On October 28, 2021, Deputy United States Attorney General Lisa Monaco issued a memorandum marking the first major announcement on corporate criminal enforcement from the Department of Justice (“DOJ”) under the Biden Administration (“Monaco Memo”). Most notably, this memorandum: (1) reinstates the Individual Accountability Policy originally announced in the Yates Memo and (2) guides prosecutors to look at all prior misconduct, not just those instances similar to the misconduct at issue in the present investigation. Continue reading “DOJ Reinstates and Augments Prior Corporate Criminal Enforcement Policies: Now Requiring Disclosure of ALL Involved Individuals and Consideration of ALL Prior Corporate Misconduct”
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.
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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?”
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.
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”
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”
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. Continue reading “All’s Fair in Crime and Disgorgement: Supreme Court Upholds SEC’s Authority to Disgorge Ill-Gotten Gains with Limitations”
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”
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”
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.