from the you're-a-troll dept
Copyright troll Richard Liebowitz (who once demanded he not be called a copyright troll), who has been suspended from practicing law in NY, continues to rack up embarrassing losses in court. I hadn't realized that after the Southern District of NY suspended Liebowitz, a bunch of other courts followed suit, asking him why he shouldn't be suspended elsewhere. In North Dakota, rather than fighting it, Liebowitz meekly consented to the suspension. In the Southern District of Illinois, Liebowitz didn't even respond to the court's order to show cause, and was thus suspended as well. In the Eastern District of NY he was suspended as well The 10th Circuit Appeals Court suspended Liebowitz as well. That's based on just a quick look -- it may have happened in other courts too.
But that really may be the least of Liebowitz's problems. Late last month, the federal district court in Tyler, Texas had to benchslap Liebowitz yet again (right after he was suspended from practicing law in Eastern Texas. The case, once again, demonstrates how Liebowitz may be one of the worst lawyers ever to appear in court. It involved a case in which Liebowitz represented a guy named Robert Berg, who sued M&F Western Products claiming copyright infringement over what he claimed was copied pendants and belt buckles.
Among the many, many problems with the entire lawsuit, was the fact that M&F's designs predated those of Berg's. It really is quite something when you sue someone for infringement for a design they released before you did. And, rather than admitting he fucked up, Liebowitz decided to double down. From the benchslap ruling:
M&F Western also sought sanctions against Berg’s counsel, Richard Liebowitz.
M&F Western argued that it had “repeatedly told Mr. Liebowitz that his client’s
claims [we]re without basis in fact or law because his client’s Buckle Design was
created and published seven years after M&F Western’s.” Docket No. 42 at 1. And
“[r]ather than removing the Buckle Claim when he filed the Amended Complaint, Mr.
Liebowitz . . . add[ed] entirely new facts that nonetheless do not address the
fundamental failure of the claim.”
The court notes that, while protecting copyright is important, it certainly looked like Berg and Liebowitz had "improper motivation" in bringing this lawsuit:
But on the other hand, Berg’s conduct strongly implies improper motivation.
Berg identified twenty-seven other western-wear companies “lined up for litigation”
and was actively sending demand letters that used this case to feign leverage. Docket
No. 26, Exs. G & H. Specifically, Berg was claiming that other parties should settle
his claims against them because M&F Western was facing $1,500,000 in damages for
ten infringing designs in this case. See, e.g., Docket No. 26, Ex. G at 41. This
posturing colors all of Berg’s actions here and strongly suggests that he was more
motivated to maximize the number of infringement claims for leverage in extracting
settlements—both from M&F Western and other western-wear companies—than he
was motivated to protect his intellectual property. Compare, e.g., Docket No. 72 at 4
and Docket No. 74, Ex. A at 7, with Docket No. 23, Ex. A (changing the supposedly
infringed-upon cross pendant mid-briefing without explanation); Docket No. 72 at 4–
6, with Docket No. 41, Ex. 2 (changing the theory of copyrightability mid-briefing
after being notified of potential insufficiency); Docket No. 23 at ¶ 17, with Docket No.
1 at ¶¶ 10–11 (changing the theory of access after being notified of factual
impossibility). Berg’s motive in this case seems improper, especially when
considering that his copyright claims were frivolous and objectively unreasonable.
Given that, the court says that it's easy to say that Berg and Liebowitz should have to pay M&F's legal fees. Liebowitz and Berg claimed that the fees demanded -- $483,808.20 -- were too high. Except, even then, he didn't explain why or how.
Berg does not argue that any of the attorneys’ billing rates are
unreasonable. Nor does he identify any “duplicative, excessive, [or] inadequately
documented hours from the records provided” by M&F Western. Watkins, 7 F.3d at
457. Berg elsewhere suggests that, once M&F Western filed its dispositive motions,
it should have stopped working on the case altogether because “it knew [those
motions] would be dispositive of the case.” Docket No. 105 at 2. But as the Court’s
Scheduling Order makes clear, “[a] party is not excused from the requirements of this
scheduling order by virtue of the fact that dispositive motions are pending.” Docket
No. 20 at 9. And even that argument addresses only a portion of the fees. Docket No.
105 at 2. Without more, the Court is left guessing about what is objectionable in M&F
Western’s billing records.
The court then declines to add more sanctions on top of that, even though M&F requested it. As the judge notes, Liebowitz has already been suspended in the district, and is now on the hook for nearly half a million in this case. It doesn't see much reason to add more on top of that, even though it seems like it could. But the court still makes it clear that Liebowitz's behavior was just absolutely ridiculous.
Liebowitz knew M&F
Western’s buckles predated Berg’s designs, and yet he signed his name to pleadings,
motions, and other papers claiming that the buckles illegally copied Berg. As M&F
Western has conclusively demonstrated, its counsel sent Liebowitz authenticated
photos of a catalog with the allegedly infringing buckles dated 1995—seven years
before Berg created his designs. Docket No. 37 at 7–8. Liebowitz’s only justification
for pursuing these claims in the face of such fatal evidence was his unsupported
speculation that the 1995 catalog “easily could have been fabricated.” Docket No. 30
at 8. And realizing this was a losing argument, Liebowitz alternatively claimed that
M&F Western did not own the earlier buckles, ignoring the asset purchase agreement
that plainly transferred the relevant intellectual property rights. Docket No. 37 at
8–9. Further, this is not a first offense for Liebowitz, who has been described by
another court as a “clear and present danger to the fair and efficient administration
of justice.”
So while it doesn't add any more on top of the attorney's fees, it does conclude with a warning should he ever be able to practice law again:
Accordingly, the Court hereby publicly REPRIMANDS Richard Liebowitz for
his misconduct in this case and ADMONISHES him that, should his ability to
practice be restored, future breaches of Rule 11 duties will result in the imposition of
more severe sanctions
And... that's not all. You may recall, last month, we wrote about how the 2nd Circuit had upheld all the non-monetary sanctions against Liebowitz, promising that it would rule shortly on the monetary sanctions. While it took a month, last week the 2nd Circuit upheld all the monetary sanctions as well -- which should surprise no one.
Let's just say that this is not how any lawyer should want a ruling to start out:
Richard P. Liebowitz (“Liebowitz”) has been a member of the bar for a short
time. In that time, he has compiled an ignominious record of reprimands and
sanctions from judges across the country. This appeal concerns one such sanctions
order.
The court then goes through a bunch of the details of Liebowitz's misconduct in the cases at issue, most of which we've covered in previous articles. Then it looks at Liebowitz's excuses, none of which can stand up to the cold, hard, truth. Over and over and over again the court points out Liebowitz's terrible, terrible arguments, in light of the fact that he clearly lied to the court. Here's just one example:
At the start, the district court had ample reason to conclude, as it did, that
Liebowitz’s testimony that he received permission was “on its own terms . . .
unworthy of belief” because, inter alia, it lacked corroboration and required the
court to accept “patently incredible” claims such as that Liebowitz was prepared
to fly himself and Usherson from Los Angeles and Georgia, respectively, to New
York on the morning of the mediation, and on a moment’s notice. Sp. App’x at 31.
By his own admission, Liebowitz made no notation of the oral permission he
allegedly obtained. Moreover, his testimony that he had spoken about the case on
numerous occasions with Freeman, and had informed him about receiving
permission from the Mediator for Liebowitz’s and Usherson’s absence, was
inconsistent with Freeman’s in-court statements at the initial pretrial conference.
In addition, as the district court found, Liebowitz’s claim to have received that
permission on October 30 is not reflected in any of the contemporaneous email
correspondence, which suggests no awareness on the Mediator’s part “that either
Mr. Usherson or Mr. Liebowitz would not be attending in person the next day–
much less that [the Mediator] had given them both permission not to attend that
very night . . . .”....
Liebowitz’s claim is most obviously contradicted by the Mediator himself,
“who testified unequivocally at the hearing that Mr. Liebowitz never mentioned
the possibility that Mr. Usherson would not attend the mediation in person.” Sp.
App’x at 30. The district court specifically credited the Mediator’s testimony and
discredited Liebowitz’s based on an assessment of the demeanor of each witness,
and the record as a whole. Appellants argue that the district court placed too much
weight on the emails between Newberg and the Mediator and that the Mediator,
contrary to the district court’s view, was not without any stake in the matter, but
had an interest in demonstrating compliance with the Mediation Program’s rules.
But “[w]hen, as here, credibility determinations are at issue, we give particularly
strong deference to a district court finding.” United States v. Wallace, 937 F.3d 130,
141 (2d Cir. 2019) (quoting United States v. Murphy, 703 F.3d 182, 189 (2d Cir. 2012)),
cert. denied, 140 S. Ct. 2551, and reh’g denied, 140 S. Ct. 2799 (2020). After reviewing
the record and evaluating the demeanor of the witnesses at the evidentiary
hearing, Judge Furman determined that the Mediator’s testimony was credible
and Liebowitz’s was not. We discern no error, much less clear error, in this
determination.
Things are not going well:
In sum, the factual findings supporting the district court’s decision to
sanction Appellants were amply supported and in no way clearly erroneous.
Again, Liebowitz admittedly violated multiple court orders and raises no
challenge to this conclusion by the district court. As to the challenges that he does
make, the court adequately supported its findings: (1) that Liebowitz lied about
receiving permission from the Mediator for Usherson’s failure to attend the
mediation; and (2) that he acted in bad faith in pursuing Usherson’s claim based
on the 046 Registration.
While the 2nd Circuit is a bit unsure about one possible justification for the $20,000 sanctions issued against Liebowitz, it says it has "no such hesitation" about an alternative justification.
We have no such hesitation, however, with regard to the district court’s
alternative holding under Federal Rule of Civil Procedure 16(f). 28 Rule 16
prohibits, inter alia, bad faith participation in pretrial conferences and permits the
district court to issue “any just orders” in response to such conduct. Fed. R. Civ.
Pr. 16(f). District courts acting pursuant to their authority under Rule 16(f) are free
to “design the sanction to fit the violation,” 6A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1531 (3d ed.), and their focus “need not
be limited to compensation of opposing counsel,” Media Duplication Servs., Ltd. v.
HDG Software, 928 F.2d 1228, 1242 (1st Cir. 1991). Indeed, “[t]rial judges have
considerable discretion in the selection and imposition of sanctions” so as to “deter
neglect” of pretrial obligations. Id. (quoting Barreto v. Citibank, N.A., 907 F.2d 15,
16 (1st Cir. 1990)). And “[d]eterrence is a widely recognized basis for determining
the amount of a monetary sanction” under Rule 16(f). See Jones v. Winnepesaukee
Realty, 990 F.2d 1, 6 (1st Cir. 1993).
And while there may be situations where courts go too far, this isn't one of them:
We have little trouble concluding Liebowitz’s conduct at and with respect
to the November pretrial conference was in bad faith, thus violating Rule 16.
Bandshell raised the issue of the registration at that pretrial conference, giving
Liebowitz an opportunity to respond. Liebowitz, as the district court found,
instead “stonewall[ed] . . . any investigation into the registration issue,” falsely
assuring the court that the registration identified in the complaint was “the correct
registration.”29 Sp. App’x at 10, 51. This was not good faith participation in the
pretrial conference or with respect to it.
We also conclude that when assessed in light of Rule 16(f), the record is more
than sufficient, even without additional explanation from the district court, to
conclude that the sanctions amount chosen by the district court did not require the
protections of criminal procedure. As already indicated, the district court
explained that “sanctions of $20,000 [were] no greater than necessary to provide
adequate deterrence” to Liebowitz and to LLF. Sp. App’x at 51. And Liebowitz has
shown that his conduct is resistant to ordinary efforts to sanction him.
And thus, the monetary sanctions are upheld, as are the non-monetary sanctions, and Liebowitz has been suspended in courts across the country.
Of course, we're already hearing about a lawyer who supposedly has picked up some of Liebowitz's cases, and is now filing new infringement cases as well. I'm hoping that this lawyer heeds how Liebowitz's situation has concluded, and chooses a smarter path, rather than reckless copyright trolling... but I'm not hopeful.
Filed Under: 2nd circuit, copyright, copyright troll, richard liebowitz, sanctions
