N E W Y O R K

COUNTY LAWYERI N S I D E

Antibiotic Use in AnimalAgriculture ........................11

Environmental Impact ofE-Filing ...............................7

Greener Buildings ..............2

Pesticide Regulation ........12

Reducing EnvironmentalImpact.................................7

December 2012 Visit us at www.nycla.org Volume 7 / Number 18

New York City: The Next Frontier for Single-UsePlastic Bag Reduction Legislation

By Jennie R. Romer, Esq.

Single-use plastic bag reduction ordinanceshave become increasingly popular aroundthe world. Soon NewYork City could jointhe other local NewYork jurisdictions thathave adopted plastic bag reduction legisla-tion: the Villages of East Hampton andSouthampton, the City of Rye and theVillage of Mamaroneck. The Clean SeasCoalition (CSC), a West Coast group thatwas the unifying force behind the push forplastic bag ordinances in California(including San Francisco’s newly expandedordinance), recently formed an Atlanticdivision. CSC membership is made up oflarge national organizations, regional envi-ronmental groups, businesses, and privateindividuals.

Plastic bags are increasingly regulatedbecause they have become an icon ofwaste, and for good reason. Plastic bags areso lightweight that even if they are properlydisposed of they often end up as wind-blown litter, contributing to urban blight.Plastic bags are also uniquely responsiblefor a variety of problems including floodedstorm drains, clogged municipal recyclingfacilities, and a host of environmental prob-

lems like sea turtle mortality (the bagsresemble the jellyfish turtles eat). Evenmore importantly, plastic bags are givenaway for free, thus consumers give littlethought about whether such bags are trulyneeded or how to dispose of them.

Fortunately, plastic bag pollution is anissue that people can do somethingabout, either by simply refusing a dis-posable bag at checkout (and perhapsbringing a reusable bag), or by workingon a local legislative campaign. Plasticbag ordinances generally include a banor charge for single-use plastic check-out bags provided at the register, andthey are effective. For example, LosAngeles County’s 2010 ordinanceincluded a ban on plastic bags and aten-cent charge for paper bags. Oneyear after the ordinance went intoeffect covered stores reported a 95 per-cent reduction in single-use bag con-sumption (a total ban on in plastic bagsand a 30 percent reduction in paper bags).Unfortunately, the plastics industry hasfought hard against these ordinances, withmulti-million dollar public relations cam-

(See Plastic Bag Legislation on page 14)

Energy Efficiency In New York City:Developments in the City’s Building Codes

By Michael Panfil, Esq.

Energy efficiency, until recently, has been littlemore than a buzzword for most. The termitself can refer to any number of meanings,but for general purposes, it means the processby which one creates a product, entity, or serv-ice that uses less energy than like alternatives.Take, for example, compact fluorescent lights(“CFLs”). By needing only a fraction of theelectricity required by a standard incandescentlight, CFLs are a similar product to standardofferings, differentiated by their comparativelyefficient use of energy.

Energy efficiency stands for more thannew light bulbs, however. Creating suchefficiency is likely to become greatlyimportant in almost every industry in thenear future. Appliances, with energy label-ing, have become more energy efficient inrecent years, meaning refrigerators, ovens,and dishwashers no longer consume thesame amount of power as in years past.New buildings can be LEED certified,indicating the construction’s energy effi-ciency gains through window insulation,heat sensors, and thermal insulation.Existing homes and businesses can gothrough energy efficient retrofits, wherebyless efficient technology – such as old

HVAC systems – can be exchanged fornewer, more efficient ones. Vehicles canreach double the fuel efficiency seen instandard offerings, with technology on thehorizon promising even greater energyefficiency.

The Importance of Energy Efficiency

The increased attention upon energy effi-ciency can, at first brush, seem puzzling.Unlike other environmental causes, bothsides of the aisle can largely be seenespousing favorable views (albeit it oftenin only the most generalized tones).Businesses, including large corporations,are also often seen as at least marginallysupportive and interested. Financial institu-tions are also increasingly aware of energyefficiency projects, with a growing curiosi-ty in potential avenues of investment.

One needs look no further than how ener-gy efficiency necessarily works to under-stand why such interest exists. In essence,energy efficiency creates two aligned‘goods’ through the diminished energyuse. First, an environmental good is creat-ed. Because less power is required, lessfuel—be it coal, gas, etc.—is necessary topower the product. Less fuel used trans-

lates into less air pollution, less green-house gases, and less waste. Second, afinancial good is created. Because lesspower is required, the end user necessari-ly pays less. Remember, for example, theCFLs noted earlier, and imagine that theyconsume one-third as much power as astandard incandescent light. Once pluggedin, a consumer would thus only pay one-third of what they would normally pay onan electricity bill for that light bulb. Costsavings can be enormous when applyingthis same transaction to larger buildingsand products. Although upfront costs,including the purchase, planning, andinstallation of energy efficient products,can be hefty, a return on the initial invest-ment in terms of total savings can be sig-nificant.

The alignment of environmental andfinancial incentives thus underlies theimportance of energy efficiency.Additional benefits—such as new job cre-ation and energy sustainability—only fur-ther strengthen current interest. The result-ing intersection between such variedgroups, agendas, and stakeholders sug-gests it will likely be a crucial area ofdevelopment in the near future.

(See Energy Efficiency on page 15)

Antibiotic Use in Animal

Agriculture . . . . . . . . . . . . . . . . .11

Board Nominations . . . . . . . . . . .9

CLE Institute . . . . . . . . . . . . . . . .4

Digital Training Center CLEs . .10

Energy Efficiency . . . . . . . . . . . . .1

Environmental Impact of

E-Filing . . . . . . . . . . . . . . . . . . . .7

Ethics Hotline . . . . . . . . . . . . . . .15

Greener Buildings . . . . . . . . . . . .2

Library Notes . . . . . . . . . . . . . . .10

Meet the New Chairs . . . . . . . . . .2

Message from Barbara Moses,

NYCLA Foundation President . . .6

Message from Stewart D. Aaron,

NYCLA President . . . . . . . . . . . .3

Mobile Websites . . . . . . . . . . . . .11

Pesticide Regulation . . . . . . . . . .12

Plastic Bag Regulation . . . . . . . . .1

Protecting the Innocent . . . . . . . .6

Recent Event Photos . . . . . . . . . .8

Reducing Environmental Impact . .7

Social Disclosure . . . . . . . . . . . .13

Upcoming Events . . . . . . . . . . . . .9

What’s Tweeting . . . . . . . . . . . . . .9

T A B L E O FC O N T E N T S

December 2012 / The New York County Lawyer2

New York City “Greener, Greater Buildings Plan” Takes EffectWith Release Of Inaugural Local Law 84 Benchmarking ReportBy Samuel Blaustein, Esq.

In August of 2012, NewYork Cityreleased its inaugural Local Law No. 84Benchmarking Report.1 The Report rep-resents the first tangible results followingNewYork City’s adoption of four locallaws2 comprising the “Greener, GreaterBuildings Plan” in 2009.3 Amongst otherthings, the Report concludes that largebuildings in NewYork City could realizea significant reduction in energy use andgreenhouse gas emissions by making cer-tain cost effective improvements.4

NewYork City Local Law No. 84 of2009 amends Chapter 3 of title 28 of theNewYork City Administrative Code byadding new Article 309.5 Local Law No.84 requires(i) city owned buildings and(ii) covered buildings to benchmark ener-gy and water use.6 To “benchmark” with-in the meaning of Local Law 84 is toinput the “total use of energy and waterfor a building for the previous calendaryear and other descriptive information”into an online “benchmarking tool”developed by the United StatesEnvironmental Protection Agency andany other “complementary interface” des-ignated by the NewYork City Depart-ment of Buildings. 7

Amidst the bright lights and skyscrapersthat dominate the NewYork City skyline, itis easy to forget that NewYork State policyis to “encourage productive and enjoyableharmony between man and his environ-ment.” N.Y. Envtl. Conserv. Law § 8-0101et seq. (State Environmental QualityReviewAct or SEQRA).The City of NewYork has effectively adopted local laws in

the interest of the public health.8 Similarly,the United States Supreme Court has deter-mined that local laws designed to protectpublic health are entitled to deference.9The foregoing notwithstanding, the exis-tence of global warming and more specifi-cally, the regulations aimed at curtailing it,have bet met with staunch resistance inmany circumstances.10

Regardless of their causes, Super StormSandy and Hurricane Irene underscorethe need for NewYork City to remainever vigilant in its pursuit of public safe-ty, including those threats presented bythe environment.11 NewYork City hasbeen proactive and should be commend-ed for its efforts toward both seeking toprevent and mitigating environmentalharm.12 The inaugural Local Law No. 84Benchmarking Report makes clear that“relatively high participation” wasachieved through “extensive outreach andeducation campaigns.”13 Perhaps publicsentiment following the aforementionedevents will compel further compliancewith the benchmarking requirement andcontribute toward the more efficient useof energy producing and water resourcesby NewYork City.

While the existence of global warmingmay not yet be universally accepted,there can be no doubt that resource man-agement is critical toward the continuedsuccess of the City of NewYork. TheGreener, Greater Buildings Plan appearsto be a proactive measure aimed at safe-guarding all of the City’s residents andmay serve as an example for other citiesseeking to better utilize resources andprotect against the uncertainties posed by

an ever-changing environment.

Sam Blaustein, a NYCLA and EnvironmentalLaw and Federal Courts Committee mem-ber, is an associate at Dunnington,Bartholow & Miller, LLP, in Manhattan. Hepreviously served as a clerk in the SouthernDistrict of NewYork and received the CALIExcellence for the Future Award in the Fieldof International Environmental Law as a lawstudent at Brooklyn Law School.

References:1. http://www.nyc.gov/html/gbee/downloads/pdf/nyc_ll84_benchmarking_report_2012.pdf2 N.Y. Mun. Home Rule Law § 10 provides thatmunicipalities are authorized to establish local lawsto the extent they do not conflict with the NewYork State Constitution or State Law.See People v.Lewis, 295 N.Y. 42, 49, 64 N.E.2d 702(1945)(“The Constitution of the State (art. IX, §12), the City Home Rule Law (§ 11, subd. 2) andthe NewYork City Charter (§ 27) have conferredupon the City Council broad legislative power toprovide by local law for the preservation and pro-motion of the health, safety and general welfare ofits inhabitants.”)3 The Plan includes four primary requirementsthat certain “covered buildings,” including city-owned and large buildings annually benchmarktheir energy performance (Local Law 84); that alocal energy code be adopted (Local Law 85); thatevery 10 years covered buildings conduct an ener-gy audit and a retro-commissioning (Local Law87); and that by 2025, the lighting in the non-resi-dential space be upgraded to meet code and largecommercial tenants be provided with sub-meters(Local Law 88). See http://www.nyc.gov/html/gbee/html/plan/plan.shtml4 See FN 1 at P. 55 See http://www.nyc.gov/html/planyc2030/downloads/pdf/ll84of2009_benchmarking.pdf6 § 28-309.17 § 28-309.28 McCallin v. Walsh, 64 A.D.2d 46, 51, 407N.Y.S.2d 852, 854 (1st Dept. 1978) aff’d, 46N.Y.2d 808, 386 N.E.2d 833 (1978) (upholdingLocal Law 5 of 1978 concerning inter alia thefire prevention code); New York Coal. of

Recycling Enterprises, Inc. v. City of New York,158 Misc. 2d 1, 5, 598 N.Y.S.2d 649, 652 (Sup.Ct. N.Y. Co. 1992)(upholding Local Law 40 of1990 concerning regulation of waste transfer sta-tions.)9 Midlantic Nat. Bank v. New Jersey Dept. ofEnvtl. Prot., 474 U.S. 494, 505, 106 S. Ct. 755,761, 88 L. Ed. 2d 859 (1986) quoting ChemicalManufacturers Assn., Inc. v. Natural ResourcesDefense Council, Inc., 470 U.S. 116, 143, 105S.Ct. 1102, 1117, 84 L.Ed.2d 90 (1985)(notingthe “congressional emphasis on its ‘goal of pro-tecting the environment against toxic pollution’”in determining that a bankruptcy trustee couldnot abandon property located in NewYork Citythat posed an environmental hazard.)10 WildEarth Guardians v. Salazar, 859 F. Supp.2d 83, 89 (D.D.C. 2012)(The court dismissed achallenge asserted against the Bureau of LandManagement’s decision to recertify a coal pro-ducing region43 under C.F.R. § 3400.5 on stand-ing grounds. The State of Wyoming, amongstothers, intervened as a defendant). Comer v.Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 862(S.D. Miss. 2012)(Nuisance, trespass and negli-gence claims concerning oil by-products were-dismissed on standing ground with the courtsuggesting that the plaintiff could not establish acausal relationship between greenhouse gasemissions and Hurricane Katrina).11 Prevailing scientific opinion is that there is adiscernible anthropogenic (i.e. human-induced)greenhouse effect. Moreover, in 1992, the firstPresident George Bush signed the 1992 UnitedNations Framework Convention on ClimateChange (UNFCC) concerning the reduction ofgreenhouse gases. The Convention, which was anon-binding resolution, was ratified unanimouslyby the Senate. Massachusetts v. E.P.A., 549 U.S.497, 509, 127 S. Ct. 1438, 1448, 167 L. Ed. 2d248 (2007) citing S. Treaty Doc. No. 102–38, Art.2, p. 5, 1771 U.N.T.S. 107 (1992).12 See FN 8. Not all of these efforts have beensuccessful. Vango Media, Inc. v. City of NewYork, 829 F. Supp. 572, 583 (S.D.N.Y. 1993)aff’d, 34 F.3d 68 (2d Cir. 1994)(NewYork CityLocal Law compelling private parties to displayone public health advertisement for every fourtobacco related advertisement held to be express-ly preempted by federal law)13 See FN1 at PP. 3, 23.

Admiralty and Maritime Law Committee

David Y. Loh, who has beenpracticing for over 20 years,represents various marineinsurer and transportation inter-ests involving the movementand storage of people, places,and things within the U.S. andoverseas. Sometimes he is called to respondto emergent casualties and in other instanceshe will be asked to analyze transportation orinsurance documentation. Although he prac-tices here in Manhattan, he is often instruct-ed to handle disputes that arise anywhere inthe country. Because many of his assign-ments involve admiralty and maritime juris-diction, he usually practices in federal court.In addition to law, Loh had a brief careerwith the United States Navy during which hequalified as a Surface Warfare Officer andretired with the rank of LieutenantCommander. He has been an active memberof the Federal Courts Committee and looksforward to working with Jim Rodgers on theAdmiralty & Maritime Law Committee toinvite federal judges to speak before theCommittee and continue to offer CLE semi-nars and workshops to the Association.

Appellate Courts Committee

Michael H. Zhu graduatedcum laude from NewYork LawSchool in 1994, and was an edi-tor of the International andComparative Law Journal. Hehas been a member of MichaelH. Zhu, Esq. PC since 2006, aboutique law firm that focuses on and spe-

cializes in assisting trial counsel and individ-uals in preparing substantive summary judg-ment motions, post-trial motions andappeals. In the 17 years that he has been inpractice, he has briefed and/or argued over300 appeals in the Supreme Court, AppellateDivision, NewYork Court of Appeals and theUnited States Court of Appeals for theSecond Circuit. His areas of practice includeappeals relating to labor law/constructionaccidents, premises liability, municipal liabil-ity, sexual assault/battery and nursing homeliability, primary and excess insurance cover-age and subrogation, and professional mal-practice (legal, medical, architectural, engi-neering, broker malfeasance), and otherforms of complex civil litigation. He is excit-ed to be a Co-Chair of the Appellate CourtsCommittee, along with David M. Cohn. Hesays, “Based on my training and experience,I believe that I can offer the committee, theAssociation and its members, a unique per-spective on appellate practice.”

Bankruptcy Law Committee

James P. Pagano specializes inmatters of bankruptcy and credi-tor’s rights, both individual andcorporate. After graduation fromNewYork Law School in 1975,he became an Assistant AttorneyGeneral in the office of theHonorable Louis J. Lefkowitz. Thereafter, hewas an associate at Fogelson, Fogelson &Collins, where he worked under ProfessorNathan B. Fogelson of NewYork LawSchool and Barst, Mukamal & Barst, wherehe worked under the Hon. Roy Babitt, theformer Chief Judge of the United States

Bankruptcy Court, Southern District of NewYork. He started his own law office in 1984.Besides being admitted to practice before theCourts of the State of NewYork, the U.S.District Courts for the Southern and EasternDistricts of NewYork, he was recentlyadmitted to practice before the United StatesSupreme Court.

David Wiltenburg is a partnerat Hughes Hubbard & Reed,LLP, where he is a member ofthe Corporate Reorganizationand Litigation departments.He graduated from FordhamLaw School, where he servedas a member of the Editorial Board of theFordham Law Review.

Civil Court Practice Section

Rachel Siskind is an associateat Silversmith & AssociatesLaw Firm, PLLC. Siskind’spractice focuses on real estatelitigation with an emphasis onlandlord-tenant litigation. Sheregularly handles administrativeproceedings before various City and Stateagencies including the NewYork CityEnvironmental Control Board and the NewYork State DHCR, and represents buildingowners in criminal matters pending in theSummons Part of the NYC Criminal Courts.Siskind is also experienced in cooperativeand condominium litigation. Prior to joiningSilversmith & Associates Law Firm, PLLC,Siskind was a staff attorney at the Legal AidSociety of Nassau County, NewYork. Shehas extensive experience defending clients in

criminal matters, and specialized in drugrelated matters pending in Treatment Court.Siskind graduated from Tulane University in1999 with a B.A. in Literature. She receivedher J.D. from Tulane Law School in 2002,where she practiced as a student attorney inthe Tulane Civil Litigation Clinic. She isadmitted to practice law in NewYork State,and is also admitted to the United StatesDistrict Court, Southern District of NewYork. She previously served as Secretary ofthe Civil Court Practice Section and nowserves as Co-Chair of the Section along withMitchell Nisonoff.

Mitchell (“Mitch”) Nisonoff isan attorney admitted to the NewYork state bar over 30 yearsago. He holds a B.S. fromColumbia University’s Schoolof Engineering and a J.D. fromColumbia University’s LawSchool — both issued in 1981 under an inter-disciplinary legal education program. In pri-vate practice, he worked as a commercial liti-gation attorney. For the last nine years,Mitch was an Administrative Law Judge atthe NYC Department of Consumer Affairstribunal; he now serves as the Department’sAssistant General Counsel. He serves on theSteering Committee of the NewYorkDemocratic Lawyers Council (NYDCL) andis the Chair of its CLE Committee. He wasan author of legal articles over the years andthe course-book author for the recent NewYork State Bar Association program,“Representing the Political Candidate in NewYork,” offered in six statewide locations.

Meet the New ChairsNYCLA introduces members recently appointed to head-up Committees

(See Meet the Chairs on page 3)

December 2012 / The New York County Lawyer 3

Dear Readers:

As the new year approaches, considermaking a resolution to positively impactthe community and the legal profession.We have devoted this issue of the NewYork County Lawyer to social responsibil-ity to encourage discussions about howthe legal profession can help make socie-ty a better place for ourselves and othersto work and live.

Get inspired with a special lineup of arti-cles within this issue by fellow attorneyswho have devoted much of their careersto helping improve the earth and society.On the cover, gain insight into how tohelp make a positive change with lessgarbage from Jennie Romer’s articleabout plastic bag laws. She is a thought-leader, pro bono consultant to cities andstates looking to adopt plastic bag laws,and founder of plasticbaglaws.org, aresource for legislative bodies consider-ing laws limiting the use of plastic bags.

Meanwhile, what can we do to protect theenvironment as we deal with the data

explosion we all are experiencing in oureveryday lives and in our legal practices?The scope of e-discovery is ever increas-ing, along with the capacities of ourservers and computers. This inevitablycan lead to data often being printed outon thousands and thousands of pieces ofpaper — with the attendant waste of natu-ral resources. Many of us have alreadygone paperless, but there is still muchroom for improvement both in the courtsystems, as well as in our law offices. As

global citizens, it is incumbent upon us toreduce the paper documents and thecopies that we make every day. Next timebefore you hit “print,” consider whetheryou really need a hard copy of that docu-ment, or whether you just as easily canread it on your computer screen or othermobile device. Ask the judge in your doc-ument-intensive case whether you cansubmit voluminous exhibits on a CD orDVD, instead of in hard copy form. Flipto page 7 to read about the environmentalimpact of e-filing and waste reduction.

As you read through this issue, considerwhat you can do to preserve the planetand its resources for our children andgrandchildren. Tweet me @NYCLAPresand share how you are making efforts tobe more socially responsible. Best wishesfor a happy holiday season and a success-ful year ahead.

Stewart D. AaronPresidentNewYork County Lawyers’Association

Stewart D. AaronPresident, New York County

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NEW YORK

COUNTY LAWYER

Stewart D. AaronPresident

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M E S S A G E F R O M S T E W A R T D . A A R O NP R E S I D E N T O F T H E N E W Y O R K C O U N T Y L A W Y E R ’ S A S S O C I A T I O N

Civil Rights and LibertiesCommittee

Samuel B. Cohenis a partner atStecklow Cohen &Thompson, a bou-tique litigation firmwith a specializa-tion in civil rightspractice. Following police policystudies at Brooklyn Law School,he joined the Law Offices ofWylie M. Stecklow as an associ-ate, and became a partner inearly 2012. Samuel received cita-tions for extraordinary citizen-ship from the NewYork StateAssembly and NewYork CityCouncil in 2011, as well as a cer-tificate of special Congressionalrecognition for outstanding andinvaluable service to the commu-nity. He says, “as Co-Chair ofthe Civil Rights and LibertiesCommittee, I’m excited to con-tinue the Committee’s work pro-viding programming and eventsthat will educate attorneys oncritical civil rights issues here inNewYork City, and give themthe tools to engage and make adifference in underserved com-munities.”

Corporation Law Committee

Vladimir R.Rossman is a legalconsultant and for-mer partner atMcDermott Will &Emery LLP, McKeeNelson LLP, andShearman & Sterling LLP. Hehas expertise in bank finance,securitization, restructurings andworkouts, with emphasis on thefinancing and refinancing ofbuyouts, divestitures and recapi-talizations, and on debt and assetrestructurings, in domestic andcross border transactions.Rossman is the General Editorof Commercial Contracts:Strategies for Drafting andNegotiating (second edition,Wolters Kluwer); Faculty,Working Group on Legal

Opinions. He is a formerAssistant Professor at ColumbiaUniversity (Dept. of French &Romance Philology). Rossmanreceived a J.D. from ColumbiaU. Law School; a Certificate inForeign Law from Parker Schoolof Foreign and ComparativeLaw; a Ph.D. & M.A. fromColumbia University GraduateSchool of Arts & Sciences; aB.A. from Columbia College;and a Diploma from the JuilliardSchool. As Chair of theCorporation Law Committee, hewould like to focus on varioustopics of corporate practice inbig law firms and envisions aseries of discussions led by prac-titioners from such firms whoare prominent in their fields.

Criminal Justice Section

Geoffrey Bickfordis presently the CourtAttorney to theHonorable RobertM. Mandelbaum ofthe NewYork CityCriminal Court.Before his current position, he wasa Staff Attorney with the LegalAid Society’s Criminal DefenseDivision in Manhattan. He is a2008 graduate of the CUNYSchool of Law and a 2003 gradu-ate of Wheaton College, inNorton, MA. After being a litiga-tor in Criminal Court, and nowworking behind the scenes,Bickford looks forward toaddressing some of the many sys-temic deficiencies in the criminaljustice system he has observedfirst-hand. Discovery reform, theevolution and use of DNA law,and the science behind false con-fessions, and false identificationsare all areas being addressed bythe legal community at large. It ishis hope that the CJS and NYCLAcan continue to be at the forefrontof these conversations, but alsofocus on how they directly impactthe hundreds of thousands ofcriminal cases prosecuted in NewYork City courts every year.

Education Law Committee

Nelson Mar is a senior staffattorney and education law spe-

cialist at LegalServices NYC -Bronx. His practiceincludes bothEducation Law andSocial SecurityDisability Law withprior experience inlabor/employment and commu-nity economic development.Recently Mar was named theacting coordinator for the LegalServices NYC’s citywideEducation Law Task Force. Overthe last 13 years Mar has provid-ed representation to hundreds ofBronx families. His educationlaw practice involves advocatingon behalf of clients before theDepartment of Education onmatters such as special educa-tion, bullying, Section 504 serv-ices, student suspensions, andsafety transfers. He has alsoworked with numerous parentgroups including localCommunity Education Councils(CECs) to improve school gover-nance and accountability. Mar’scurrent policy initiatives arefocused on improving discipli-nary practices in the NewYorkCity public schools to curtail theSchools to Prison Pipeline. Heappears mainly in administrativeproceedings before the SocialSecurity Administration and theNewYork City Department ofEducation. He received a dualdegree J.D. & M.S.W. from theUniversity at Buffalo and hisB.A. from BinghamtonUniversity. In addition, Mar hasbeen active in the Chinese immi-grant community over the last 18years on issues of worker rightsand displacement. He looks for-ward to growing the membershipof the Education Committee andcollaborating with other NYCLAcommittees to highlight trends ineducation law and legal issuesaffecting young people.

Elder Law

Ezra Huber is aprincipal in thefirm of Ezra Huber& Associates, P.C.,where he has prac-ticed in Elder Lawand its related

fields for 30 years. He is theauthor or co-author of fivebooks, among them theAdvisor’s Guide to CounselingAging Clients and their Families,and the Advisor’s Guide to Tax,Health Care and Legal Issuesfor Aging Clients, and a formereditor of the McGraw-Hillnewsletter ElderCare Law. Hehas lectured extensively onMedicaid and related topics for,among other groups, theNational Academy of Elder LawAttorneys and the NewYorkState and other local bar associa-tions, as well as before manyprofessional and charitableorganizations such as theFederation of JewishPhilanthropies, Foundation forAccounting Education,AMI/LAMP and local chaptersof AARP. He is a graduate ofBrooklyn Law School and mem-ber of the NewYork andCalifornia bars. His plans for theElder Law Committee includeputting on seminars to educatesection members on the variouspractical and highly technicalaspects of the practice. He alsoplans to invite guest speakersfrom government agencies toprovide insight gained fromworking within their own respec-tive businesses.

Environmental Law

Kerri Stelcen is anassociate in theenvironmental prac-tice group in theNewYork office ofArnold & PorterLLP. Her practicefocuses primarily on regulatorycompliance, environmental litiga-tion, and transactional matters.Stelcen’s recent complianceexperience has included advisingseveral FORTUNE 500 compa-nies regarding financial assur-ance requirements under RCRA,CERCLA, and the Safe DrinkingWater Act. She currently repre-sents potentially responsible par-ties at numerous sites undergoingremediation under a variety offederal and state programs,including former industrial facili-

Meet the New Chairs(Continued from page 2)

(See Meet the Chairs on page 5)

December 2012 / The New York County Lawyer4

Bridge the Gap and Ethics Programs this DecemberBridge the Gap 2, a Program for NewlyAdmitted Attorneys, will be held onFriday, December 14 and Thursday,December 20. Not only will this programsatisfy the first or second year MCLErequirements for newly admitted attor-neys, but experienced attorneys seekingMCLE credits before the end of 2012, orseeking a refresher on diverse areas of thelaw, may also attend.

Need Ethics Credits Before the End ofthe Year: The CLE Institute is offeringnumerous options for attorneys who needto satisfy their Ethics requirements beforethe end of the year.• December 7: Business and TrustAccounting

• December 14: Twittering Jurors andthe NY Rules of Professional Conduct

• December 20: Legal Malpractice andHow to Avoid It.

Be sure to check our website atwww.nycla.org for exact times for theethics sessions. In addition, experiencedattorneys can attend the Video Replay:Breakfast With NYCLA—EthicalIssues in Intellectual Property onTuesday, December 18 to earn 3 MCLEcredits in Ethics.

Jeffrey Toobin Speaking About HisNew Book “The Oath” Rescheduled toJanuary 9

The Author Event featuring JeffreyToobin, New Yorker staff writer, attorney,CNN analyst and author, speaking abouthis new book, The Oath: The ObamaWhite House and the Supreme Courtwhich was cancelled due to HurricaneSandy is rescheduled for January 9,2013. All paid attendees will receive acopy of the publication. Special thanks toNYCLA’s Law and Literature Committeefor co-sponsoring this event.

Check our website for updates aboutrescheduling of classes cancelled due tothe Hurricane.

December ProgramsNew Jersey Bridge the Gap: A Programfor Newly Admitted AttorneysConsecutive Fridays, November 30 andDecember 7, 2012; 9 a.m.-5 p.m.16 NJ MCLE Credits in 5 of 9 specifiedpractice areas; (also NY; 3 Ethics; 6Skills; 7 PP/LPM); transitional and non-transitional

1031 Tax Free ExchangesMonday, December 3, 2012, 6-9 p.m.3 MCLE Credits (Breakdown tbd);Transitional and nontransitional

Certified Guardian, Court Evaluatorand Counsel for AIP Training:Certification Program Approved byOffice of Court AdministrationTuesday, December 4, 2012; 9 a.m.-5 p.m.7 MCLE Credits: 1 Ethics; 2 Skills; 4Professional Practice; Transitional andNon-transitional

Persuasive Speech: Incorporating theTechniques of a Broadway Actor intothe Way You Practice LawWednesday, December 5, 2012; 6-7:45 p.m.2 MCLE Credits; 2 Skills; Transitionaland Non-transitional (also NJ)

The LIBOR Scandal—What It MeansFor The Legal Community, Investors,Traders and BorrowersThursday, December 6, 2012; 6-8:05 p.m.2.5 MCLE Credits: 2 PP; 0.5 Ethics;Transitional and Non-transitional (also NJ)

Bridge the Gap 2: A Program forNewly Admitted AttorneysFridays, December 14 and Thursday,December 20, 2012; 9 a.m.-5 p.m.16 MCLE Credits: 3 Ethics; 6 Skills;

7PP/LPM; Transitional and Non-transi-tional.

Video Replay: Breakfast with NYCLA:Ethical Issues in Intellectual PropertyTuesday, December 18, 2012; 8:30-11:30a.m.3 MCLE Credits: 3 Ethics

NYCLA’s CLE Institute now anAccredited Provider in New JerseyNewYork County Lawyers’Association’sCLE Institute is currently certified as anAccredited Provider of continuing legaleducation in the State New Jersey.Courses qualifying for CLE credit in NewJersey will be so designated on theNYCLA website. Be sure to consultwww.nycla.org for program details andprogram locations.

Please note that Tuition Assistance isavailable for qualified attorneys for liveprograms offered by the CLE Institute.Check our website at www.nycla.org formore information and how to apply forTuition Assistance. Check our website forcourse details, faculty, complete programdescriptions and pricing.

Be sure to check our website for a com-plete listing of programs.

CLE INSTITUTE

December 2012 / The New York County Lawyer 5

ties in NewYork and New Jersey. She hashandled a number of lawsuits involving con-taminated properties in Louisiana, NewJersey, and Rhode Island. In August 2012,Stelcen co-authored the second edition of TheClean Water Act: Basic Practice Series, pub-lished by the American Bar Association. Shelooks forward to working with the membersof the Committee to identify new and inter-esting ways to engage on emerging issues inenvironmental law, including through CLEevents and other presentations.

Federal Courts Committee

Vincent Chang served as theFederal Courts Committee vicechair for three years andbecame its chair this year. Heserves on the ExecutiveCommittee and the Board ofDirectors of NYCLA and isthe Chair of the NYCLA Foundation. Changserves as one of NYCLA’s representatives onthe NewYork State Bar AssociationNominating Committee and serves on theLegal Services NYC Board of Directors andthe NewYork City Bar Association JudiciaryCommittee. Chang is a partner at WollmuthMaher & Deutsch and works on complexcommercial litigation. He is a graduate ofHarvard College and Harvard Law Schooland has been listed as Superlawyer inBusiness Litigation. As Committee Chair,Chang hopes to propose initiatives to providesupport for the NewYork federal courts intheir efforts to achieve an increased budgetallocation; publish writing on procedural andother issues of significance to the federalcourts; publish a retrospective with high-lights of the last decade of opinions issuedby the Eastern District of NewYork; andincrease Committee use of Linked in andother social media.

Foreign and International LawCommittee

Jay G. Safer is a partner inthe New York City office ofthe international law firm ofLocke Lord LLP and handlescomplex litigation and arbi-tration in the United Statesand abroad. He representsclients in matters concerning contracts,antitrust, securities, RICO, qui tam, inter-national litigation and arbitration, includingapplication of the New York Conventionand enforcement of foreign judgments andarbitration awards, insurance, construction,real estate, employment, media, productliability, health care, professional ethics,financial, constitutional and regulatoryissues. He also counsels clients on com-mercial matters, including protection andpreventive measures, creation of risk litiga-tion plans, e-discovery, e-signature, and e-readiness, and pre-litigation analysis. Saferhas litigated numerous cases involvingthese subjects. As Co-Chair, Safer is excit-ed about working with Committee mem-bers on a number of topics on which theyhave expressed interest including interna-tional human rights as well as litigation,arbitration, commercial, financial, and gov-ernmental regulatory subjects.

Jacqueline Wolff has spentover 20 years defending com-panies and individuals accusedof a wide array of white collarcrimes. A former Chief of theEnvironmental Crimes Unitand Assistant United StatesAttorney for the District of New Jersey,Wolff focuses her practice on violations ofthe Foreign Corrupt Practices Act (FCPA),healthcare fraud, securities fraud, Food,Drug & Cosmetic Act (FDCA) violations,tax crimes, corporate immigration crimes,and other regulatory-based violations.Wolff’s experience as both a prosecutor anddefense lawyer has provided her with thedepth and understanding to assist companies

in designing compliance programs toaddress FCPA and global anti-corruptionissues. She has designed FCPA complianceprograms for companies in industries asdiverse as those in media, pharmaceuticals,sports, green technology and telecommuni-cations. Wolff is regularly sought out bybusiness publications and CLE sponsors tospeak on FCPA, criminal immigration andFDCA issues. She has written extensivelyon various criminal defense topics and, inparticular, FCPA compliance. She looks for-ward to working with other attorneys on theCommittee who are involved in completelydifferent aspects of International Law—mar-itime, commercial and criminal, includingFCPA and anticorruption—and finding com-mon threads upon which the Committee canopine in terms of current laws and policies.

Judicial Section

Hon. Joan Madden is aJustice of the NewYork StateSupreme Court and presentlyassigned to an IAS Part inNewYork County where shepresides over cases frominception to disposition. Inaddition to handling complex asbestos litiga-tion, Judge Madden also assigned to casesinvolving contracts, employment discrimina-tion, legal malpractice, labor law, tort, envi-ronmental law and Article 75 proceedings.First elected to the bench in 1992, sheserved as a judge in Criminal Court for twoyears where she presided at arraignments,hearings and trials. In 1994 Judge Maddenwas assigned to Civil Court and since 1997,has been assigned to the Civil Term ofSupreme Court. This coming year theJudicial Section will continue to discuss andexplore issues which impact on the adminis-tration of justice in our courts including thecontinuing effects of budgetary constraints,and issues involving sex trafficking and thelaw of search and seizure.

Insurance Law

Norma Levy, a partner atNelson Levine de Luca &Hamilton, defends insurancecarriers in major class actionlitigation. A graduate of YaleLaw School and former chairof the NewYork State BarAssociation’s Antitrust Section, Levy is anexperienced litigator who has representedclients in antitrust, trade regulation andunfair competition matters. As lead counselin the investigation of potential bank fraudfor the Federal Deposit InsuranceCorporation, she investigated major bankfraud concerns and led the team that broughtsuit against failed bank officers and directorsfor that fraud. Her experience extends to sig-nificant insurance coverage litigation onissues related to environmental coverage,professional liability, fidelity bond, title, andother substantive areas that give rise to insur-ance disputes, including securities, futuresand derivatives, intellectual property, con-struction, civil rights, discrimination, realproperty and contract disputes.

LGBT Issues

Matthew Raso, a native NewYorker, graduated from NewYork Law School in 2008.Upon graduation, he wasimmediately invited to joinCodispoti & Associates, P.C.At Codispoti & Associates,Raso’s practice focused on civil litigationand transactional work related to businesslaw, intellectual property, debtor’s rights,landlord/tenant disputes, and real estatetransactions. In 2011, he joined The LawOffices of Iannuzzi and Iannuzzi where hispractice expanded to included criminaldefense and personal injury lawsuits. In hisfree time, Raso works with numerous organ-izations that seek to expand and protect civilrights of members of minority communities,including the LGBT community. In 2008 hejoined NYCLA and became a member ofNYCLA’s LGBT Issues Committee. In 2010

he became vice-chair of that Committee andwas recently elevated to the position of co-chair. As co-chair, he is looking forward toworking with the Committee to generateawareness of anti-bullying legislation inNewYork. He is also working to createopportunities for LGBT Issue Committeemembers to participate in community out-reach programs with local schools to discussrelevant issues concerning the LGBT com-munity.

Matrimonial Committee

Dror Bikel is a trial lawyer andlitigator specializing in the areaof family law and questionsrelated to custody, equitabledistribution, child and spousalsupport, and paternity. Bikel isa founding partner of theManhattan based firm, Bikel & Mandarano,LLP. He lectures to lawyers and mentalhealth professionals in the area of trial prac-tice and family law. As winner of the NewYork Super Lawyers award, Bikel has beenvoted by his peers and legal journalists as oneof the top 5 percent family law attorneys inNewYork State. Bikel graduated from theBenjamin N. Cardozo School of Law wherehe currently serves as a member of FamilyLaw Advisory Board. Bikel is excited aboutin new position as Co-Chair, and hopes tohelp the Matrimonial Section become ameaningful teaching and information sharingplatform to practitioners in this area. He alsois excited to work closely with the SupremeCourt Judges and Committee members onissues important to the matrimonial bar.

Multilingual Lawyering

Dawn Maruna is a fourth-year associate with MoundCotton Wollan & Greengrass,where her practice focuses oncomplex commercial, insur-ance, and reinsurance litigationand arbitration. She graduatedfrom the College of the Holy Cross in 2002with a B.A., cum laude, in English andSpanish and received her J.D. from St. John’sUniversity School of Law in 2009, receivingthe Silver Pro Bono Service Award at gradua-tion for her work as founder and co-chair ofthe Multilingual Legal Advocates studentgroup. Since its formation in early 2007, thegroup has helped multilingual law studentsidentify pro bono and paid work opportuni-ties with private and public interest entities inneed of interpretation and translation assis-tance and organized panel discussions andclasses concerning professional develop-ment opportunities for multilingual law stu-dents and attorneys. Last year, she foundedNYCLA’s Multilingual LawyeringCommittee, which fosters the professionaldevelopment interests of NYCLA’s multilin-gual lawyers and law students and helpsthem, as well as the rest of NYCLA’s legalcommunity, address the needs of NewYorkCity’s linguistically-diverse legal clientele.

Real Property Section

David A. Goldstein, the man-aging member of GoldsteinHall PLLC, has over 20 yearsof experience in the legal field,with expertise in affordablehousing development, realestate finance, governmentaffairs, general corporate/business law, andlitigation. In particular, Goldstein has exten-sive experience in negotiating joint venturesbetween not-for-profits and for-profit devel-opers, as well as structuring complex afford-able housing transactions. Many of theseaffordable housing transactions involvefinancing by federal, state, and local agen-cies through the issuance of tax-exemptbonds and low-income housing tax credits.Additionally, Goldstein has experience repre-senting limited equity cooperatives, HDFCco-ops and tenant associations in litigationand general corporate issues. As co-chair,Goldstein is interested in providing practicalas well as topical programming dealing withissues concerning real estate development.

Solo and Small Firm Practice Committee

Tsui Yee is a founding partnerof the immigration law firm ofGuerrero Yee LLP. She hasover 13 years of experiencepracticing immigration law,and handles a wide variety ofimmigration matters. Heraccomplishments for clients include obtain-ing various work visas on behalf of foreignnationals so that they can work in theUnited States; securing lawful permanentresidence based on employment and familysponsorship; and defending clients inremoval (deportation) proceedings. Yee fre-quently organizes and presents at continu-ing legal educations seminars regardingimmigration and nationality law, profes-sional development, and topics of interestto solo and small firm practitioners. Sheholds a J.D.from the University ofCalifornia at Los Angeles School of Lawand a Bachelor of Arts degree in PoliticalScience from Tufts University. She isadmitted to practice law in the State ofNew York; the Second Circuit Court ofAppeals; and the U.S. District Courts forthe Southern and Eastern Districts of NewYork. As a new chair, Yee has some veryinteresting speakers lined up for ourmonthly meetings, who will be discussingtopics of interest to committee members,such as marketing, ethics for solo andsmall firm practitioners, iPad applicationsfor attorneys; etc.

Supreme Court Committee

Pamela Gallagher is pleased toserve as Co-Chair of theSupreme Court Committee aftera serving as the Committee’sSecretary for the 2011-2012term. As an associate at the firmGallet Dreyer &Berkey, LLP,she litigates contractual and real estate dis-putes in Supreme Court and the AppellateDivision, the City’s landlord and tenantcourts, and the Southern and EasternDistricts of NewYork. Gallagher is a gradu-ate of the Benjamin N. Cardozo School ofLaw. Prior to becoming a NewYorker,Pamela was a non-partisan assistant researchanalyst for the Arizona State Senate.

Brian D. Graifman, Counselat Gusrae Kaplan NusbaumPLLC.,joins Gallagher asSupreme Court Committee Co-Chair. For nearly 25 years, hehas represented a wide spec-trum of clients in complex liti-gation, with cases often at the intersection,and defining the scope, of arbitration, securi-ties and regulatory disciplinary defense, liti-gation and jurisdiction between state andfederal courts. Graifman has been active formany years also on the Federal CourtsCommittee and the Appellate CourtsCommittee. Through NYCLA, he has co-authored and/or co-chaired various commit-tee and association reports, served on panels,and assisted in revamping court rules andforms. Graifman clerked for the late JudgeRoger J. Miner at the U.S. Court of Appealsfor the Second Circuit and graduated fromNewYork Law School in 1988.

According to Gallagher and Graifman, theSupreme Court Committee covers all aspectsof state Supreme Court practice and initia-tives, and has had tangible impact on courtadministration. The monthly meetings aresome of the most spirited at NYCLA, withpresentations by leaders of the bench, barand court system, and a committee member-ship to match. Committee meetings are veryinformative, even for experienced practition-ers. The committee adds to the vibrancy ofNYCLA each year by producing theAttorneys’Guide to Civil Practice in NewYork County Supreme Court, and sponsoringthe reception for newly elected, appointed,and re-appointed judges; the popular LawDay Luncheon; and the Summer MinorityJudicial Internship Program. Gallagher andGraifman welcome NYCLA members to joinCommittee meetings and become involved.

Meet the New Chairs(Continued from page 3)

December 2012 / The New York County Lawyer6

By Michael C. Pope, Esq.

“What should New York do to preventmisidentification of a defendant fromleading to a wrongful conviction?”

Michael Mercer was walking in Harlem lateone afternoon when a young womanapproached him. The woman began shoutingthat Mr. Mercer was the man who had bru-tally raped her two months earlier. A crowdquickly circled and began beating him,believing the woman’s accusation. Thepolice arrived and arrested Mr. Mercer.Based largely on the victim’s adamant eye-witness identification at trial, Mr. Mercerwas convicted of first-degree rape, sodomy,and robbery. Michael Mercer became pris-oner No. 92A7361.

His pleas of innocence were finally realizedten years later. On May 19, 2003, based onreexamination of DNA evidence, and onmotion by Manhattan District AttorneyRobert M. Morgenthau, Mr. Mercer wasreleased an innocent man. Returning home,Mr. Mercer was left to grapple with the psy-chological devastation and trauma from tenyears of wrongful incarceration. Additionally,the victim was devastated by her mistakenidentification, the true perpetrator evadedresponsibility for over a decade, and societywas left with a judicial system that failed toprotect the innocent.

Mr. Mercer is one of the 24 people in NewYork who have been exonerated throughreexamination of DNA evidence. Yet thisnumber is merely the tip of the iceberg.DNA evidence exists in only five to ten per-cent of cases, which conservatively leavesNewYork with hundreds of wrongly con-victed citizens. Simply put, this is a cata-strophic failure of the criminal justice sys-tem. NewYork places third highest in theUnited States for its number of wrongfulconvictions.

Evidence suggests that the single leadingfactor of wrongful convictions is mistakeneyewitness identifications. As JusticeMarshall noted in his dissent in Manson v.Brathwaite, there is an “unusual threat to thetruth-seeking process posed by the frequentuntrustworthiness of eyewitness identifica-tion testimony.” Eyewitness identificationsare the leading cause of wrongful convic-tions for two reasons. First, eyewitness iden-tifications are incredibly malleable. The pro-cedures utilized during pretrial identifica-tions can not only alter a witness’ perceptiontoward believing an innocent individual isthe perpetrator, but can actually artificiallyboost a witness’ confidence in their identifi-cation. The defense, left with legal protec-tions such as cross-examination and eyewit-ness expert testimony, have little to guardagainst a witness who mistakenly believesthey are making the correct identification.

Second, juries place an incredible amount ofweight on in-court identifications with littlemeaningful thought on the factors that canlead to wrongful identification. For Mr.Mercer, when the victim took the stand,pointed at him and swore he brutally rapedher, the jury quickly agreed.

NewYork must reform pretrial identificationprocedures to make certain identificationsthemselves are as accurate as possible.Further, it is essential for NewYork tobroaden in-court procedures to also protectthe innocent when identifications occurwithout state involvement.

Increase Eyewitness AccuracyThe most important and meaningfuladvancement to reduce the number ofwrongfully incarcerated individuals is to dis-seminate rules and implement practices thatenhance accuracy of eyewitness identifica-tions. NewYork must implement statewidemandatory witness identification procedures.

Eyewitness identifications, similar to otherforms of evidence, must be handled careful-ly to ensure the process for obtaining thisevidence does not distort the already fragileevidence. A wealth of research in the pastdecade has focused on what protections canensure identification evidence is as accurateas possible. Pulling from this research, NewYork must implement four separate manda-tory witness identification procedures tohelp protect the innocent.

NewYork must demand cautionary instruc-tions be provided to all witnesses beforeconducting lineup identifications. Imagineyourself as a witness to robbery: frightened,anxious, and trusting a police officer’s guid-ance to help you navigate the system. Inthis environment, we must ensure witnesseshave a clear understanding that the suspectmay not be in the lineup and that the policewill continue to investigate the crimeregardless of whether the witness makes anidentification at that time. Without thesesimple pre-identification advisories, a wit-ness’ anxiety and desire to make the “rightchoice” may overshadow any doubt the wit-ness may have.

The identification order must be sequential.Thus, rather than the witness viewing allindividuals at the same time, the policeshould allow each of the fillers, as well asthe suspect, to be viewed individually.Evidence suggest that this helps ensure thewitness is not using relative judgment andmerely choosing the individual who looksclosest to the perpetrator.

An administrator that doesn’t know the iden-tity of the suspect must conduct the witnessidentification procedure. This process, calleddouble blind administration, makes certainthat the police officer conducting the proce-

dure does not lead a witness to make anincorrect identification. It also ensures thewitness’ confidence in their identification isnot artificially inflated by feedback from theadministrator. It is important to note thatproviding clues to a witness during the iden-tification can occur either intentionally orunintentionally. Either way, an administratorwho doesn’t know the suspect’s identity isincapable of inappropriately leading the wit-ness in any direction.

Finally, it is time for NewYork to requirevideo recording and documentation of theentire identification procedure. Video record-ing, from the witness’ initial description of thesuspect through the witness’ post identifica-tion statements, allows judges to review theprocess more accurately during a Wade hear-ing. Additionally, if the evidence is admitted,the jury can use video recordings to appropri-ately weigh the strength of the identification.

Mandating eyewitness identification proce-dures will help reduce the number of wrong-ful identifications occurring and increaseconfidence when identifications are madewithin these protections.

However, these procedures only impact state-orchestrated witness identifications. Manyidentifications, such as the one against Mr.Mercer, occur initially outside the presence ofany state actor. Thus, it is essential to alsobroaden in-court protections.

Broaden In-Court ProtectionsPreventing misidentification of a defendantfrom leading to a wrongful conviction mustalso occur through increasing courtroomaccess to both factual specifics of identifica-tions as well as broadening the knowledgeavailable to all parties regarding the limita-tions of such evidence.

NewYork, through the Court of Appealsdecision in People v. Santiago, has taken astep in the right direction in holding that theexclusion of expert testimony on eyewitnessidentification is inappropriate when little cor-roborating evidence exists against a defen-dant beyond this eyewitness identification.However, NewYork should fully implementthis rule by demanding expert testimony beallowed in all cases in which eyewitness evi-dence is presented to the jury.

Whenever an identification is made, whetherstate orchestrated or not, a WitnessConfidence Statement should be obtainedfrom the witness. This statement must notonly require the witness to independentlyrank their own level of confidence in theidentification, but also ask open-ended ques-tions about the basis of their level of confi-dence. Such information can have a numberof legally significant impacts beyond use bydefense council. The statement could assistpolice in determining if they should continue

to work a case. Prosecutors could also use itto help evaluate the case and determinewhether to call a witness to testify. Finally,presenting the information would help assistjuries in determining the significance of theeyewitness identification.

Finally, NewYork must require timely juryinstructions on every case where identifica-tion evidence is presented. While manystates have made strides in developing juryinstructions on the issues surrounding eye-witness identifications, psychologicalresearch continues to indicate that traditionalinstructions have virtually no impact on thejury’s actual evaluation of an identification.Due to the unique challenges and concernssurrounding eyewitness identifications, NewYork must strengthen these instructions bydemanding that they are provided in everyidentification case. Further, instructionsshould be provided immediately before eye-witness testimony. Allowing timely instruc-tions will strengthen the jury’s ability tounderstand the complexities of witness iden-tifications and would assist them in evaluat-ing the strength of the evidence as it is pre-sented.

More than any other issue, a wrongful con-viction represents a catastrophic failure thatall sides of our justice system can rallybehind. State police chiefs, district attorneys,defense bars, and the judiciary have all pro-posed reforms. However, NewYork hastaken little action. This failure most obvious-ly impacts the individuals spending yearsincarcerated for crimes they did not commit.Additionally, a wrongful conviction destroysfamilies, leaves witnesses to grapple withthe tremendous guilt of sending an innocentperson to prison, and keeps the actual perpe-trators at-large. According to law enforce-ment data gathered by the InnocenceProject, seven rapes, five murders, twoassaults, and one robbery were committed inNewYork by the actual perpetrators ofcrimes while these 24 people were wrong-fully incarcerated.

It is time for NewYork to become leaders inprotecting the innocent from wrongful con-victions. Some say wrongful convictions areinevitable. While this may be true, we mustat least be able to inform Michael Mercer,and the many others who have felt the worstof injustice, that our system has done every-thing reasonably possible to ensure the accu-racy of convictions.

Pope is a NYCLA member and Equal JusticeWorks Fellow at Youth Represent. His aboveessay was selected by NYCLA’s CriminalJustice Section as a winning essay in its2012 Public Service Fellowship EssayContest, open to newly admitted public sec-tor attorneys working in the fields of crimi-nal justice carrying more than $30,000 ineducational debt.

Protecting the Innocent

Dear Friends:

As the holidays approach, the NYCLAFoundation encourages you to contributeto our Second Century Fund. A donationto the Foundation will help NYCLA pro-tect access to justice for all NewYorkers,defend judicial independence, improveour court system, provide critical probono services to low-income NewYorkers and modernize our beautifulbuilding, the Home of Law, where muchof NYCLA’s work takes place.Contributions will also help NYCLA pro-vide much-needed assistance to victimsof Hurricane Sandy, including lawyersdisplaced from storm-damaged officesand NewYorkers who need help withinsurance claims and related legal coun-seling in the wake of the hurricane.

Your dues do not cover all the costs ofthe programs and services that make usproud to be NYCLA members. Wedepend on your contributions to supportthe work that we do to benefit both theprofession and the public. The good news

is that relatively modest donations canmake a big difference. For example:

• $2,500 provides a fellowship for ayoung public interest lawyer strugglingto pay his or her law school debt.

• $1,000 underwrites the top award inour annual public high school essaycontest.

• $500 supports our Legal CounselingProject, providing pro bono advice toneedy NewYorkers, including stormvictims.

You can donate in these amounts—or in anyamount you choose—simply by going towww.nycla.org and choosing “Giving toNYCLA.”You can alsomail a check, payableto the NYCLAFoundation, to the NYCLAFoundation, 14Vesey Street, NewYork, NY

10007.We are grateful for every contributionand are pleased to thank youwith a selection ofgifts described on our website.

Because the NYCLA Foundation is rec-ognized by the IRS as a 501 (c) (3)organization, gifts are deductible to theextent provided by law.

NYCLA needs your support. Please joinme in giving what you can.

Sincerely,

Barbara MosesPresident of the NYCLA Foundation

M E S S AG E F R OM B A R B A R A M O S E S , P R E S I D E N T O F T H E N YC L A F O U N D AT I O N

December 2012 / The New York County Lawyer 7

By Genan F. Zilka, Esq.

A few months ago I was working on asituation on which the statute of limita-tions was due to expire. I raced down tothe clerk’s office at 4:30 p.m. to file acomplaint, and was turned away. Thecourt had switched to e-filing for contractcases weeks before. I was relieved, asthis provided me with additional time towork on, and file my complaint, but italso got me thinking about the effect ofe-filing on the environment.

Lawyers use a lot of paper. In fact, theaverage lawyer uses between 20,000 to100,000 sheets1 of copy paper per year.The production of this paper causes therelease of 4.5 tons of carbon dioxide.2Looking at my own office, I’ve realizedthat, in my day to day life, I go throughreams of paper. A lot of lawyers, myselfincluded, will print memoranda, pleadingsand discovery requests and responses outwhen they receive them, or before sendingthem out. Personally, I find it easier toreview them that way, catching mistakesbefore a documents goes out to a client,the court and opposing counsel.3

Bankruptcy courts began using e-filing in2001, District courts in 2002, and appel-late courts in 2005.4 E-filing in federalcourts is now mandatory. NewYork Statefirst authorized e-filing in 1999.5 SinceFebruary 27, 2012 in NewYork Countyall tort, commercial, and contract casesmust be e-filed.

The environmental benefits of e-filing havebeen cited as a reason for its implementa-tion. In Green Justice, an “EnvironmentalAction Plan For The NewYork UnifiedCourt System” published in 2008, e-filingwas put forth as a means of reducingpaper, as well as impacting the environ-ment in other ways. The report stated thatthe four million cases initiated in NewYork Courts resulted in filing of 100 mil-lion pieces of paper.6 This number doesnot include multiple copies that must beserved on opposing parties. The environ-mental impact goes beyond the paper gen-erated. Even going to the court to file thesepapers negatively affects the environment.The environmental effects of non e-filingare especially devastating and much of thispaper eventually ends up in the trash.7

The environmental impact of e-filing

might be undermined by certain require-ments by both judges and the federal courtsystem. The Southern District still requiresthat cases are initiated and served “in thetraditional manner on paper”8 meaningthat all complaints have to be printed, andthe actual paper copies need to be filedwith the clerk’s office. In addition to this,many judges in both the federal and statecourt systems still require receipt of apaper copy of e-filed papers.9

Although it might be difficult to getlawyers and judges to change theirways in regards to paper usage, hope-fully e-filing might make a dent in theamount of paper, and the environmentalimpact of manufacturing and deliveringpaper.

Genan F Zilkha, Esq., a NYCLA, Art,Cyberspace, and Women’s RightsCommittee, and Young Lawyers’ Sectionmember, is an attorney practicing in NewYork. She focuses her practice on coun-seling individuals and small businesses intheir legal needs. She is a graduate ofFordham Law and was previously associ-ated with Lawrence W. Rader, Esq.

References:1. LATTE (Lawyers Accountable To The Earth),http://www.abajournal.com/news/article/one_paper_pushing_lawyer_tons_of_greenhouse_gases/2. Id.3. Jon Clyde, et al., “The Green Utah Pledge”,Utah State Bar, March 6, 2012,http://webster.utahbar.org/barjournal/2012/03/young_lawyers_division.html4. ABOUT CM/ECFhttp://www.uscourts.gov/Federalcourts/CMECF/AboutCMECF.aspx5. “eFiling in the NewYork State Courts”,Report of the Chief Administrative Judge,November 2011,http://www.courts.state.ny.us/whatsnew/pdf/eFiling-Report_6-2011.pdf.6. Green Justice An Environmental Action PlanFor The New York State Court System, November2008,http://www.courts.state.ny.us/whatsnew/pdf/NYCourts-GreenJustice11.2008.pdf.7. See “eFiling in the NewYork State Courts”Supra Note 6.8. Electronic Case Filing Rules & Instructions,http://www.nysd.uscourts.gov/ecf/rules_040411.pdf9. “Report on the Progress TowardImplementing Statewide Electronic Filing inNewYork Courts”, New York State BarAssocation, March 30, 2012,http://www.nysba.org/AM/Template.cfm?Section=Current_Releases&ContentID=74384&Template=/CM/ContentDisplay.cfm

By Neil A. Feldscher, Esq.

Corporate social responsibility. Sustainabi-lity. Carbon neutral. Environmental impactreduction. One need only walk into a coffeeshop, browse the Internet to purchasegoods, or review the tags at a clothing storeto understand the prevalence of the environ-mental sustainability movement in today’ssociety. A larger segment of recent lawschool graduates have grown up with thesenew beliefs and will be leaving school withthe expectations of environmental responsi-bility within their future employers.Perhaps most importantly, it is no longeronly large European corporations that areISO 14001 (i.e., environmental manage-ment system) certified or have corporatesocial responsibility (“CSR”)/sustainabilityprograms and goals. Companies world-wide are now embracing and incorporatingCSR and sustainability into their corporatevalues. Many of these companies, especial-ly those that are ISO-certified, consider theenvironmental impact reduction programsof vendors at time of procurement. Evenprofessional service procurement is nolonger immune from this consideration.Well prepared firms should be prepared byhaving a CSR/sustainability program and

understanding the benefits and results oftheir own program.

Even urban professional service type com-panies can have an environmental impact.For the typical NewYork City law firm,the largest potential means to reduceimpact to the environment is through aprogram to reduce, reuse, and recycle(“RR&R”). While NewYork City requiresthat owners/operators of commercialmulti-tenant buildings establish a recy-cling program, for office environmentsthese requirements essentially only requirethe separation of many paper (and corru-gated cardboard) products from the gener-al waste stream (NOTE that for firms thatoperate a cafeteria there are additionalrequirements to separate both bulk metaland metal cans/aluminum foilproducts/glass bottles and jars/plastic bot-tles and jugs).Commingling of some ofthese waste streams is permissible inNYC. These city requirements represent aminimalistic type program that missesmost of the opportunities for firms to havea measureable and meaningful impact. Awell designed program that incorporatesplans for reduction and reuse with recy-cling can provide marketing opportunities

for firms, is socially responsible, and canreduce a firm’s overhead costs.

ReduceA more fundamental element than recy-cling of generated waste is to reduce theamount of waste generated, thereforeeliminating or limiting the need for recy-cling. There are dual cost-savings fromreduction; a decrease in the purchase ofconsumable products provides a cost sav-ings and the subsequent reduction inwaste reduces recycling/disposal costs.

Some of the most common avenues forreduction include:• Ensure that all printers are set bydefault to print on both sides.

• Do not unnecessarily print emails orcomputer files. For firms documentmanagement software allows for thecreation of an “electronic redweld file.”thereby eliminating the need to print forpurposes of filing.

• Consider the use of tablet and notebookcomputers for taking notes. Note-takingsoftware provides the advantages ofallowing for full text searching, key-word establishment, and for the auto-matic copying of notes betweenmachines, locations, and persons.Thesenotes can then be filed by the documentmanagement software in the same man-ner as emails or other computer files.

• Where paper is utilized for note taking,both sides of the paper should be utilizedor the pad should be reused in order toutilize the back side of the pages.

• Firms that have their own cafeterias orpantries should consider the replace-ment of single-use condiments (e.g.,sugar, milk, cream, etc.) with bulkproducts.

The Environmental Impact of E-Filing

The Three Rs: Reducing Your Environmental Impact

(See Three Rs on page 15)

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December 2012 / The New York County Lawyer8

Federal Courts CommitteePresents Weinfeld Award

The NYCLA Edward Weinfeld Award for Distinguished Contributions to the Administrationof Justice waspresented to Hon. Sidney H. Stein of the United States District Court for theSouthern District of New York by Judge Ralph K. Winter, United States Court of Appealsfor the Second Circuit at the Federal Courts Luncheon hosted by the Federal CourtsCommittee on October 24.

Judge Stein (center) is con-gratulated by Stewart Aaron(left), NYCLA President; JaiChandrasekhar (second fromleft), luncheon chair; JudgeWinter (second from right);and Vincent Chang (right),chair of the Committee.

Attendees enjoy lunch at the Home of Law.

NYCLA Pro Bono Volunteers Honored atReceptionOn October 25, lawyers from NewYork City were honored at the Celebrate ProBono reception held by the NewYork State Court’s Access to Justice Program fortheir dedication to serving the NewYork community.

NYCLA’s President, Stewart Aaron, presents awards to NYCLA pro bono volun-teers.

Award recipients pictured back row, left to right:Tat Wong, Neely Moked, LocksleyWade, along with NYCLA Past Presidents Stewart Aaron, and Lois Davis, Directorof NYCLA Pro Bono Programs. Front row: award recipient Daniel Migden.

Network of Bar LeadersBreakfast

On October 26, at a Legislative Breakfast held atNYCLA, NewYork State Senator Diane J. Savino(left); NewYork City Council Member Daniel R.Garodnick (second from left); NewYork CityCouncil Member Julissa Ferreras (second fromright); and Assembly member Guillermo Linares(right), spoke about a wide range of topics, from theOccupy Wall Street movement, the controversialNYC soda ban, regulation of RX drugs, and legaliza-tion of marihuana, to food labeling and other issuesthat affect lawyers, their clients and NY businesses.The event was held by the Network of Bar Leaders, acoalition of 46 member bar associations, citywideand statewide specialty groups, specialty bar associa-tions dedicated to every field of practice, and ethnicand religious bar associations.

RECENT EVENTS

December 2012 / The New York County Lawyer 9

UPCOMING EVENTS

Board NominationsThe NYCLA Committee on Nominations is accepting nominations for the posi-tions of Vice President, Treasurer and Secretary of the Association and for mem-bers of the Board of Directors. These terms would begin in May 2013. TheCommittee welcomes self nominations or nominations of those you think couldplay a leadership role at NYCLA. Please submit a letter stating your or the nomi-nee’s reasons for wishing to serve as either an officer or director, along with aresume. Materials should be submitted to Marilyn J. Flood, Counsel to NYCLA,email mflood@nycla.org, by December 27, 2012.

Events CalendarAll events, unless otherwise noted, will beheld at NYCLA Home of Law, 14 VeseyStreet. Visit the Association’s website,nycla.org for more details, schedulechanges and additions, and to R.S.V.P. forevents, which are subject to change.

December

98th Annual Dinner: CelebratingLGBT EqualityTuesday, December 11 - Reception-6:30p.m.; Dinner-7:30 p.m.; Waldorf-AstoriaKeynote speaker: Eric Schneiderman,

NewYork State Attorney General.Welcome Remarks: Christine C. Quinn,NewYork City Council Speaker. 2012William Nelson Cromwell AwardHonoree: Roberta A. Kaplan, Partner,Paul, Weiss, Rifkind, Wharton &Garrison LLP. 2012 Boris KostelanetzPresident’s Medal Honoree: Sue C.Jacobs Goodman & Jacobs LLP.

January

SpeednetworkingThursday, January 24 – 6:30 p.m.

Portrait Unveiling of a FormerPresident, James B. KobakMonday, January 28 – 6 p.m.Join us as we unveil a portrait of immedi-ate past NYCLA President James B.Kobak. Reception to follow ceremony

Mock Interview ProgramWednesday, January 30 - 6-8 p.m.Sponsored by the Young Lawyers’ SectionExperience a mock interview with anexperienced legal professional and gaininsight into how to prepare for interviews.Open to first-year New York Law Schoolstudents who are NYCLA members.

Discussion Series: Advice from theBench: Practice Tips for Young LawyersThursday, January 31 - 7 p.m.Sponsored by the Young Lawyers’ Sectionand the Federal Courts and SupremeCourt CommitteesConfirmed Panelists: Hon. Eileen Nadelson(Ret.), NewYork Supreme Court; Hon.Richard B. Lowe III, Presiding Justice,Appellate Term, First Department; Hon.Frank Maas, U.S. Magistrate Judge, SDNY;Michael Battle, Former Family Court Judge,Former U.S Attorney, WDNY, and SeniorPartner, Schlam Stone & Dolan LLP. EventChair and Moderator: Adam Roth, Esq.

December 2012 / The New York County Lawyer10

The NYCLA Library staff has greatresearch and reference depth. That said,Environmental Law has not been a focusof collection development for the libraryfor some time.

Being somewhat unfamiliar with the sub-ject I would first gather pathfinders orresearch guides prepared by other lawlibraries that have Environmental Law asan area of focus. These subject specificbibliographies save someone learning anew area of law a lot of time. A simpleGoogle search turned up many resourcesincluding the following:

International Environmental LawPathfinder• http://www.law.georgetown.edu/library/research/guides/InternationalEnvironmentalLaw.cfm

US Environmental Law Pathfinders• http://lawlib.buffalo.libguides.com/content.php?pid=248668&sid=2054679

NewYork Environmental Research• http://libraryguides.law.pace.edu/new_ york_environmental_law

Specialized Environmental Research• http://libraryguides.law.pace.edu/hydrofracking

• http://libraryguides.law.pace.edu/green-building

The NYCLA Library has a full comple-ment of primary source materials in envi-ronmental law through our Westlaw sub-scription, for example:

• Westlaw Primary• Federal Environmental Law -Combined Materials (FENV-ALL)

• Annotated Multistate Environmental,Health & Safety Statutes (MENV-ST)

The NYCLA Library has access, either

directly or through the Reference Staff, tothe following secondary source materials:

• Westlaw Secondary• Federal Environmental Regulation ofReal Estate Law Digest (FEDEN-VDIG)

• Law of Distressed Real Estate (LAW-DRE)

• Real Estate Law Digest, FourthEdition (RELAWDIG)

• Defense Environment Alert (DEFEN-VALT)

• Federal Environmental Law-E.P.A.Decisions (FENV-EPA)

• U.S. Environmental ProtectionAgency Title V Final Orders (FENV-EPA-AIR)

• Corporate Compliance Series:Environmental (CORPC-ENV)

• Environmental Obligations inBankruptcy (BKRENVOB)

• Handling the Land Use Case LandUse Law, Practice & Forms (LANDUSELAW)

• Law of Water Rights and Resources(LWATRR)

• Law of Wetlands Regulation(LWETR)

• Legal Compliance Checkups:Business Clients (LCOMPLC)

• Managing Environmental Risk: RealEstate & Business Transactions(MENVRISK)

• McKinney’s Forms Multibase -Environmental Law (MCF-ENV)

• Nanotechnology Law (NANOTECH)• Connecticut Practice Series -Environmental Law (CTPRAC-ENV)

• New Jersey Practice Series -Environmental Law (NJPRAC-ENV)

• NewYork Construction Law Manual -Environmental Law (NYCLM-ENV)

• NewYork Practice Series -Environment Law and Regulation inNewYork (NYPRAC-ENV)

In the NYCLA Lexis subscription

patrons have access to all Federal andState primary source items and the abili-ty to browse numerous Matthew Bendersecondary source titles, including:

• Environmental Impact Review in NewYork

• Environmental Law• Environmental Law in Real Estateand Business Transactions

• Environmental Law Practice Guide• Environmental Litigation, SecondEdition

Environmental Law is very dynamic asstatutory, judicial and administrative reg-ulations and determinations are in con-stant flux. Blawgs are one way to keepinformed about the cutting edge of thisarea of law.

Found thru ABA Blog index(http://www.abajournal.com/blawgs/by_topic/)• Environmental Crimes BlogThis blawg explores all aspects ofenvironmental criminal law.

• Environmental Law and Business“Tracks changes in environmentallaw and their impact on business.”

• Environmental Law Prof BlogPosts cover policy, regulation andenforcement issues concerning envi-ronmental law, climate change, oilwells, Caribbean reefs and wastemanagement

• Environmental Legal Blogs“Developments in environmentallaw.”

• Focus on Regulation“Hogan Lovells’ blog, Focus onRegulation, provides insights, analy-sis, and news about regulatory issuesaffecting a broad array of industries.”Also has firm news.

• Hydraulic Fracking BlogBlog covers the latest news, decisionsand rules in the area of hydraulic frac-turing.

• Legal Planet“Provides insight and analysis on ener-gy and environmental law and policy.The blog draws upon the individualresearch strengths and vast expertiseof the law schools’ legal scholars andthink tanks. Our goal is to fill a uniquespace on the blogosphere, not only bybridging the worlds of law and policy,but also by translating the latest devel-opments in a way that’s understand-able to a mass audience. We writeabout U.S. Supreme Court decisions,regulatory actions, and state andnational legislation that affects waterresource management, toxic waste dis-posal, renewable energy, air quality,land use, and more. The global chal-lenge of climate change is the driverbehind our work.”

• Switchboard, from NRDC > DavidDoniger’s BlogFederal and state global warming,clean air and clean car law.

• Utica Marcellus Shale Monitor“Designed to provide the latest legalnews and information regarding shaleplays in the Utica and Marcellusregions.”

Other sources of current awareness,which can be set up as email alerts,include:

• Westlaw Journal Environmental(WJENV)

• Westlaw Journal Toxic Torts(WJTOX)

• Westlaw Journal Asbestos (WJASB)• WESTLAW Topical Highlights -Environmental Law (WTH-ENV)

Recent book acquisitions:

Goldberg, David, Transfer andMortgage Recording Taxes in New YorkTitle Closings. Lexis: NewYork, 2012.

Digital Training Center CLE ProgramsUnless otherwise noted, courses arefree and open to the public.Register at nycla.org. Questions?Contact Irina Chopinova at ichopino-va@nycla.org or 212-267-6646 x203.

December

Westlaw: AdvancedDecember 4 – 10-11 a.m.1 MCLE Credit: 1 Skills; TransitionalWestlaw: Public Record ResearchDecember 4 - 11:30 a.m.-12:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: IDecember 5 – 10:30 a.m. – 11:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: LitigationDecember 5 – 12:00 – 1:00 p.m.1 MCLE Credit: 1 Skills; TransitionalLexis: Expert Witness

December 5 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: BasicDecember 18 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: Statutes and RegulationsDecember 18 – 3 - 4 p.m.1 MCLE Credit: 1 Skills; TransitionalU.S. Bankruptcy Court ElectronicCase Filing SystemDecember 19 – 10 a.m.-12:30 p.m.2.5 MCLE Credits: 2.5 Skills;Transitional (Also NJ)Member: $65 Non-member: $85Non-legal Staff: $35

January

Lexis: IIJanuary 9 – 10:30 – 11:30 a.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: Factual DiscoveryJanuary 9 – 12-1 p.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: Company and FinancialResearchJanuary 9 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: BasicJanuary 10 – 10-11 a.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: Trusts and EstatesJanuary 10 - 11:30 a.m.-12:30 p.m.1 MCLE Credit: 1 Skills; Transitional

U.S. Bankruptcy Court ElectronicCase Filing SystemJanuary 23 – 10 a.m.-12:30 p.m.2.5 MCLE Credits: 2.5 Skills;Transitional (Also NJ)Member: $65 Non-member: $85Non-legal Staff: $35

Using Bloomberglaw.com forLitigationJanuary 24 - 10-10:50 a.m.1 MCLE Credit: 1 Skills; Transitional(Also NJ)

Using Bloomberglaw.com for aCorporate Transactional PracticeJanuary 24 - 11:05 - 11:55 a.m.1 MCLE Credit: 1 Skills; Transitional(Also NJ)

Westlaw: IntermediateJanuary 29 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: NewYork MaterialsJanuary 29 – 3 - 4 p.m.1 MCLE Credit: 1 Skills; Transitional

LIBRARY NOTES

December 2012 / The New York County Lawyer 11

By Jessica Zafonte, Esq.

The discovery of the antibiotic penicillin in1928 led to the lifesaving use of this drugand those similar to it. But as the use ofantibiotics becomes more widespread, thenumber of antibiotic resistant, and thusincurable disease strains grow. Antibioticresistant infections now cost the U.S. healthcare system $50 billion per year and infec-tions once routinely treated with antibioticsare now requiring hospitalization and caus-ing thousands of deaths annually.Particularly problematic is the use of antibi-otics in animal agriculture, which compris-es over 80 percent of the antibiotics used inthis country.Yet this use in our food systemis almost entirely unregulated. The use ofantibiotics in food animals is usually non-therapeutic, with most antibiotics adminis-tered to food animals to prevent disease andincrease weight gain, rather than to treatinfections.1With the shift to the factoryfarm model of food production, animals arekept in severely overcrowded and filthy liv-ing conditions, where the stress, unsanitaryenvironment, and improper nutrition willinevitably cause them to grow sick and diewere antibiotics not consistently put intotheir feed. Antibiotics also allow animals tobe manipulated to gain weight rapidly andthus slaughtered earlier. Apart from the eth-ical issues this scenario raises is the humanhealth concern that the overuse of thesedrugs in the food system will lead to agrowth in antibiotic resistant bacteriastrains that can be transferred to the humanpopulation via food and environmentalroutes.2

Yet despite these risks, there is very littleregulation of antibiotic use in animal agri-culture. The regulation falls under thefractured purview of several governmentalentities. The U.S. Food and DrugAdministration (FDA) is tasked with the

responsibility of regulating the drugsthemselves. The Agricultural ResearchService of the U.S. Department ofAgriculture (USDA) studies animalantibiotic use and publishes guidelines toreduce food-related health risks, while theCenters for Disease Control creates edu-cational programs for antibiotic use infarm animals and funds state and localeducation programs on this topic.3 Statedepartments of agriculture are tasked withmonitoring antibiotic use in farm animals,but there is no requirement that this databe reported to the federal government andno specific standards by which the statesmust abide.4 According to a physicianwho formerly worked for the USDA,“[t]here’s nobody in charge … and whenno one’s in charge, it doesn’t get done.”5

The agriculture industry is a powerfullobby, adamant on fighting regulation.6Currently, the industry is not required toreveal how they use antibiotics in their ani-mals or in what quantities, and many drugsare sold through feed suppliers with noregulation.7 When this data is disclosed,the industry underreports its antibiotic useby at least 40 percent, according to theUnion of Concerned Scientists.8 Thisframework not only allows for the abuseand misuse of these drugs, it also hindersscientists from maintaining data that couldbe used to definitively prove harm to the

What’s Really in Our Meat?

By Fred Cohen, J.D.

If you walk into any coffee shop in NewYork City, you’ll undoubtedly encounterpatrons using a wide variety of smart-phones and tablets. If you take a closerlook, you’ll find that some are surfing theweb, others are doing work and some mayeven be video chatting—all from theirmobile devices. Given this undeniableubiquity of mobile technology, it’s no sur-prise that savvy businesses and law firmsalike recognize that their online marketingefforts must also accommodate the small-er screens of Droids and iPhones.

With your firm’s website serving as thefocal point of your online marketing cam-paign, it’s essential that you assess justhow effective your site is on a mobiledevice. Take a few minutes and try visit-ing your firm’s site from a smartphone. Ifyou have access to both an Apple productlike an iPhone (or even iPod touch) andanother mobile platform like an Android,try them both. As you open your site, takenote of just how long it takes to load. Inmany cases, sites have large graphicswhich may be quick to load on a PC withhigh-speed Internet access but can beproblematic on a slower mobile network.Once the site opens, is the text easy toread? Do you have to scroll all over theplace to try to find key components likecontact information? If so, it’s probablytime for you to develop a mobile site.

When developing your mobile site, con-sider the following best practices:

• Your mobile site should not contain thesame graphics as your regular website.Instead the graphics should be created

specifically for your mobile site—theyshould be much smaller in size andfree of Flash animation.

• Create a navigation menu and pagestructure that visitors can easily seewithout zooming in and out.

• Whenever possible, you should haveone-touch buttons which allow for easynavigation or action. These mightinclude a click-to-dial button, sharebutton (allowing visitors to easily emailyour site’s link or post to social mediaplatforms) and a home button so theycan easily get back to the starting point.

• When a user types in your domainname on a smartphone or tablet, he orshe should automatically be taken toyour mobile site. The user should nothave to first arrive at your main site andthen click a link to be taken to yourmobile-friendly site.

There are many developers who will cre-ate a mobile site for your firm based onyour main site. For the most part, theirservices are reasonably priced but often,since they are on a different platformfrom your main site, you may have tomaintain two sets of content; one for yourstandard site and one for your mobilesite. If the web developer who createdyour main site is available, try first con-sulting them concerning a mobile site.

Fred J. Cohen, J.D., is the founder andPresident of Amicus Creative Media, anattorney web design and marketing com-pany (amicuscreative.com), and aNYCLA member benefit partner. He canbe contacted at 877-269-0076.

Is your firm’s website mobile-friendly?(See What’s in Our Meat on page 14)

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December 2012 / The New York County Lawyer12

By Phillip Azachi

The United States Environmental ProtectionAgency (EPA) reached a milestone in pesti-cide regulations this year, but its recent victo-ry was only made possible through the longterm process of overhauling registration andthe tolerance system. Now, the EPA is utiliz-ing public participation in its continued regu-lation of pesticides.

Scotts Miracle-Gro Company, a producer ofpesticides for commercial and consumer lawnand garden uses, illegally applied insecticidesto bird food products that are toxic to birds.1Scotts distributed unregistered pesticides, falsi-fied pesticide registration documents, distrib-uted the products with misleading and unap-proved labels in violation of the FederalInsecticide, Fungicide, and Rodenticide Act(FIFRA). It was sentenced to pay a $4 milliondollar fine for 11 criminal violations of FIFRA,the largest criminal penalty under the act todate. Scotts further agreed to pay more than $6million in civil penalties and spend $2 millionon environmental projects to resolve additionalcivil pesticide violations, the largest civil settle-ment under FIFRA to date.

The EPA regulates the pesticide industry accord-ing to the mandates of three major federal laws.FIFRA requires EPA to review and register pesti-cides for specified uses. The Federal Food, Drug,and Cosmetic Act (FFDCA) mandates the EPAto set maximum residue levels, or tolerances,for pesticides used in or on foods or animalfeed. The Food Quality Protection Act of 1996(FQPA) amended FIFRA and FFDCA settingtougher safety standards for new and old pesti-cides and creating a uniform requirementregarding processed and unprocessed foods.A person or company must register with theEPA before selling or distributing a pesticidein the United States. In assessing the applica-

tion, the EPA must ensure that the pesticidecan be used with a reasonable certainty of noharm to human health and without posingunreasonable risks to the environment basedon the instruction label. To make such deter-minations, EPA requires more than 100 dif-ferent scientific studies and tests from appli-cants. Rigorous scientific studies are alsonecessary for setting tolerances for theamount of the pesticide that can legallyremain in or on foods.

The EPA must constantly update the registra-tion system and tolerances levels in light ofnew data. And Congress has imposed strin-gent time frames for completing suchreviews. The 1988 amendments to FIFRAauthorized the EPA to conduct the pesticidere-registration program, a comprehensivereview of the human health and ecologicaleffects of pesticides first registered beforeNovember 1, 1984. Approximately 1,150 pes-ticide active ingredients organized into 613“cases” or related groups were subject to re-registration. FQPA requires the EPA toreassess within 10 years the 9,721 existingtolerances and tolerance exemptions to ensurethat they met the new “reasonable certaintyof no harm” safety standard. FQPA furtherrequires the EPA to periodically review everypesticide registration every 15 years.

So far, the EPA has had major breakthroughsin its projects, albeit with some delays. InSeptember 2008, the EPA completed the lastof 384 Re-registration Eligibility Decisions(REDs).2 On August 3, 2006, the EPA com-pleted over 99 percent of the tolerancereassessment decisions.3 The remaining 84tolerance reassessment decisions for five pes-ticides were completed in September 2007.4The EPA commenced their first 15 yearreview in 2006.

As the agency turns intention to completingthe first 15 year review, the EPA pesticideprogram has been expanding public participa-tion. In October of 2009, the agency beganimplementing a public participation processfor certain registration actions in response toPresident Obama’s directive on transparencyand open government.

The public participation process providedoptions for conducting a six-phase process,modified four-phase process, or streamlinedlow-risk process depending on the initial riskassessments and complexity of issues. The six-phase process generally arises in more compli-cated cases than the four-phase process andthe streamlined process. In either process, theEPA considers public comment on risk assess-ments, risk characterization, and preliminaryrisk reductions measures.

The success of public participation in pesti-cide regulation turns on the availability ofinformation. The EPA publishes a FederalRegister (FR) notice announcing the avail-ability of the risk assessments and relateddocuments from the public docket and EPA’swebsite before opening the comment periods.The public is also informed through search-able databases of chemicals, registrationsforms, tolerances, and health and safety pre-cautions on the EPA website.

The increased access to information and publicparticipation is a major step forward as pesticideusage continues to be play important role inagricultural practices and urban living.According to Crop Life America, the primarytrade association of the pesticide industry, theworld wide pesticide market was estimated at$38.5 billion in 2011 with the U.S. representing32 percent of the market.5 U.S. manufacturersproduce well over 1.2 billion pounds of synthet-ic organic pesticides annually, of which 857 mil-lion pounds are sold in the United States alone.6

Pesticides have been used for protecting pub-lic health and food production. The farmingindustry must control insects and mites thatdamage crops, weeds that compete with fieldcrops for nutrients and moisture, aquaticplants that clog irrigation and drainage ditch-es, and pathogens occurring in soil. Urbanitesmust control filthy and disease-transmittingflies, mosquitoes, cockroaches and rodents;beetles that feed on leather goods, insectsfeeding on lawns; termites that destroy wood-en buildings, and bed bugs that terrorize our

bodies. Managing this variety of pestsrequires a multitude of pesticides. But exer-cising discretion is necessary to avoid envi-ronmental spillovers and the public healthdisasters of last century. Prior to the 1970s,Federal pesticide laws lacked practical stan-dards for setting tolerance levels and properlyaccounting for environmental risks. Early leg-islation supported manufacturer and userobjectives.

It was not until the environmental movementand Rachel Carson’s condemnation of the useof pesticides in Silent Spring that Congressbegan the slow process of overhauling thesystem. Principally, President Nixon shiftedauthority to regulate pesticides from theUnited States Department of Agriculture(USDA) to the EPA. The Federal Environ-mental Pesticide Act of 1972 directed theAdministrator of the EPA to set new registra-tion procedure, made it a crime to “use anyregistered pesticide in a manner inconsistentwith its labeling,” and made clear the role ofstate agencies in the regulation of pesticides.

The process has since turned on re-registra-tion and setting appropriate tolerances underthe new pesticide regulatory system. TheFQPA was the culmination of those efforts asit imposed more stringent timetables, setstandards for reviewing specific subcategoriesof pesticides, and resolved the conundrum ofthe Delaney clause. Now that regulatory sys-tem has been modernized, the American pub-lic can start the long process of maintaining itthrough active participation.

Phillip Azachi, a NYCLA and EnvironmentalCommittee Member, is a recent graduate ofCUNY School of Law, and is interested in envi-ronmental and real estate issues.

References

1. http://www.epa.gov/compliance/re-sources/cases/civil/fifra/scottsmiraclegro.html2. http://www.epa.gov/pesticides/reregistra-tion/ product-reregistration.htm3. http://www.epa.gov/pesticides/tolerance/reassessment.htm4. http://www.epa.gov/pesticides/tolerance/reassessment.htm5. http://www.croplifeamerica.org/news/ annual-reports6. A. Grube, D. Donaldson, T. Kiely, L. Wu,Pesticide Industry Sales and Usage, 2006 and2007 Market Estimates, February 2011, Table3.4, available at http://www.epa.gov/opp00001/pestsales/07pestsale/market_estimates2007.pdf.

Involving the Public in Pesticide Regulation

NYCLA In The NewsNew York Law JournalAttorneys Battered by Sandy FindTemporary Ports After the StormNovember 16, 2012An article on lawyers finding temporaryoffices space post-hurricane Sandy men-tions that, “The NewYork CountyLawyers’Association has heard frommore than 20 lawyers or law firms seek-ing temporary space, ranging from solosto firms with staffs close to 30,” quotingNYCLA’s Executive Director SophiaGianacoplos. It goes on to say that,“NYCLA is trying to match displacedlawyers with law firms that have extraspace. Several firms have offered tohelp” and that “NYCLA is also offeringits own conference rooms, library spaceand computers to displaced members.More than 50 have taken the associationup on its offer.”

New York Law JournalLegal Community Offers More Help forSandy VictimsNovember 8, 2012In this article about the legal communi-ty’s efforts to help storm victims, theexpansion of NYCLA’s legal counselingproject is mentioned. It notes that,“until now, the project has advised onconsumer bankruptcy, landlord-tenantissues, employment and family law” andmentions that the group is seeking vol-unteer attorneys experienced in insur-ance law. The article also notes thatNYCLA is also matching lawyers dis-placed from their offices with firms thathave extra space, and provides informa-tion on how firms can help and can gethelp. It also mentions that NYCLA’sYoung Lawyers Section is collectingwater, blankets, non-perishable food,

and other items as part of a hurricanerelief drive, and that donations may bedropped off at the bar group’s headquar-ters at 14 Vesey St.

Metrocorpcounsel.comNewYork County Lawyers’AssociationProvides Hurricane Assistance To LegalAnd Greater CommunityNovember 7, 2012This article focuses on several initiativesNYCLA has organized to aid membersof the community left devastated in thewake of Hurricane Sandy.

Westside Spirit and Our TownAt a StandstillOctober 25, 2012This article talks about how budget cutshave brought NewYork’s courts to acrawl and efforts being done to increasefunding to the courts. It discusses workdone by NYCLA including the reportpublished by its task force on judicialbudget buts, to find out the impact of the2011-2012 fiscal year cuts. It notes thatthe report surveyed 759 people, includ-ing private practice attorneys, court sys-tem employees, government attorneysand judges and that over 80 percent ofrespondents reported that they stronglyagreed or agreed that the court’s effi-ciency has been compromised and thatthe budget cuts have had a negativeeffect of the administration of justice.NYCLA’s President, Stewart Aaron, isquoted saying, “You will start a hearingand continue it weeks later. There arethese long delays in getting resolutionswith matters that are important to the lit-igants, leaving people and issues incomplete limbo. Obviously that’s not theway to administer justice.”

The Value of Membership:10 Ways to Take Advantage of Your Membership in 2013You go through your mail and find aninvoice from NYCLA. Then you checkyour email and there’s another. No, we’renot stalking you; we just want to keep youengaged as a NYCLA member for anotheryear—to help you keep learning, staycompetitive, expand your professional net-work, and demonstrate and elevate yourprofessional value and credibility. Thinkabout what you want to get out of yourNYCLA membership in 2013—here areour suggestions.

10. Take advantage of discounted CLEsto help expand your skill set, devel-op professionally, and learn abouttoday’s hot topics

9. Attend a networking program or spe-cial event where you can meet indus-try leaders and professionals insideand outside your practice area

8. Go online through NYCLA’s Libraryto access electronic research forquick access to the materials youneed to most effectively do yourwork

7. Go shopping or book a trip, and takeadvantage of our discounts at cloth-ing and electronic stores and car

rental companies

6. Join a local gym such as EquinoxFitness Clubs, NewYork SportsClubs, or Crunch using your NYCLAmember discount and get a few work-outs in

5. Give back to the community by par-ticipating in members only pro bonoprojects.

4. Solve professional ethical dilemmaswith our ethics resources and hotline.

3. Join a Committee in your personalpractice area to become more of anexpert

2. Join a Committee outside of yourpersonal practice area to build yoursphere of knowledge

1. Meet other lawyers, law students,and judges and build relationships tohelp enhance and shape your career

You can’t beat that value! We want to hearfrom you—let us know what other mem-ber benefits you would like to see.Contact Diana Kosanovich at (212) 267-6646 x213 or kosanovich@nycla.org.

December 2012 / The New York County Lawyer 13

Why Social Disclosure?By Tom Chernaik

Social disclosures are used to include orappend legal information, disclosures ordisclaimers to individual social mediacommunications. Marketing and advertis-ing communications often require thatadditional legal information or context areincluded with traditional print, broadcastand digital communications. When thosemessages are shared in social channels,however, lack of characters in short-formmessages is no excuse for not includingthis information to consumers.

The Federal Trade Commission (FTC)updated its guidelines for Testimonialsand Endorsements in late 2009, expand-ing them to include social and digitalchannels and the commission is currentlyreviewing their Dot-Com Disclosures thatwere last updated in 2000. In addition,state attorney generals are watching socialcontests and promotions closely, ensuringthat rules and terms are shared clearlywithin marketer programs.

Within regulated industries, the Securitiesand Exchange Commission (SEC) andFinancial Industry Regulatory Authority(FINRA) have both issued guidance for thefinancial services industry although theircounterparts in the pharmaceutical andmedical devices industries have been wait-ing for the Food and Drug Administration(FDA) to issue updated guidance.

Regardless of your industry focus, if youare engaging in business activities onsocial media channels you want to beaware of legal requirements and liabili-ties. With new social channels, apps andtools being developed on a daily (if nothourly) basis, you need to consider theimplications of proposed programs holis-tically, so that you are prepared for theinevitable change that takes place.

Do you see a lot of lawyers interested insocial media disclosure? Should they bemore concerned? What are the emerg-ing regulatory issues or challenges?

We see increasing discourse on socialmedia disclosure in legal communities. Asmentioned above, concern has led some tooverly restrict the social media activitiesof the companies with which or in whichthey work. Still others are unaware of, ordo not fully understand these issues.

The good news is that the regulatory issuesare becoming clearer. In early June, theFTC held a day-long workshop on the topicand is expected to issue additional guidancefor Dot-Com Disclosures later this year.That document was last updated in 2000,when Mark Zuckerberg was a sophomorein high school and before Facebook,Twitter or Pinterestwere even an idea.

In advance of the FTC guidance, the Wordof Mouth Marketing Association(WOMMA) issued an updated draft oftheir Social Media Disclosure Guidelinesthis Summer. (Disclosure: I am Co-Chairof the Members Ethics Advisory Panel ofWOMMA.) The previous version is refer-enced throughout the FTC’s 2009 updateand in the social media policies of count-less organizations. The WOMMA guide-lines address the concerns of both thecompliance and marketing stakeholders atcompanies to help them move forwardwith effective and responsible socialmedia marketing programs.

What are the challenges of social dis-closure?

The obvious challenge is the limitation ofspace in sort messaging platforms thatmost social and mobile platforms arebased upon. Both from the perspective ofcommunicating a disclosure and to ensurethat consumers can understand the contextof disclosure information, it can be diffi-cult to make meaningful disclosures in140, or fewer, characters. Furthermore,social communications are often syndicat-ed between platforms (Twitter ->Facebook or Pinterest ->Twitter/Facebook). The WOMMA Guideis meant to discuss and address manyissues as they relate to Social MediaDisclosures.

Who should be concerned?

Without minimizing the distress of regu-lated industries as they struggle to devel-op compliant social media programs,let’s focus on consumer brands whosesocial media presence is most visible toconsumers.

The unprecedented growth of socialmedia has motivated brands to leveragethe power of Facebook, Twitter, Pinterestand other networks in order to listen toand engage consumers, gain insightsabout their products and services, andultimately drive traffic and revenue.

Increasingly, sponsored content and mar-keting messages are more seamlesslyintegrated with advocate pages and pro-files, videos, Tweets, blog posts and othercontent on the social web.

What are the risks?

Regulators are serious about ensuring thatadvertising is not deceptive and that spon-sorship or other relationships betweenbrands and their advocates are clearly dis-closed. To date, the FTC has weighed inon these issues with regard to marketingcampaigns including Ann Taylor Loft,Reverb Communications, LegacyLearning Systems and Hyundai.

Most recently, on June 20, the AdvertisingStandards Authority (ASA) in the UK ruledagainst Nike and banned a campaign it wasrunning leading up to the Olympics due toTweets from sponsored athletes about thebrand because they lacked the required dis-closures. The ASA followed that decisionwith another action banning Toni & Guy, achain of UK hair salons, concerning twofrom Gemma Collins, one of the stars of apopular UK reality series.

Your reputation is probably the mostimportant reason to properly disclose.There is a growing sense of mistrust byconsumers of digital and social content.Being transparent can go a long way toestablishing yourself as credible. You canearn more trust with your customers andbrand advocates by being transparent.

What are the common headaches aroundthis sort of regulatory compliance?

There are three sources of headaches:understanding of the appropriate regula-tions and guidelines; developing a socialmedia policy aligned with business objec-tives; and assuring adherence to that policy.

Depending on industry sector, US compa-nies may need to address the requirementsof the Federal Trade Commission (FTC),the Securities and Exchange Commission(SEC), the Financial Industries RegulatoryAuthority (FINRA) and/or the Food and

Drug Administration (FDA). While thepolicies of each agency continue to evolve,sufficient guidance has been provided forcompanies to develop compliant processesfor social media communications.

Many companies see the regulations asreasons to significantly limit their socialmedia activities. While marketers arebeginning to realize social media as aneffective means to build customer rela-tionships, increase awareness for theirbrands and boost sales, a lack of clarityon how to implement compliant socialmedia programs often holds companiesback or exposes them to unnecessary riskor liability. The companies that don’tresolve these conflicts are facing competi-tive disadvantages that will become moresignificant in the near future.

Monitoring and enforcement of socialmedia compliance policies can be seen asa significant administrative burden. Ad-hoc solutions, manual review and humanresources are not scalable and becomeunmanageable in programs of even mod-est sizes. Integration into existing work-flow processes is becoming easier withthe availability of purpose-built disclosureand compliance tools.

Relief from the headaches of conductingcompliant social media programs is withinthe means of those companies that chooseto apply them. More significantly, the ben-efits of addressing compliance needsappropriately far outweigh the alternativesand companies can reap the full benefitsof transparent social media marketing,keeping the trust of their customers and

better monitoring, optimizing and measur-ing the performance of their social efforts.

Where do I get more information?

•FTC Endorsement Guides– http://www.ftc.gov/opa/2009/10/endortest.shtm

• FTC Dot-Com Disclosures (currentlyupdating)– http://business.ftc.gov/documents/bus41-dot-com-disclosures-information-about-online-advertising

• WOMMA– Ethics http://womma.org/ethics/code/– Disclosure http://womma.org/ethics/dis-closure/

• OFT– http://www.oft.gov.uk/news-and-updates/press/2010/134-10

– http://www.oft.gov.uk/OFTwork/consumer-enforcement/consumer-enforcement-com-pleted/handpicked_media/q-and-a/

• ASAhttp://www.asa.org.uk/Regulation-Explained/Online-remit.aspx

• CMP.LYhttp://cmp.lywww.twitter.com/cmply

Tom Chernaik is CEO of CMP.LY. The com-pany’s unique disclosure, social media moni-toring and measurement solutions are builton a foundation of Tom’s experience andinsights in marketing, law, social media andentrepreneurship. Tom is Co-Chair of theMembers Ethics Advisory Panel of the Wordof Mouth Marketing Association (WOMMA)and is a frequent speaker at events on socialmedia ethics and disclosure.

December 2012 / The New York County Lawyer14

public health. Access to records from farmsand feed mills are not easily accessible byregulators and there is currently no real pro-tocol for their review.9 While governmentalentities do have authority to inspect theserecords, they cannot collect or publish anyof the data.10 Ultimately, the only way forregulators to check compliance with thefew rules in place is to look for residues ofdrugs in samples of meat, as opposed tomonitoring the direct use of antibiotics onthe farms themselves.11

It is the role of the FDA to evaluate applica-tions for proposed drugs and determineboththe effectiveness of the medicine andany riskit poses to consumers of animal products.12It can then impose rules on how the medi-cine must be used to ensure safety.13 Oncethe approval is granted, however, the animalagriculture industry essentially has free reignto use the drugs how it wants. Additionaloversight and guidance by the FDA has beenentirely unsuccessful. In 1977, the FDA pub-lically announced its intent to withdrawapproval of various uses of penicillin andtetracycline in food animals, but abandonedthis after meeting opposition fromCongresswhen the appropriations commit-tees passed resolutions against any suchbans, indisputably as a result of pressurefrom the agriculture lobby.14 By 2003, theFDA publically acknowledged that there wassome degree of risk with the use of antibi-otics in food animals and stated it could notconclude that the continued use of penicillinand tetracycline in animals used for foodwas safe.15 The FDA then issued itsGuidance for Industry #152, which set fortha recommended approach for assessing thesafety of new animal antibiotics with regardto their microbiological effects on bacteria ofhuman health concern.16 It established anassessment process for evaluating new ani-mal antibiotic drug applications that requiredconsideration of the importance of the drugfor human health, how the drug will be usedin agriculture, and the degree of veterinarian

involvement in the drug’s use.17 In June2010, the FDA released a draft guidance thatadded the concept of “judicious use,” definedas the avoidance of any uses not necessary orappropriate and thus recommending thatantibiotics not be used for growth promotionand other production purposes.18 The FDAwas recently accepting public comments ona proposal to phase out the use of certainantibiotics to stimulate animal growth andcreate requirements for obtaining prescrip-tions for specific antibiotics.19 However, theFDA stated that it is pursuing a “voluntaryapproach” as it cannot afford formal pro-ceedings and wants pharmaceutical compa-nies to designate 200 antibiotics that will befor human use only.20

Ultimately, nothing came of the FDA’srecommendations, despite urging bytheWorld Health Organization that a pre-scription be required for allantibioticsgiven to food animals and that countriesbegin phasing out the use of antibiotics topromote growth if these antibiotics arealso used for human treatment.21 TheFDA’s lack of effective action in this arenahas not gone without criticism. In June,theSouthern District of NewYork issued anorder in a suit brought against the FDA bythe Natural Resources Defense Councilthat requires the FDA to reissue a notice ofwithdrawal of approval for the non-thera-peutic use of penicillin and tetracycline inanimals raised for food.22 The opinion crit-icized the FDA, stating “[f]or over thirtyyears, the Agency has been confrontedwith evidence of the human health risksassociated with the widespread subthera-peutic use of antibiotics in food-producinganimals, and, despite a statutory mandateto ensure the safety of animal drugs, theAgency has done shockingly little toaddress these risks.”23

Unlike the U.S., many other countries haveestablished strong regulations for antibioticuse in food animals. Denmark banned theuse of antibiotics as growth promoters in1999, with the EU following suit in 2009and South Korea in 2011.24 Due to the cur-rent regulatory framework in the U.S., it

seems that consumers ultimately have themost power in changing these farmingpractices. As consumer awareness grows,demand for antibiotic-free meat hasincreased by 25 percent in the past threeyears, totaling $175 million in sales.25 Ifdemand for antibiotic-free animal productscontinues to increase, it will ideally forcefactory farms to improve the deplorableconditions that created this dangerous needin the first place.

Jessica Zafonte, Esq., a NYCLA Animal LawCommittee member, is an associate withGoodwin Procter LLP where she practicespatent and commercial litigation. She is agraduate of Brooklyn Law School and canbe reached at Jessica.Zafonte@gmail.com.

References:1. An Institute of Medicine report estimated that in1998, up to 80% of farm antibiotic usage was non-therapeutic. Tiffany Mason, Antibiotic Overuse inFood Production Animals, Yale Journal ofMedicine and Law, February 24, 2010http://www.yalemedlaw.com/2010/02/antibiotic-overuse-in-food-production-animals/2. Daniel Imhoff, CAFO: The Tragedy of IndustrialAnimal Factories, San Rafael: Earth Aware, 2010,251.3. Get Smart: Know When Antibiotics Work on theFarm, The Centers for Disease Control, May 17,2011 http://www.cdc.gov/narms/get_smart.htm4. The Levin Institute, Regulating Antibiotics inAnimals, Globalization 101, September 13, 2012http://www.globalization101.org/regulating-antibi-otics-in-animals/5. Sabrina Tavernise, Farm Use of AntibioticsDefies Scrutiny, The New York Times, September 3,2012http://www.nytimes.com/2012/09/04/health/use-of-antibiotics-in-animals-raised-for-food-defies-scruti-ny.html?pagewanted=all6. The National Pork Producers Council argued inJuly that they should not have to report on antibiot-ic prescriptions for their animals.Id.7. Id.8. Jonathan SafronFoer, Eating Animals, NewYork:Little, Brown and Company, 2009, 135.9. Sabrina Tavernise, Farm Use of AntibioticsDefies Scrutiny, The New York Times, September 3,2012http://www.nytimes.com/2012/09/04/health/use-of-antibiotics-in-animals-raised-for-food-defies-scruti-ny.html?pagewanted=all10. Id.11. Id.12. Questions and Answers; Animal Antibiotics,Antimicrobial Resistance and Impact, Food Insight,July 18, 2012http://www.foodinsight.org/Resources/Detail.aspx?t

opic=Questions_and_Answers_Animal_Antibiotics_Antimicrobial_Resistance_and_Impact_on_Food_Safety_113. Id.14. Margaret Riley, The Regulation of AntibioticUse in Animal Agriculture, JURIST - Forum, May26, 2012, http://jurist.org/forum/2012/05/margaret-riley-antibiotics-fda.php15. Id.16. Evaluating the Safety of Antimicrobial NewAnimal Drugs with Regard to TheirMicrobiological Effects on Bacteria of HumanHealth Concern, Guidance for Industry #152, U.S.Department of Health and Human Services Foodand Drug Administration Center for VeterinaryMedicine, October 23, 2003http://www.fda.gov/downloads/AnimalVeterinary/GuidanceComplianceEnforcement/GuidanceforIndustry/ucm052519.pdf17. Margaret Riley, The Regulation of AntibioticUse in Animal Agriculture, JURIST - Forum, May26, 2012, http://jurist.org/forum/2012/05/margaret-riley-antibiotics-fda.php18. The Judicious Use of Medically ImportantAntimicrobial Drugs in Food-Producing Animals,DGFI 2010, U.S. Department of Health andHuman Services Food and Drug AdministrationCenter for Veterinary Medicine, April 13, 2012http://www.fda.gov/downloads/animalveterinary/guidancecomplianceenforcement/guidanceforindus-try/ucm216936.pdf19. The Levin Institute, Regulating Antibiotics inAnimals, Globalization 101, September 13, 2012http://www.globalization101.org/regulating-antibi-otics-in-animals/20. Ezra Klein, Wonkbook: WhyYou should Carethat 70% of Antibiotics go into Animal Feed, TheWashington Post, April 12, 2012 http://www.wash-ingtonpost.com/blogs/ezra-klein/post/wonkbook-why-you-should-care-about-antibiotics-in-animal-feed/2012/04/12/gIQAOEfZCT_blog.html.21. The Levin Institute, Regulating Antibiotics inAnimals, Globalization 101, September 13, 2012http://www.globalization101.org/regulating-antibi-otics-in-animals/22. NRDC, Inc. v. United States FDA, No. 11 Civ.3562, 2012 U.S. Dist. LEXIS 77384 (S.D.N.Y.2012).23. Id. at *66-67.24. Daniel Imhoff, CAFO: The Tragedy ofIndustrial Animal Factories, San Rafael: EarthAware, 2010, 251; Sybille De La Hamaide,Antibiotics for Livestock Vital to Feed World,Reuters, January 11, 2012http://www.reuters.com/article/2012/01/11/us-antibiotics-livestock-idUSTRE80A1JF20120111;Dan Flynn, South Korea Bans Antibiotics inAnimal Feed, Food Safety News, June 7, 2011http://www.foodsafetynews.com/2011/06/south-korea-bans-antibiotics-in-animal-feed/25. Mathew Perrone, Does Giving Antibiotics toAnimals Hurt Humans, USA Today, April 20, 2012http://usatoday30.usatoday.com/news/health/story/2012-04-20/antibiotics-animals-human-meat/54434860/1.

paigns, political donations, and intensecourtroom battles. Although plastic bagscomprise only a small percentage of theplastics industry’s product line, the symbolicweight of these bags is much heftier. What’sreally at stake for these industry groups isother single-use plastics, because bag banlegislation is seen as a gateway to consumersustainability: once people start paying moreattention to plastic bags they may start ques-tioning the need for other disposable items.

Accordingly, the intersection of plastic bagsand the law has become a contentious areawith a robust amount of case law. Thebiggest battleground in the legal fight overplastic bags has been in California. In 2007,plastics industry groups successfully lobbiedfor a statewide bill mandating preemption oflocal fees on plastic bags, which strategical-ly frustrated San Francisco’s attempt toadopt such a fee. San Francisco optedinstead to adopt a ban, and several otherCalifornia cities followed suit. The plasticsindustry reacted by filing a series of lawsuitsto stop the adoption of these ordinances.

Many of the lawsuits were filed by a manu-facturing group appropriately named Savethe Plastic Bag Coalition (SPBC) and calledfor a complete Environmental Impact Report(EIR) under the California EnvironmentalQuality Act (CEQA), premised on the argu-ment that paper bags might possibly causemore harm to the environment than plastic.The CEQA cases, including a CaliforniaSupreme Court decision in SPBC v. City of

Manhattan Beach, resulted in cities spendingyears in court. The plastics industry has notwon any substantive claims, but has succeed-ed in intimidating some cities from movingforward with ordinances.

Many lessons have emerged from thesecases, such as: it’s best to avoid engaging infights that involve life cycle analyses(LCAs); and ban/fee ordinances shouldaddress ALL bags provided at checkout, notjust plastic bags. First, industry groups havefunded several LCAs and as the court inManhattan Beach put it, “the product “lifecycle” must be kept in proper perspectiveand not allowed to swamp the evaluation ofactual impacts attributable to the project athand.” Second, CEQA challenges are oftenbased upon claims that if plastic bags are nolonger available, people will just switch towhatever bag is available rather than reduc-ing overall use. However, by placing restric-tions onALL types of bags, this legal argu-ment can be avoided. Consequently, inCalifornia, most cities are moving forwardwith “second generation” plastic bag ordi-nances that include a ban on plastic bags aswell as a ten-cent charge for paper bags.

Other claims used in California lawsuitsinclude constitutional claims regarding tax-ation, field preemption regarding the stateplastic bag recycling law, and violations ofthe state Health & Safety Code for bansaffecting restaurants. All of these claimshave been rejected by the state superiorcourt, but some claims are up on appeal.

The most important of these cases isSchmeer v. Los Angeles County. In 2010,several industry groups (including plastics)

got a proposition on the California ballot thatwould change the state constitution toinclude certain regulatory fees within thedefinition of taxes, thereby requiring thatsuch fees obtain a two-thirds majority voteon a local ballot before adoption of localordinances. Proposition 26 passed, and LACounty’s pending bag ban ordinance wasamended so that the mandatory 10-centpaper bag charge was kept by the retailer, sothat the government had no part in collectionof the funds generated. Nearly a year later,Hilex Poly, a major plastic bag manufacturer,along with several individuals includingSchmeer (a Hilex Poly employee), filed thelawsuit against LA County claiming that theordinance nonetheless violated Prop 26. Thelower court found that the ten-cent paper bagcharge imposed by LosAngeles County’sbag ordinance is not an unconstitutional tax.The case is currently on appeal.

The next venue for plastic bag litigationappears to be Toronto, Canada. The TorontoCity Council adopted a five-cent plastic bagcharge in 2008, which was effective inreducing plastic bag use by 50 percent andincreasing reusable bag use. In May 2012,the City Council adopted a plastic bag banseemingly in response to Toronto MayorRob Ford’s call to abolish the five-centcharge. This adoption was done quickly, butrelied on the voluminous study behind theoriginal adoption of the 2008 charge. TheOntario Convenience Stores Associationfiled suit against the Toronto City Councilclaiming that the Council overstepped itsauthority and did not conduct an appropri-ate study before adopting the ban. A weeklater, the Canada Plastic Bag Association (agroup specifically formed like the SPBC in

California) also filed a lawsuit.

Such lawsuits show that the legal battleregarding plastic bag ordinances is far fromover. As East Coast cities, including NYC,adopt plastic bag ordinances, the plasticsindustry will likely challenge many ofthese ordinances. However, just as plasticsindustry groups have learned from previouslitigation, so have CSC members, and theselessons will help guide the discussion offuture of plastic bag legislation.

What you can do to get involved with thisissue:

• Limit your own plastic bag consumptionby being mindful of your own plasticbag consumption by using no bag, or areusable bag.

• See www.plasticbaglaws.org for moreinformation about plastic bag ordinances,internships, and pro bono assistanceopportunities.

• Sign up to receive updates from SurfriderNYC’s single-use bag campaign atwww.bagitnyc.org.

• Contact CSC Atlantic to find out howyou or your group can become a coali-tion member.

Jennie R. Romer, Esq. is the founder ofplasticbaglaws.org and is the Atlanticregion director of the Clean SeasCoalition. She is an attorney and sustain-ability consultant in New York City.Further information can be found atwww.plasticbaglaws.org.

Plastic Bag Legislation(Continued From Page 1)

What’s in our Meat?(Continued from page 11)

December 2012 / The New York County Lawyer 15

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Energy Efficiency in New York CityBuildings

NewYork City promotes and regulates energyefficiency projects through a number of lawsand incentives. Most important is the GreaterGreener Buildings Plan (GGBP).As the namesuggests, NewYork City has primarilyfocused its energy efficiency efforts in thebuilding sector. This focus is not by accident –NewYork City has almost a million buildings,with translates into an enormous energydemand. Though the energy efficiency createdby the GGBP, greenhouse gas emissions willreduce by roughly five percent, with an esti-mated $7 billion dollars saved in energy costs.

The GGBP is made up of four laws: LL84(Benchmarking), LL85 (NYC EnergyConservation Code), LL87 (Energy Auditsand Retro-commissioning), and LL88(Lighting Upgrades and Sub-metering).

LL84 (Benchmarking)marking tool (which is free online, knownas ‘portfolio manager’). LL88’s mandate isthus two fold: first, it standardizes howenergy consumption is compared; and sec-ond, it increases owner understanding ofhow their buildings use energy.

LL85 (NYC Energy Conservation Code)LL85 updates NewYork City’s EnergyConservation Code by requiring any buildingundergoing a renovation to conform to themost current version of the city’s energycode. This law’s primary function is to closea loophole, as previous to it’s adoption reno-

vations impacting less than half of a buildingwere not required to conform to the currentcode. Crucially, almost all NewYork Cityrenovations affect less than half of the build-ing, making this update a significant reform.

LL87 (Energy Audits and Retro-commis-sioning)LL87mandates energy audits and energy ‘retro-commissioning’every 10 years for large build-ings (defined as buildings 50,000 gross squarefeet or larger). Energy auditing required underthis law is a relatively thorough process – build-ing systems, includingHVAC systems, electricsystems, lighting systems –must be audited. Theauditing process in turn identifiesmeasures andsuggested improvements that would create ener-gy efficiency capable of providing the environ-mental and financial benefits described above.Next, Retro-commissioning requires a special-ized agent to complete an analysis of base sys-tems, which determineswhere building energyinefficienciesmay be occurring. Issues such asoperating calibrations, cleaning and repairs,training, and documentation are investigated.Using this information, the agent then completesa building ‘tune up’to create energy efficiencies.Of theGGBP local laws, LL87may be themostcomplex. However, City government providesdetailed information, available at: http://www.nyc.gov/html/gbee/html/ plan/ll87.shtml.

LL88 (Lighting Upgrades and Sub-metering)Lastly, LL88 creates two requirements, onefor lighting upgrades and another for aprocess called ‘sub-metering’. In regards tolighting upgrade requirements, the underly-ing rationale is relatively straightforward, aslighting in non-residential spaces consumeroughly 18 percent of all energy used byCity buildings. As lighting technology hasadvanced extraordinarily in recent years,

energy efficiency in this area is, in manyways, low hanging fruit. This local lawrequires buildings to install upgraded light-ing (to meet the NewYork City EnergyConservation Code Section 805) by 2025.

Second, LL88 requires building owners toinstall sub-metering in large non-residentialbuildings by 2025. Currently, many buildingsuse a single meter to determine electricityconsumption.A large office building on asingle meter thus currently receives one elec-tricity bill from the utility company, anddivides, on a pro rata share, the cost amongstbuilding tenants. One tenant, using a largeamount of energy would be billed at the samerate as another tenant using very little. Such asystem creates, in effect, a tragedy of thecommons, with little incentive for individualtenants to try to use energy efficiently. A sub-meter resolves this problem by tailoring ener-gy bills to their own energy consumption.Rather than receiving a single energy bill forall tenants, sub-metering allows for individu-alized energy bills for each tenant. In turn,tenants can adjust energy consumption byusing energy more efficiently, with resultingenergy reductions reducing electricity bills.

NewYork City, through the GGBP and otherefforts, is exhibiting an increased focus inenergy efficiency, particularly in respect tobuildings. For more information, visit thegovernment’s GGBP and PlaNYC websites.

Michael Panfil is a legal fellow at theEnvironmental Defense Fund, where heworks primarily on energy and naturalresource issues. Mr. Panfil graduated fromColumbia Law School in 2011 and lives inNew York City. He can be reached atmnp2113@columbia.edu.

Energy Efficiency(Continued From Page 1)

• Consider the replacement of paper tow-els in the restrooms with high efficiencyblade-type hand dryers.

• Provide chilled and/or filtered NYC tapwater for drinking rather than dispos-able bottles. This can include retro-fitting water fountains to include waterbottle filling taps.

ReuseAfter reduction of waste generation, reuseensures that where possible reusablematerials are utilized rather than dispos-ables, materials are fully utilized prior todisposal/recycling, and that recycledmaterials are purchased and used ratherthan virgin materials. Reuse can beachieved through:• Use of recycled paper, toner, towels, orother materials.

• Consider the donation or sale of office fur-niture or equipment that is no longer need-

ed but still has remaining life. Note thatNYCWasteMatch is a citywide reusablematerials exchange program which helpsmatch products that have remaining lifewith users in need of similar products.

• Provide mugs, glasses, water bottles andcoasters to be used in place of dispos-able products. Firms should consider theuse of logo’d products to enhance theirimage, especially for mugs and glassesused in conference rooms and water bot-tles that are often carried everywhere.

• Consider promotions with local foodestablishments for the purchase and useof reusable food containers. For exam-ple, restaurants local to your firm thatare frequented by your staff may providediscounts or other perks for the use ofreusable food containers in place of theirdisposable styrofoam/plastic containers.

• Provide employees the ability to cleanand dry reusable beverage or food con-tainers in pantries. Alternatively, providecleaning or other staff that is responsiblefor daily cleaning of these reusableproducts.

RecycleDespite a firm’s best effort at reducing andreusing, some waste will still be generated.While NewYork City may have only cer-tain requirements for recycling, firms candiscuss with their building management theoption of increasing the types of wastestreams collected for recycling. Firmswithout cafeterias can still implement recy-cling of metal cans, aluminum foil prod-ucts, and glass and plastic containers.

Another area in which firms have impactis the promotion of recycling. One way toincrease personnel recycling is to provideseparate containers for collection at eachemployee’s workstation. Where central-ized collection of recycling is utilizedinstead of local workstation collection,employees should be provided a tray orother means of collecting their recyclingand transporting to a central location.Centralized locations should be of ade-quate frequency and location so as toallow for easy disposal.

Every business, even office type environ-ments such as law firms, has the potentialto impact the environment. Reduction ofthese impacts is an important element ofcorporate social responsibility but mayalso be considered by clients in the selec-tion of professional services. While somerecycling is required by regulation, amore significant impact, including thepotential for cost savings, can be obtainedby including waste reduction and reusewith the recycling program. Every firm,regardless of their size, can easily reducetheir environmental impact.

Neil A. Feldscher, Esq., a NYCLA andEnvironmental Law Committee member,is an Environmental, Health & SafetyChief at the Department ofEnvironmental Protection. He is Chairof the Legal Branch of the AmericanSociety of Safety Engineers and can bereached at neil.feldscher@gmail.com.(The opinions expressed in this articleare his own and do not reflect that of hisemployer)

The Three R’s(Continued From Page 7)

Ethics HotlineThe Committee on Professional Ethicsaccepts both written and telephoneinquiries on ethics matters and providesadvisory opinions. For additional infor-mation, call the members listed below.

December 1-15Sarah D. McShea212-679-9090

December 16-31Jim Kobak212-837-6757

January 1-15David Wiltenberg212-837-6880

January 16-31Phil Schaeffer212-819-8740

Please Note: Assignments are subject tochange.

Questions to the Hotline are limited toan inquiring attorney’s prospective con-duct. The Hotline does not answerquestions regarding past conduct, theconduct of other attorneys, questionsthat are being litigated or before a disci-plinary committee or ethics committee,or questions of law. This notation shallnot be construed to contain all Hotlineguidelines. For a full discussion ofEthics Hotline guidelines, please seethe article below, “Guidelines onNYCLA’s Ethics Hotline,” published inthe September 2006 issue of New YorkCounty Lawyer.

PROPERTY FOR SALE

December 2012 / The New York County Lawyer16