December 2012 Archives


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November 2012

Dear Young Lawyers Section Members:

Welcome to the latest edition of Electronically-In-Touch, the e-publication of the NYSBA Young Lawyers Section. The current issue includes a message from our section chair, upcoming events and an updated from the Criminal Justice Section liaisons. We then have articles on punitive damages by Daniel M. Braun, Esq., intellectual property by Samuel Mushell, Esq. and Antitrust by Meghan C. Marcelo, Esq. We are always looking for submissions so please keep your articles coming to Electronically-In-Touch.

The Officers of YLS and the Editors of Electronically-In-Touch also wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors alone, and do not represent the opinions of the NYSBA Young Lawyers Section, or its Officers or Executive Committee.

Erin K. Flynn, Esq.
Editor in Chief, Electronically-In-Touch

Brian M. Doyle, Esq.
Managing Editor, Electronically-In-Touch

Chair's Message

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Dear Section Members:

Welcome to the November 2012 issue of Electronically-In-Touch! The Holiday Season is now well under way, and as you will see in the following pages YLS will be hosting or co-hosting several holiday events that will also double as charity events for very worthwhile causes. We hope that you will attend one - or more than one - to join with fellow attorneys in celebrating the holidays, and assisting a good cause at the same time. We have several interesting and informative articles in this month's publication, and we hope you enjoy them. Remember that if you have a topic on which you would like to publish, or an event for the YLS that you would like to advertise or promote, please contact me, the EIT Editors, and/or our terrific Staff Liaison Tiffany Bardwell. In the coming weeks, the YLS will be selecting the winner of the Annual Outstanding Young Lawyer Award - to be presented at Annual Meeting. You will also see the annual call for nominations, pertaining to the Officer and Executive Committee positions for the June 2013-June 2014 Term. You can nominate yourself or a colleague. The YLS Nominating Committee will be meeting to review the nominations prior to Annual Meeting, and then the Slate of Nominees will be voted on at the January 2013 YLS Executive Committee Meeting during NYSBA Annual Meeting. We especially welcome and encourage diverse applicants to apply. More information will be provided in my December Chair's Message concerning Annual Meeting plans. Again, Happy Holiday wishes are extended to all of our 4,159 Section members (and counting!) and their families this Season.

Michael L. Fox, Esq.
Section Chair

District Events

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2012 Young Lawyers Section 3rd/4th District Toys for Tots Holiday Event

On December 4, 2012, the 3rd & 4th Judicial Districts of the NYSBA Young Lawyers Section, Real Property Law Section, and Torts, Insurance and Compensation Law Section will co-sponsor an annual Toys for Tots Holiday Event. This year, the event will be held at C.H. Evans Brewing Company at the ALBANY PUMP STATION. The cost of attendance is an unwrapped toy, to be donated to the Toys for Tots Foundation. Come join us for free hors d'oeuvres, and a fun night of networking, all for a great cause. Cash bar will be available.

Young Lawyers Holiday Party - 10th District Long Island

Together with the Nassau County Bar Association's Young Lawyers Committee, the Young Lawyers Section will be co-hosting a holiday event at Eleanor Rigby's in Mineola on Thursday, December 6th from 6:00 - 8:00pm. Eleanor Rigby's is conveniently located at 133 Mineola Blvd, within walking distance of the LIRR (Mineola Station) and the Nassau County Supreme Court. Join us for complimentary appetizers, drink specials and good company!

We kindly ask everyone to bring an unwrapped toy that will be donated to the local chapter of Toys-for-Tots.

This event will be a great opportunity to meet attorneys in the area and learn more about the Young Lawyers Section. We will be pleased to provide you with more information at the event regarding opportunities to become more active in the Sections. Young Lawyers Section Membership will be offered at a reduced fee of $10 for 2013 at this event! In addition, your donation will be for a worthwhile cause.
In order to give us an accurate head count, please RSVP to John Christopher at

Events of Interest

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How To Find Your First Legal Job After Law School

The New York State Bar Association Committee on Lawyers in Transition is continuing its series of free, live Career Development webcasts to help lawyers better manage their careers during this tough economy. The upcoming December 4th program will feature panelists sharing tips on how to find your first legal job after law school.

Tuesday, December 4, 2012
Patterson Belknap Webb & Tyler LLP
1133 Avenue of the Americas, New York, NY 10036
9:00 a.m. - 11:00 a.m.
Free Live Program and Free Webcast for NYSBA member. The non-member in person registrant fee is $25.
Pre-registration is required.
Register online now.

Lawyers in Transition Holiday Networking Event

The Committee on Lawyers in Transition cordially invites you to attend an evening of networking with fellow attorneys across all practice areas.

Monday, December 3, 2012 Arctica 384 3rd Avenue (between 27th and 28th Streets), New York, NY 6:30 p.m. to 8:30 p.m. $20 NYSBA Members

Pre-registration is Required. Register online now.

Criminal Justice Section Update

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Proposed Sealing Legislation

At the annual meeting in January 2012, the House of Delegates passed the Criminal Justice Section Sealing Committee's legislative proposal that will afford some individuals with conviction histories the opportunity to have certain conviction records sealed. This legislative proposal building on the work the Committee previously accomplished when they lent their support to passing a conditional sealing measure for drug convictions. The Criminal Justice Section has now taken the next step toward legislative action by getting sealing adopted as a legislative priority by NYSBA for the upcoming year. The section is also working with reentry organizations to garner wider support for the proposal.

The full proposal can be read here.

Highlights of the proposal include:

  • It is narrowly tailored to grant sealing eligibility only to non-criminal petty offenses, up to three Penal Law misdemeanors, or only one non-violent D or E Penal Law felony.

  • Applicants must wait a significant period of time before applying for conditional sealing.

  • The proposal explicitly denies sealing of violent felonies, high-level felonies, sex crimes, crimes against children or the elderly, drunk driving, and crimes involving public corruption.

  • Law enforcement and corrections agencies will retain full access to all sealed conviction records.

  • If a person is arrested or charged with a crime after the record is sealed, the conviction will be unsealed immediately.

  • The District Attorney will be served with the applicant's motion for sealing and will have a full opportunity to oppose sealing in any case.

  • The ultimate decision whether to grant the application will be at the complete discretion of the judge who imposed the original sentence.

  • The court will only grant sealing if it would preserve public safety and uphold justice, based on a variety of factors related to the applicant's criminal history and personal circumstances, as well as any statement by the victim of the offense, if there is one.

Forensics & the Law

The Criminal Justice Section held it's annual "Forensics & the Law" CLE on October 12, 2012. The section continued its support for young lawyers by offering newly admitted attorney pricing to this conference. This sold out program covered False Identifications, False Confessions, New Developments in Arson Investigation, the NAS report regarding the process of analyzing Latent Fingerprints and Legal Issues arising form laboratory operations.

The next criminal justice section Executive committee meeting is Wednesday, December 12, 2012. All section members are welcome and encouraged to attend.

Please contact us if you would like to become more involved in the Criminal Justice Section.

Erin K. Flynn, Esq.
Samantha M. Kantor, Esq.
Kevin T. Kelly, Esq.

Punitive Damages

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Punitive Damages: Practice Points and First Principles
By Daniel M. Braun, Esq.

Although a broad conception of punitive damages - also known as exemplary damages - may be traced back to the Code of Hammurabi, the remedy continues to create vexing problems due to its quasi-criminal nature. In particular, the rise of modern mass tort litigation in the 1960s transformed punitive damages into a "hot button" issue.

Currently, punitive damages hinge on deterrence and punishment, as they "may be awarded where the defendant's conduct amounts to such gross, wanton or willful fraud, dishonesty, or malicious wrongdoing as to involve a high degree of moral culpability, making it appropriate to deter the defendants from engaging in similar conduct in the future and to induce the victim to take action against the wrongdoer." Whitney v. Citibank, N.A., 782 F.2d 1106, 1118 (2d Cir. 1986).

Whereas in the 19th Century punitive damages occasionally functioned to compensate plaintiffs for intangible harms such as pain and suffering, punitive damages no longer serve any compensatory role. The Supreme Court has stated, "it should be presumed a plaintiff has been made whole... by compensatory damages, so punitive damages should only be awarded if the defendant's culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence". BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) at 575. Punitive damages, hence, are not awarded to the plaintiff as of right. In re Simon II Litigation, 211 FRD 86, 162 (EDNY 2002), vacated, Simon II Litig. v. Philip Morris USA Inc. (In re Simon II Litig.), 407 F.3d 125 (2d Cir. 2005).

Courts seek to protect against punitive damage awards that could be greater than maximum penalties permitted by the criminal law. Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967). Practitioners should be mindful of the three guideposts that the Supreme Court laid out in BMW of North America, Inc. v. Gore. Id. First, courts must consider the level of reprehensibility of the defendant's conduct. Id. at 576-7. Second, courts must consider the ratio of punitive-to-compensatory damages. Id. at 583. And third, courts should consider the sanctions, criminal or regulatory, that exist for comparable misconduct, and whether a lesser deterrent might be sufficient to induce compliance. Id. at 574-5, 583.

Notably, an award of punitive damages that is more than nine times the amount of the plaintiff's compensatory damages, will likely infringe a defendant's due process rights under the Fourteenth Amendment (" practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process", State Farm Automobile Insurance Co., v. Campbell, 538 U.S. 408 (2003) at 425). Moreover, punitive damages may not be imposed on a defendant for harm that he caused to non-parties. Philip Morris USA v. Williams, 549 U.S. 346 (2007) at 349.

Under New York law, there is no separate cause of action for punitive damages. In re Pfohl Bros. Landfill Litig., 26 F.Supp.2d 512, 548 vacated Freier v. Westinghouse Elec. Corp., 303 F.3d 176 (WDNY 1998). For fraudulent conduct to warrant punitive damages, the defendant must have had evil and reprehensible motives. Solutia Inc. v. FMC Corp., 456 F.Supp.2d 429, 453 reconsideration denied (SDNY 2006). In the case of intentional infliction of emotional distress, the plaintiff bears the burden of demonstrating that the defendant's extreme or outrageous conduct intentionally or recklessly caused severe emotional distress to the plaintiff. O'Dell v. New York Prop. Ins. Underwriting Assn., 145 A.D.2d 791, 792, 535 NYS.2d 777, 779 (3d Dept. 1988).

While there are no signs that the remedy of punitive damages will be expunged from the U.S. legal system, the above cases evidence a trend that courts are placing greater controls on punitive damages. Whereas less than 20 years ago, the Supreme Court upheld an award of punitive damages in which the ratio of punitive-to-compensatory damages was 526:1 (TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443 [1993]), the single-digit ratio rule of thumb today offers defendants protection against such outcomes.

It remains to be seen how the story of punitive damages will continue to unfold here in New York as, for instance, certain cable television providers face lawsuits and the threat of having to pay punitive damages, in the wake of Hurricane Sandy.

Nonetheless, it remains unclear why some particular ratios of punitive-to-compensatory damages are presumptively constitutional, and others are not. At least for the foreseeable future, courts will likely continue to demarcate boundaries on the basis of case-specific facts, but on a conceptual level, punitive damages will remain controversial as long as they overcompensate plaintiffs in a legal system where the fundamental principle is to make them whole.

Daniel Braun (J.D., LL.M.) is a New York attorney, and a Fellow and Visiting Scholar at Columbia Law School. His article, "Emerging Experimentalism in the Black Sea Region: Peace Stability, Prosperity, and the Fight Against Organized Crime" will appear in Currents International Trade Law Journal this fall. His latest work, "Constitutional Fracticality: Structure and Coherence in the Nation's Supreme Law" will appear in the Saint Louis University Public Law Review, Spring 2013. The author can be reached at

Intellectual Property

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Ambiguities in the TRIPS Compulsory Licensing Scheme
By Samuel Ari Mushell, Esq.

A harrowing global World Health Organization report linked poverty to inadequate health care, which leads to the spread of disease. To combat this unfortunate situation, the World Trade Organization ("WTO") formulated the agreement on Trade Related Aspects of Intellectual Property ("TRIPS"), which protects intellectual property rights while providing mechanisms that promote global health.

Specifically, the TRIPS Agreement states that its purpose is to "reduce distortions and impediments to international trade, taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade." In contrast, the TRIPS agreement also provides that "members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition." As a result, the TRIPS agreement allows for waiver of patent protection under certain circumstances. This is known as the compulsory licensing scheme.

Compulsory licensing allows a non patent-holding WTO member country to waive a drug manufacturer's patent protection when, among other things, the member country is undergoing a "national emergency or extreme urgency." However, the language of the TRIPS agreement does not define a "national emergency or extreme urgency."

The question is whether this ambiguity in the TRIPS agreement undermines access to much-needed drugs for poverty-stricken people around the world. Does it give those people false hope for drugs that will not become available while allowing pharmaceutical giants to point to the TRIPS agreement as a messiah mechanism for those less fortunate?

For a complete discussion on this topic please click on the following link.


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Encouraging Oligopolies in Humanitarian Product Markets
Meghan C. Marcelo, Esq.

Patent law and antitrust weigh the needs of a consumer market against incentives to innovate. In the short-term, patents provide a temporary monopoly for a producer. Upon expiration of the patent, the market is open to other competitors. The increased supply to the market will eventually drive prices down to a marginal profit and eventually the market will reach equilibrium.

In certain markets, there is an increased risk of collusion. A market ripe for antitrust violations is usually a natural oligopoly, where the equilibrium of supply and demand can only support a few competitors. The number of competitors depends on a variety of factors, including the cost to make the product, the price and relative supply of the product's individual components and the cost to distribute the product to the consumer. Additionally, a market where the product is commoditized, where one brand is interchangeable with another to equal effect, and a market where there are few substitutes, where there is no true second-best alternative, increases the efficacy of market manipulation and artificially constrained supply if the companies choose to raise prices. Often, supply issues indicate an artificially constrained market.

The temporary monopoly bestowed on product pioneers is granted with the understanding that the price will be set at a premium and once other competitors enter the market, either by licensing the right to make the product from the original company or because of the expiration of the patent, the price will go down. In markets with a steadily increasing demand, due to increased diagnosis of a disease, population increase, or discovery of the product's use for additional unintended purposes, most markets continue growing beyond the expiration of the patent and the financial burden on the customer is temporary. This predictable market landscape changes, however, when use of the product decreases the need for that product.

The peanut-paste treatment for malnutrition is an example of a product that seeks to shrink its own market. It is easier to administer, easier to store, and more effective than earlier methods of combating starvation. The cost of the ingredients is the greatest variable in the cost of the product and additional costs are incurred because the regions in need of the product are often difficult to access. Products produced for humanitarian aid are not always patented. Often, the kinds of goods in this general market need no additional monetary incentive for production.

This product market is different than the typical product market, because over time demand is meant to shrink. While the market is unlikely to shrink to nothing and there may be other uses found for a product meant to deal with the lack of nourishment in regions hit by natural disaster or civic strife, the incentive nature of patent protection is misplaced in a market that could result in a monopoly past the expiration of the patent. Additional competition at the outset would alleviate these concerns and should be considered despite the likely consequence of speeding the creation of an oligopoly.

Where product components or ingredients are a large part of the cost, there are few efficiencies gained by refining the manufacturing process. Additionally, the cost of transportation to different geographic markets limits the ability of a single company to effectively satisfy demand. Granting a monopoly through patent protection in these products is a constraint that perpetuates a supply shortage because market penetration lessens the demand for the product. Although patents are most rigorously enforced against manufacturers in industrialized nations and the possibility of local production may offset some production concerns, this solution does not account for the nature of geographically localized disasters that may limit production and further constrain an undersupplied market. Based on these concerns, it seems the only way to effectively foster competition in product markets that are intended to shrink over time is to limit patent protection and encourage competition that may result in natural geographic monopolies and international oligopolies for certain humanitarian products.

Meghan Marcelo graduated from American University Washington College of Law in 2011. Ms. Marcelo is barred in New York and she is currently working as a contract attorney in Washington, DC. She can be reached at

About this Archive

This page is an archive of entries from December 2012 listed from newest to oldest.

October 2012 is the previous archive.

January 2013 is the next archive.

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