New Administration Outlook: The Executive Branch, Schedule F, and Other Tools To Cabin Administrative Discretion

by Stephen Gannon, LaFonda Willis, Max Bonici, and Michael Treves

Left to right: Stephen Gannon, LaFonda Willis, Max Bonici, and Michael Treves (Photos courtesy of the authors)

The combination of judicial trends and concerted executive branch action is expected to drive significant changes in the federal bureaucracy and affect financial services regulation

We have previously analyzed the recent history of Executive Orders (“EOs”) controlling the issuance and content of regulations. As we saw on Inauguration Day 2025, and continue to see, the second Trump Administration is aggressively deploying EOs toward that end and others.

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Executive Order Seeks to Impose False Claims Act Liability for Federal Contractors’ DEI Programs

by David W. Ogden, Christopher E. Babbitt, Matthew D. Benedetto, Davina Pujari, Karin Dryhurst, Kevin Lamb and Carrie M. Montgomery

Photos of the authors

Top left to right: David W. Ogden, Christopher E. Babbitt, Matthew D. Benedetto, Davina Pujari. Bottom left to right: Karin Dryhurst, Kevin Lamb, Carrie M. Montgomery. (Photos courtesy of authors)

On January 21, 2025, President Trump issued an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (the Order), which seeks to eliminate diversity, equity, and inclusion (DEI) policies and programs across the the federal government and within private industries that do business with the federal government.[1] Part of a broader suite of DEI-related executive actions,[2] the Order reverses federal contracting requirements—dating back nearly 60 years—that obligated federal contractors and subcontractors to implement affirmative action programs, and it imposes new requirements targeted at organizations with DEI programs.[3] This alert summarizes the Order’s application to federal contractors and grant recipients, including its potentially significant implications under the False Claims Act (FCA).

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SEC Charges Investment Adviser – Signaling Importance of Accurate Disclosure of AML Procedures

by Joel Cohen, Tami Stark, Claudette Druehl, Marietou Diouf, and Jason Ho

Photos of the authors

Left to right: Joel Cohen, Tami Stark, Claudette Druehl, Marietou Diouf and Jason Ho (Photos courtesy of the authors)

The U.S. Securities & Exchange Commission (“SEC”) recently announced settled charges against an investment adviser for misrepresentations regarding its anti-money laundering (“AML”) procedures and compliance failures.[1]  As we outlined in our recent client alert, investment advisers will be required by the Financial Crimes Enforcement Network (“FinCEN”) to implement an AML program by January 1, 2026.  This SEC action does not shed new light on the scope of SEC jurisdiction over AML.  Instead, it serves as a reminder that if an investment adviser says it is voluntarily complying with AML due diligence laws by conducting AML due diligence, it needs to do so.  An investment adviser must also accurately describe its AML program once the anticipated AML requirement for investment advisers commences.

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Lessons from Hospital Criminal Prosecution for Larger Health Systems and Provider Groups

by Ericka Aiken, Kevin Lamb, and Audrey Sapirstein

From Left to Right: Ericka Aiken, Kevin Lamb, and Audrey Sapirstein. (Photos courtesy of Wilmer Cutler Pickering Hale and Dorr LLP)

Introduction

On January 8, 2025, the U.S. Department of Justice (DOJ) announced that a federal grand jury indicted the Chesapeake Regional Medical Center (CRMC) in Virginia for conspiracy to defraud the United States and health care fraud. In this rare move, DOJ seeks to hold a hospital criminally responsible for alleged fraudulent conduct committed by a physician at the hospital. The indictment alleges that from 2010 to 2019, CRMC and a former obstetrician-gynecologist with surgical privileges at CRMC conspired to defraud the government by performing medically unnecessary operations, submitting inaccurate and false bills, and failing to comply with applicable rules and regulations. According to the indictment, CRMC received approximately $18.5 million in reimbursements from health care benefit programs over that time for procedures performed by the former physician at the hospital.

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New York Data Breach Notification Law Updated

by Jenna Rode and Emilie Galper

Photos of the authors

Jenna Rode and Emilie Galper (Photos courtesy of Hunton Andrews Kurth LLP)

New York Governor Kathy Hochul recently signed into law several bills (S2659B and S2376B) modifying the state’s data breach notification law. The amendments revise the timing requirements for notice to affected individuals, expand the list of regulators to be notified, and add new data elements to New York’s definition of “private information.”

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M&A Antitrust Alert: FTC Imposes Significant Gun-Jumping Penalty for Unlawful Pre-Merger Coordination Among Crude Oil Producers

by Reb D. Wheeler, William H. Stallings, Scott P. Perlman, Oral D. Pottinger, Gail F. Levine, Andrew J. Stanger, Joshua W. Eastby, and Brian E. Saleeby 

Top left to right: Reb D. Wheeler, William H. Stallings, Scott P. Perlman, and Oral D. Pottinger. Bottom left to right: Gail F. Levine, Andrew J. Stanger, Joshua W. Eastby, and Brian E. Saleeby (Photos courtesy of Mayer Brown LLP)

M&A practitioners have long regarded the integration planning and execution process as one of the keys to a successful M&A transaction. However, in deals subject to pre-merger antitrust clearance, it is critical to navigate the line between deal provisions and arrangements intended to preserve the value of the target business and allow the parties to prepare for post-closing integration, versus those that could result in the buyer exerting control over the target business or accessing competitively sensitive information prior to closing in a manner that could be seen as potentially harming competition in violation of the US antitrust laws. This conduct, commonly referred to as “gun-jumping,” can result in investigations by the Federal Trade Commission (FTC) and the Justice Department’s Antitrust Division (DOJ) as well as significant civil penalties for violation of the pre-merger notification and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”).

A noteworthy complaint filed by the DOJ on January 7, 2025, at the request of the FTC, serves as a reminder of the risks to merging parties of not properly navigating these considerations during the pre-closing period. DOJ’s complaint alleges that the Defendants, merging crude oil producers XCL Resources Holdings, LLC (“XCL”), Verdun Oil Company II LLC (“Verdun”), and EP Energy LLC (“EP”), engaged in gun jumping in violation of the HSR Act by allowing Verdun and XCL to immediately assume control over certain of EP’s day-to-day business operations and by exchanging non-public, competitively sensitive information (CSI) before the HSR Act’s waiting period had elapsed. The proposed settlement provides for a $5.6 million civil penalty, which the FTC heralded as “the largest dollar penalty imposed for a gun-jumping violation in U.S. history.”[1]

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Key Considerations for Updating 2024 Annual Report Risk Factors

by Maia Gez, Scott Levi, Michelle Rutta, Melinda Anderson, and Danielle Herrick

Photos of the Authors.

Left to Right: Maia Gez, Scott Levi, Michelle Rutta, Melinda Anderson, and Danielle Herrick. (Photos courtesy of White & Case LLP)

With the 2025 annual reporting season upon us, public companies should consider potential updates to their risk factors for their Form 10-Ks and 20-Fs in light of recent economic, political, technological, and regulatory developments.[1]

As a starting point, this alert features (i) a list of key developments that US public companies should consider as they update risk factors in Part I and (ii) critical drafting considerations in Part II. Each company will, of course, need to assess its own material risks and tailor its risk factor disclosure to its particular circumstances.

As further described below, calendar year-end companies should review and update their risk factors by assessing the material risks that impact their businesses. Well-drafted risk factors play a crucial role in defending public companies against allegations of fraud under the US federal securities laws, and companies should therefore take the time to update their risk factor disclosure and tailor risks to their own facts and circumstances.

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Antitrust Compliance: What to Know for 2025

by Nana Wilberforce, Lauren Ige, John W. O’Toole, and Esperanza Gilbert

From Left to Right: Nana Wilberforce, Lauren Ige, John W. O’Toole, and Esperanza Gilbert. Photos courtesy of Wilmer Cutler Pickering Hale and Dorr LLP.

Active until its final day in office, the Biden administration focused intently on antitrust compliance programs. Most recently, antitrust enforcers made significant policy changes to their approach to evaluating corporate compliance programs, the use of artificial intelligence (AI) and algorithmic tools, information sharing, competitor collaborations, and labor enforcement. The incoming Trump administration will bring in new antitrust leadership with new priorities, but companies should nonetheless organize their compliance programs and business activities with the recent updates in mind, at least until the Trump administration signals a change in approach. Below, we outline some of these key policy changes and how companies can prepare.

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CFPB Report Signals Shift to State-Level Enforcement

by Paul Connell, Swain Wood, Frank Gorman, John Wells, Mathew Benedetto, and Zach Lass

Photo of authors.

Top left to right: Paul Connell, Swain Wood, and Frank Gorman.
Bottom left to right: John Wells, Matthew Benedetto, and Zach Lass. (Photos courtesy of Wilmer Cutler Pickering Hale and Dorr LLP)

On January 14, 2025, the Consumer Financial Protection Bureau (CFPB) issued a report titled Strengthening State-Level Consumer Protections (the Report) as the agency prepares for the change in presidential administrations. The CFPB offers recommendations to states to strengthen their consumer protection laws and increase enforcement activity against certain companies, including banks and other financial services companies. The Report was accompanied by a lengthy Compendium of Recent CFPB Guidance, which includes a significant amount of the agency’s Biden-era guidance, stating that it is the CFPB’s hope that these “guidance documents implementing the federal consumer financial laws prove useful to the courts in their interpretation of those laws, as well as to the various enforcers of them.”

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Cybersecurity Disclosure and Enforcement Developments and Predictions

by Francesca L. Odell, Rahul Mukhi, Tom Bednar, Nina E. Bell, and Greg Stephens

Photos of the authors

Left to right: Francesca L. Odell, Rahul Mukhi, Tom Bednar, and Nina E. Bell (Photos courtesy of Cleary Gottlieb Steen & Hamilton LLP) (Not Pictured: Greg Stephens)

The SEC pursued multiple high-profile enforcement actions in 2024, alongside issuing additional guidance around compliance with the new cybersecurity disclosure rules.

Together these developments demonstrate a continued focus by the SEC on robust disclosure frameworks for cybersecurity incidents. Public companies will need to bear these developments in mind as they continue to grapple with cybersecurity disclosure requirements going into 2025.

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