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
