Prosecution for Noncompliance with Agency Guidance Documents Allowed by Attorney General’s Memorandum

On July 1, 2021, U.S. Attorney General Merrick Garland published a memorandum that rescinds two previous memoranda―the Sessions Memorandum and Brand Memorandum―that prohibited Department of Justice attorneys from using noncompliance with federal agency guidance documents as a basis for civil and criminal enforcement cases. Garland’s memorandum states these previous policies were “overly restrictive,” “discouraged the development of valuable guidance” and hindered DOJ’s litigation of cases when relevant agency guidance was available.

To read the full text of this Duane Morris Alert, please visit the firm website.

What’s Really Making Us Uncomfortable—the Use of AI in Evaluating the Likelihood of Recidivism, or the Policy of Sentencing Based on the Likelihood of Recidivism?

By Kimberly G. Koziara

In his recent New York Review article, “Sentenced by Algorithm,” a review of former SDNY judge Katherine Forrest’s book, “When Machines Can be Judge, Jury and Executioner: Justice in the Age of Artificial Intelligence,” current SDNY Judge Jed Rakoff evaluates the many shortcomings of existing AI products intended to predict recidivism rates of past criminal offenders. These products are designed to guide judges in determining whether a defendant’s sentence should be extended on a theory of “incapacitation”—essentially, to protect the general public from the potentiality that the defendant will continue his pattern of criminality in the future. As Rakoff succinctly explains, the current products available have unacceptably high error rates, mostly leaning towards over-predicting future criminality. Moreover, their “black box” design raises concerns regarding the assumptions underlying the algorithm, and the defendant’s ability to effectively challenge the algorithm’s output. Continue reading “What’s Really Making Us Uncomfortable—the Use of AI in Evaluating the Likelihood of Recidivism, or the Policy of Sentencing Based on the Likelihood of Recidivism?”

Expect Increasing Scrutiny of Wage-Fixing, No-Poach Deals

Companies have long sought to prevent their competitors — particularly in skilled fields like life sciences, health care, software development and engineering — from benefiting from the talents and training of their employees.

Examples of such efforts include noncompete agreements between employers and employees, and carefully worded joint venture agreements that prohibit one partner from insourcing the know-how of another partner.

Although noncompete agreements between employers and employees have been subject to scrutiny for years, agreements between employers to restrict solicitation of each other’s employees or to fix employee wages have largely flown under the radar.

In fact, it was not until a little over four years ago that federal antitrust enforcers signaled that such agreements could be presumed illegal and criminally prosecuted. And even that policy change, significant though it was, did not bring an immediate uptick in enforcement activity.

That wait now appears to be over. The U.S. Department of Justice’s Antitrust Division has recently been aggressively bringing enforcement actions against labor market collusion, with more cases on the horizon.

To read the full text of this article (originally published in Law360) by Duane Morris partners Christopher Casey, Sean McConnell and Brian Pandya, please visit the firm website.

Constitutionality of Peremptorily Striking Jurors Who Support the Black Lives Matter Movement

By Matthew Caminiti

The appeal of a 2016 murder conviction in Contra Costa County Superior Court, California has brought front and center a new problem facing trial courts: the constitutionality of peremptorily striking jurors who indicate their support of the Black Lives Matter movement. Continue reading “Constitutionality of Peremptorily Striking Jurors Who Support the Black Lives Matter Movement”

Destined for Demise?—The Fate of the Qualified Immunity Doctrine Remains Uncertain Amid Newest Federal and State Policing Reform Efforts

By Nicolette J. Zulli

Following weeks of protests ignited by the death of George Floyd, a storm of social media activism, and bipartisan calls for reforms to policing, the difficult issue of whether the legal doctrine of qualified immunity should survive has emerged onto the national center stage. Continue reading “Destined for Demise?—The Fate of the Qualified Immunity Doctrine Remains Uncertain Amid Newest Federal and State Policing Reform Efforts”

All’s Fair in Crime and Disgorgement: Supreme Court Upholds SEC’s Authority to Disgorge Ill-Gotten Gains with Limitations

By Mary P. Hansen and Nicolette J. Zulli

On June 22, 2020, the Supreme Court, in an 8 to 1 decision, held in Liu v. SEC that the U.S. Securities and Exchange Commission (“SEC” or “Commission”) may seek “disgorgement” in federal court actions in amounts which do not exceed a wrongdoers’ net profits and are, if possible, ultimately returned to victims pursuant 15 U.S.C. § 78u(d)(5), which authorizes the SEC to seek “equitable” relief.[1] Continue reading “All’s Fair in Crime and Disgorgement: Supreme Court Upholds SEC’s Authority to Disgorge Ill-Gotten Gains with Limitations”

Scaling the (Geo)Fence: New York Lawmakers Push to Outlaw Geofence Warrants amid Ongoing National Debate for Police Reform

In the wake of national protests against police brutality surrounding the death of George Floyd, and ongoing national debate for police reform, New York lawmakers have seized the opportunity to take a stand against law enforcement’s use of a controversial surveillance technique, known as the geofence warrant, or “reverse location search.” Continue reading “Scaling the (Geo)Fence: New York Lawmakers Push to Outlaw Geofence Warrants amid Ongoing National Debate for Police Reform”

U.S. Department of Justice Files Civil Complaint for COVID-19-Related Fraud

By Brett M. Feldman and Jessica Linse

Since the outbreak of the COVID-19 virus, law enforcement officials throughout the country have publicly committed to aggressively combatting pandemic-related fraud. Those pronouncements have translated into action focused, at least at this early stage, upon frauds which might impact consumers’ health and safety. The first federal civil enforcement action took place on Saturday, March 21, 2020. On that date, the U.S. Department of Justice, in coordination with the U.S. Attorney for the Western District of Texas, filed the first civil enforcement action against a COVID-19 related fraud. Prosecutors sought an injunction shutting down a website, which purportedly offered to provide “free” coronavirus “vaccine kits” for a $4.95 shipping and handling fee. This request for injunctive relief, which resulted in a temporary restraining order pursuant to 18 U.S.C. § 1345, is likely an omen of more to come. Continue reading “U.S. Department of Justice Files Civil Complaint for COVID-19-Related Fraud”

Second Circuit Decision in NY Assembly Speaker’s Bribery Conviction Reversal Opens Possible Loophole

Sheldon Silver, former speaker of the New York State Assembly, was convicted of a number of political corruption crimes in 2015, namely accepting bribes in exchange for favorable “official acts” that benefited some bribe payors. He appealed his conviction to the Second Circuit on two grounds: first, that the trial court erred by failing to require that the prosecution establish that he and the bribe payor had a “meeting of the minds” on the specific official act to be performed in exchange for the bribes; and second, that the trial court erred by allowing the prosecution to proceed on a theory that allowed conviction based on a “nonspecific promise to undertake official action on any future matter beneficial to the payor.” (Emphasis added.)

On January 21, 2020, the United States Court of Appeals for the Second Circuit partially reversed Silver’s conviction and remanded the case for resentencing. The court’s logic and findings are significant and merit close attention.

View the full Alert on the Duane Morris LLP website.

Three Years After Policy Shift, Still No Wage-Fixing or No-Poach Prosecutions from DOJ

In an October 2016 guidance document, the United States Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission alerted human resources professionals to potential violations of the antitrust laws in hiring and compensation decisions. The guidance included the announcement that, “Going forward, the DOJ intends to proceed criminally against naked wage-fixing or no-poaching agreements.” A naked agreement is one that is not ancillary to a broader, legitimate collaboration between businesses.

The DOJ’s decision to proceed criminally against such agreements is significant. Although the Sherman Act allows the DOJ to proceed either criminally or civilly against antitrust violators, before the guidance was issued the DOJ had treated agreements between competitors not to solicit each other’s employees as merely civil violations. Following the guidance, companies and individuals suddenly had to worry about criminal fines and potential jail sentences for entering into such agreements. Nevertheless, three years have now passed without a single such indictment being filed.

View the full Alert on the Duane Morris LLP website.