Richard Liebowitz Is Wrong On So Many Levels, And Is In Trouble Yet Again

from the wrong-on-so-many-levels dept

Copyright troll Richard Liebowitz (who once got so offended that he was called a copyright troll that he asked a judge to "redact" the phrase, only to have the judge double down on calling him a troll)... He's been sanctioned for lying to the court, he's been sanctioned for failing to comply with court orders, and is currently facing some serious penalties for lying about the death of his grandfather to a judge (which resulted in the most ridiculous letter he had a family friend send to the court, chalking such mistakes up to inexperience). But Liebowitz has a ton of experience in getting the law wrong. Hell, it was over two years ago that we wrote about him getting a judicial smackdown so bad that the judge began it by stating:

No reasonable lawyer with any familiarity with the law of copyright could have thought...

And yet, Liebowitz is still out there doing his thing. And it's causing real problems. Earlier this year, he sued a small business called Analytical Grammar because the company's owner, Erin Karl, shared a viral meme on Facebook. She wrote all about the case in a GoFundMe page:

In Dec 2017 we shared a picture of a visual pun that was going viral around the internet. It also went viral from our page.

Fast forward to August 2019. Analytical Grammar was served a lawsuit on behalf of Matthew Bradley of Windsor, California, who says he created the meme. There had previously been no communication between Bradley and AG.

Representing Bradley is New York attorney Richard Liebowitz.

If you're curious, the Facebook post appears to still be up. You can also see the original image as it's Exhibit A in the complaint. It's a silly joke showing a bunch of levels (you know, the tools you use to see if something is level), all with painter's tape on each one with "WRONG" written in a Sharpie on each one, and the image is captioned: "This is wrong on so many levels." Get it? It made me chuckle, at least. You can find this image in some other places online, including, (bizarrely) a version that also shows Ajit Pai's face on each level for reasons I don't fully understand.

Either way, Liebowitz sued on behalf of Matthew Bradley, who apparently wants to cash in on the viral nature of this image. Erin Karl brought in Booth Sweet, the Boston-based law firm that has quite a bit of experience dealing with copyright trolls, including Liebowitz. Their Answer and Counterclaims is worth reading as well, as they note that Bradley originally posted his image to Facebook, which has a convenient "share" feature, and even commented how excited he was that his image was being shared widely, stating: “Wow! I am stunned! Over 10K shares. Time for a shameless plug for my blog..." They also point out that Bradley's image itself is believed to be "an unlicensed derivative work based on an earlier photograph by a third party," meaning that if there is much of a copyright at all in the image, it might not be Bradley's, while also pointing out some other issues regarding Bradley's delayed registration of the image.

Also, how can you not love a filing in this case with the following paragraph:

Bradley’s lawsuit is wrong on so many levels. He levels claims against Analytical for sharing his joke. He does his level best to take Analytical down a level. But his claims are not on the level. Analytical raises these counterclaims to level the field.

The case appears to be proceeding in standard Liebowitz fashion. In October, Judge Louise Flanagan, followed in the footsteps of so many other judges and started to benchslap Liebowitz over his many mistakes:

It appears Mr. Leibowitz’s standing has been called into question in the United States District Court for the Southern District of New York. Referred to as a “copyright troll,” in a case involving one of the plaintiffs named above, a district judge recently observed “Mr. Liebowitz has been sanctioned, reprimanded, and advised to ‘clean up [his] act’ by other judges of this Court.” Sands v. Bauer Media Grp. USA, LLC, No. 17-CV-9215 (LAK), 2019 WL 4464672, at *1 (S.D.N.Y. Sept. 18, 2019). Serious sanctions were imposed by the judge in that case on account of plaintiff’s discovery deficiencies, including requirement that Mr. Leibowitz personally pay defendant’s fees associated with advancing its motion to dismiss as a sanction for alleged discovery misconduct.

This judge joins the chorus of those telling this attorney to clean up his act. The dockets of each of the cases assigned to me, wherein this attorney represents a plaintiff, are littered with deficiency notices. This is a harbinger for troubled litigation ahead.

The judge highlights the many mistakes Liebowitz has made, including not filing a "notice of appearance" (one of the first steps you do as a lawyer in a lawsuit) for over two months. The judge points to similar failures in other dockets where Liebowitz is the lawyer in question. The judge is not happy about Liebowitz wasting the court's time.

The problems described above appear rooted in a failure to read or understand the court’s CM/ECF Policies and Procedures Manual and the Court’s Local Civil Rules, and disrespect for the work of the clerk. There appears a failure to profit from the clerk’s work to bring issues to the attorney’s attention prompt attention. Many of the issues repeat themselves from case to case.

And then tells him to shape up, or see all the cases dismissed:

This attorney is noticed that he has until October 10, 2019, to cure any and every noticed deficiency in the three cases now assigned to me. If no address is made in accordance with this order, the cases at issue will be dismissed.

On October 10th, Liebowitz had to tell the court that he believed that all of the various deficiencies had been resolved and "there are not any noticed deficiencies on the docket for the above-referenced matter." The case is continuing, but it appears that, still, all is not well. Since Liebowitz is not based in North Carolina where the case is filed, he had a local co-counsel on the case, Seth Hudson. However, for whatever reason (we won't speculate), Hudson apparently decided that maybe he was better off not being a part of this case, and so Liebowitz is trying to swap him out with another local lawyer.

Last week, Liebowitz filed a motion for Hudson to withdraw as an attorney, and wouldn't you know it? He did that wrong as well. From the docket:

NOTICE OF DEFICIENCY regarding 23 Motion to Withdraw. The signature block on this document does not comply with the local rules for local counsel. In addition, whenever an attorney of record in a case will be replaced by another attorney who is an active member of the bar of this court, a notice of substitution of counsel must be filed. The notice must (i) be signed by and contain a signature block for both attorneys in compliance with Local Civil Rule 10.1; (ii) identify the parties represented; (iii) verify that the attorney entering the case is aware of and will comply with all pending deadlines in the case, including proceeding with any scheduled trial or hearings; and (iv) be served on all parties. The moving attorney should file the notice of substitution through CM/ECF. The withdrawing attorney will remain attorney of record until this deficiency is corrected. See Local Rule 5.2(c). (Collins, S.)

I'm not even a lawyer and I know that the first thing you should be doing when filing documents is understanding the (often detailed and arcane) local rules before filing any documents. The court is already not happy with Liebowitz in this case, and that doesn't seem likely to change any time soon.

At this point, you kind of have to wonder who the hell still thinks it's worth hiring Richard Liebowitz? There are plenty of good copyright lawyers out there. Ones who have not been frequently sanctioned by courts for doing things "no reasonable lawyer" would do.

Filed Under: copyright, copyright trolls, erin karl, matthew bradley, memes, richard liebowitz, seth hudson, wrong on so many levels
Companies: analytical grammar, facebook

Richard Liebowtiz's Lawyer To Judge: Please Excuse His Lying To The Court Since He Doesn't Really Know How To Law

from the say-what-now? dept

Earlier this week we already covered infamous and oft-sanctioned copyright troll lawyer, Richard Liebowitz, showing up in court to explain to the judge why he lied about the timing of the death of his grandfather multiple times over the course of many months as he tried to explain away why he missed a discovery conference. As we noted, Liebowitz actually showed up in court this time (good call, considering that the judge made it clear she was considering sending him to jail), and brought a lawyer with him (also a good call). He did remain out of jail, though Judge Cathy Seibel noted that she had referred the matter to the Grievance Committee, which could lead to sanctions. She also warned that her various contempt rulings against Liebowitz will require him to disclose the sanctions both to other courts and to prospective clients.

At the hearing, it was mentioned that Liebowitz's newly found lawyers, had sent a letter to the judge, but that letter was not public yet. Late yesterday, the letter was finally added to the docket and I don't think I've ever seen anything quite like it. You can pretty much tell that the lawyer writing the letter, Richard Greenberg, admits, that he has just been brought into this shit show of a situation, and has decided the best strategy is to throw himself on the mercy of the court. And, apparently, Greenberg decided the best way to do this is to treat Liebowtiz as if he's a little kid who just didn't know any better that lying to a judge is a bad idea. It honestly does read like the kind of note a parent would write for a kid, so I have to admit that this little tidbit at the end of the letter puts much of the rest of it in context:

Counsel has known Richard and his family for years, even as long ago as Richard's Bar Mitzvah, and will always be available to render advice and guidance to Richard, and counsel will advise Richard to make use of this resource more often.

In other words, it sounds like Greenberg is a friend of Richard's family, and much of the letter then does read as if he's referring to a naughty kid, not an actual lawyer with years of experience. So much of the letter is quite insane, but it seems to focus on how little experience Richard actually has, such that he might not know that lying to a judge and making up excuses is a bad idea.

Richard's Background. Richard is an unmarried 31-year-old who resides with his parents in Hewlett, New York. He graduated with a BA degree in communications from the University of Pennsylvania in 2010, and with a J.D. degree from Hofstra University Law School in 2014. In 2015 he was admitted by the Second Department to the Bar of the State of New York, and in the same year he opened the Liebowitz Law Firm, located at 11 Sunrise Plaza, Valley Stream, New York, where he has practiced continuously ever since. Richard has had no other employment, experience or supervision as a lawyer.

Right. I get that Liebowitz may not know all the nuances and ins and outs of litigation and such, but the whole paragraph makes it sound like he's a dumb child, rather than a 31-year-old man with a law degree, who has been practicing before the court in a huge number of cases. And this wasn't about some sort of sophisticated nuanced issue. This was about lying to a judge. No offense, but you don't have to have a law degree to know that's a bad idea and he does have a law degree.

After first making it sound like Richard is a clueless, inexperienced idiot, he then immediately claims that Richard has a growing law firm, even employing experienced lawyers, and has filed approximately 2,000 cases. So, uh, which is it? Is he a clueless, inexperienced rube, or an experienced lawyer who employs other lawyers who actually know better?

Since its opening, Richard's law practice has grown exponentially, filing approximately 2000 law suits under the federal copyright statute in the four years of his firm's existence. Moreover, because of his burgeoning practice, Richard's firm has grown commensurately; he now employs a staff of 12, two of whom are lawyers, including an associate with large commercial firm experience.

So... he does know other lawyers and has lots of experience. So, the whole "don't lie to a judge" thing is the sort of thing that maybe he should have known about? But then Greenberg reverts back to Liebowitz being an inexperienced newbie... while also insisting that he "fills a need" by filing bullshit lawsuits to shake down people for money.

In short, while Richard is short on legal experience and training, he obviously fills a need in the ranks of freelance photographers who struggle to make ends meet financially...

Greenberg later admits that he, himself, is not very experienced or knowledgeable regarding copyright law, so perhaps he doesn't know the nature of copyright trolling and the problems that trolls like Liebowitz create for tons of people. Perhaps he also doesn't know the details of how frequently Liebowitz has been called out or sanctioned by judges. But all of that seems to matter here, and chalking up his lying to a judge multiple times over many months to his "inexperience" seems... questionable at best.

The letter is, at least, straightforward in admitting that Liebowitz lied to the judge, and tries to explain his possible reasons for lying, but they're not very good reasons. Hilariously, the letter says there are no excuses, but then tries to argue that Liebowitz's decision to lie is "understandable" even if (and I kid you not) he did it intentionally.

There can be no excuse for Richard's lapse, whether he stated and maintained the erroneous date of death mistakenly or intentionally. Either would be understandable. For example, Richard may genuinely have misremembered the date of death, and continued to adhere to the April 12 date or, having taken the position that the date of death was April 12, he saw no reason to question his memory or why it should matter. On the other hand, Richard may have thought the Court would not understand his dysfunctional, grieving state originating three days before the conference, and decided to fix the date of death as the morning of the conference. If the latter explanation is the correct one, Richard not only misjudged the Court's knowledge, experience and decency, no doubt as an inexperienced young lawyer might, but he engaged inexcusable falsity, however immaterial.

And, apparently, the lawyer who has filed "approximately 2000 cases," many of them demanding insane sums of money from people over questionable claims of copyright infringement, is now claiming that the small amount the court has fined him is a "high price" to pay. Yeah right.

Of course, either way, Richard has paid a high price for his failure of memory or falsity concerning the true date his grandfather died. The incidence has been a financial disaster. Richard will have paid to the Clerk of the Court $3700 in financial penalties for his alleged contempt; he has paid adversary counsel for his adversary's wasted time at the conference which Richard failed to attend; and Richard has paid thousands of dollars in attorneys fees for counsel's representation in this contempt matter. Nor is financial loss the only adverse consequence. Richard has suffered horrible publicity as a result of being held in contempt and threatened with incarceration by this Court. And of course Richard, a young and inexperienced lawyer, is scared of the damage to his professional career as a result of his conduct in these proceedings. At the risk of appearing to minimize the seriousness of this matter, which counsel would not dare to do, counsel urges this Court to find that Richard has suffered or been penalized enough for his lapse or misconduct.

The fact that Greenberg keeps trying to suggest this may have been a "lapse" is pretty ridiculous -- as his unwillingness to recognize the whole reason why the judge was so concerned with Liebowitz's claims in the first place: that this is not the first or second time that Liebowitz has been called out by courts for some fairly basic failures. Greenberg then notes that he's "recommended that Richard seek psychotherapy to understand and ameliorate the anxieties, tensions and infrequent lapses of Richard's demanding practice" as well as that he "enroll in a CLE course addressing small law firm management." He also recommends that Liebowitz find an experienced copyright lawyer to advise him.

As noted, the letter is truly astounding in the way it talks about Liebowitz as if he's a small, clueless child, while at the same time trying to claim that he's an important lawyer with a huge and growing practice... but somehow too ignorant to recognize that lying to a judge at least ten times in court filings was a bad idea. As the judge noted at the hearing after this letter was sent:

[Judge Cathy] Seibel stated that Liebowitz knew he was lying about the date of his grandfather’s death, but “chose to repeat that lie six, eight, ten times” in court filings that the jurist said were part of a “long-term campaign of deception.” Liebowitz, Seibel remarked, “double-downed, triple-downed, quadrupled-downed, octupled-down, I don’t know what would come after that.”

“I question Mr. Liebowitz’s fitness to practice,” Seibel said at one point during the hearing.

I can recognize the tough position that Greenberg was put in, especially as it appears that this family friend was retained just days before the letter needed to be sent, but the entire premise of the letter is so ridiculous that it is difficult to believe there wasn't a better way to throw oneself on the mercy of the court.

Filed Under: copyright, copyright troll, lying to court, richard greenberg, richard liebowitz

Troll Lawyer Shows Up In Court To Explain His 'Dead Grandfather' Excuse, Gets His 'Fitness To Practice' Questioned By The Judge

from the putting-the-'lie'-back-in-'Liebowitz' dept

Just a few days ago, copyright troll lawyer Richard Liebowitz was being threatened with jail time for refusing to provide a judge with some evidence his grandfather had died. If that doesn't seem like something most judges would demand, you're right. It takes a special kind of lawyer to drive a federal court judge to start demanding proof of death from an attorney.

Liebowitz had blown off a discovery conference. When called on it, he claimed his grandfather had died on April 12th, forcing him to miss the scheduled conference. The judge had other reasons to doubt Liebowitz's claim -- like other screwing around he had performed during this litigation, as well as his short, but colorful (read: sanction-heavy) litigation career.

This information was demanded again and again by the judge. Liebowitz again and again refused to provide documentation of his grandfather's death. Sanctions were handed down, rising from $100/day to $500/day as Liebowitz continued to refuse to respond to the judge's order. The judge gave Liebowitz one more chance to turn up in court with the proper paperwork. If he failed to do so, he was to be arrested.

Since then, there have been a couple of developments. William Bastone of The Smoking Gun managed to find evidence of Liebowitz's grandfather's demise.

A TSG investigation has determined that Liebowitz’s maternal grandfather did, in fact, die in April. But not on April 12, the Friday morning he failed to appear before Seibel.

Jaime Radusky, 93, died on April 9 at Weill Cornell Medical Center on Manhattan’s Upper East Side. Radusky, a Cuban émigré, lived in a penthouse apartment about 10 blocks from the hospital where he died. In the above Facebook photo, Radusky is seen poolside at the Miami Beach condominium complex where he owned a unit.

Details of Radusky’s death are contained in a probate petition filed in Surrogate's Court in Manhattan by the two executors of Radusky’s estate, his son Henry Radusky and daughter Sara Liebowitz (Richard Liebowitz’s mother). Additionally, an affidavit sworn by an attorney representing Radusky’s heirs reported that, “The decedent died on April 9, 2019.”

So, the excuse wasn't complete bullshit. But it was still mostly bullshit. Liebowitz swore repeatedly in multiple declarations that his grandfather died on April 12th. That was his excuse for missing the April 12th discovery conference. Liebowitz had a legitimate reason for missing this conference -- the recent death of his grandfather -- but for some insane reason, chose to give the judge the wrong date and spend the next six months adamantly swearing this falsehood was the truth.

Liebowitz's last-ditch excuse -- a filing that included some rather audacious assertions about the judge's alleged inability to do her job -- said the death of his grandfather was "too private" to be discussed in court. There's not much that's private about death. His grandfather's death certificate is handed out to a number of government agencies to end benefits payments, cancel voter registrations, and -- in this case -- allow the state court to appoint a legal guardian for his grandfather's surviving wife.

There's more to this story. The Smoking Gun showed up in court for Liebowitz's "tell me why I shouldn't throw your ass in jail" hearing. This time, Richard Liebowitz showed up as well. Liebowitz showed up with representation. Good call. Not only was he facing possible jail time, but he had proven in this case (and multiple others) he probably shouldn't ever represent himself, much less clients. It did not go well for the copyright troll lawyer.

[Judge Cathy] Seibel stated that Liebowitz knew he was lying about the date of his grandfather’s death, but “chose to repeat that lie six, eight, ten times” in court filings that the jurist said were part of a “long-term campaign of deception.” Liebowitz, Seibel remarked, “double-downed, triple-downed, quadrupled-downed, octupled-down, I don’t know what would come after that.”

“I question Mr. Liebowitz’s fitness to practice,” Seibel said at one point during the hearing.

There are many, many good reasons to question Liebowitz's fitness to practice. This debacle is just the latest reason. Liebowitz has only been practicing for five years, but he's been sanctioned multiple times and his shady litigation strategies have resulted in several orders to post high-dollar bonds before his clients' cases can proceed.

His short history is catching up to him. It's going to be a bit more difficult for Liebowitz to flood courts with speculative invoices.

Noting the significance of a lawyer who “intentionally lies to the court,” Seibel said she has referred the Liebowitz matter to the Grievance Committee for review and possible disciplinary sanctions. Seibel added that her contempt rulings against Liebowitz will require him to disclose the sanctions to other courts and prospective clients.

Good. This kind of litigation -- threatening people with statutory damages and long, expensive litigation to extract quick settlements -- is garbage. So are the people who practice it and profit from it. Liebowitz hasn't been around long, but he seems determined to make the Prendas of the world look just a tiny bit better by comparison. If he's forced to disclose his checkered courtroom past before approaching judges or clients, there will be fewer of each willing to entertain his bullshit.

Filed Under: cathy siebel, copyright, copyright trolls, lies, richard liebowitz, sanctions

Copyright Troll Lawyer Serves Up BS 'Dead Grandfather' Excuse For Missing Court; Now Facing Sanctions And Arrest

from the looks-like-SOMEONE'S-getting-buried dept

Copyright troll attorneys are the worst. At best (and "best" is very relative here), they're using the judicial system as leverage in their extortion scheme -- one that involves complaint carpet-bombings and the hope that a small percentage of settlements will make the entire operation profitable. At worst, well... they're the worst.

If they're not being called out by courts for their speculative invoicing operations, they're being literally convicted of fraud. Trolls cut and run when faced with any scrutiny from judges and defendants. At least the smart(er) ones do.

Richard Liebowitz -- IP gun-for-hire -- isn't smart enough to do that. He rushes to the sound of his own gunfire, seemingly determined to maximize the self-inflicted damage. In a few short years, he managed to put a client on the hook for everyone's legal fees, been hit with a $10,000 bond demand after lying about his client's licensing agreement, and potentially set precedent that would make trolls like him liable for all ongoing legal fees if settlements higher than the final judgment are rejected by the plaintiff.

Now, Liebowitz has added to his infamy by being sanctioned [PDF] for lying to the judge about a death in the family. (h/t Owen Barcala)

Liebowitz blew off a discovery conference ordered by Judge Cathy Seibel. No call. No email. Nothing. The court only obtained a response from Liebowitz after ordering him to inform the court why he missed the conference and why he shouldn't be required to pay the defendant's legal fees for the conference he no-showed.

Liebowitz's response -- aimed at avoiding having to pay someone else's legal fees -- was deliberately vague.

By letter dated April 15, 2019, Mr. Liebowitz advised that he had missed the conference because of a death in the family which was an “unexpected urgent matter” to which he had to attend. (Doc. 32.) He also said he would be out of the office on April 18 and asked to appear by phone at the rescheduled discovery conference. (Id.)

This might have passed without further comment from the judge, but during this conference, Liebowitz said the "urgent matter" was a death in the family. This, too, might have passed unnoticed if it wasn't for Liebowitz getting in his own way by being the shady IP lawyer he's always been.

During the conference, issues were discussed that reflected negatively on Plaintiff’s counsel’s credibility. For example, Plaintiff had answered interrogatories saying his damages calculation had relied on “contracts, invoices, [and] licensing agreements,” (Doc. 27 at 1), but when Defendant requested those documents, Plaintiff said he could not produce them without a protective order. After Defendant agreed to a protective order and the Court signed it, (Doc. 23), Plaintiff still produced nothing, despite twice promising to do so. (See Doc. 27.) Further, Defendant’s counsel represented that Mr. Liebowitz had told Defendant’s counsel that he could not comply because he was out of the country due to an emergency, when in reality he was at a trade show in Europe trying to drum up business.

Feeling she couldn't trust Liebowitz's assertions about pretty much anything, the judge asked for some evidence of this death in the family. When people die, records are created. Obituaries are published. Funerals are held. Liebowitz provided none of these things.

By letter dated May 1, 2019, Mr. Liebowitz represented that his grandfather had unexpectedly died on April 12, 2019 and that Mr. Liebowitz was needed to assist with certain customs for which arrangements had to be made in advance of the Sabbath.

Wrong, said the judge.

This letter is not responsive to my instruction. Mr. Liebowitz was to document who passed away, when the person passed away and when Mr. Liebowitz was notified. The reason I requested documentation is that there is reason to believe Mr. Liebowitz is not being candid. So a letter from him does not advance the ball. When someone dies, there is documentation including a death certificate and (almost always) an obituary, and nowadays one’s phone usually contains evidence of what one was told and when. Mr. Liebowitz may have until 5/3/19 to supplement this letter.

Not coincidentally, Liebowitz decided to settle with the defendant on the same day he was due to hand over proof of death to the judge. Not good enough.

I’m glad the parties have resolved the case (and, I presume, the issue of Plaintiff’s counsel’s expenses for the April 12 conference), but there remains one open issue: Mr. Liebowitz’s failure to document the death in the family that he says caused him to miss the conference. (See Doc. 38.). He was supposed to address that issue by May 3, but I will give him until May 9. Even if Defendant has been made whole, I still need to satisfy myself that there is no need for disciplinary or other inquiry.

Since he apparently didn't have anything to offer as proof of his grandfather's death, Liebowitz doubled down. He "re-certified" his original statement about the death, again without supporting documents. The judge said the "certification" of someone whose honesty is already in question isn't an acceptable substitution for records showing Liebowitz was otherwise detained handling funeral arrangements. Triple down.

Rather than comply with the Court’s order to provide the above documentation, on May 16, Mr. Liebowitz again submitted a Declaration reiterating his belief that his statements contained in the April 15, May 1, and May 9 letters were sufficient to discharge his obligations in response to the Court’s order to show cause.

Her patience exhausted, Judge Seibel told Liebowitz continued failure to provide proof would constitute contempt of court. Liebowitz quadrupled down , claiming his "say-so" was all that was needed since this was a "personal matter." Seibel rejected this assertion and added monetary sanctions to the threat. Liebowitz quintupled down… and decided to tell the judge she was wrong to even ask.

In this Declaration, Mr. Liebowitz argued that he was not in contempt because this Court’s request for his grandfather’s death certificate was unlawful, as it “likely constitutes a usurpation of judicial authority or a breach of judicial decorum,” (id ¶ 14); his previous Declarations complied with my previous orders, (id. ¶ 15); “there [was] no basis to impose monetary sanctions,” (id. ¶ 16); and the Court’s assurance that his grandfather’s death certificate would not be made public was insufficient to protect his right to privacy…

With that, Liebowitz was found in contempt of court and fined $100 a day. Liebowitz twice tried to have the order stayed and claimed it would take "two weeks" to get documentation of his grandfather's death -- the death that had supposedly occurred almost six months earlier. All these attempts did was convince the judge her contempt fees weren't high enough.

Richard Liebowitz, Plaintiff’s counsel in this case, is now in contempt of my August 19, 2019 and September 27, 2019 orders. (See Docs. 51, 53.) The $100 fine he accrues each business day has plainly been ineffective to coerce compliance with the August 19, 2019 Order. Accordingly, the daily contempt sanction is hereby increased to $500 a day, effective November 6, 2019.

And if Liebowitz doesn't have any documents with him on that day, he's going to jail.

Mr. Liebowitz is hereby ORDERED to appear before this Court in person on November 13, 2019 at 10 a.m., and there and then SHOW CAUSE why he should not be incarcerated until such time as he complies with the above-described orders (and, if applicable, the instant order). Failure to appear as directed will subject Mr. Liebowitz to arrest by the United States Marshals Service without further notice.

Richard Liebowitz had better hope he still has a grandfather who's alive. And then he's going to have to go back in time and kill him. Otherwise he's going to jail. If he shows up and admits he lied about his grandfather's death, he's still going to jail because the judge ordered him to produce documentation of this person's death. Since that doesn't appear to exist, Liebowitz cannot fulfill the court's order. One way or another, Liebowitz is going to spend some time behind bars. And once he gets out, he's going to have at least one fewer clients than when he went in. Hopefully anyone else still retaining his services will realize the only thing dumber than representing yourself in court is hiring Richard Liebowitz to represent you.

Filed Under: cathy seibel, copyright, copyright troll, richard liebowitz, sanctions

Copyright Troll Attorney Again Hit With Sanctions For Being A Shitty Lawyer

from the I'M-WHY-PEOPLE-HATE-LAWYERS-bumper-stickers-on-sale-now! dept

I'm not sure how copyright troll rep Richard Liebowitz is still finding work. The prolific filer of questionable lawsuits has been dinged by court after court, and yet somehow rights holders still think he's worth hiring to go after anyone found in reverse image search results.

Here's how things have gone for Liebowitz recently:

2017: Liebowitz manages to put his client on the hook for everyone's legal fees. That would be the legal fees of the eight prominent news agencies his client sued for broadcasting a small clip from a video he uploaded to Facebook. Here's what the judge said about Liebowitz:

No reasonable lawyer with any familiarity with the law of copyright could have thought that the fleeting and minimal uses, in the context of news reporting and social commentary, that these defendants made of tiny portions of the 45-minute video was anything but fair.

2018: Liebowitz is forced to post a $10,000 bond after it was discovered the lawyer lied about his client's licensing agreement. Unfortunately, this bond was supposed to be paid by his client, who told the court he was living "paycheck to paycheck." The court slapped Liebowitz around for his unscrupulous lawyering:

Mr. Liebowitz also argues that plaintiff has not willfully disobeyed court orders, obstructed discovery, or increased the cost of litigation. This is demonstrably false. Mr. Liebowitz failed to comply with orders in this litigation, as he has in other lawsuits.

2019: In this case, Liebowitz rejected a $1,000 settlement offer from the defendant. The problem with doing that is Rule 68(d), which says that if an offer that is higher than the final judgment is rejected by the plaintiff, the plaintiff must pay all legal fees incurred after the offer was rejected. Even if his client ultimately prevails, they could still be liable for the estimated $110,000 in legal fees the defendant speculated ongoing defense would cost.

Cue judicial smackdown:

Finally, compliance with past court orders must be weighed. Mango’s counsel, Liebowitz, has filed over 700 cases in this district since 2016 asserting claims of copyright infringement. At least 500 of these lawsuits have been voluntarily dismissed, settled, or otherwise disposed of before any merits-based litigation has occurred. In the course of litigating these cases, Liebowitz regularly fails to comply with court orders. See McDermott v. Monday Monday, LLC, No. 17CV9230 (DLC), 2018 WL 5312903, at *2 (S.D.N.Y. Oct. 26, 2018) (collecting cases). Recently, Liebowitz was described as “earn[ing] the dubious distinction of being a regular target of sanctions-related motions and orders.” Rice, v. NBCUniversal Media, LLC, No. 19-CV-447 (JMF), 2019 WL 3000808, at *1 (S.D.N.Y. July 10, 2019) (imposing sanctions for Liebowitz’s failure to comply with court orders).

The history of Liebowitz’s failure to comply with court orders counsels in favor of the imposition of an additional bond. Mango has chosen Liebowitz as his counsel, and it is not unreasonable to weigh his counsel’s failure to follow this district’s local rules and to comply with court orders in assessing this final Cruz factor.

2019 ain't even over yet. Via The Volokh Conspiracy comes another smackdown for Liebowitz -- this time with sanctions. A federal court is (again!) sick of Liebowitz and his bullshit. The order [PDF] starts with some staggering litigation statistics.

According to the Court's records, Mr. Liebowitz, who was admitted to practice in this Court in October 2015, filed 1,110 lawsuits in this Court from the beginning of2016 through September 16, 2019. That is an average of more than one new case on every day the Court has been open for business. Each and every one of those 1,110 cases has been a copyright infringement suit. Many -- probably all or nearly so -- have been brought on behalf of photographers who assert that their images have been infringed by Internet web sites and other publishers. This case is part of the downpour.

The court says there's nothing wrong with copyright holders pursuing alleged infringers. But they shouldn't do it this way, using this lawyer. Liebowitz is well-known in the Southern District of New York, and not in the way anyone would want to be "well-known" by any part of the judicial system.

Moreover, Mr. Liebowitz has been sanctioned, reprimanded, and advised to "clean up [his] act" by other judges of this Court. As Judge Furman recently observed, "there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz."

"Growing body of law" means Liebowitz is going to start setting precedent. If he keeps it up, he'll end up destroying the copyright troll business model almost single-handedly. We at Techdirt applaud his presumably-inadvertent efforts and wish him the best of luck! (Hot copyright trolls in his area may not be so appreciative.)

In this case, Liebowitz and his client were ordered to produce records detailing the licensing of the photos at the center of this lawsuit. They failed to produce anything relevant on the licensing history, but still wanted to continue suing.

No good, says the court. This does harm to the defendant, who did everything right while the plaintiff and his lawyer did everything wrong. Licensing -- or a lack thereof -- is key to this case and that information just isn't making its way into court. Liebowitz tried to argue this was just a small misstep of no importance. The court disagrees.

The failure of Mr. Sands and his counsel, Mr. Liebowitz, to identify Getty and Matrix violated their obligations under Rule 26( a). Indeed, they so concede, calling it "a mere oversight of counsel amounting to no more than simple negligence." As will appear, however, this likely was more than a mere oversight, and it should have consequences.

The judge is just getting warmed up. The slap starts here and continues across the next several paragraphs.

First, plaintiffs excuse for the failure to identify Getty and Matrix is lame.

Go on…

He concedes that he was obliged to do so, but contends instead in his unsworn memorandum his failure was "a mere oversight of counsel amounting to no more than simple negligence. " But neither plaintiff Sands nor his counsel has submitted any affidavit or declaration to support that readily advanced excuse under oath. Moreover, they certainly had a motive to withhold the licensing history of these photographs for as long as possible.

As the defendant pointed out, delaying discovery and otherwise dicking around ensures legal expenses continue to mount. If there appears to be no end to the litigation on the horizon, defendants will settle just to stop the bleeding. As evidence of this, the defendant cites the "hundreds of other cases brought by Sands' counsel in this District."

This is the court's take on Liebowitz's lame excuse:

A "mere oversight" that happens once or twice is one thing. A pattern of discovery and related abuse is quite another, and rings of deliberate indifference to an attorney's obligation to behave in a professional, responsible, and competent manner in each and every case he handles.

The court won't go so far as to toss the case, reasoning much of the damage done by the plaintiff can be undone. Not great news for the defendant, who made it clear at the opening of the case it wanted a swift resolution -- one that may have involved settling. That bridge is now burnt and Liebowitz is still carrying around the gas can and matches. Sanctions it is.

For the foregoing reasons, defendant's motion to dismiss the action as a sanction for alleged discovery misconduct or, alternatively, to strike portions of the evidence that plaintiff has submitted in support of a motion for summary judgment or require a bond as security for costs and fees pw-suant to Local Civ. R. 54.2 [DI 38], is granted to the extent that plaintiff's counsel, Mr. Liebowitz, shall pay defendant's reasonable attorney's fees, for making and litigating this motion, and plaintiff shall show cause, on or before October 2, 2019, why the Court should not condition plaintiffs ability to proceed with this action on the posting of a bond or other sufficient security in the amount of $50,000 for costs and attorney's fees in this action, and otherwise denied.

That's another $50,000 that's eventually, if not immediately, going to need to be extracted from the client he's representing so poorly. And it's another feather in the cap for Liebowitz, even if it's the sort of feathered-up cap that tends to immediately draws judges' ire shortly after litigation has begun.

Filed Under: copyright, copyright roll, richard liebowitz, sanctions

Copyright Troll Richard Liebowitz May Have Cost His Client A Ton Of Money, And Set An Expensive Precedent For Copyright Trolls

from the rule-68 dept

In the last couple of years, lawyer Richard Liebowitz has really made a name for himself in copyright trolling circles. He's quite aggressive, and even got a huge profile written about him at Slate, in which it notes that, unlike many trolls who focus purely on shakedown settlement letters, Liebowitz runs straight to court to leverage the power of an expensive court case to push for insane settlements. "Sue first and negotiate later." The Hollywood Reporter has done its own profile on Liebowitz as well.

It appears that many of his cases have ended up before federal judge Denise Cote, who clearly sees through his scam. Last year, we noted her scolding him for his practices, including not following court rules. Cote even referred to him as a "copyright troll" -- something that offended him so much he requested that it be redacted. That request not only failed, but Cote reiterated:

"His litigation strategy in this district fits squarely within the definition of a copyright troll."

Liebowitz is back before Judge Cote yet again in one of his many cases, and it's not going well. As pointed out by the copyright troll fighters at Booth Sweet, Liebowitz is busy setting precedents that are bad for copyright plaintiffs. In this particular case, the issue has to do with Rule 68 of the Federal Rules of Civil Procedure. Under Rule 68, when sued, a defendant may make a settlement offer that includes some specific terms.

In this particular case, Liebowitz, representing photographer Gregory Mango, sued Democracy Now!. Democracy Now! looked up how much Mango was licensing his photos for (a maximum of $220) and made a Rule 68 offer to settle for 5 times that amount. Liebowitz quickly turned the offer down, as he was seeking much more. But here's the fun part of Rule 68. It's part (d):

Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

Translated: If Mango/Liebowitz's final judgment is less favorable than the ~$1,000 Democracy Now! offered under Rule 68, then Mango is on the hook for all of Democracy Now's legal fees incurred after that offer was made. That is likely to be many thousands of dollars. As Booth Sweet notes, many courts have said that Rule 68 doesn't apply to copyright cases, but in Cote's latest ruling she says it does, and tells Liebowitz to post a bond for $50,000.

In other words, even if Mango "wins" the case, but gets less than $1,000, he may be on the hook for tens of thousands of dollars in legal fees.

Cote relies heavily on the fact that the Supreme Court has made it clear that fee shifting is proper in copyright cases. And she makes it clear that Mango/Liebowitz's decision not to take the offer was unwise:

The allegations of infringement set forth in the complaint involve a single photograph used in one article. In such copyright infringement cases, awards rarely exceed three to five times the license fee for a work. See Rice, 2019 WL 2865210, at *2 (collecting cases). The highest licensing fee that Mango charges on photo licensing websites appears to be $220 for a single photograph. Mango does not dispute that Democracy Now’s Rule 68 offer is five times greater than the typical licensing fee for editorial use of images similar to the Photograph. In the only one of his lawsuits in this district that proceeded to trial, Mango recovered less than $4,000 in statutory damages on his claim for copyright infringement.

Democracy Now, a non-profit entity, is not alleged to have profited from the use of the Photograph and removed the Photograph from its website promptly upon receiving notice of this lawsuit. It had not received any prior notice, demand, or request from Mango. Democracy Now may very well have complete defenses, including a fair use defense. In light of these facts, Mango is unlikely to recover an amount greater than the Rule 68 offer and moreover may be liable for Mango’s post-offer costs including attorney’s fees.

She also notes the requirement of the bond since there's evidence Mango wouldn't be able to actually afford Democracy Now's legal fees:

Democracy Now has also shown that it is likely that Mango will be unable to pay the costs it will seek in this litigation, another factor to be considered in deciding whether a bond should be awarded. Mango sought bankruptcy in 2004, and records from his bankruptcy filing show that his liabilities greatly exceeded his listed assets. Mango has offered no evidence to suggest that his financial resources remain anything but modest.

The judge also notes that Liebowitz's over aggressive actions in this case suggest it will run up Democracy Now's legal bills... which now may fall back on Mango:

Mango’s interrogatories and document demands already suggest that he intends to pursue expensive litigation. He has made fifty-three document requests, many of which appear to have little relevance to the single asserted infringement in this case. He has also served 29 interrogatories, many of which exceed the scope of permissible interrogatories at this stage of the litigation per this district’s Local Civil Rule 33.3. Based on this and other evidence, the defendant predicts that its pursuit of its defenses in this action will result in defense costs that exceed $110,000. That is not an unreasonable prediction.

Finally, Cote highlights Liebowtiz's growing history of trollish behavior before this same court, including "failing to comply" with court orders, as another reason why a bond should be posted:

Finally, compliance with past court orders must be weighed. Mango’s counsel, Liebowitz, has filed over 700 cases in this district since 2016 asserting claims of copyright infringement. At least 500 of these lawsuits have been voluntarily dismissed, settled, or otherwise disposed of before any merits-based litigation has occurred. In the course of litigating these cases, Liebowitz regularly fails to comply with court orders. See McDermott v. Monday Monday, LLC, No. 17CV9230 (DLC), 2018 WL 5312903, at *2 (S.D.N.Y. Oct. 26, 2018) (collecting cases). Recently, Liebowitz was described as “earn[ing] the dubious distinction of being a regular target of sanctions-related motions and orders.” Rice, v. NBCUniversal Media, LLC, No. 19-CV-447 (JMF), 2019 WL 3000808, at *1 (S.D.N.Y. July 10, 2019) (imposing sanctions for Liebowitz’s failure to comply with court orders).

The history of Liebowitz’s failure to comply with court orders counsels in favor of the imposition of an additional bond. Mango has chosen Liebowitz as his counsel, and it is not unreasonable to weigh his counsel’s failure to follow this district’s local rules and to comply with court orders in assessing this final Cruz factor.

Ouch.

As we've seen with similar trollish operation, Mathew Higbee, it's unclear whether these trolling operations are fully informing their clients that this kind of litigation could leave the clients on the hook for paying the other side's legal fees. Both Liebowitz and Higbee promote their services on their respective pages as nearly risk free. Liebowitz's says: "We work on a contingency fee basis, meaning we don’t get paid unless and until you get paid." Higbee's reads: "We are results oriented, so most of the cases we handle even have a money back guarantee or are done on contingency."

That's probably why so many photographers are willing to jump on board -- as it seems like a "free" way to get extra cash while doing nothing. But not realizing that you may be opening yourself up to quite a bit of liability for filing bogus copyright lawsuits seems like a problem. Actually, it seems like a risk that a good lawyer would explain to his or her clients before signing them up. One wonders whether or not Liebowitz actually warns his clients of such a risk.

Either way, the ruling in this case suggests that, at least in certain courts, there may be a much cheaper and quicker way out of these lawsuits, by utilizing rule 68 to make a much more reasonable offer than a typical troll demands.

Filed Under: copyright, copyright troll, denise cote, fee shifting, gregory mango, richard liebowitz, rule 68, settlements
Companies: democracy now

Court Orders Copyright Troll To Post $10,000 Bond After He Lied About His Client's Licensing Agreement

from the dope-on-a-rope dept

Richard Liebowitz of Liebowitz Law Firm has had a bad couple of weeks in court. Unfortunately for him, as one of the most prolific copyright trolls, that's kind of where he makes his home. According to two recent orders handed down by two different judges, Liebowitz has filed more than 500 copyright cases in the Southern District of New York alone over the last two years, most often representing photographers.

Booth Sweet LLP -- which has gone head-to-head with other copyright trolls -- pointed out the most recent loss Liebowitz has suffered. His lawsuit is still ongoing, but the court has ordered him to post a $10,000 bond to cover the legal fees he'll be responsible for if he loses. And if a judge is ordering a bond, it's likely because the judge expects the lawsuit to end badly for the person ordered to front the cash.

The order [PDF] is an entertaining read for people who detest copyright trolls. (Hey! Welcome to Techdirt!) Liebowitz is suing Hearst Communications over the publication of a photo he says belongs to his client, Ray Reynolds. Reynolds claims he gave the photo to the Trump campaign but expressly forbade its release to anyone else. The photo was given to Elle magazine to accompany an article about Melania Trump. Reynolds sued, and apparently chose poorly when it came to representation.

It's nothing but bad news for the prolific troll. The order begins with a recounting of Liebowitz's lies/omissions/failures.

The complaint in this action alleged that the defendant published plaintiff’s photograph without a license or plaintiff’s permission. It did not reveal that the plaintiff had in fact provided the photograph to the Campaign.

At the initial conference held on December 8, when asked how the defendant could have gotten the photograph, Mr. Liebowitz did not explain that the plaintiff had actually given the photograph to the Campaign. Instead, he speculated that Hearst may have taken the photograph from an article that the plaintiff had licensed to publish the photograph.

That's already a bad start, but a footnote makes it even worse.

Mr. Liebowitz failed to appear at the pretrial conference scheduled for December 1, despite being required as principal trial counsel to appear at the conference. Instead, without seeking prior permission to do so, Mr. Liebowitz sent an associate.

The court then recounts the facts. The photos are registered with the copyright office. The plaintiff asserts he gave them to the Trump Campaign for it to use for campaign-related stuff. Hearst maintains the Trump Campaign gave Elle the photo to use with the Melania Trump article. As the court points out, this would appear to be in line with the photographer's demands: the photo was used in an article put together with the assistance of the Trump Campaign. No violation of any contract, oral or written. And there appears to be no contract of any sort. Just the photographer's claim Elle engaged in copyright infringement by using it on its website. Having nothing in writing will make this case almost impossible to win. The court quotes from copyright law:

All grants of exclusive rights in a copyright must be made in writing.

The court doesn't say the plaintiff has no chance of winning this suit. But it does say the chances of him winning the suit are barely above zero.

Although he was not forthcoming in either the complaint or when first addressing the Court at the initial pretrial conference, Mr. Liebowitz understood before filing this lawsuit that the plaintiff gave the photograph to the Campaign for its use and that the photograph had been used in a story with which the Campaign was obviously cooperating. Among other things, Mrs. Trump is quoted in the article. There is no indication in the record that Mr. Liebowitz has ever learned of any explicit or even implied agreement between the plaintiff and the Campaign that restricted the Campaign’s use of the photograph in any way. His client only claims that he did not intend to allow the Campaign to share the photograph, but has provided no evidence of an agreement to that effect between him and the Campaign. If Mr. Liebowitz had spoken with defense counsel before filing this action, he would have had occasion to consider all of the facts recited above and to consider whether it was appropriate to sue Hearst at all, or whether he should sue not only Hearst but also the Campaign.

The court notes the 500 cases Liebowitz has filed in this court over the last two years. It also notes his recent sanctioning by this court (more on that in a minute). It then points out several of his cases have been dismissed for being frivolous. On top of that, the court says it's not the only court that has required Liebowitz to pay up front for impending lawsuit losses.

Multiple courts, on their own initiative, have ordered Mr. Liebowitz to show cause why he should not be required to post security for costs as a condition of proceeding further with an action.

Hearst wanted a $105,000 bond. The judge trims it down to 10% of this demand, noting Liebowitz's self-declared insolvency.

The plaintiff asserts that he lives paycheck to paycheck and cannot pay a bond.

(Maybe don't take all your cases on contingency.)

Of course, the court has no reason to believe this assertion, considering Liebowitz's past performance.

Given the plaintiff’s impecuniosity, the immediate imposition of bond in an amount limited to $10,000 is appropriate. The defendant will be given an opportunity to take discovery of the plaintiff’s financial condition and the parties will be heard as to whether any additional bond requirement should be imposed in this case.

Then it smacks him one more time before signing off.

Mr. Liebowitz also argues that plaintiff has not willfully disobeyed court orders, obstructed discovery, or increased the cost of litigation. This is demonstrably false. Mr. Liebowitz failed to comply with orders in this litigation, as he has in other lawsuits. Further, the failure to include the Campaign as part of this suit, or to even mention the plaintiff’s relationship with the Campaign in the complaint, will inevitably increase the cost of litigation.

As noted in this decision, Liebowitz has been sanctioned by SDNY courts previously. Via The Trademark Blog, here's Liebowitz being threatened with yet another sanctioning by an SDNY judge. This order [PDF] was handed down less than a month ago and it stems from the plaintiff voluntarily dropping the lawsuit as soon as the defendant filed a motion to dismiss.

It starts out -- like the one above -- with a footnote detailing Liebowitz's failure to comply with rules he's surely familiar with, given the large number of lawsuits he's filed in this district.

The notice of the initial pretrial conference contains explicit language that the plaintiff is to “notify all attorneys in this action by serving upon each of them a copy of” the notice and the Court’s individual practices. The plaintiff is “to file proof of such notice with the Court.” The plaintiff failed to comply with this notice; the electronic case filing system (“ECF”) contains no entry indicating that the plaintiff duly served defendant’s counsel with the notice. This is not the first such failure on the part of plaintiff’s counsel before this Court and other courts in this district.

Then the court notes the lawsuit -- filed in New York against a small Idaho publication -- contains nothing indicating this court should have jurisdiction to hear the case. The defendant's motion to dismiss on these grounds prompted a quick withdrawal of the lawsuit. The court finds this suspicious, but declines to award legal fees to the defendant.

Here, the plaintiff voluntarily dismissed his claims after the defendant served a Rule 68 offer and filed a motion to dismiss for lack of personal jurisdiction. In opposition to this motion for fees, the plaintiff does not suggest that he had any non-frivolous reason to believe that there was personal jurisdiction over the defendant in this district. Based on the record before the Court, it appears that the filing in this district was “frivolous, unreasonable, or groundless.” CRST, 136 S.Ct. at 1652 (citation omitted). Plaintiff’s counsel, Richard Liebowitz, is a known copyright “troll,” filing over 500 cases in this district alone in the past twenty-four months. Thus, whether or not an attorney’s fee award could be properly awarded against the plaintiff under Section 505, such an award against plaintiff’s counsel may be appropriate in an exercise of this Court’s inherent power.

No fee shift, but there's a warning suggesting Liebowitz could be on the hook for fees in the future, especially if he decides to keep dumping cases into this district.

In an exercise of this Court’s discretion it declines to award fees on this occasion. If Mr. Liebowitz files any other action in this district against a defendant over whom there is no nonfrivolous basis to find that there is personal jurisdiction, the outcome may be different.

Nothing seems to have slowed Liebowitz's troll but perhaps back-to-back bench slaps might, especially if the lawyer is so broke he can't rub two settlements together. Someone working on contingency with a horrendous court track record probably doesn't have tons of cash to front to keep his speculative invoicing racket afloat.

Filed Under: bond, copyright, copyright troll, lies, ray reynolds, richard liebowitz
Companies: hearst