL has begun issuing information and document requests under this new initiative, and the requests are probing and indicate serious inquiry by the DOL.

The new executive order continues the policy of prohibiting US persons’ transactions in the publicly traded securities of select Chinese companies, but expands the scope to include both Chinese companies that operate or have operated in the defense and related materiel sector and those in the surveillance technology sector of the economy of the People's Republic of China.

As many of our readers are aware, President Joseph Biden issued an executive order on May 12 to improve the nation’s cybersecurity. While much of the executive order focuses on strengthening the federal government’s networks from cybersecurity threats, “[t]he private sector must adapt to the continuously changing threat environment, ensure its products are built and operate securely, and partner with the Federal Government to foster a more secure cyberspace.”

US President Joseph Biden issued the Executive Order on Climate-Related Financial Risk on May 20, 2021, directing federal agencies across the US government to take action addressing climate-related financial risk.

Last week, we posted on the guidance issued by the US Department of Labor (DOL) for plan sponsors, plan fiduciaries, recordkeepers, and plan participants on cybersecurity best practices. Last week’s post focused on the guidance provided for hiring a service provider. In this week’s post, we will highlight some the DOL’s cybersecurity program best practices for use by recordkeepers and other service providers responsible for plan-related IT systems and data.

In response to the surge in COVID-19 cases in India, the Biden-Harris administration announced on April 30 that the COVID-19-related admission bans currently in place will be expanded to include travelers from India. The ban is currently scheduled to go into effect at 12:01 am EDT on May 4.

US President Joseph Biden and Vice President Kamala Harris have consistently framed their policies with what they call the four major “crises” facing the nation: COVID-19, the economy, climate, and inequity.

The Biden-Harris administration has set its sights on an ambitious environmental policy agenda, focusing on climate change and environmental justice as key initiatives, and intends to implement its agenda through an “all of government” approach. The all-of-government strategy, first deployed in the United Kingdom in the late 1990s, employs a coordinated, multi-department, multi-agency approach to address particularly complex problems.

In the US Securities and Exchange Commission staff’s most recent guidance addressing environmental, social, and governance (ESG) investing, the staff of the Division of Examinations released an April 9 Risk Alert noting observations made during recent examinations of investment advisers and funds (both registered and private) engaged in ESG investing.

The American Rescue Plan Act 2021, signed into law by President Joseph Biden on March 11, 2021, provides for significant relief to the most troubled multiemployer pension plans. The extent to which such relief also extends to the employers that contribute to those plans is currently an unanswered question, pending further guidance from the Pension Benefit Guaranty Corporation.

The education industry, like many others, saw a fundamental shift in 2020 as remote learning challenged some of the long-held traditions of institutions, educators, and related companies. From federal support of reopening in-person classes to changes in college athletics to overall financial challenges, here are some of the trends we could see defining the industry for the rest of 2021.

Consistent with the Biden-Harris administration’s “whole of government” approach to climate change as announced in its Day 1 and Day 7 executive orders, on March 29 the administration announced a variety of concrete initiatives that executive agencies will be taking to accelerate the development, permitting, and construction of US offshore wind projects and boost the already-growing industry as a whole. In addition to highlighting the importance of offshore wind in lowering carbon emissions and addressing climate change, the announcement emphasized the substantial collateral benefits that the administration expects offshore wind growth will bring, including jobs, investment, and related infrastructure improvements.

With the recent passage of the COVID-19 stimulus package, President Joseph R. Biden, his administration, and Congress have turned their attention to long-term economic recovery, deficit reduction, and tax reform. Proposals cover a broad range of tax policy issues, from raising the corporate income tax rate to reforming the current international tax regime. This LawFlash summarizes key elements of some of the tax reform proposals that have recently emerged.

The OCC, the Federal Reserve Bank, and the FDIC (collectively, the Banking Regulators) announced an interim final rule on March 9 that revises their capital rules to facilitate implementation of the US Treasury Department’s Emergency Capital Investment Program.

The Consumer Financial Protection Bureau (CFPB or Bureau) issued a Statement of Policy (Statement) on March 8 making it clear that going forward it will exercise its full authority to penalize covered persons found to have engaged in abusive acts or practices, 12 U.S.C. §5536(a)(1)(B), in violation of its core consumer protection authority. In doing so, the Bureau’s acting director rescinded a January 20, 2020, Policy Statement (2020 Statement) issued by a director appointed by former President Donald Trump, in which the Bureau advised, among other things which we have previously discussed, that it would generally not seek civil penalties for “abusive conduct” unless there had been a lack of a good faith effort to comply with the law.

The US Department of Labor proposed to eliminate two of the previous administration’s signature rules, the joint employer rule and the independent contractor rule.

President Joseph R. Biden signed the American Rescue Plan Act of 2021 on March 11, which provides $1.9 trillion in relief funds across a broad spectrum of categories, including additional support for vaccine distribution, school reopenings, small business grants, tax credits, pension funds, unemployment support, health benefits, and homeowner assistance. Here are some key takeaways from the expansive bill that will be impactful to businesses across the United States.

The US Senate on March 6 passed the Butch Lewis Emergency Pension Plan Relief Act of 2021 (EPPRA) as part of the American Rescue Plan of 2021 (H.R. 1319), the Biden administration’s $1.9 trillion COVID-19 stimulus package.

The Office of Federal Contract Compliance Programs announced on March 2 that it has amended its 2020 Supply and Service Scheduling List by removing all establishments selected to receive focused reviews and compliance checks. Establishment-based compliance reviews, Corporate Management Compliance Evaluation reviews, Functional Affirmative Action Program reviews, and university compliance reviews will still proceed.

President Joe Biden signed an executive order on February 24 to address possible vulnerabilities in the supply chains of critical national economic sectors, including the energy sector. The executive order directs various executive departments and agencies to complete, in coordination with private stakeholders, a series of assessments to evaluate the resiliency of supply chains in those key sectors. In his prepared remarks, President Biden explained that the order was prompted partly by concerns surrounding shortages in semiconductors, which are vital components of electronic devices used in everything from mobile phones to motor vehicles.

We previously reported on recent mortgage rulemakings that were finalized by the Consumer Financial Protection Bureau (CFPB or Bureau) late last year. Of the two final rules from the Bureau, one drastically simplifies the definition of a “qualified mortgage” (QM) (the General QM Final Rule), and the other provides an alternate pathway to QM safe harbor status for certain seasoned mortgage loans (the Seasoned QM Final Rule).

Morgan Lewis partner Eleanor Pelta authored a Law360 article about the potential immigration policies of the Biden administration. In the piece, she discussed current actions regarding immigration including eight executive orders, four memoranda, and three proclamations that concern or impact immigration.

The US Department of State announced on February 10 that students possessing valid F-1 and M-1 visas who are seeking admission to the United States from the Schengen area countries, the United Kingdom, and Ireland no longer need to seek a National Interest Exception (NIE) to enter the United States. These travelers will automatically be able to enter the United States under a general NIE, without needing to obtain preauthorization from a US consular post.

With the arrival of a new US presidential administration, companies are anticipating potential shifts in enforcement priorities by the US Environmental Protection Agency (EPA) in the areas of climate change, the National Environmental Policy Act (NEPA), and emerging contaminants and chemical safety. In several areas, there is likely to be a rollback of the rollbacks of environmental rules implemented by the former administration, as well as an increased emphasis on environmental justice.

Executive Order 13873 focused on securing the information and communications technology and services supply chain against transactions involving “foreign adversaries.” Companies in the information and communications technology and services sector should carefully study the new definitions, processes, procedures, and implications of the Interim Rule to ensure business continuity and stability.

In May 2020, US President Donald Trump issued Executive Order 13920, banning the unrestricted import or use of certain categories of bulk-power system electric equipment from foreign adversaries, with a focus on Russian and Chinese equipment suppliers. The future of that regulation is now up in the air.

In one of the last proposed notices from the US Department of Health and Human Services (HHS) under the Trump administration, HHS removed the 510(k) premarket notification requirement for seven types of gloves and proposed the same for 84 other devices ranging from gowns to ventilators.

Among other features, the new guidance recommends that employers implement a COVID-19 prevention program and identifies key measures for limiting the spread of COVID-19.

President Trump’s Executive Order Addressing the Threat from Securities Investments that Finance Communist Chinese Military Companies (EO 13959) prohibits transactions by or on behalf of US persons in publicly traded securities of Chinese companies identified by the US government as “Communist Chinese military companies.” This update discusses significant developments related to EO 13959 since our November 17 LawFlash, including OFAC actions and interpretations, and implications arising from those developments.

President Joe Biden issued a series of executive orders on January 27 to further confront the “existential threat” of climate change, to reaffirm the executive branch’s commitment to evidence-based policymaking and innovation, and to build on the executive actions taken on Day 1. This LawFlash provides an overview of several of the key actions under those orders.

President Joe Biden issued on January 25 an Executive Order on Ensuring the Future Is Made in All of America by All of America's Workers (EO). This EO leaves in place key portions of the prior administration’s July 15, 2019 EO 13881 (Maximizing Use of American-Made Goods, Products, and Materials) and related implementing regulations, orders a sweeping review of multiple domestic preference rules, including proposing standards for domestic products, and establishes a central Office of Management and Budget (OMB) authority to approve federal agency waiver requests of Made in America requirements.

In an effort to curb the further spread of COVID-19, President Joe Biden has extended restrictions on US admission from the Schengen Area, the United Kingdom, Ireland, and Brazil as of January 26, and expanded the restrictions to include travel from South Africa as of January 30. The new restrictions prohibit travel from any of these regions during the 14-day period preceding anticipated entry to the United States, with certain exceptions.

President Joe Biden has elevated Democratic Commissioner Christopher T. Hanson to serve as Chairman of the US Nuclear Regulatory Commission (NRC). Mr. Hanson succeeds former Republican Chairman Christine Svinicki—the longest-serving Commissioner in the history of the agency—who stepped-down on January 20, 2021. Although timing is uncertain, President Biden also is expected to nominate a fifth Commissioner to fill the former Chair’s vacant seat. If that pick shares Chairman Hanson’s views, the agency’s longstanding threshold for intervenor challenges to license applications could be overturned.

In an expected move, President Joe Biden has designated Commissioner Richard Glick as the new FERC Chairman. Chairman Glick takes over from Commissioner James Danly, whose term as Chairman lasted less than three months.

Following the inauguration of President Joe Biden and Vice President Kamala Harris, President Biden signed several executive orders related to immigration. And, as promised by the Biden transition team, the Biden administration has sent a sweeping immigration reform proposal to Congress, where the effort to pass the bill will be led by Senator Robert Menendez of New Jersey. We provide below a summary of significant executive actions related to immigration, as well as a summary of the key points in the legislative proposal. We also summarize the status of certain Trump administration immigration rules post-inauguration.

It’s clear that President Joe Biden’s approach toward consumer protection and financial services enforcement will differ from that of his predecessor. In addition to general housekeeping matters, such as replacing and hiring personnel, it’s likely we’ll see more cooperation among state attorneys general, including across state lines, and federal agencies as well as a guaranteed increase in enforcement, especially against individuals in the coming days of the new administration.

Most media accounts suggest that the incoming Biden administration will usher in a more “aggressive” SEC enforcement posture, with renewed emphasis on investigating potential fraud and controls deficiencies at public companies. SEC Enforcement may face some short-term headwinds to this approach.

The US Department of Treasury and the Internal Revenue Service released anticipated final regulations pertaining to the federal income tax credit for carbon capture projects under Section 45Q of the Internal Revenue Code on January 6, 2021. The final regulations in certain significant respects respond favorably to taxpayer comments to the proposed regulations released on May 28, 2020.

Medical device companies should be prepared for an increase in FDA enforcement activity with the incoming Biden administration, in addition to changes in agency leadership and repeals of regulatory reform.

The US Department of Energy (DOE or Department) finalized a rulemaking proceeding last week that revises its National Environmental Policy Act (NEPA) implementing procedures pertaining to certain authorizations under the Natural Gas Act (NGA). This update limits DOE’s review of environmental impacts associated with natural gas exports to certain countries; DOE’s review will only consider the environmental effects of marine transportation, which DOE has also determined as not creating a significant environmental impact.

While workplace safety standards have been thrust into the national conversation since the coronavirus (COVID-19) pandemic began, Occupational Safety and Health Administration (OSHA) enforcement has been relatively quiet. That will likely change under a Biden administration.

With only weeks until the US presidential administration changes hands, companies and consumers alike are anticipating what a Biden presidency will mean for consumer financial protection and for the Consumer Financial Protection Bureau (CFPB), the agency charged with overseeing it. Partner Robin Nunn and of counsel Eamonn Moran outline some of the changes that may lie ahead.

There was a perception in 2017 when then President-elect Trump took office that white collar enforcement actions under the US Department of Justice (DOJ) might drop dramatically. Many expected the Republican administration to effect policy changes or resourcing decisions that would keep corporations out of the spotlight when it came to major investigations and massive penalties.

Last week’s state attorney general races brought little change on the surface, but change in Washington significantly increases the risk of enforcement and litigation by the states. If it seems counterintuitive, it is. But this Washington changeover heightens the complexity of the relationship between Washington and state capitols.

Partner Elizabeth Goldberg and associate William Marx contributed a column to Benefits Magazine. The column covers the US Department of Labor’s (DOL’s) program for investigating retirement plans and their fiduciaries and nine areas of focus for DOL plan fiduciary investigations that may affect plan service providers, trustees, and plan administrators.

Partner Levi McAllister spoke with Automotive News for a special report on the electric vehicle (EV) industry.

Partners Erin Martin and Lance Dial spoke to Compliance Week about the US Securities and Exchange Commission’s (SEC’s) regulatory agenda for spring 2022.

Associate Jake Harper, Executive Director of the Center for Telehealth and E-Health Law (CTeL) Christa Natoli, and Director of Policy and External Affairs for CTeL Ben Steinhafel recently discussed the current regulatory landscape for telehealth at both the federal and state level on the Healthcare Strategies podcast.

Partner Sharon Perley Masling spoke with Bloomberg Law about potential benefits and tax implications for employers considering covering their employees’ out-of-state travel costs if the Supreme Court invalidates Roe v. Wade.

In a Reuters article, partners Andrew Budreika and Liz Goldberg and associate Ben Stango examine some key credit agreement provisions governing one of the hottest banking products in environmental, social, and governance (ESG)—sustainability-linked loans (SLLs).

The US House of Representatives voted to pass legislation reauthorizing several user fee programs at the US Food and Drug Administration (FDA) on June 8, 2022.

The Responsible Financial Innovation Act—a long-awaited bipartisan bill—that would assign most oversight of cryptocurrencies to the US Commodity Futures Trading Commission (CFTC) was recently introduced.

In a roundup of Medtech Insight’s most-read articles in May, the publication’s coverage of the US Food and Drug Administration’s (FDA’s) draft Quality Management System Regulation (QMSR) landed in the No. 1 slot.

Associate Amy McDonald spoke with Ignites about the US Securities and Exchange Commission’s (SEC’s) proposal that details how investment funds should disclose their portfolio companies’ greenhouse gas emissions.

The Office for Civil Rights (OCR) released a request for information (RFI) soliciting public comment on how regulated entities are voluntarily implementing security practices under the Health Information Technology for Economic and Clinical Health (HITECH) Act.

Associate Amy McDonald spoke with Bloomberg Law about the US Securities and Exchange Commission’s (SEC’s) proposal that would require investment funds to disclose their portfolio companies’ greenhouse gas emissions.

Partner Lance Dial spoke with Compliance Week about the US Securities and Exchange Commission’s (SEC’s) proposal for new environmental, social, and governance (ESG) disclosure requirements for investment advisers, investment companies, and business development companies.

The US Environmental Protection Agency announced on May 18 the addition of five per- and polyfluoroalkyl (PFAS) chemicals to its Regional Removal Management Levels and Regional Screening Levels. These additions signal the agency’s increasing efforts to investigate and address PFAS chemicals at sites of alleged contamination.

An article from The American Banker details how in recent weeks, multiple policy changes and enforcement actions have evoked “aggressive pushback” from banks and industry executives. “The number of things coming out of the agency for which there could be challenges with respect to its authority is growing,” said of counsel Eamonn Moran.

Partner Levi McAllister spoke with Federal News Network on how the Federal Energy Regulatory Commission (FERC) is addressing energy, the climate and infrastructure.

The US Department of Justice (DOJ) Antitrust Division announced significant guidance updates to its leniency program on April 4, 2022. Under the program, companies that self-report antitrust conspiratorial activity to the government (and then fully cooperate with the government in its investigation) can receive immunity from the significant fines — and criminal sentences — imposed under the antitrust laws and a de-trebling of civil fines after meeting certain requirements.

The Financial Industry Regulatory Authority (FINRA) is accepting public comments on a proposed rule that could drastically change how new exchange-traded funds (ETFs) are treated and how easily retail investors can trade them - a move that is drawing fire from some sectors of the industry.

In an interview with Pensions & Investments, partner Erin Martin explained how the US Securities and Exchange Commission’s (SEC’s) proposal to expand climate-related disclosures required by public companies could be a “monumental rule-making initiative.”

In a recent Expert Analysis piece published by Law360, partners Jeremy Esterkin and Rick Rothman discussed the US Environmental Protection Agency’s March 9 announcement reversing the former administration’s decision to revoke California’s authority to set tailpipe emission standards more stringent than those established by the agency.=

As the battle over crypto regulation plays out across the globe, partner Michael Philipp speaks with Protocol about how the United States is grappling with some of the bigger regulatory concerns given its fragmented financial regulatory scheme with multiple agencies competing for a role in crypto.

Partner Liz Goldberg spoke to Pensions & Investments about the US Department of Labor’s proposed rule titled, “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights,” which states that climate change and ESG factors are open material and that fiduciaries should consider them as factors in the assessment of investment risks and returns.

Partner David Sirignano spoke to The Deal about the Securities and Exchange Commission’s new disclosure rules set to discourage insurgent fund campaigns, and the new proposed public disclosure rules the agency issued for the derivatives market.

Partner Dennis Gucciardo spoke to Medtech Dive about the structure of the Food and Drug Administration’s (FDA’s) new proposed rule, which adopts an international standard for US quality system regulations.

Partner Rebecca Dandeker spoke to HBW Insight about the Food and Drug Administration’s (FDA’s) final guidance for marketers, outlining how to respond voluntarily to recalls of food, drug, medical technology, and personal care products.

Partner Sarah Brodie joined Bloomberg Law’s Talking Tax podcast to discuss the Biden-Harris administration’s Build Back Better tax plans, which were stalled in the Senate late last year.

An HBW Insight article reports that some stakeholders may have questions about the Office of Nonprescription Drugs in FDA’s Center for Drug Evaluation and Research, stating that Y Type meetings are limited to one per OMOR. Partner Rebecca Dandeker pointed out that meetings under the agency’s other drug user fee-supported programs aren't limited to one per new drug application (NDA).

Partner Giovanna Cinelli spoke to Compliance Week about the implications of Russian sanctions for US companies.

Partner Levi McAllister authored an article in Law360 on recent guidance from the US Department of Transportation, which provides clarity on how and when funding from the Infrastructure Investment and Jobs Act will be made available for electric vehicle charging stations.

A Payments Dive article reports on the approaching March 1 deadline for major “buy now, pay later” (BNPL) firms to provide their responses to the Consumer Financial Protection Bureau (CFPB).

In a recent Morgan Lewis webinar covered by Private Equity International, partner Courtney Nowell spoke about the US Securities and Exchange Commission’s proposed new rules requiring the benefits provided to larger institutions—including co-investment rights or favorable economics—to be disclosed to investors, and prohibited if considered harmful.

Partner Kirstin Gibbs spoke with Law360 about how the Federal Energy Regulatory Commission’s (FERC’s) plans to evaluate natural gas projects based on greenhouse gas emissions may be affected by a recent court decision.

Power Magazine quoted partner Levi McAllister explaining how the US Departments of Energy and Transportation’s new National Electric Vehicle Infrastructure (NEVI) Formula Program will deploy the $5 billion allocated to create a nationwide network of electric vehicle (EV) charging stations.

Tim Lynch, senior director of the strategic government relations and counseling practice, spoke to Automotive News about the upcoming Senate vote that will decide if Steven Cliff, current deputy administrator to the National Highway Traffic Safety Administration (NHTSA), will lead the agency.

The Office of the Comptroller of the Currency’s true lender rule provided a uniform standard to determine when a national bank is acting as a lender when it partners with other service providers. But with Congress’s passing of the Congressional Review Act, which invalidated the rule, partners Reed Auerbach, Susan DiCicco, and David Monteiro contemplate in The Journal of Structured Finance whether the bank partnership model has taken one step forward and two steps back.

AACPsharedinsights from partner Howard Young on plans by the US Department of Health and Human Service’s Office of Inspector General (OIG) to conduct a nationwide review of hospice beneficiary eligibility, citing Howard’s Health Law Scan blog post.

Associate Jake Harper spoke with Xtelligent Healthcare Media about key pieces of telehealth legislation moving through Congress in 2022 and the factors that could potentially stop their passage, as well as the additional regulations needed to advance telehealth usage.

In Reuters, partners Ella Foley Gannon, Levi McAllister, and Rick Rothman discuss how changes in the transportation industry—the largest source of greenhouse gas emissions in the United States—could make it the industry to watch in the fight against the effects of climate change.

Partner Dan Skees spoke with Law360 about how the Federal Energy Regulatory Commission’s (FERC’s) transmission policy is something energy lawyers are keeping tabs on in 2022.

As employers continue to deal with the ongoing impacts of the pandemic heading into 2022, partners Michael Jones and Siobhan Mee and associate Alana Genderson shared some related legal trends to watch in the new year.

Partner Sandra Moser spoke to The National Law Journal about the Biden administration’s focus on anticorruption as a national security priority, and how the US Department of Justice has worked in recent years to encourage companies to report misconduct voluntarily—particularly in foreign bribery cases, where corporations and counsel often work with federal investigators.

Partner Liz Goldberg spoke to Pensions & Investments about the Department of Labor's Employee Benefits Security Administration (EBSA) and its focus on missing participant enforcement actions.

Associate Alana Genderson spoke with HR Magazine about how employers can accurately assess employee numbers in the wake of the contested Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS), which applies to companies with more than 100 employees.

Partner Ignacio Sandoval spoke with Global Risk Regulator about a recent report on stablecoins from the President’s Working Group on Financial Markets, Federal Deposit Insurance Corporation (FDIC), and Office of the Comptroller of the Currency, which lays out a list of associated risks and recommendations—including that stablecoin issuers should be overseen by the FDIC.

In Law360, partners Steven Johnson, Jonathan Zimmerman, and Handy Hevener, along with associates Anna Pomykala and Jacob Oksman, outlined key components of the Coronavirus Aid Relief and Economic Security (CARES) Act’s complex repayment rules for employer-share Social Security tax deferrals.

Partners Handy Hevener and Steven Johnson discussed with Law360 why they’re grateful for Internal Revenue Code Section 139.

In a George Mason University SCIF blog post cited by Law360, partner Kenneth Nunnenkamp discusses the limits of the President’s national security tariff power under the Trade Expansion Act as it is called into question by a new petition for US Supreme Court review.

Partner Michael Puma told HR Magazine that employers are seeing an influx of religious accommodation requests in light of COVID-19 vaccination requirements.

Associate Alana Genderson spoke with HR Dive about the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS) requiring some employers to implement COVID-19 vaccine mandates or testing requirements by January 4.

Associate Alana Genderson spoke to Law360 about the Occupational Safety and Health Administration’s new emergency temporary standard requiring private sector employers with 100 or more employees to set up a plan by December 5 to comply with vaccination or testing protocols.

Partner Julie Stapel spoke with Pensions & Investments about the US Department of Labor’s (DOL’s) recent proposal on environmental, social, and governance (ESG) investing, which would permit retirement plan fiduciaries to consider climate change and other ESG factors when selecting investments and exercising shareholder rights.

Partner Stephanie Feingold told Bloomberg Law that while it could be years before the Environmental Protection Agency publishes final rules of what constitutes safe PFAS—or “forever chemical”—levels, if an eventual regulation includes manufactured goods, it will apply to “about every manufacturing industry.”

Partner Julie Stapel spoke with Law360 about a new US Department of Labor proposal that could break down some Trump-era barriers that discouraged ESG investing by employee retirement funds.

Partner Elizabeth Goldberg spoke with Bloomberg Law about a proposed regulation from the US Department of Labor (DOL), which states that fiduciaries’ duty of prudence “may often require” consideration of the economic effects of climate change.

Partner Reece Hirsch joined the Berkeley Center for Law and Technology’s (BCLT’s) Expert Series podcast to discuss the Data Protection Act of 2021.

Partner Stephanie Feingold discussed the US Environmental Protection Agency's pending requirement that companies report their use of so-called “forever chemicals” in Law360.

Partner Duke McCall discussed a congressional plan to revive a decades-dormant tax on chemicals and possibly on crude oil with Law360.

Partner Thomas Linguanti spoke with Law360 about the results of a pilot program run by the Internal Revenue Services (IRS) that invited greater participation from compliance personnel in the appeals process.

Weeks of intense lobbying efforts from the cryptocurrency industry were spurred by a provision included in the Infrastructure Investment and Jobs Act about cryptocurrency reporting requirements.

Partner Harry Johnson spoke with Law360 about a memo released by the National Labor Relations Board (Board) general counsel outlining her priorities. Harry spoke about the potential impact of the Board’s general counsel seeking more injunctions under Section 10(j) of the National Labor Relations Act, which authorizes the Board to seek temporary injunctions against employers and while the case is being litigated before the Board.

Partner Levi McAllister authored an article for Law360 detailing the Biden-Harris administration’s recent executive order in support of electric vehicles and the Senate-approved infrastructure bill that earmarks funds for the development of more zero-emission transportation.

Partner Matt Hawes was quoted by Plan Sponsor about recent US Department of Labor (DOL) guidance for plan sponsors on how to address uncashed distribution checks.

Morgan Lewis partner Sarah-Jane Morin was interviewed by Law360 about the US Senate’s $1.2 trillion infrastructure bill that included a “controversial measure” that could have major implications for the cryptocurrency industry through reporting requirements for brokers in the digital asset space.

Partner Levi McAllister spoke with Law360 about an executive order from the Biden-Harris administration that set ambitious goals for electric vehicles.

Partners Miranda Lindl O'Connell and Carl Valenstein spoke with Pensions & Investments about the US Securities and Exchange Commission's recent attention on climate-risk disclosure.

Partners Ella Foley Gannon and Neeraj Arora co-authored a Reuters article regarding the Biden-Harris administration’s ambitious approach to climate policy in its first 100 days.

Partners Matthew Hawes and Elizabeth Goldberg provided their insights to PlanSponsor regarding the US Department of Labor’s (DOL’s) release of its first cybersecurity guide for ERISA plans. Under the new guidelines, the DOL indicates that protecting participant information is a fiduciary issue and that plans have a responsibility to address them.

Morgan Lewis partners Susan Harthill, Elizabeth Goldberg, and Eleanor Pelta authored an article for International Employment Lawyer about early policy changes from the Biden-Harris administration that affect the workplace, including actions addressing multi-employer plans, diversity training, and immigration laws.

Partner Sheila Armstrong was quoted in a Law360 article regarding President Joseph Biden’s executive order implementing more aggressive cybersecurity requirements in light of recent cyberattacks.

Morgan Lewis partners Elizabeth Goldberg and Matthew Hawes provided insight to Pensions & Investments about the DOL’s new cybersecurity guidance to retirement plan sponsors and fiduciaries.

Partners Kirstin Gibbs and Ella Foley Gannon were quoted by Law360 in an article about the new US presidential administration’s efforts toward tackling climate change.

Partner Randy McGeorge spoke with Bloomberg Law about the financial assistance for union-brokered pensions included in the Biden-Harris administration’s COVID-19 relief package. The funds are only available through 2051, so Randy said in the article, “what the law does is not provide a permanent bailout but, rather, kicks the can down the road on these existing issues for about 30 years.”

Partner Jeff Boujoukos was quoted in a Board IQ article about the prospect of mutual funds being allowed to directly invest in cryptocurrency under the new potential leadership of the US Securities and Exchange Commission (SEC).

Partner Eleanor Pelta spoke with Law360 about the Biden-Harris administration’s decision to permit individuals to reapply if they were denied H-1B, H-2B, J, and L temporary visas under the Trump administration.

In a recent Law360 article, partner Eleanor Pelta discussed the expiration of the Trump administration’s Proclamation 10052 and the benefits the expiration presents multinational companies. "

Morgan Lewis partner Eleanor Pelta was quoted in a Bloomberg Law article about the visa application backlog caused by the COVID-19 pandemic. In the piece, she discussed the economic ramifications.

Morgan Lewis partner Jonathan Zimmerman spoke with Law360 about the new COBRA subsidies introduced by the American Rescue Plan Act (ARPA). The passage of ARPA means that eligible employees who were laid off or had a reduction in hours as a result of COVID-19 can stay on their workplaces health plans for free within the extended 18 months of coverage from COBRA.

Of counsel Sage Fattahian was quoted in an HR Magazine article about the implications of the American Rescue Plan Act of 2021 for employers.

Morgan Lewis partner Eleanor Pelta was quoted in an International Employment Lawyer article about the Biden administration’s decision not to defend a Trump era “public charge” policy before the US Supreme Court. The rule allowed for education, English-language skills, and current wealth to be considered when determining an individual’s eligibility for residency.

A blog post authored by partner Elizabeth Goldberg and associate Lauren Sullivan was cited in an HR Magazine article about the US Department of Labor’s (DOL’s) decision to not enforce a Trump administration guideline that limited the use of environmental, social, and governance (ESG) criteria when selecting retirement plan investments.

Associate Emily Cuneo DeSmedt spoke with HR Magazine about the recently reintroduced Pregnant Workers Fairness Act, which could update required accommodations for pregnant workers. The bill was reintroduced in the US House of Representatives in February, and if it passes, “employers would need to amend their existing reasonable accommodation policies to clarify that they apply to employees who are pregnant, have pregnancy-related conditions or have recently given birth,” said Emily.

Partner Jonathan Snare spoke with Law360 about new guidance from the Occupational Safety and Health Administration (OSHA) that requires vaccinated workers to continue to wear masks and take other measures to prevent the spread of COVID-19.

Partner Eleanor Pelta spoke with The Harvard Crimson about the potential implications of the Biden administration’s immigration policies on higher education.

Partners David Monteiro, Robin Nunn, and Rebecca Hillyer were quoted in a Compliance Week article about consumer protection initiatives, which are expected to be a major area of focus under the incoming Biden administration.

Morgan Lewis partner Sharon Perley Masling spoke with Bloomberg Law about the legal questions for employers around mandating the COVID-19 vaccine. “Whether to mandate the vaccine is obviously an industry-by-industry and employer-by-employer decision,” said Sharon. “In most cases, however, our clients are deciding to strongly encourage their employees to get the vaccine rather than require them to do so while the vaccine is under an EUA.”

Partner Jonathan Snare and associate Alana Genderson spoke with HR Magazine for an article about what employers may expect regarding enforcement by the Occupational Safety and Health Administration (OSHA) under a Biden administration.

Morgan Lewis partner Jeffrey Boujoukos spoke with Law360 for an article about the likely impact of the COVID-19 pandemic and a Biden administration on the US Securities and Exchange Commission’s (SEC’s) enforcement priorities.

Morgan Lewis partner Douglas Baruch was quoted in a Bloomberg Law article following the announcement that the 2018 policy on whistleblower case dismissals, known as the Granston memorandum, would continue under the incoming presidential administration.

Many companies are preparing for a shift in priorities under a Biden-Harris administration, despite some lingering uncertainty over the fate of the US election, including the makeup of Congress and the official confirmation of a new president. To help with that preparation, Morgan Lewis assembled a group of former government officials to explain what happens now, what could happen after January 20, and what companies around the world should be doing.

Morgan Lewis partner and co-leader of the firm’s privacy and cybersecurity practice Reece Hirsch spoke with Politico about potential changes the Biden administration might bring to the digital health landscape.