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.

SEC Charges Under Armour with Misleading Investors

By Mary Hansen, Michael Rinaldi and Daniel Selznick

In an order dated May 3, 2021, the Securities and Exchange Commission charged sports apparel company Under Armour, Inc. with securities violations for allegedly misleading its investors about the bases of its revenue growth and failing to disclose known uncertainties about its ability to meet future revenue projections.  In particular, the order charged Under Armour with violating the antifraud provisions of Section 17(a)(2) and (3) of the Securities Act of 1933, as well as Section 13(a) of the Securities Exchange Act of 1934 and various other reporting rules.  Notably, the charged violations do not require scienter.  Rather, a showing of negligence is sufficient. Continue reading “SEC Charges Under Armour with Misleading Investors”

SEC Continues to Educate Investors About SPAC Enforcement Risks

By Mary P. Hansen, Michael J. Rinaldi, and Jovy Dedaj

Special purpose acquisition companies, or SPACs, have quickly become a part of the Wall Street vernacular, but until recently, they were rare.  In fact, the New York Stock Exchange went 10 years without listing a SPAC until 2017. The last year, however, saw a dramatic rise in their use, both in number and in profile. In 2020 alone, 248 public offerings occurred by way of a SPAC, representing 77 percent of all initial public offerings (IPOs) during that year. They raised more than $82 billion in capital in 2020—more than the last 10 years combined—and were responsible for taking many high-profile companies public.  Although the market seems to have embraced SPACs, regulatory authorities, including the U.S. Securities and Exchange Commission (SEC), have expressed concern that these investment vehicles may present certain risks for investors.

Read the Duane Morris Alert for more.

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”

COVID-19 Prompting Significant Action by State and Federal Prison Authorities

By Jovy Dedaj

This past week, federal and state correctional facilities across the country have confirmed outbreaks of COVID-19 infections among inmates and staff.  New York City’s primary jail, Riker’s Island, currently has the most confirmed cases, with 52 inmates and 30 employees testing positive.  As this blog and other outlets have reported, crowded conditions, limited access to healthcare, and a high-risk population mean those incarcerated are particularly vulnerable to the disease.

Continue reading “COVID-19 Prompting Significant Action by State and Federal Prison Authorities”