Copyright Troll Richard Liebowitz Has Two Separate Courts Sanction Him For His Ongoing Copyright Trolling Failures
from the richard-liebowitz-keeps-on-liebowitizng dept
It’s worth pointing out just how difficult it is to get a judge to issue sanctions against a lawyer behaving badly. We cover many, many, many cases involving lawyers behaving really badly, and over and over again we see judges refuse to issue sanctions against those lawyers. Judges give lawyers the benefit of the doubt over and over again. That’s one reason why it’s so incredible that terrible lawyer and copyright troll Richard Liebowitz keeps getting smacked down by courts for truly egregious behavior.
Last week was special for Liebowitz in that he got hit with sanctions twice by two separate courts. In the first case, in the Southern District of NY, Liebowitz, representing Angel Chevrestt (it appears Liebowitz has sued multiple websites on behalf of Chevrestt) against Barstool Sports. As the sanctions order shows, Liebowitz continues to be his own worst enemy in that he’s just a terrible, terrible lawyer, who basically seems to ignore basic civil procedure and the court’s own instructions:
On March 5, 2020, the Undersigned issued an order referring the case to Magistrate Judge Netburn for a settlement conference. Dkt. 4. The March 5 Order directed Plaintiff to ?file proof of service no more than three days after service has been effected; and to produce to Defendant(s), by the earlier of 1) 14 days after service of process or 2) three business days in advance of any mediation session, copies of records sufficient to show the royalty paid the last three times the picture that is at issue in this case was licensed, as well as the number of times the picture was licensed in the last five years; if the picture at issue has never been licensed, Plaintiff must expressly certify that fact to Defendant(s) as part of Plaintiff?s production.? Id.
Despite the simplicity of the March 5 Order, Plaintiff?s counsel, Mr. Liebowitz, failed to comply with both directions. First, although service was effected on March 6, 2020, Mr. Liebowitz did not file an affidavit of service until March 31, 2020. Dkt. 8. Second, as of April 13, 2020, Mr. Liebowitz had not produced the required royalty information to Defendant. See Dkt. 9. In light of Mr. Liebowitz?s failure to comply with the March 5 Order, the Court ordered Mr. Liebowitz to show cause why sanctions should not be imposed on him. Dkt. 14.
The point at which a judge issues an order to show cause as to why you shouldn’t be sanctioned is normally when a competent lawyer realizes they must have fucked up royally, and starts paying close attention to following what the judge is saying. But this is Richard Liebowitz. What do you think he did? For what it’s worth, Liebowitz’s reputation is now being widely acknowledged by judges who have to deal with him:
Mr. Liebowitz, who has been described as a ?copyright troll,? is no stranger to sanctions orders issued by the undersigned and other Judges in this District…. In fact, in his relatively short career, Mr. Liebowitz has ?earned the dubious distinction of being a regular target of sanctions-related motions and orders,? and ?it is no exaggeration to say that there is a growing body of law in this District devoted to the question of whether and when to impose sanctions on Mr. Liebowitz alone.?… This Court, once again, joins that growing body of law, and finds that a sanction under Rule 16(f)(1)(C) for Mr. Liebowitz?s violations is appropriate.
The judge also points out that the instructions Liebowitz failed to follow in this case are identical to instructions he failed to follow in a previous case he was sanctioned in, by the very same judge:
Mr. Liebowitz is familiar with both instructions; not only are they given in every similar copyright case filed before the Undersigned, but Mr. Liebowitz has been previously sanctioned by the Undersigned for failing to adhere to them.
And, not surprisingly, Liebowitz’s response to the order to show case why he shouldn’t be sanctioned is deemed: “inadequate and entirely unconvincing.” On failing to follow the first instruction (filing the affidavit for service):
Although Mr. Liebowitz admits that the ?affidavit of service was filed 22 days past the Court?s deadline,? he maintains that his ?non-compliance was substantially justified on account of the fact that Liebowitz Law Firm, PLLC (?LLF?) did not actually receive a copy of the affidavit of service from its Delaware process server until March 15, 2020.?… Even assuming that is true, Mr. Liebowitz offers no legitimate explanation as to why it then took an additional 16 days to file the affidavit of service. Mr. Liebowitz?s explanation that the COVID-19 pandemic ?disrupted LLF?s ordinary work flow, thereby causing administrative oversights,?… is wholly unconvincing. First, the notion that LLF needed over two weeks to ?[get] its bearings? before Mr. Liebowitz was able to accomplish the simple task of filing an affidavit of service is preposterous. Although the COVID pandemic has presumably had some effect on LLF, as it has affected all lawyers and law firms throughout the country, it does not serve as an excuse to disregard the Court?s orders. Had Mr. Liebowitz requested an extension of the deadline to file an affidavit of service, the Court would have considered it. Mr. Liebowitz?s attempt to attribute his ?administrative oversight? to the COVID pandemic is disingenuous, distasteful, unpersuasive, and likely perjurious.
There’s a footnote after the claim of “likely perjurious” noting that in those two weeks when Liebowitz claimed that the pandemic disrupted his ordinary workflow, Liebowitz was still able to file 25 new copyright trolling lawsuits in the very same court, and notes that Liebowitz’s “filing rate for that period in 2020 is approximately 30% higher than his rate of filing cases during the same period in 2019.”
Ouch. In another footnote, the judge notes that Liebowitz’s history of lying to courts does not help him here:
Normally the Court would not be skeptical of the truth of such a representation from a licensed attorney. Mr. Liebowitz has, however, a track record of misrepresenting facts to judges on this Court.
And, again, Liebowitz’s own reputation hurts him here:
Moreover, this is not the first time that Mr. Liebowitz has attributed his failure to follow this Court?s order to file proof of service to ?administrative oversight,? nor is it the first time that this Court has found such an excuse to be inadequate or sanction-worthy.
The other court instruction that Liebowitz ignored had to do with producing invoice details of other times the photo in question had been licensed, and Liebowitz did what Liebowitz does:
Mr. Liebowitz ?admits that the licensing fee information was not produced 14 days after service of process, as per the Court?s March 5, 2020 order.?… In a lackluster attempt to justify his utter disregard of the Court?s order, Mr. Liebowitz simply stated that ?non-compliance was substantially justified for all the same reasons set forth in paragraph 5 above.? Id. This explanation (i.e., that COVID-19 disrupted normal work flows) is conclusory and unacceptable. If Mr. Liebowitz was unable to produce the documents by the Court-ordered deadline, he should have moved to adjourn the deadline to produce the documents, rather than ignoring it altogether.
Oh, and then he made it worse:
The Court finds it particularly ironic that Mr. Liebowitz chastised defense counsel for violating the Court?s individual rules and ?clear mandate,? … when it is Mr. Liebowitz who continually fails to adhere to this Court?s simple instructions.
Moreover, Mr. Liebowitz?s statement that he somehow complied with the Court?s March 5 order by producing ?the only financial information that he has in his possession,?… is nonsensical. As noted supra, Mr. Liebowitz did not produce the invoice until April 14, 2020, almost a month past the deadline set by the March 5 Order. In addition, the invoice failed to indicate whether any of the photographs had ever been licensed or to certify that none had. Thus, Mr. Liebowitz has indisputably violated the clear and unambiguous instruction of the March 5 Order.
I mean, it’s beyond obvious by now that the judge is fed up with Liebowitz, but when a judge calls your arguments “nonsensical” you’re not doing well.
And then there’s another footnote, responding to Liebowitz trying to minimize any sanctions by saying that his failure to comply with the court’s instructions “caused no prejudice whatsoever to the defendant.” As the judge points out, that’s bullshit:
The Court disagrees that the Defendant has not been prejudiced. This case should have moved seamlessly from a complaint being filed, to Plaintiff providing basic information to facilitate settlement, to a settlement conference to, hopefully, a settlement. Instead, it foundered on the first step. Because Plaintiff failed to provide the required information, Defendant was required to enlist the help of the Court in obtaining the required information. Then, the Plaintiff, rather than promptly coming into compliance, filed a letter that was sneering and unprofessional and, in essence, argued that it was Defendant?s fault that the Court was bothered as the Defendant failed to alert him that he had failed to comply with the Court?s Order. It was only at that point that Mr. Liebowitz produced to the Defendant the one page invoice for four freelance assignments, only one of which was relevant ? a fact he failed to disclose to the Defendant. When the Defendant was then forced to again involve the Court, Mr. Liebowitz responded not with a civil explanation of the cryptic invoice, but again with complaints about defense counsel?s professionalism and a motion to strike Defendant?s submission on the ground that it disclosed confidential information. When the Court denied the motion with direction to Mr. Liebowitz to explain how it could possibly contain confidential information, Mr. Liebowitz responded with silence. In short, Defendant was prejudiced by having to spend time and money obtaining from Mr. Liebowitz information that Mr. Liebowitz was under Court order to provide.
In the end, Liebowitz is sanctioned to the tune of $3,000, which might not seem like much, but then he (not his client) is also instructed to pay Barstool Sports’ legal fees as well, which will likely add up.
Finally, the judge cites another Liebowitz case we wrote about last year. That was the one where Liebowitz lied about his dead grandfather and ended up having to have a friend of his parents send a ridiculous letter to the judge promising that young Richard would take some classes in how to manage a small law firm. The judge notes that didn’t seem to happen:
As noted above, this Order is neither the only time the Undersigned has sanctioned Mr. Liebowitz nor is the Undersigned the only judge in this district who has sanctioned him. In Berger v. Imagina Consulting, Inc., 18-CV-8956 , in responding to a contempt citation that was precipitated by Mr. Liebowitz having lied to Judge Siebel, Mr. Liebowitz?s attorney argued that Mr. Liebowitz should not be held in contempt and recommended a number of steps Mr. Liebowitz should take to improve the professionalism of his practice. Among counsel?s recommendations was professional psychological help and a CLE course on small law firm management. See 18-CV-8956, Dkt. 61 at 4. While both may be helpful, psychological help is best obtained because the patient wants help. Whether Mr. Liebowitz wants to improve or not (and the Court questions whether he does), this Court concurs with Mr. Liebowitz?s attorney in Berger that management training is in order. Accordingly, Mr. Liebowitz is ordered to participate in CLE training regarding management of a small law firm. Mr. Liebowitz must attend such training on or before September 1, 2020. The course must cover the basics of setting up and running a law practice, including how to maintain systems so that Court obligations are tracked and obeyed. Mr. Liebowitz is directed to provide the Court with information about the course he wishes to attend for the Court?s approval. He will, at the end of the course, be required to present proof of attendance and to provide a sworn statement to the Court on what he learned from the course and what concrete steps he has instituted in his practice to improve compliance with the Federal Rules of Civil Procedure and Court orders.
Is there a betting market on how that’s going to turn out?
Anyway — that was just one of the times he was sanctioned last week. The other time was in the Southern District of Illinois in Ward v. Consequence Holdings and again, we have a judge who appears to be done taking Liebowtiz’s bullshit excuses. This case involved a bunch of procedural weirdness by both the plaintiff and the defendant, but one thing consistent with the last case (and many other Liebowitz cases) is that Liebowitz is a terrible, terrible lawyer:
It is a simple matter for the Court to conclude that Liebowitz?s conduct in this case has been irresponsible, unreasonable, and detrimental to the fair administration of justice, harming both Consequence, the Court, and even his own client, who has lost his opportunity to advance what appears to have been a meritorious claim. Even without the ample evidence on the record as to Liebowitz?s consistently poor practice of law in other jurisdictions, his filings in this case do not indicate any basis upon which Liebowitz could have thought that this Court was the appropriate venue for this action, leading the Court to conclude that he likely filed this action as a bad faith, frivolous effort to harass Consequence. Liebowitz?s conduct in proceeding with the action after being notified that this Court was an inappropriate venue, then seeking a default judgment without notifying the opposing party, further demonstrates a tendency to vexatiously and unreasonably create frivolous work for the Court. While the undersigned is generally inclined to give attorneys the benefit of the doubt, based on the sheer volume of cases that Liebowitz has filed, the Court feels that he should know better by now.
Don’t hold back, judge. Of course, the judge then notes that a lot of Consequence’s original mistakes in this case harm its case, and suggests that a competent copyright lawyer had a legitimate case that Consequence would have lost (and gives an aside about the poor, poor photographers who have to deal with internet infringement). The judge also notes that it’s lawyer Dan Booth who eventually steps in to represent Consequence, pointing out that Booth’s (who has built a good legal practice being on the right side of fighting against copyright trolls like Liebowitz) prior history fighting Liebowitz leads to some increased skepticism that some of the fight is perhaps “personal.” I find this part of the ruling a bit bizarre, but…
Consequence finally did emerge from its torpor and take an interest in this case, with Dan Booth entering an appearance as Consequence?s counsel. The Court was intrigued by Booth?s claim that he had discussed this case with Liebowitz ten months before he represented Consequence. Taking judicial notice of other similar proceedings and Booth?s own website, the Court observes that Booth has found himself opposite Liebowitz with some frequency in forums across the country. The Court does not wish to encourage personal disputes between individual attorneys that extend across multiple representations, and in this context it is logical to look with some extra skepticism on Dan Booth?s motivations in pursuing this representation and his estimates of his fees.
In the end, Liebowitz has to pay $20,000, half to the court and half to Consequence.
Based on its own inherent authority, the Court will sanction Liebowitz in the amount of $20,000, a sum which represents the Court?s estimate of Consequence?s reasonable legal fees as well as the expenditure of the Court?s resources. Half of this amount will be paid to the Court, with $10,000 in fees awarded to Consequence.
The judge then notes that assuming this does not cover Consequence’s full legal costs, well, that should be some sort of lesson to Consequence in not making use of images without proper licensing:
The Court hopes that Consequence?s remaining uncompensated financial expenditure and the experience of wrangling with legal lampreys such as Liebowitz will serve to ensure that Consequence in the future exercises the merest modicum of caution necessary to avoid misusing the intellectual property of others.
Of course, the big remaining question: who in their right mind would still hire Liebowitz as a copyright lawyer these days?