Copyright

More Massive Sanctions on Richard Liebowitz, "Copyright Troll" and "Legal Lamprey"

"One of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer," in the Southern District of New York.

|The Volokh Conspiracy |

From Judge Jesse Furman decision this morning in Usherson v. Bandshell Artists Mgmt. (S.D.N.Y.); you can also read more posts on Mr. Liebowitz's adventures:

Richard Liebowitz, who passed the bar in 2015, started filing copyright cases in this District in 2017. Since that time, he has filed more cases in this District than any other lawyer: at last count, about 1,280; he has filed approximately the same number in other districts.

In that same period, he has earned another dubious distinction: He has become one of the most frequently sanctioned lawyers, if not the most frequently sanctioned lawyer, in the District. Judges in this District and elsewhere have spent untold hours addressing Mr. Liebowitz's misconduct, which includes repeated violations of court orders and outright dishonesty, sometimes under oath. He has been called "a copyright troll," McDermott v. Monday Monday, LLC (S.D.N.Y. Oct. 26, 2018); "a clear and present danger to the fair and efficient administration of justice," Mondragon v. Nosrak LLC (D. Colo. May 11, 2020); a "legal lamprey[]," Ward v. Consequence Holdings, Inc. (S.D. Ill. May 7, 2020); and an "example of the worst kind of lawyering," id. In scores of cases, he has been repeatedly chastised, warned, ordered to complete ethics courses, fined, and even referred to the Grievance Committee. And but for his penchant for voluntarily dismissing cases upon getting into hot water, the list of cases detailing his misconduct—set forth in an Appendix here—would undoubtedly be longer.

One might think that a lawyer with this record would tread carefully, particularly before a judge who had recently sanctioned him. See Rice v. NBCUniversal Media, LLC (S.D.N.Y. July 10, 2019). But—as this case makes clear—not Mr. Liebowitz.

In November of last year, Mr. Liebowitz appeared, in the company of a criminal defense lawyer, before another judge on this Court after being held in contempt for repeatedly lying, including under oath, about the date his own grandfather had died to justify his failure to attend a court conference. See Berger v. Imagina Consulting, Inc. (S.D.N.Y. Nov. 13, 2019) ("Berger Tr."). The very next day, he appeared before the undersigned and—despite an explicit warning to be "very, very, very careful about the representations" he made in court—lied about his compliance with a court Order that had required an in-person mediation. Making matters worse, Mr. Liebowitz then repeated that lie, over and over, and ultimately under oath during an evidentiary hearing.

On top of that, he violated at least six court Orders. And to cap it off, defense counsel discovered only after incurring the expenses of litigating the case that the Complaint Mr. Liebowitz prepared and filed contained a false allegation—namely, that the photograph at issue in this case had previously been registered with the Copyright Office—that would have required dismissal of the lawsuit at its inception.

In the view of the undersigned, this misconduct, when viewed in light of Mr. Liebowitz's deplorable record, confirms a conclusion that others have reached: that "steps should be taken promptly … to suspend his ability to file new cases," at least until "he has demonstrated" that he can comply "with court rules and rules of professional conduct." Mondragon. But that is a question for another body—the Grievance Committee of this Court—and for another day.

The question for today is what sanctions, if any, this Court should impose on Mr. Liebowitz for his misconduct in this case. For the reasons stated below, the Court concludes that sanctions are amply justified, indeed all but required, and orders a mix of substantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm. The Court also refers Mr. Liebowitz to the Court's Grievance Committee to evaluate whether he should be allowed to continue practicing law in this District….

If specific deterrence—that is, deterring Mr. Liebowitz from repeating his misconduct—were the sole consideration, it is not clear that any sanction (short of, perhaps, disbarment) would suffice. After all, his first lie in this case occurred only one day after he was dressed down by Judge Seibel for repeatedly lying about his grandfather's death, and despite a warning from the Court to be "very, very, very careful" about what he said. And thereafter, as in the case before Judge Seibel, he dug his hole even deeper, repeating his lies over and over, including under oath. (In fact, he arguably expanded upon his lies, concocting, after the fact, his "custom and practice" excuse.)

Even more troubling, as the discussion above makes clear, Mr. Liebowitz's misconduct in this case is part of a larger pattern that has led judges on this court—and, as his practice has expanded to other districts, judges on other courts—to chastise him, impose sanctions on him, and require his clients to post bonds to cover future adverse awards of attorney's fees and costs resulting from his misbehavior. The list of such cases is too long to cite here and, thus, is attached as an Appendix to this Opinion and Order. And even that list is likely not exhaustive….

But because disbarment is an issue for the Grievance Committee, this Court is left with the task of crafting a sanction that could conceivably deter Mr. Liebowitz from repeating his misconduct again. Moreover, another purpose of sanctions is general deterrence—that is, deterrence of "comparable conduct by similarly situated persons." In view of both considerations, it is plain that substantial sanctions—a mix of monetary and non-monetary sanctions—are well justified. As discussed above, much of Mr. Liebowitz's misconduct was the product of intentional bad faith. In addition, Bandshell and Mr. Newberg (who handled the case pro bono) incurred considerable expenses as a result of Mr. Liebowitz's misconduct, having to defend against a lawsuit that was flawed from its inception, having to appear at a mediation that was doomed from the start, and having to litigate the issue of sanctions.

Moreover, there is, to put it mildly, a long and ignominious history of misbehavior by Mr. Liebowitz, and an enormous risk that he will continue his pattern of misbehavior. And finally, Mr. Liebowitz never corrected his misconduct, but rather repeated his lies under oath and, in the case of the false allegation regarding the copyright registration, proffered unconvincing excuses. In light of that record, and the fact that prior efforts to deter him—including hefty fines, see, e.g., Ward ($20,000), and sizeable awards of attorney's fees and costs, see, e.g., Craig ($98,532.62)—were insufficient, substantial sanctions are plainly warranted….

The court ordered that:

  • "[Mr. Liebowitz must pay] $83,517.49 in fees and costs attributable to the mediation and the sanctions motion" "for misrepresenting that the Mediator gave permission for Mr. Usherson not to attend the mediation in person and for his multiple other violations of the Court's Orders,"
  • "[Mr. Liebowitz must pay] $20,000 for falsely alleging that the Photograph was registered, not conducting a reasonable investigation prior to filing the lawsuit and after being put on notice of the registration issue, and maintaining the suit thereafter,"
  • "Mr. Liebowitz shall be required to serve a copy of this Opinion and Order on Mr. Usherson and every other current client of the Liebowitz Law Firm and to file it on the docket of any pending case brought by Mr. Liebowitz or any attorney working for his firm, as well as on the docket of any new case brought within one year from the date of the Opinion and Order by Mr. Liebowitz or any attorney working for his firm,"
  • "in any action that is filed within one year of the date of this Opinion and Order by Mr. Liebowitz or any attorney working for the Liebowitz Law Firm that involves allegations of copyright infringement, the complaint must include as an attached exhibit a copy of the deposit files maintained by the U.S. Copyright Office reflecting the registration of the relevant copyrighted work or works at issue,"
  • "the Court will send a copy of this Opinion and Order to the Chair of the Court's Grievance Committee to take whatever action the Committee deems appropriate."

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  1. Ouch! A $104K hit to the wallet tends to change behavior, I’ll bet.

    My guess is nobody on the Second Circuit is weeping about this. 🙂

    1. The Order references even larger fines by another court, and a long history of fines and other sanctions. This attorney is incorrigible, and at this point, should be disbarred.

      It also raises the questions of just how much money he earns as a copyright troll to be willing to risk so many sanctions and the ability to afford to pay them. I’m also concerned whether demanding clients indemnify or offer a bond to cover sanctions is legally or ethically permissible, as it more than implies either a questionable belief in the merits of claim and/or a demonstrated willingness to ignore court rules and procedures and ethical mandates.

      I would love to see the attorney in jail along with disbarment. He is everything wrong with the practice of law, and brings our entire profession in disrepute.

      1. He seems to be the .001% that gives the 99% the bad reputation that harms the remaining .999% of good lawyers 🙂

      2. “It also raises the questions of just how much money he earns as a copyright troll”

        (My guess is that his finances are a house of cards.
        See my comment below, intended to be above, re Dissociative Identity Disorder.)

        My guess is that there will be a spectacular car crash in the near future, or something similar.

        1. Again, I emphasize hypothetically, I am merely speaking as an academic here, reflecting on past students I know and have tried to help.

  2. I would seriously consider jailing him for contempt, since nothing else seems to have worked. Maybe 10 days at Rikers would do the trick.

  3. Promising material here, but this new attorney needs supervision so that his energies can be more profitably directed. Perhaps Judicial Watch, or one of the firms Republicans hire for their endless assaults on the Affordable Care Act.

    1. I hear Judge Gleeson isn’t busy these days.

  4. This dude never ceases to amaze me.

    1. I know, right? I have been reading about this guy here on VC for some time now. He sounds like a major league pain in the ass for the Second Circuit. They’re probably doing ‘high fives’ in chambers or something.

  5. So what does it take for someone to actually get disbarred? He should be long gone by now.

    Every hour he is in court is an hour of delay for any number of legitimate cases.

    This guy is some kind of sociopath. He will never demonstrate,

    that he can comply “with court rules and rules of professional conduct.”

    because he doesn’t know how to do that.

    1. “So what does it take for someone to actually get disbarred? ”

      Stealing client funds, revealing client confidences, or a felony conviction.

      1. And not just any felony conviction. Plenty of attorneys, well represented by experience bar counsel, have escaped disbarment if their felony convictions did not involve dishonesty – such as taking drugs for fees, that seemed to be quite common in FL at one time.

        1. I believe a felony conviction is automatic disbarment in NY, but only applies for certain misdemeanor convictions.

            1. I thought so. I litigate in NYC, but thankfully I and the attorneys I work with have little to do with the Disciplinary Committee.

      2. Dare I ask why it’s that hard? Guys like this do a tremendous amount of damage. I suspect a lot of lawyers disbarred for stealing client funds have stolen much less than the cost of that damage.

        1. “Dare I ask why it’s that hard?”

          It is possible — repeat possible — that he has a psych diagnosis, which would then make this an ADA issue and one is best cautious when dealing with such things. And it isn’t like the bar folk can reveal this — if it were hypothetically true.

          Passing the bar in 2015 means he entered law school in 2012. Just about every large university had a “Behavioral Intervention Team” (BIT) by then, and if he were like this in law school, I highly doubt he’d have eluded the BIT. He’d have had a psych label stapled onto him at that point, had to tell the bar folk, at which point, now, it would protect him. Again, hypothetically — I don’t even know where he went to law school — I just know what BITs are and what they do.

  6. If he’s filed about 2500 lawsuits in federal court, it means he’s expended about $1 million in filing fees (the single case fee is $400).

    I wonder what kind of return he got on that investment?

    Were the courts so hesitant to sanction him because of all the $ he was contributing to the judicial system?

    1. I too am very curious about his business model.

      1. I don’t know about copyright cases, but a small company I worked for was once hit by a patent troll – the plaintiff claimed to have invented a method of adding two numbers using a computer or something like that. Astonishingly enough, our software used addition. As I recall the plaintiff offered to settle for $15K, which our attorney informed us was less than it would cost to fight the case in court. So we paid up.

        That was quite some time ago, but if the ratios are similar you make out pretty well if one case in 20 settles that way.

  7. I doubt it — I had to deal with a student like this, and the best answer I got was Dissociative Identity Disorder (previously known as Multiple Personality Disorder). I never knew which version of him I was dealing with until he started speaking.

    Pathological liar, yes, but I think he honestly believed his lies. He often had holes in his memory and the lies were to cover up the holes.

  8. The question I have is why the other attorneys in his firm have to file that stuff with *their* cases?

    If they are filing them under their own BBO number, then they, not he, is responsible for what they file. Hence how does the judge get to do this?

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