Another Day, Another Judge Is Wondering Whether Or Not A Richard Liebowitz Client Knows He's A Richard Liebowitz Client

from the this-can't-be-good-for-business dept

Richard Liebowitz appears to be in trouble with a judge yet again. Judge Lewis Kaplan has issued quite an order in one of Liebowitz's thousands of cases -- Chosen Figure LLC v. Smiley Miley -- asking for proof that the plaintiff actually knows it's a client of Richard Liebowitz. The judge seems quite aware of Liebowitz's reputation:

Plaintiff's attorney, Richard Liebowitz has become quite well known for his failures to comply with court rules and orders, for having been sanctioned, and in a couple of cases for having lied to judges.

When an order starts that way, you know that it's not going to go well for Liebowitz.

Judge Kaplan notes that right as Liebowitz was required to send notices to every docket of the benchslap ruling he had received from Judge Jesse Furman, he dismissed this particular case (as he did with a bunch of others), claiming that a settlement had been reached. But, thanks to Liebowitz's reputation, Judge Kaplan wanted more info. This is... not particularly common. If you tell a judge you have a settlement they usually don't squint questionably at you. But here:

The Court, concerned in light of Mr. Liebowitz's history as to whether he in fact had been retained by the plaintiff and authorized to sue and to settle, entered an order stating in relevant part, the following:

On or before August 6, 2020, Mr. Liebowitz shall file (1) a personal affidavit or declaration (a) stating whether and when the plaintiff in this case specifically authorized him to (i) file this action and (ii) settle it, and (b) attaching any retainer agreement or other documentary evidence as to the foregoing, as well as (2) a personal affidavit or declaration of the plaintiff (a) stating whether and when the plaintiff in this case specifically authorized Mr. Liebowitz to (i) file this action and (ii) settle it, and (b) attaching any documentary evidence as to the foregoing. Failure to comply in all respects may result in the imposition of sanctions."

Judge Kaplan appears well aware of Liebowitz's history of not actually following instructions and felt the need to spell things out rather specifically in the order, rather than leave any chance for vagueness or confusion. Did Richard Liebowitz comply with the order? I'll give you one guess, and I know you'll get it right... because, no, of course Richard Liebowitz did not actually comply with the order. He did submit two declarations -- one from himself, and another from Josiah Kamau, who is a principal for Chosen Figure LLC -- but neither fulfilled the requirements of the order. First, as to Liebowitz's own declaration:

The Liebowitz declaration asserts that "[o]n February 28, 2019, Plaintiff, via its principal Josiah Kamau, signed a retainer agreement with Liebowitz Law Firm, PLLC, ('LLF') in which Plaintiff authorized LLF to file copyright infringement lawsuits on his behalf." It goes on to state that Mr. Liebowitz filed this action on June 23, 2020 (almost 16 months after the alleged date of the retainer agreement), that he notified plaintiff on June 23, 2020 that he had brought this action, and that Mr. Liebowitz had plaintiffs authority to settle the case. It attaches what Mr. Liebowitz claims are copies of the signature page of the retainer agreement and an email to Mr. Kamau notifying Kamau that he had brought this action in the name of an entity.

Several points are notable about this declaration. First, Mr. Liebowitz did not comply with the Court's direction to submit the retainer agreement. The purported signature page reveals nothing whatsoever about the alleged retainer agreement, and Mr. Liebowitz did not submit any documentary evidence as to anything beyond this page and the notification email. Second, Mr. Liebowitz claims that plaintiff (Chosen Figure, LLC) authorized him to file this action, but the purported signature page of the retainer agreement that he submitted was executed on behalf of Mr. Kamau personally and not on behalf of any corporate or other entity. Third, the purported retainer agreement was signed on February 28, 2019. This is nearly a year before the alleged infringement in this case took place, which the complaint makes clear was February 12, 2020. Whatever the terms of the agreement may be - the Court does not know because Mr. Liebowitz failed to submit it, despite a clear order requiring him to do so under threat of sanctions - the agreement cannot possibly serve as evidence that "the plaintiff in this case specifically authorized him to (i) file this action and (ii) settle it."

That's not good, Richard. Not good at all. For what it's worth, I'll just note that since this is a case from this year, in other cases, Liebowitz has insisted that since having an epic benchslap back in November of last year, he had put in place better case management tools. So, he has no excuse this time around.

As for the other declaration, well, that's not going to cut it either:

The Kamau declaration avers that, "[o]n February 28, 2019, [Kamau] personally signed a retainer agreement with Liebowitz Law Firm, PLLC ('LLF') in which [he] authorized LLF to file copyright infringement lawsuits on [his] behalf"; that Mr. Liebowitz "had [his] authority to file the present copyright infringement lawsuit as of March 17, 2020"; that Mr. Liebowitz notified him of the filing of this action on June 23, 2020 by email; and that Mr. Liebowitz had authority to settle the case. The declaration contains two exhibits, which are the same signature page and notification email attached to Mr. Liebowitz's declaration. It does not include any evidence supporting Kamau' s claim that he gave Mr. Liebowitz permission to file this lawsuit on March 17, 2020 or to settle it at a later time.

This declaration raises additional questions. Mr. Liebowitz claims that he had authority to bring this action by virtue of the purported February 28, 2019 retainer agreement. Mr. Kamau, however, declares that Mr. Liebowitz "had authority to file the present ... lawsuit as of March 17, 2020," thus implying that the retainer agreement of February 28, 2019 did not authorize the filing of this action. And Mr. Kamau, like Mr. Liebowitz, has submitted no documentation apart from the purported signature page and the June 23, 2020 email.

Given Liebowitz's history, which this judge is well acquainted with, let's just say Judge Kaplan is not happy:

This Court's order of July 30 required - and still requires - production of the full retainer agreement or agreements and all documentary evidence with respect to Mr. Liebowitz's authority to bring and settle this case. That includes all emails, letters, notes and other writings or electronically stored information bearing on the retention, the scope of the engagement (including as it may have changed from time to time), and the settlement.

All of this material shall be filed by Messrs. Liebowitz and Kamau no later than August 18, 2020.

Get your popcorn ready...

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Filed Under: copyright, copyright troll, josiah kamau, lewis kaplan, richard liebowitz, sanctions


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  • identicon
    Bobvious, 13 Aug 2020 @ 3:10pm

    Get your popcorn ready...

    With all the COVID movement restrictions, I think another bucket of popcorn will guarantee I can't fit through the door anymore.

    Can I sue Richie for popcorn-induced coronary distress?

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 14 Aug 2020 @ 12:35am

      Re: Get your popcorn ready...

      "Can I sue Richie for popcorn-induced coronary distress?"

      Better yet, you can have him represent you. There appears to be a non-zero chance he already does, without your knowledge.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 13 Aug 2020 @ 3:16pm

    'I had it just right over there...'

    Strange, you'd think that if Liebowitz actually was authorized to engage in the legal actions that he's been doing it would be trivial to simply provide those authorizations rather than scrambling around to find documents that don't actually show any such thing.

    Why, it's almost enough to make you think that yet again he decided to simply do whatever the hell he wanted to with the fallback plan of bailing the second someone asked him for proof, something which might have worked in the past but isn't quite cutting it now that judges have run out of patience with the known liar that is him...

    reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 14 Aug 2020 @ 7:39am

      Re: 'I had it just right over there...'

      it would be trivial to simply provide those authorizations rather than scrambling around to find documents that don't actually show

      Well, my normal custom is that I have a ``shell'' retainer letter that I use when such production seems advisable, particularly in talking to creditors. That letter only states the authority to discuss and negotiate. It makes no mention of the terms and goals of the representation because those would be privileged.

      Not sure that the plaintiff's firm in this case has that level of foresight. A letter dated this week, but stating that as of a certain date there was authority, might be sufficient for settling cases generally. In this case, with a judge who is already aware of the potential problems with Liebowitz' filings, that may not be enough.

      Also, Liebowitz' response as discussed in the order here leaves one to wonder if he filed the required copy of the sanctions order from Usherson timely, as it required, because this case is not yet closed. He might have. The order in Usherson is mentioned, but it could be that the judges in the SD NY just talked to each other.

      Judges do that. Sometimes they do it a lot. A rule they taught in school was to not lie to any judge in the morning, because all the judges will know about it after lunch.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 17 Aug 2020 @ 8:04am

        Re: Re: 'I had it just right over there...'

        "A rule they taught in school was to not lie to any judge in the morning, because all the judges will know about it after lunch."

        "Not lying to the judge" does sound like something a bar-certified lawyer would have learned the same way a physicist would know the first and second law of thermodynamics or a biologist would know DNA pairing.

        Hell, even from a layman perspective I'd say it makes the same sort of sound common sense as "Don't eat yellow snow".

        Yet Liebowitz appears to have made that no-no a significant part of his courtroom arsenal, and I can't help but wonder why. It's at the point where the fool who represents himself still looks less dumb than any client of old Richie's.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 13 Aug 2020 @ 3:36pm

    Mike, have you ever asked yourself why so many people in your immediate playing field share similar names?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Aug 2020 @ 3:44pm

      Re:

      If that is an antisemitic remark, it is doing a good job of showing everyone exactly how you think. Next time, instead of spreading hate, just close the program and consider that no one here wants you or your hate-mongering.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 14 Aug 2020 @ 12:40am

      Re:

      "Mike, have you ever asked yourself why so many people in your immediate playing field share similar names?"

      Scraping the bottom of the barrel for things to hit Mike with now, are we, Baghdad Bob?

      With well over half a billion people living in north america and derivations of "Michael", "Mikael" and "Mike" being one of the top twenty most popular anglo-saxon names in existence it's not much of a stretch to call the prevalence of "other people called Mike" a fairly normal state of affairs.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 14 Aug 2020 @ 7:37pm

        Re: Re:

        Michael is hebraic, not anglo-saxon. It comes from the archangel michael and so was adopted with the spread of christianity, but its origins are as foreign as christianity itself.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 17 Aug 2020 @ 8:23am

          Re: Re: Re:

          "Michael is hebraic, not anglo-saxon."

          The original Mika-El (hebrew; Strength of God) might have been, but the various derivatives thereof are, no doubt, as anglo-saxon as they come unless you want to make the claim that the only valid "anglo-saxon" names have genuinely saxon or normand roots. At which point of course you end up having to sort out germanized latin and greek names as well.

          Case In Point? Half a billion people of various denominations all called "Mike", Mikael" or "Michael" without even a single nod to anything other than a parent thinking "Well, that's a good name for a lad".

          There is reason to assume the AC is slinging an implication at the name of Masnick, rather than Mike - which indicates the AC implies Mike's just doing his job as part of the global jewish conspiracy...which tells us more about the AC than of his claims, really.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2020 @ 3:47pm

    If only there was some kind of organization with a legally granted monopoly on the provision of legal services. This theoretical organization might be granted said monopoly in exchange for ensuring that purported providers of said services are trained for the position and that they conduct themselves in an appropriate manner, something which would help both the consumer and the government.

    Perhaps we could name this organization after a place said legal professionals might go to celebrate their victories by imbibing various liquids... The Pub Association perhaps? No, that sounds much too British and nobody likes those guys. Oh well, I'm sure we'll think of something to call this totally new organization which certainly doesn't currently exist...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2020 @ 5:04pm

    This is the best sequel to Prenda yet

    reply to this | link to this | view in chronology ]

    • identicon
      Bobvious, 13 Aug 2020 @ 5:12pm

      Re: best sequel to Prenda yet

      Richie's just the hoping to be the Great TePrenda https://www.youtube.com/watch?v=IEzfhclKO8Q

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Aug 2020 @ 6:17pm

      Re:

      You say that like Prenda's ended.

      It hasn't. Paul Hansmeier just sued Bill Barr for not letting him copyright troll from prison.

      You can't make this shit up.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 13 Aug 2020 @ 6:43pm

        Re: Re:

        Some people just do not know when to stop digging, though I suppose if the only thing he knows is copyright extortion and abusing the legal system for personal gain it's not too surprising that those would be his defaults even in jail.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 Aug 2020 @ 7:27pm

          Re: Re: Re:

          Maybe Morgan Freeman can narrate said digging.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 Aug 2020 @ 9:29pm

          Re: Re: Re:

          You start to see why Prenda chose to retain Jacques Nazaire and Daniel Voelker - because they use the same narrative of "not letting me be an asshole is unfair because pirates are big meanie poopoo pants, also your mom" to push their case.

          Nazaire was arguably the more hilarious of the two. I remember when he tried to samefag under several pseudonyms on Techdirt, including Nora, because Steele's fee-fees got hurt.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Aug 2020 @ 7:47pm

        Re: Re:

        This cheeky little bastard should call Trump. He should go big(ly) and ask for a pardon.

        reply to this | link to this | view in chronology ]

      • identicon
        Cowardly Lion, 14 Aug 2020 @ 6:22am

        2-tiered justice

        Given the brutal US Prisons for Profits - how come this human garbage isn't spending every waking second making shoes, for the princely wage of 25c a day?

        reply to this | link to this | view in chronology ]

      • icon
        Tanner Andrews (profile), 14 Aug 2020 @ 7:46am

        Re: Re:

        [ Hansmeier wants to set up honeypots for copyright trolling purposes ]

        Someone should probably tell him that it is not going to work if anyone resists. If he or his agent posts the material, that should be treated as licensed posting. Downloading, where the copyright holder has posted the material for that purpose, is not infringing.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 14 Aug 2020 @ 9:33am

          Re: Re: Re:

          If memory serves one of the excuses brought up to defend such scams by a past commenter was that while the downloading might be authorized torrents work by the downloader then offering the file up for others to download in turn, which would not be authorized. Having said that while I'm not a lawyer it seems to me that an argument could be made by the defendant that if the copyright owner had put up the file on a non-torrent site then future sharing would be violations however by putting it up on a platform where the core function involves both downloading and sharing then it would be reasonable to infer that the second half is authorized too, otherwise they wouldn't have chosen that method to post to.

          That said the above isn't likely to matter, as much like SLAPP suits copyright extortion doesn't really rely upon winning in court, rather the goal is to send enough threats out that a sufficient number of people cave upon seeing the huge possible penalties that the scam remains profitable. The fact that the argument would almost certainly fail in court if they faced any even remotely competent lawyer has likely been considered and dismissed as irrelevant.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 15 Aug 2020 @ 6:45pm

            Re: Re: Re: Re:

            Not really - but the reasoning you posted has been cited to justify going after IP addresses linked to torrent evidence, because torrenting means "making available". It's a bullshit claim, of course, because as one judge pointed out, the evidence often submitted by plaintiffs doesn't even prove if torrenters have downloaded a full, usable file, never mind made it available to others.

            Pretty much the only excuse brought up to justify the Prenda honeypot was "surely, someone who isn't guilty would realize using torrent software is wrong!" Because in out_of_the_blue's mind, evidence submitted by copyright lawyers is infallible. It'd almost be a mildly convincing argument if not for the collective history indicating that the quality of evidence from IP address harvesters has usually ranked lower than fetid garbage.

            reply to this | link to this | view in chronology ]

    • icon
      Get off my cyber-lawn! (profile), 17 Aug 2020 @ 3:55pm

      Re: ...sequel to Prenda

      Am I the only one hoping to god that this joker pulls a Mission Impossible mask off and turns out to be Charles "Digger" Carreon?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Aug 2020 @ 5:55pm

    Hmm...

    Streisand Effect of lawsuits... ?

    Once judges know....

    reply to this | link to this | view in chronology ]

  • icon
    Rico R. (profile), 13 Aug 2020 @ 8:07pm

    Just a theory, but...

    I'm almost starting to wonder if Richard Liebowitz is trying to be a more legal version of RightsHaven. If you recall, RightsHaven attempted to license the "right to sue" from copyright holders, and whenever RightsHaven found someone infringing on the "licensed" copyright, they filed suit. This was later found not to be legit as there is no "right to sue" a copyright holder can license to a third party. Either you own the copyright in question and can sue, or you don't own it and you can't sue.

    Enter Richard Liebowitz. Keep in mind this is just speculation; I'm not saying that this is what Liebowitz is doing, and he very well could not be doing this. Liebowitz Law Firm is using pretty much the same business model, but instead of Liebowitz attempting to license the non-existent right to sue, he, as a lawyer, enters "retainer agreements" with photographers and other clients. He then seeks out for people infringing on the copyrights of his clients, and then he proceeds to sue them on behalf of his clients. That way, the plaintiff is NOT Richard Liebowitz, but rather it's his client, who owns the copyright and is represented by Liebowitz.

    If this is true, it explains a few things. It explains why a person wrote into the court saying he had no idea that the case was filed in his name. It also explains why here, he points to the retainer agreement as proof that he has the authority to file this case. The only thing odd is that according to his website, Liebowitz operates on a contingency ("There's no fee unless we win."). That's not typical of a retainer agreement; usually, there's a down payment. Also, operating on contingency is not common for copyright attorneys, probably because of the fee-shifting provision. But whatever the case is, there's no reason to lie to the court for any reason. Liebowitz has got some explaining to do...

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 13 Aug 2020 @ 10:31pm

      Re: Just a theory, but...

      I think I can sorta see where you're going, but honestly I think the explanation for his behavior is likely a lot simpler and can be summed up in three words, 'ego', 'arrogance' and 'laziness', where he's so impressed by himself that he seriously thinks that no-one could ever see through his clever schemes, because he thinks so highly of himself he half-asses things assuming that it'll work out well for him anyway, and then when that all fails and things blow up in his face his ego forces him to double-down rather than admit that he screwed up and got caught.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 Aug 2020 @ 11:08pm

        Re: Re: Just a theory, but...

        I think the explanation for his behavior is likely a lot simpler and can be summed up in three words, 'ego', 'arrogance' and 'laziness', where he's so impressed by himself that he seriously thinks that no-one could ever see through his clever schemes

        Copyright trolling in a nutshell, really.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 14 Aug 2020 @ 12:44am

          Re: Re: Re: Just a theory, but...

          "Copyright in a nutshell, really."

          FTFY.

          There may be cases for copyright not actively being malicious but in most such cases it still turns out that copyright law had to be used to solve an issue caused by copyright law in the first place.

          I'm sure that dig deep enough we will similarly find the odd occasion where the Red Flag Act was of actual benefit to someone.

          reply to this | link to this | view in chronology ]

        • identicon
          David, 14 Aug 2020 @ 5:02am

          Re: Re: Re: Just a theory, but...

          I've heard Donald Trump get called a lot of things, but "copyright troll" was not in that set.

          Yet.

          reply to this | link to this | view in chronology ]

      • identicon
        MathFox, 14 Aug 2020 @ 2:26am

        Re: Re: Just a theory, but...

        I agree that ego and arrogance are in play at Richard's behavior, but I can't rule out that a manic disorder (either natural or substance induced) is into play too. He is "all action" without apparent reflection on his actions.

        Anyway, I save my popcorn for the inevitable removal from the bar proceedings...

        reply to this | link to this | view in chronology ]

        • identicon
          David, 14 Aug 2020 @ 5:08am

          Re: Re: Re: Just a theory, but...

          Anyway, I save my popcorn for the inevitable removal from the bar proceedings...

          The bar probably cannot go forward with that because for some mysterious reason they cannot find the originals of his admittance and nobody remembers anything about it.

          reply to this | link to this | view in chronology ]

  • icon
    BurningWoodchipper (profile), 14 Aug 2020 @ 5:58am

    I just Don't Understand (again)

    Lawyer: Does something sleazy
    Judge: Prove it wasn't sleazy by Monday
    Lawyer (on Monday): Fuck you
    Judge: Prove it wasn't sleazy, and I'll give you till Friday
    Lawyer: Fuck you
    Judge: OK, this time I'm serious. Prove it wasn't sleazy, by a week from Tuesday, or ELSE
    Lawyer: Ignores order
    Judge: OK, time for a benchslap. (Details all the sleazy business, and adds details of previous orders.) Now do what I tell you, or sanctions may follow.
    Lawyer: Yawn. Here's a scrap of napkin from two years ago with a drawing of dickbutt.
    Judge: ???

    Meanwhile ...
    Normally law-abiding citizen (let's call him Tom): Underpays his taxes by $8.41
    Judge: That's enough! Sell his house!

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 19 Aug 2020 @ 3:27am

      Re: I just Don't Understand (again)

      "Normally law-abiding citizen (let's call him Tom)"

      Ah, I see the misunderstanding. This is how it works; Judges carefully weigh the positional authority of the claimant against their presentation of facts and precedence. They then apply both common sense, the niceties of legal details as written in state law, federal law and common law to the court case at hand and come to the appropriate conclusion given the expected and accepted boundaries of the acting party at hand.

      TL;DR?

      Judges know that sheep exist to be fleeced and will therefore always provide the wolf more leeway.

      reply to this | link to this | view in chronology ]


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