AI is the simulation of human intelligence by machines, especially computer systems. AI chatbots such as ChatGPT are a new technology that is rapidly transforming the internet industry and many job functions across all industries. Chatbots are computer programs designed to simulate conversations with human users and are already replacing human workers in the workplace.

Most of us have been using AI without knowing it. When drafting an email or text message and there are spelling/autocomplete suggestions for sentences, that is AI at work.

Members of the corporate world and Congress have recently expressed concerns about the dangers of AI. They are concerned about AI technologies causing harm, such as facial recognition, that can be used to violate privacy rights. Yet, as of today, no bill has yet been proposed in Congress to protect individuals from the potential harm caused by AI. The aged old problem remains with technology that most lawmakers are just now learning what AI is.

The Federal Trade Commission (FTC) has issued consent orders against companies that have used AI in deceptive ways. In one case, the FTC issued a consent order against a company that deceived consumers about its use of facial recognition technology and its retention of the photos and videos of users who deactivated their accounts.  The FTC has also proposed commercial surveillance rules to restrict the collection of data used in AI technology. 

The FTC has recently issued guidance warning advertisers not to make false or unsubstantiated claims about AI products. The FTC highlighted four major considerations: (1) do not exaggerate what your AI product can do; (2) do not promise that your AI product does something better than a non-AI product without adequate proof; (3) know about the reasonably foreseeable risks and impact of your AI product before putting it on the market (“If something goes wrong – maybe it fails or yields biased results – you can’t just blame a third-party developer of the technology. And you can’t say you’re not responsible because that technology is a ‘black box’ you can’t understand or didn’t know how to test”); and (4) consider whether a product actually uses AI. If a product is not actually AI-enabled, then do not claim that it is an AI product. Merely using an AI tool in the development process is not the same as the product having AI in it. The guidance concludes: “You don’t need a machine to predict what the FTC might do when those claims are unsupported.”

AI is currently being used in the legal industry in many ways, such as assisting with document processing and classification for a wide range of legal matters, including due diligence, contract and document review, contract management, and deal analysis.

This raises the optimistic question: Can AI replace attorneys?

Unfortunately, my answer is no. To the best of my knowledge, AI cannot (at least not yet) do the following, which are done and billed by attorneys:

• Confer with clients to determine their objectives and concerns
• Discern best strategies and avenues to be explored
• Determine what claims are being made in the advertising which require substantiation or confusion to consumers
• Review & Edit an agreement to advance the client’s interests
• Identify potential copyright, trademark and right of publicity issues and provide risk mitigation strategies 
• Provide a risk assessment to a client, such as the risk of a challenge by regulators, competitors or consumers
• Take into account a client’s risk tolerance when providing legal advice

Moreover, an AI chatbot cannot provide legal advice under the rules of professional conduct, meaning no protection of attorney-client privilege for any conversations that a client may engage with an AI chatbot.

Unfortunately for some, despite the advances being made by AI, including in the legal profession, currently, it is unlikely that AI will be able to replace the legal profession. There are differences between providing general legal information and delivering legal advice specific to a client’s needs. AI is adept at building on what has been done before but lacks the creativity and abstract thinking that are required for many legal needs. And some would argue that AI lacks the human touch (more than a lawyer) that embodies or at least creates the important attorney-client relationship and privileges.

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This year Ethical Governance Day will be held on October 18th, 2022, in Miami, Florida, and after two years of only virtual presentations because of the pandemic, I was invited as a distinguished speaker to participate in the event with the Miami-Dade County Public Schools. You can go to their website if you are interested in participating in upcoming events.

I will be making my way into high-school classrooms to address students on the importance of civic participation and engagement to ensure ethical governance and support our democracy.

Civic participation is vital to the health of a democracy. It is essential for citizens to be informed and engaged in the decisions that affect their lives. When people are involved in their communities and in the political process, they are more likely to be satisfied with the direction of their country and trust their government.

Civic participation also helps to ensure that government policies and programs are effective and responsive to the needs of the people. When citizens are involved in the policymaking process, they can provide valuable input on the issues that matter most to them.

Finally, civic participation can help to build social cohesion and community spirit. When people come together to work for the common good, they can develop a sense of pride and ownership in their community. This can lead to increased cooperation and collaboration, and a stronger sense of community.

The post This year Ethical Governance Day at Miami-Dade County Public Schools first appeared on Brent Levison.

LGBTQ advocates sued Yeshiva to compel it to recognize the YU Pride Alliance as a university club with funding and listing in school publications. Yeshiva refused, explaining that its mission “is to instill Torah values in its students.” Yeshiva welcomes LGBTQ students, but it will not put the university’s imprimatur on clubs or activities — such as gambling, video games, or sex outside traditional marriage — that violate timeless Torah values.

Yeshiva University’s position wasn’t adopted by the majority of the justices and the decision was clear for now that Yeshiva University cannot bar an LGBT student club from ordering the Jewish school in New York City to officially recognize the group.

The decision appeared to direct the case back to the state court system. “The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief,” the decision said.

Conservative Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett dissented. Liberal Justice Sonia Sotomayor had temporarily blocked the lower court’s order last Friday while the justices considered the university’s request.

Supreme Court Justice Samuel Alito did something justices almost never do. He hinted at how the court would rule in a future case. 

Alito made the uncharacteristic statements that if Yeshiva University loses to the YU Pride Alliance in New York state courts, the Supreme Court will “likely” take the case, and “Yeshiva would likely win.”

I write as a graduate of both Cardozo School of Law which has a  long history and ongoing support for LGBTQ+ rights and also as a graduate of Yeshiva University which had successfully petitioned the Supreme Court for a temporary stay of a state trial court’s preliminary injunction requiring it to allow a Pride Alliance student organization at its undergraduate religious school. Unlike Yeshiva University’s undergraduate division, which has a religious educational program, the law school has a secular curriculum and a diverse population, and the University’s policy has no bearing on the law school or on the vibrant student OUTLaw or LGBTQ+ alumni organizations.

It is difficult as a person who connects with all types of people and craves being around and associated with diverse individuals to reconcile my steadfast commitment to diversity, equity, and inclusion with Yeshiva University’s position. I recognize that LGTBQ+ students and alumni play a critical role in our community and believe that inclusion and equality are cornerstones of all education, including, undergraduate and legal education, and am hopeful that Alito’s stunning prediction doesn’t come to fruition.

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The Doctors and researchers at Nationwide Children’s Hospital are an elite group of individuals who are extremely skilled knowledgeable and passionate, and the donation amounts go into research that is conducted daily in the laboratory to find a cure for this disease.

What is Amyotrophic Lateral Sclerosis (ALS), or the Lou Gehrig’s Disease?

Amyotrophic lateral sclerosis (ALS), additionally called motor neuron disease (MND) or Lou Gehrig’s disease, is a neurodegenerative disease that results in the progressive loss of motor neurons that manage voluntary muscular tissues.

ALS is the most common type of MND. Early signs and symptoms of ALS include stiff muscular tissues, muscle twitches, muscle wasting, and gradually increasing weakness. Limb-onset ALS starts with weakness in the arms or legs, while bulbar-onset ALS starts with difficulty talking or swallowing.

50% of the people diagnosed with ALS develop difficulties with thinking and behavior, and approximately 15% develop frontotemporal dementia. The affected muscular tissues are responsible for chewing food, talking, and walking. Motor neuron loss goes on until the ability to eat, speak, move, and finally the ability to breathe is lost. ALS in the end causes paralysis and early death, typically from breathing failure.

My father who was diagnosed with this disease passed away in 2009 after battling ALS for 20 years. He believed that he was diagnosed with this disease for a purpose and that purpose was to find a cure.

We started the event in 2002 with my father and this event has been the catalyst to raise awareness and money.   This event is known as the 5k Run/Walk for Lou Gehrig’s Disease fundraiser and in the years since its inception has raised over $250, 000 for research at Nationwide Children’s Hospital.

If you are interested in helping, click on this link to find a Walk/Run event near you.

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The term “artificial intelligence” was coined in 1955 by John McCarthy and Marvin Minsky, and they defined it as “the science and engineering of making intelligent machines.”

The goal of AI is to create intelligent machines that can do things that would require intelligence if done by humans.

Document Review

AI is already being used in the legal field. AI helps lawyers with document review by scanning millions of documents and flagging the ones that need a lawyer’s attention.

Legal Research

Lawyers are using AI to help them with legal research and to make the process faster and more efficient. They use AI for predictive coding, which means that it helps them find relevant documents faster.

Process Cases

The use of AI writing and machine learning content is becoming more prevalent in the legal field. Lawyers are using these technologies to help them process cases faster and more accurately. They can also use these technologies to take care of the mundane tasks that they don’t have time for

Draft Documents

AI writing is being used to generate legal documents. This eliminates the need for lawyers to do research manually and instead focus on what they are best at – creativity and emotions.

Robots will change the future of law and how they are already being used today. They will not replace lawyers but instead help them to do their jobs better.

Robots are already being used in many different ways in the legal field. They can help with research, discovery, and other tasks that make a lawyer’s work easier.

The legal profession is one of the most impacted by AI and automation. The idea of a future where machines replace lawyers has been discussed for decades, but now it’s becoming a reality.

The post The Role of Artificial Intelligence & Robots in the Legal Field first appeared on Brent Levison.

“Operating Expenses” mean all costs and expenses of every kind and nature owning, operating, managing, repairing, insuring, securing and maintaining the Center, the Common Areas and other portions of the Center include, but not limited to the following:

• REA
• Lighting/signing
• Cleaning/janitorial/trash removal
• Painting, striping, parking lot cleaning
• liability insurance/ personal/ property/ workers comp etc.
• payments as required by Governmental Authorities;
• maintenance, repair and replacement of utility systems serving the Center, including water, sanitary sewer and storm water lines and other utility lines,
• maintenance, repair or replacement of awnings, paving, curbs, walkways, landscaping, roofs, walls, drainage, pipes, ducts, conduits
• administrative costs attributable to the Common Areas for on-site personnel and an overhead cost equal to fifteen percent (15%) of the total costs and expenses of operating, managing, maintaining and insuring the Center.

CAP ON TENANT’s PERCENTAGE SHARE OF CONTROLLABLE OPERATING EXPENSES

In no event will Tenant’s payment of Tenant’s Percentage Share of Operating Expenses increase by more than the Operating Expense Cap. The Operating Expense Cap will only apply to controllable Operating Expenses and will in no event apply to any cost or expense related to insurance, utilities, waste collection, security, weather related maintenance, compliance with changes in Governmental Requirements or any other cost or expense not controllable by Landlord. In addition, the Operating Expense Cap will not apply to Real Estate Taxes.

CUMULATIVE V. NON-CUMULATIVE

Cumulative Caps

Landlords prefer cumulative caps, as it provides maximum flexibility in deciding what costs will benefit the shopping center. A cumulative cap sets a ceiling on the annual increases in CAM expenses that can be passed on to a tenant.

Most importantly – the “cumulative” nature of this cap allows the landlord to recover any unused increases from prior years.

Example, let’s say that the landlord and tenant agree to a 5% cumulative cap. If CAM expenses increase by 3% in year 1, then the tenant would pay the 3% increase. If CAM expenses increase by 10% in year 2, then the tenant would pay a 7% increase. This is because, in addition to the 5% cap, the landlord can recover the 2% increase that went unused in year 1.

Non-Cumulative Caps

Tenants prefer non-cumulative caps, as they want to budget and avoid unexpected increases in CAM expenses.

A non-cumulative cap sets a ceiling on annual increases in CAM expenses and does not allow the landlord to recover any unused increases from prior years.

Example, if the landlord and tenant agree to a 5% non-cumulative cap in the example above, the tenant would pay the 3% increase in year one and just a 5% increase in year 2.

CONCLUSION

During lease drafting & negotiations, pay close attention to whether the tenant is proposing a non-cumulative cap. Also be careful to understand the other factors that go into negotiating a CAM cap, such as determining what costs will be included and excluded from the cap. The failure to do so can make a big economic difference over a lease term.

The post Understanding Operating Expenses and CAPS first appeared on Brent Levison.

It has long been a question of landlords to their lawyers over the years if witnesses are really necessary when a lease is executed. Because Florida now allows electronic signatures on leases, the burden of having a lease witnessed had become even a larger problem, adding many hours of delay in securing a lease commencement date to make sure the required number of witnesses are available at the same time as both the landlord and tenant to execute the lease. The new law will save landlords a considerable amount of time because now a lease needs just two parties signing it instead of up to six (the landlord, tenant, and two witnesses for each side).

The post Florida Gov. Ron DeSantis signed HB 469 first appeared on Brent Levison.

The Supreme Court’s ruling was remarkable in many respects. As nearly half the states have no legal protection for LGBTQ employees. Now, the federal law will protect employees in those states from firing, hiring and other employment decisions made on the basis of their sexual orientation or gender identity.

The ruling was 6-3, with Justice Neil Gorsuch, writing the majority opinion. The opinion was joined by Chief Justice John Roberts and the court’s four liberal justices.

“Today,” Gorsuch said, “we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.” He found such discrimination is barred by the language in the 1964 law that bans discrimination in employment based on race, religion, national origin or sex.

The decision is the most significant affirmation of LGBT rights in the United States since the 2015 Supreme Court decision that legalized same-sex marriage. It is the court’s first decision addressing transgender civil rights.

While the case is historic for its protections granted to LGBT people, it was also historic for how, logistically, the opinion was granted. The decision was announced in a virtual format. The Supreme Court website quickly faced apparent issues with so many viewers attempting to download the opinion, which is over 170 pages, leading to delays in accessing it.

The post The Supreme Court’s about LGBTQ employees. first appeared on Brent Levison.

The main question in Liu is whether disgorgement is permissible in judicial—as opposed to administrative—enforcement actions under Section 21 of the Securities and Exchange Act of 1934, 15 U.S.C. § 78u.  Section 21(d)(5) of the Act provides that, in an action brought by the SEC under the securities laws, “the Commission may seek, and any Federal court may grant, any equitable relief that may be appropriate or necessary for the benefit of investors.”  This statutory provision does not explicitly authorize disgorgement. In contrast, as the petitioners in Liu note, other statutory provisions do expressly enable the SEC to obtain disgorgement in the context of administrative proceedings.

At the heart of the debate in Liu is whether disgorgement is a penalty rather than a proper equitable remedy that may be awarded under Section 21.  

Brent A Levison agrees with the petitioners contention that the purpose of disgorgement is primarily punitive, noting that money disgorged is not necessarily returned to individual consumers, but rather may be paid to the Treasury. The SEC countered that disgorgement awards can be necessary as a deterrent, rather than as a punishment, in cases where compensatory damages may be insufficient to deter future wrongdoing.  

Arguendo, Petitioners are also making compelling arguments that to the extent any disgorgement awards are permitted, such awards should be limited to the defendants’ net gain or profit and allowed to deduct legitimate business expenses from the net gain or profit calculation.  

The Supreme Court’s pending decision in Liu should significantly revisit and reduce the power of disgorgement in the SEC realm—either by prohibiting the SEC from seeking and obtaining disgorgement or by changing and/or implementing limitations upon disgorgement amounts that may be awarded.  The FYC is watching the Liu decision as it should have significant implications as the FTC is currently dealing with a circuit split regarding whether it can obtain equitable monetary relief under Section 13(b) of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 13(b)—a provision which, on its face, only authorizes injunctive relief.  Compare FTC v. Credit Bureau Ctr., LLC, 937 F.3d 764, 767 (7th Cir. 2019) (holding that “section 13(b) does not authorize restitutionary relief”) with FTC v. AMG Capital Management, LLC, et al., 910 F.3d 417, 426–27 (9th Cir. 2018), petition for cert. docketed, AMG Capital Management, LLC, et al. v. FTC (U.S. Oct. 21, 2019) (No. 19-508) (holding that FTC can obtain equitable monetary relief pursuant to section 13(b)).  

A favorable ruling in Liu according to Brent A. Levison should strongly support and bolster the argument that courts should follow the Seventh Circuit in Credit Bureau and change the landscape and eliminate FTC’s implied right to obtain equitable monetary relief under section 13(b) of the FTC Act.

The post CORRECTING THE FTC’S AUTHORITY TO COLLECT MONETARY RELIEF UNDER SECTION 13(B) first appeared on Brent Levison.

How Brent Levison Views Terms and Conditions

Merely having website Terms and Conditions does not necessarily create enforceable agreements with site visitors. Terms and Conditions that require users to affirmatively agree and to take proactive steps, such as checking a box and clicking “I Agree” and/or “submit,” also known as “click-wrap” agreements, are far more likely to be upheld in courts of law. To ensure enforceability, just as On Point Global websites prominently displayed links to their Terms and Conditions and prompt all of its visitors to take affirmative action and agree and accept the Website Terms and Conditions.

This material contained herein is provided by Brent Levison and if for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an experienced attorney. Each website is unique, and not act or rely on any information contained herein without seeking the advice of a lawyer.

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