← litmanintelligence.com  |  ← Counsel PDFs index  |  Counsel dashboard

Section 51 Damages Beyond 20Pct Memo

Memo: § 51 Damages Are Not Capped at the 20% Contractual Share

To: Richard C. Litman / Scott D. Woller, Esq. From: Research pipeline Re: Litman v. Goldberg, Index No. 524343/2025 — damages framework for Count V Prepared: 2026-04-17 Status: Draft brief-support memo — for counsel's review and citation verification

One-Line Position

Damages under New York Civil Rights Law § 51 are measured by the commercial value to NGM of its unauthorized use of Mr. Litman's name, not by the 20% originating-attorney share Mr. Litman was entitled to as a contracted senior counsel of the firm; the two numbers measure fundamentally different things and there is no principled reading of § 51 that caps tort recovery at a prior contractual split.

The Statute

N.Y. Civil Rights Law § 51 (Action for injunction and for damages): "Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court … against the person, firm or corporation so using … and may also sue and recover damages for any injuries sustained by reason of such use and if the defendants shall have knowingly used such person's name … in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages."

Two damage streams under the statute:

  1. "Damages for any injuries sustained by reason of such use" — the compensatory track. Measured by actual injury, including lost opportunity, reputational harm, and the value to the defendant of its unauthorized use (because the plaintiff is presumed entitled to that value — the defendant had no right to it without the plaintiff's consent).
  2. "Exemplary damages" where the use was knowing — a punitive track scaled to the egregiousness of the conduct, not to the plaintiff's prior contractual rate.

Nothing in the statute ties damages to the plaintiff's employment compensation, or to any prior private splitting arrangement for fees.

Why the 20% Contractual Share Is the Wrong Benchmark

Under the 2017 and 2020 agreements between Mr. Litman, NGM, and the predecessor firms, Mr. Litman was entitled to 20% of collected fees from matters he originated — in return for his ongoing labor as senior counsel (supervision, client management, technical review). The 20% compensated him for his work. When his work stopped — at the very latest by the July 18, 2025 termination, and in substantive reality much earlier as his disability and withdrawal from day-to-day prosecution progressed — the 20% agreement naturally ended for post-departure matters.

But the unauthorized commercial use of his name did not end. Between 6/14/2023 and 7/18/2025, NGM continued using his name in:

None of that required his labor. The commercial benefit NGM derived from those uses is independent of — and in addition to — any fee-split Mr. Litman was previously paid for his actual work.

The Proper Damages Framework

A. Compensatory damages — value of the use to NGM

Under Bi-Rite Enterprises, Inc. v. Button Master, 555 F. Supp. 1188 (S.D.N.Y. 1983), and its progeny (Onassis v. Christian Dior-New York, Inc., 472 N.Y.S.2d 254 (Sup. Ct. 1984); Lohan v. Take-Two Interactive Software, Inc., 31 N.Y.3d 111 (2018)), a § 51 plaintiff's compensatory damages include the reasonable value of the use appropriated — typically measured as what the defendant would have had to pay the plaintiff for consent or, alternatively, the defendant's commercial benefit from the use.

Applied to this case:

Between those bounds, a jury could reasonably award a substantial fraction of the collected fees attributable to Mr. Litman-named uses — certainly well above the 20% floor that merely reflected his historical labor compensation.

B. Exemplary damages — knowing use

The knowing element is documented repeatedly:

Each is consciousness-of-liability evidence. A jury finding knowing use triggers the § 51 exemplary-damages track, which is multiplicative on compensatory damages and has no ceiling tied to any contractual share.

C. Per-use statutory framing ("deck of cards" theory)

Per the case's existing framing, each separate commercial use is actionable. With 28,140+ documented emails plus 992+ attachments plus the 905-patent portfolio plus the USPTO and web uses, the sheer multiplicity of uses would — even at a nominal per-use damages figure — produce a total far in excess of any contractual share.

The 20% Is Relevant Only as a Floor

The contractual 20% share is useful in this case only in two narrow ways:

  1. Establishing that NGM placed actual economic value on Mr. Litman's name — they paid him 20% of a substantial revenue stream, which is an admission of the identity's commercial worth.
  2. Proving breach-of-contract damages on the separate Track 1 (the documented $504K+ shortfall between 20% owed and 20% paid through 5/31/2025). Track 1 damages do not overlap with or cap Track 2 § 51 damages.

"Mr. Litman's rights under New York Civil Rights Law §§ 50-51 are independent of and not measured by the 20% originating-attorney share he received in compensation for his active service as senior counsel. The 20% compensated Mr. Litman for his professional labor during his tenure. What is at issue in Count V is the commercial value of NGM's unauthorized use of Mr. Litman's name after his labor had effectively ceased — a value that inheres in the name itself and that the statute requires NGM to disgorge without regard to the historical rate at which Mr. Litman was paid for the separate asset of his time."

Supporting Exhibits Already Built

Next Steps

Counsel should verify the case citations in Section A against current New York authority and consider whether to seek the defendant's own internal valuations of senior counsel labor (as an evidentiary floor for the commercial-benefit calculation).

This memo is internal work product. Citations should be independently verified before reproducing in a brief.