Copyright Troll Richard Liebowitz Keeps On Losing In Court

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.

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Comments on “Copyright Troll Richard Liebowitz Keeps On Losing In Court”

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This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Every stereotype about lawyers being ambulance-chasing truth-bending dickheads pales in comparison to a troll like Liebowitz. Even the Prenda Law Players would look at Liebowitz and go “holy shit, this guy is awful”. No judge, no court, no law association of any kind should ever allow him to even crack open a law book, let alone practice law of any kind again.


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David says:

Re: Re:

No judge, no court, no law association of any kind should ever allow him to even crack open a law book,

That would seem about as relevant a punishment as forbidding him to grow a pink horn on his forehead.

What makes you think he could be tempted into cracking open a law book in the first place?

That Anonymous Coward (profile) says:

Re: Re:

You don’t know Prenda very well do ya.

They would have filed suit against him for stealing their business model.

While this doesn’t have the classy leverage of threatening to expose you as a porn fiend, sending demand letters to others to avoid ending up in court facing a huge amount & a settlement priced just less than a decent defense will cost you…

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That One Guy (profile) says:

Re: Re: Re: 'What madness is this, I'm not having fun here at all?!'

‘Prison isn’t fun and covid made it even less fun therefore I should spend less time locked up!’

Uh no Hansmeier, that’s not how that works. It sucks that the prison’s efforts to keep covid in check across the entire prison were not only extremely restrictive but ultimately ineffective but that does not mean it counts as extra time. You’re an unrepentant con-artist who gleefully abused the courts and public for personal profit, the public is much better off with you not a member of it.

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That One Guy (profile) says:

Now go away or we shall suspend you a... how many times is it?

Liebowitz: For when scraping the bottom of the legal barrel is still giving you lawyers that are overqualified for your case.

Oh sweet schadenfreude, Berg decides to get into the copyright extortion racket and picks the perfect lawyer to have the entire thing blow up in their face and leave them on the hook for several hundred thousand in legal fees from their would-be victim/’example’. Somehow I don’t see his attempts to shake down future victims going so well with that spectacular failure available for them to see.

Scary Devil Monastery (profile) says:

Re: Now go away or we shall suspend you a... how many times is i

"Liebowitz: For when scraping the bottom of the legal barrel is still giving you lawyers that are overqualified for your case."

He’s been facing some stiff competition lately from dark horses like Rudy Giuliani and Sidney Powell. Although admittedly, Liebowitz doesn’t need a narcissistic megalomaniac in the president’s seat of a global pandemic to drive him into ever lower feats of abyssal ineptitude.

Richard M (profile) says:

Why do people keep hiring this idiot?

It is not like he is defending them from speeding ticket, these are high dollar cases. You would think his clients would do at least some due diligence before hiring him.

Even a quick search brings up plenty or reasons to rethink any plan on getting involved with him. I kind of find it mind boggling that anyone would hire him.

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That One Guy (profile) says:

Re: Got a lousy case, hire a lousy lawyer

I imagine a good number if not the majority of people who hire Liebowitz do so because either they suspect or were flat out told by ethical and competent lawyers that they have no case or legal ground to stand on, neither of which seem to bother Liebowitz in the slightest.

Anonymous Coward says:

Re: Re:

Why do people keep hiring this idiot?

Hire? You don’t even need to actively hire this guy; there’s been cases where plaintiffs in Liebowitz’s cases don’t even know they’re being represented.

This guy treats copyright law like it’s an ATM. A long, hard look at the standards met by copyright law enforcement is way overdue.

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PaulT (profile) says:

Re: Re:

"Why do people keep hiring this idiot?"

I forget his name, but there was someone who tried arguing in these threads that because they got him results personally then that meant that all the accusations against him were false. He seemed to ditch threads when he was asked why his own results were not the result of fraud.

I’d guess it’s another "screw you, I got mine" argument. If someone comes along promising you money and you don’t care how ethical the results are, some people will continue paying until he’s no longer allowed to try.

Scary Devil Monastery (profile) says:

Re: Re: Re:

There’s always going to be just that guy who looks at a shameless grifter and thinks "opportunity’" Liebowitz’s clients are usually gullible morons, the desperate unable to find any other recourse…and then there are those who know damn well he’s a fraud but hopes he’ll get them a few bucks by drowning some less perceptive judge in irrelevancies and falsehoods.

It isn’t even "fsck you, got mine". It’s "I want some and don’t care how I get it".

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Anonymous Coward says:

Oh Lord, It’s hard to be humble, when you are a great lawyer like me.

I can’t wait to get in the courtroom, the judges are impressed by me.

I don’t need meticulous documentation, for clearly the winner is me.

[slower] Oh Lord, It’s hard to be humble, when you are a greeaat laawyeer like meee.

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Bobvious says:

SuperHero Comics Presents

SuperLiebowitz – The Burninating:

"Victim": MR LAWYER, MR LAWYER! I’ve just had an unhappy conversation with someone and now I’m suffering from superficial butthurt.

SuperLiebowitz: Liebowitz to MEEEEE! I’ll scrape to the bottom of the barrel on this. I’ll just quickly change into my mild-mannered attorney costume.

@TheCourt: Your Honor, my client is suffering superficial butthurt from a malicious verbal aside, delivered without consideration of how that affects their perception of the future present.

TheJudge: Well. Mr Liebotomywitz, I’m just going to rub in some ointment from my supply of Bengay SuperStrength, applied with an OxyAcetylene spreader. You have a good day now.

PaulT (profile) says:

Re: Re:

Yeah, but Liebowitz was being paid a presumably handsome sum to do this in a "professional" environment. I have seen no evidence that those other guys are doing anything other than ranting at shadows from their own bedrooms.

Even assuming they’re different people, the first few seem to be merely people with unaddressed mental issues that present themselves in an unfortunate way (no offence to those who have such issues without that type of expression), while Koby just seems to be your garden variety bigot who’s lashing out against people like him facing consequences for the first time in their life.

Federico (profile) says:

1995 catalog

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, […]

Congratulations to M&F Western (or their lawyers) for being so diligent in preserving (or finding) their catalogs (and sharing them early on). This was an open and shut case, but only because one of the parties had extensive documentation of their products.

I remember having to hunt down photos of communications materials and fair booths from a previous decade in order to support a claim of prior use of a logo… it’s not fun. Most such ephemera has no use after a short time and might go directly in the trashbin.

All this to say that these two collections at the Internet Archive, if further expanded, could save many millions in legal fees in the future:

Idea for future compensation from Liebowitz & Co. in a losing case: a substantial donation to the Internet Archive or other non-profit committed to collecting and uploading such materials.

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