Friday, June 26, 2020

More Massive Sanctions on Richard Liebowitz, "Copyright Troll" and "Legal Lamprey"

By Eugene Volokh - June 26, 2020 at 10:34AM

From Judge Jesse Furman decision this morning in Usherson v. Bandshell Artists Mgmt. (S.D.N.Y.); you can also read more posts on Mr. Liebowitz's adventures:

Richard Liebowitz, who passed the bar in 2015, started filing copyright cases in this District in 2017. Since that time, he has filed more cases in this District than any other lawyer: at last count, about 1,280; he has filed approximately the same number in other districts.

In that same period, he has earned another dubious distinction: He has become one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District. Judges in this District and elsewhere have spent untold hours addressing Mr. Liebowitz's misconduct, which includes repeated violations of court orders and outright dishonesty, sometimes under oath. He has been called "a copyright troll," McDermott v. Monday Monday, LLC (S.D.N.Y. Oct. 26, 2018); "a clear and present danger to the fair and efficient administration of justice," Mondragon v. Nosrak LLC (D. Colo. May 11, 2020); a "legal lamprey[]," Ward v. Consequence Holdings, Inc. (S.D. Ill. May 7, 2020); and an "example of the worst kind of lawyering," id. In scores of cases, he has been repeatedly chastised, warned, ordered to complete ethics courses, fined, and even referred to the Grievance Committee. And but for his penchant for voluntarily dismissing cases upon getting into hot water, the list of cases detailing his misconduct—set forth in an Appendix here—would undoubtedly be longer.

One might think that a lawyer with this record would tread carefully, particularly before a judge who had recently sanctioned him. See Rice v. NBCUniversal Media, LLC (S.D.N.Y. July 10, 2019). But—as this case makes clear—not Mr. Liebowitz.

In November of last year, Mr. Liebowitz appeared, in the company of a criminal defense lawyer, before another judge on this Court after being held in contempt for repeatedly lying, including under oath, about the date his own grandfather had died to justify his failure to attend a court conference. See Berger v. Imagina Consulting, Inc. (S.D.N.Y. Nov. 13, 2019) ("Berger Tr."). The very next day, he appeared before the undersigned and—despite an explicit warning to be "very, very, very careful about the representations" he made in court—lied about his compliance with a court Order that had required an in-person mediation. Making matters worse, Mr. Liebowitz then repeated that lie, over and over, and ultimately under oath during an evidentiary hearing.

On top of that, he violated at least six court Orders. And to cap it off, defense counsel discovered only after incurring the expenses of litigating the case that the Complaint Mr. Liebowitz prepared and filed contained a false allegation—namely, that the photograph at issue in this case had previously been registered with the Copyright Office—that would have required dismissal of the lawsuit at its inception.

In the view of the undersigned, this misconduct, when viewed in light of Mr. Liebowitz's deplorable record, confirms a conclusion that others have reached: that "steps should be taken promptly … to suspend his ability to file new cases," at least until "he has demonstrated" that he can comply "with court rules and rules of professional conduct." Mondragon. But that is a question for another body—the Grievance Committee of this Court—and for another day.

The question for today is what sanctions, if any, this Court should impose on Mr. Liebowitz for his misconduct in this case. For the reasons stated below, the Court concludes that sanctions are amply justified, indeed all but required, and orders a mix of substantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm. The Court also refers Mr. Liebowitz to the Court's Grievance Committee to evaluate whether he should be allowed to continue practicing law in this District….

If specific deterrence—that is, deterring Mr. Liebowitz from repeating his misconduct—were the sole consideration, it is not clear that any sanction (short of, perhaps, disbarment) would suffice. After all, his first lie in this case occurred only one day after he was dressed down by Judge Seibel for repeatedly lying about his grandfather's death, and despite a warning from the Court to be "very, very, very careful" about what he said. And thereafter, as in the case before Judge Seibel, he dug his hole even deeper, repeating his lies over and over, including under oath. (In fact, he arguably expanded upon his lies, concocting, after the fact, his "custom and practice" excuse.)

Even more troubling, as the discussion above makes clear, Mr. Liebowitz's misconduct in this case is part of a larger pattern that has led judges on this court—and, as his practice has expanded to other districts, judges on other courts—to chastise him, impose sanctions on him, and require his clients to post bonds to cover future adverse awards of attorney's fees and costs resulting from his misbehavior. The list of such cases is too long to cite here and, thus, is attached as an Appendix to this Opinion and Order. And even that list is likely not exhaustive….

But because disbarment is an issue for the Grievance Committee, this Court is left with the task of crafting a sanction that could conceivably deter Mr. Liebowitz from repeating his misconduct again. Moreover, another purpose of sanctions is general deterrence—that is, deterrence of "comparable conduct by similarly situated persons." In view of both considerations, it is plain that substantial sanctions—a mix of monetary and non-monetary sanctions—are well justified. As discussed above, much of Mr. Liebowitz's misconduct was the product of intentional bad faith. In addition, Bandshell and Mr. Newberg (who handled the case pro bono) incurred considerable expenses as a result of Mr. Liebowitz's misconduct, having to defend against a lawsuit that was flawed from its inception, having to appear at a mediation that was doomed from the start, and having to litigate the issue of sanctions.

Moreover, there is, to put it mildly, a long and ignominious history of misbehavior by Mr. Liebowitz, and an enormous risk that he will continue his pattern of misbehavior. And finally, Mr. Liebowitz never corrected his misconduct, but rather repeated his lies under oath and, in the case of the false allegation regarding the copyright registration, proffered unconvincing excuses. In light of that record, and the fact that prior efforts to deter him—including hefty fines, see, e.g., Ward ($20,000), and sizeable awards of attorney's fees and costs, see, e.g., Craig ($98,532.62)—were insufficient, substantial sanctions are plainly warranted….

The court ordered that:

  • "[Mr. Liebowitz must pay] $83,517.49 in fees and costs attributable to the mediation and the sanctions motion" "for misrepresenting that the Mediator gave permission for Mr. Usherson not to attend the mediation in person and for his multiple other violations of the Court's Orders,"
  • "[Mr. Liebowitz must pay] $20,000 for falsely alleging that the Photograph was registered, not conducting a reasonable investigation prior to filing the lawsuit and after being put on notice of the registration issue, and maintaining the suit thereafter,"
  • "Mr. Liebowitz shall be required to serve a copy of this Opinion and Order on Mr. Usherson and every other current client of the Liebowitz Law Firm and to file it on the docket of any pending case brought by Mr. Liebowitz or any attorney working for his firm, as well as on the docket of any new case brought within one year from the date of the Opinion and Order by Mr. Liebowitz or any attorney working for his firm,"
  • "in any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or any attorney working for the Liebowitz Law Firm that involves allegations of copyright infringement, the complaint must include as an attached exhibit a copy of the deposit files maintained by the U.S. Copyright Office reflecting the registration of the relevant copyrighted work or works at issue,"
  • "the Court will send a copy of this Opinion and Order to the Chair of the Court's Grievance Committee to take whatever action the Committee deems appropriate."

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