Copyright Troll Richard Liebowitz Reveals His Retainer Agreement: He Gets Most Of The Money
from the oh,-look-at-that dept
We noted last week that Judge Lewis Kaplan (like so many other judges who have copyright troll Richard Liebowitz in their courts) was fed up with Richard Liebowitz's unwillingness to follow fairly straightforward orders, including that he produce the retainer agreement with his clients, as well as present evidence that the client knew of and approved the specific lawsuits at hand. Judge Kaplan did this in at least two (and possibly more?) cases. In the case we mentioned last week -- the Chosen Figure LLC v. Smiley Miley case -- despite already receiving a benchslap from the judge for not providing the retainer agreement, Liebowitz has filed some random emails between his own staff and... his client's girlfriend? That does include an email from his client saying he doesn't check email much so to have his girlfriend on email chains instead, though it's not clear that this will be enough to satisfy the judge's request for authorization for "this case specifically," but we'll see.
However, much more interesting is that, for what appears to be the first time, Liebowitz has revealed his retainer agreement with clients. And, man, do his clients get a raw deal. Liebowitz gets 50% of any proceeds after costs which come out of any settlement received. In other words, more than half (potentially a lot more than half) of the money from any settlement goes to Liebowitz. That would mean that Richard Liebowitz has a larger financial stake in the outcome of these cases than his own clients.
Also, in typical bad lawyering fashion, Liebowitz tells his clients there's a possibility that they might recover some fees from the other lawyers, but leaves out that his own clients may be on the hook for the other side's legal fees. And this is not theoretical as Liebowitz's track record includes costing his clients money in legal fees. Yet his retainer agreement seems to suggest the only reason his clients should think about legal fees is in how they might get them from the other side:
The Copyright Act includes a provision in which attorney’s fees may be awarded to prevailing plaintiffs. However, such an award is within the discretion of the court and not guaranteed. In the event that the Firm recovers attorney’s fees for You or You are awarded attorney’s fees, the attorney’s fees recovered shall be applied against the amount the Firm would be entitled to under this agreement. If any attorney’s fees award exceeds the amount of the Contingency Fee, whether agreed upon through settlement, awarded by judgment or otherwise, the Firm shall be entitled to the full attorney’s fee award.
That is bad lawyering to say the least, and sketchy to boot. It also might lead to some trouble for Liebowitz. In NY, where this case is filed, the courts have set up a framework for determining if a contingency fee is "unconscionable or unreasonable" and one of the factors is whether or not the client is fully informed about the ramifications of bringing a lawsuit -- which should include the possibility that they (the client) may be on the hook for legal fees if the case goes badly (as they so often do for Richard Liebowitz clients).
Besides the sheer amount of the fee, another factor to consider—and perhaps the most important—in determining the unconscionability of a contingent fee agreement, is whether the client was fully informed upon entering into the agreement with the attorney.... Where a fully informed client with equal bargaining power knowingly and voluntarily affirms an existing fee arrangement that might otherwise be considered voidable as unconscionable, ratification can occur so long as the client has both a full understanding of the facts that made the agreement voidable and knowledge of his or her rights as a client.
Here, it appears that Liebowitz failed to so inform his client. Given how judges are already skeptical of Liebowitz, this could come back to bite him.
For what it's worth, Liebowitz has filed same retainer agreement in another of his cases before Judge Kaplan, along with email exchanges with that client. This case is the Rodriguez v. Whole World Water LLC case. The email exchange there is noteworthy. Liebowitz tells his client Erika Rodriguez that he believed Whole World Water is going out of business, but offered him $500 in response to the lawsuit. Rodriguez tells him:
I would accept the $500 offer, if they are in the process of closing and dissolving the company it wouldn't make much sense to do anything else.
Liebowitz ignores that and says:
Okay, I will give it once last push if I can anything more, but it does look like they are closing.
Rodriguez emailed him back soon after:
I made a mistake in my last email.
I meant to say that I accept the $500 offer, if they are folding there is no need to push for more.
Of course, she didn't make a mistake. Richard just seemed to want to push for more. Of course, given the retainer, and the amounts that Liebowitz charges, $500 wouldn't even cover his "cost" meaning that that money would go straight to Liebowitz, not to Rodriguez in the first place. Also, this particular exchange shows what a sleazebag Liebowitz is. The company that shut down here, Whole World Water, didn't just randomly copy Rodriguez's photo. The email exchange notes that they actually tagged her on Instagram when they posted the photo -- suggesting they were trying to promote her work. No, that does not mean this is not infringing, but in such cases, the normal thing to do is to at least alert the company that they don't have permission and they should take down the photo -- not immediately go to court and sue a company that was clearly in fragile economic straits given the fact that they shut down soon after being sued over this.
Filed Under: copyright troll, retainer, richard liebowitz