Last month we wrote about the ultimate benchslap against noted copyright troll Richard Liebowitz. Judge Jesse Furman in the Southern District of NY published a 61 page opinion that goes into massive detail on Liebowitz’s longstanding pattern and practice of lying to courts over and over and over again. Beyond going into the cringe-worthy details of many lies told in this specific case — Arthur Usherson v. Bandshell Artist Management — it includes an appendix with 40 examples of Liebowitz lying, misrepresenting, and/or being sanctioned in other cases. It’s pretty stunning. The order dumped over $ 100k in sanctions on Liebowitz, but much more damning, it referred Liebowitz to the Court’s Grievance Committee, required Liebowitz to give a copy of the order to all of his clients, and said that it needed to be filed along with any new lawsuits he filed — which is notable, since Liebowitz seems to file new lawsuits every other day or so.
After that ruling, though, Liebowitz’s breakneck pace of filing dried up. And so of course he’s fighting back. He’s hired some real lawyers to represent himself, and is appealing the ruling. He’s also asking the court to get rid of all of those non-monetary sanctions regarding informing his clients and other courts. The filing explaining why the court should remove those sanctions is quite a read, and despite being filed by lawyers that Liebowitz has hired, I’d argue they’re not particularly flattering to Liebowitz. First, he complains that these sanctions “will cause severe economic and reputational damage to Mr. Liebowitz,” and, yeah, duh. Except it’s not the sanctions that are the cause of that: it’s Liebowitz’s own behavior.
These sanctions place Mr. Liebowitz in an impossible position: he must choose between either not initiating cases so as to avoid having to file the Opinion, or continuing to initiate cases, filing the Opinion, and thereby risk causing the court to view the client in a negative light by virtue of the client’s association with Mr. Liebowitz. Mr. Liebowitz must, in other words, choose between not practicing, and practicing in a way in which his actions will redound to the detriment of his clients. This Court has forced Mr. Liebowitz to make this impossible choice notwithstanding that Mr. Liebowitz and LLF have, over the past several years, successfully represented and vindicated the rights of copyright holders in thousands of proceedings.
Right. But that’s kind of the point. Liebowitz has been sanctioned monetarily many, many times for this kind of misbehavior and it has not changed his actions. So at some point a court has to up the ante. And this seems like a reasonable way to do so.
Liebowitz also tries to blame his mistakes on inexperience:
Mr. Liebowitz’s troubles with various federal courts around the country, the result of his inexperience and perhaps overly ambitious business model, must therefore be considered in context.
That is not an excuse that is likely to fly with any court, nor should it. He also claims that the reason he’s so frequently sanctioned is because he files so many lawsuits, so of course that’s going to lead to more sanctions:
Even if Mr. Liebowitz possibly is “one of the most frequently sanctioned lawyers” in this District, he is without question one of its most frequent filers…. Mr. Liebowitz and LLF resolve the vast majority of cases without incident… (noting that Mr. Liebowitz has filed approximately 2,500 cases nationwide) with id. at App’x (listing 40 cases in which Mr. Liebowitz was sanctioned). Mr. Liebowitz and LLF can do better, and they have, since the motion for sanctions was filed in this action, set in motion plans to correct the negligence and public faults that they know have harmed their reputation. Taken as a whole, however, their record is more fairly considered not that of the pejoratively termed “troll[s]” or “lampreys,” … but rather the result of zealous advocacy to enforce artists’ otherwise unprotected federally guaranteed rights at affordable contingent rates—marred by the consequences of overwork and relative inexperience.
Except, no. Most lawyers don’t ever get sanctioned, no matter how many cases they file, so that’s not a good excuse at all. And Liebowitz has claimed many times over that he will put in place plans to “correct the negligence” and yet more and more sanctions keep on coming.
Hilariously, the new filing also claims that doing his job in making sure that the cases he file involve works that actually have a registered copyright is too expensive and time consuming:
Further, Sanction 6 will impose enormous monetary and time-related burdens on Mr. Liebowitz and LLF, as well as their future clients. Ordering a deposit copy of the copyrighted work from the U.S. Copyright Office has cost Mr. Liebowitz, per his Declaration, between $ 200 and $ 1,200, and deposit copies often are not delivered for several months—a time period which has been further lengthened during the current pandemic. See Liebowitz Decl. ¶ 10. Given the nature of Mr. Liebowitz and LLF’s practice, which relies on a high volume of cases to make it economically feasible to provide legal services to artists whose cases, individually, generally have small maximum recoveries, the deposit copy requirement could impose on Mr. Liebowitz and LLF costs of thousands of dollars and thus render the filing of many copyright infringement actions—and the firm’s continued operation—financially untenable.
If following the law makes the nature of your legal trolling business untenable then perhaps it’s a sign that your operation itself is… untenable.
Liebowitz also tries to argue that Judge Furman abused his discretion in issuing these sanctions, which is pretty laughable, because I actually thought that Furman was pretty restrained in sanctioning Liebowitz for repeatedly lying, including filing a lawsuit over an image claiming a false copyright registration and then regularly lying to the court about it. Liebowitz’s lawyers try to nitpick around some of Liebowitz’s lies (such as about whether or not he and his client were required to appear in person for a hearing, or whether or not Liebowitz informed a mediator that they would not). The court record makes it clear that Liebowitz is lying. Liebowitz insists the evidence is still up in the air:
As the Hearing transcript reveals, a serious question exists as to whether this factual finding was an abuse of discretion, as there was insufficient evidence in the record for the Court to conclude that the mediator did not grant Mr. Usherson permission to appear by phone. The primary evidence the Court relied on for this point was the mediator’s testimony that Mr. Liebowitz did not ask for such permission…. But the other evidence cited by the Court to corroborate the mediator’s testimony was equivocal at best, and the testimony alone does not support the finding. For example, although the Court read the mediator’s email exchange with counsel for Defendant—in which counsel stated, the night before the mediation, that he “would have assumed Mr. Usherson either flew to NY tonight or is likewise on a very early plane” and the mediator responded, “I understand”—as indicating the mediator did not know that Mr. Usherson would appear by phone, … an equally plausible reading of the mediator’s email is that he was so aware. If the mediator believed, having spoken with Mr. Liebowitz earlier that evening, that Mr. Usherson would be attending the mediation in person (as the Court suggests is the case), the mediator equally likely would have said so in his response to counsel, rather than merely acknowledging counsel’s assumption. In sum, there is, on this record, a serious question whether this Court abused its discretion in relying on the mediator’s essentially uncorroborated testimony to find by clear and convincing evidence that Mr. Liebowitz lied about requesting permission for Mr. Usherson to appear by phone.
Liebowitz also argues that these sanctions go “beyond what was reasonably necessary for deterrence.” Again, that is laughable, given that the judge detailed dozens of examples of previous sanctions that clearly had no deterrent effect on Liebowitz.
And… then, Liebowitz tries to claim that leaving these sanctions in place will harm “the public interest” because… Liebowitz won’t be able to continue filing his often highly questionable lawsuits.
There is a strong public interest in the continuation of Mr. Liebowitz and LLF’s law practice. Mr. Liebowitz and LLF have carved out a successful law practice that provides a realistic prospect of recovery to copyright plaintiffs in relatively low-dollar infringement cases that otherwise could go unfiled…. Absent a stay, Mr. Liebowitz, LLF, and their clients will suffer harm.
Cry me a river.
In support of this filing Liebowitz filed a declaration that, among other things, insists he’s a changed man since the benchslap he got back in November of 2019 (when he was sanctioned for lying about the death of his grandfather). Except, he claims he did this on his own “initiative” and not because he got smacked around by another judge:
Since the motion for sanctions was filed in this case, I have worked to improve my organizational practices and those of my firm. In November 2019, on my own initiative, I retained a recognized expert in the field of legal ethics. On the expert’s recommendation, LLF has deployed new practice management software, which helps the firm manage case calendaring and alerts, case documents and discovery, copyright registration information, and other important case details. All of LLF’ s cases initiated since January 2020 are managed on the new system. Further, I have maintained my relationship with the expert, and continue to call on him as legal, ethical, and organizational issues arise.
Also, for reasons that are unclear, Liebowitz includes a declaration from Bruce Cotler, the President of the NY Press Photographers Association, and Liebowitz’s former boss. Cotler has been a big time supporter of Liebowitz’s for years, but perhaps he should recognize that this damages his own reputation, rather than helps Liebowitz’s. Cotler’s declaration makes a few points, none of which are particularly useful. He says that he’s known Liebowitz since he was a teen (so what?), that Liebowitz has represented him, and that photographers often have to deal with infringement. Again, that’s meaningless when the issue is all the times Liebowitz has lied to courts and failed to actually represent the best interests of his clients.