The Volokh Conspiracy

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More in the Richard Liebowitz Saga

"The Movants are undoubtedly correct in asserting that 'nationwide sanctions' are rare, but that is only because they are rarely warranted."


From Usherson v. Bandshell Artist Mgmt., released today by Judge Jesse Furman (S.D.N.Y.) (you can also read Mr. Liebowitz's filings here):

On June 26, 2020, the Court issued a fifty-four page Opinion and Order—familiarity with which is assumed—imposing a range of monetary and non-monetary sanctions on the oft- sanctioned Plaintiff's counsel Richard Liebowitz and his firm, the Liebowitz Law Firm, The sanctions were based on three sets of detailed findings: first, that Mr. Liebowitz had violated "at least six of the Court's Orders"; second, that he repeatedly lied to the Court, including under oath at a hearing, about whether he had been granted permission by a mediator … for his client to participate in a mediation session by telephone; and third, that he had failed to reasonably investigate whether the photograph at issue … had been registered with the Copyright Office (it hadn't), both prior to filing suit and when put on notice about the issue during the litigation. The Court found that the sanctions, several of which involve notifying other clients and courts about the Court's Opinion and Order, were reasonably necessary to deter repetition of the misconduct given Mr. Liebowitz's "long and ignominious history."

Mr. Liebowitz and his firm had thirty days to comply with several of the sanctions. Two evenings ago—that is, twenty-four days after the Court's decision and only four business days before the deadline—they filed a motion (styled as an order to show cause) asking the Court to stay those sanctions pending appeal….

In deciding whether to issue a stay pending appeal, a court must consider four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." …  "A stay," moreover, "is not a matter of right, even if irreparable injury might otherwise result. It is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case." Ultimately, the party or parties seeking the stay—here, Mr. Liebowitz and his firm …—bear "the heavy burden of demonstrating that a stay is warranted."

Applying these standards, the Court finds that the Movants do not come close to carrying their heavy burden. The Court is tempted to leave things there and let its Opinion and Order, with its exhaustive findings and analysis, speak for itself. (Mr. Liebowitz's shenanigans have surely consumed enough of this Court's time and resources as it is.) But a few observations are in order, if only to aid the Circuit in the event that the Movants decide to now burden that court with having to decide on short notice whether a stay pending appeal is warranted….

[Irreparable Harm:] For starters, the Movants' claims of irreparable harm ring hollow for several reasons.

First, the Movants' principal claim is that the sanctions—which require service of the Court's Opinion and Order on current and future clients and in current and future actions—will result in "severe and irreparable reputational and economic harm to their law practice." But any harm to Movants' reputations resulting from the mere act of sharing the Court's Opinion and Order is caused not by the sanctions themselves, but by growing awareness of Mr. Liebowitz's own conduct and record, which are accurately recounted in the Court's Opinion and Order. Notably, the Movants attack none of the history recounted in the Court's Opinion and Order and few of the Court's factual findings, and, as discussed below, their attacks on those findings are entirely unpersuasive.

Significantly, the Court did not bar or even inhibit the Movants from filing any new action—though such sanctions have long been approved with respect to vexatious litigants. Instead, its order merely requires the Movants to share information—that is, the Opinion and Order—with their clients and any courts in which they appear for a time, on the theory that they may be deterred from further misconduct by the knowledge that their clients and courts are likely to be more vigilant. {Notably, the Court's Opinion and Order does not preclude Mr. Liebowitz from doing so in a manner that notes his disagreement with the Court's findings and sanctions or the fact that he plans to challenge them on appeal.} Requiring a party to share truthful information—here, that this Court made certain findings and, on the basis of those findings, imposed sanctions on the Movants—does not constitute irreparable harm.

Second, to the extent that awareness of the Court's Opinion and Order will cause the Movants' reputational and economic harm, much of that harm has already occurred. As the old saying goes, the cat is out of the bag. The Court's Opinion and Order is a public document and, due in no small part to Mr. Liebowitz's well-deserved notoriety, it has already received fairly extensive publicity in the press and social media, particularly in the copyright world. Granting a stay would not undo any of that damage (which, needless to say, is ultimately attributable to Mr. Liebowitz's own deplorable conduct rather than to the Court's Opinion and Order itself). Put another way, the potential harm here is not irreparable; it is only marginal.

Finally, a court "must consider a plaintiff's delay in seeking relief when analyzing whether the plaintiff will suffer irreparable harm in the absence of relief." That is because "inexcusable delay in filing" a motion to stay "severely undermines  the … argument that absent a stay irreparable harm would result." As noted, the Court gave the Movants thirty days in which to comply with the relevant sanctions or seek appropriate relief. Nevertheless, they waited until day twenty-four to seek a stay (at which point, no less, they proposed giving their adversary only three days in which to respond). Put simply, the Movants' "delay, in itself, belies [their] conclusory assertions of irreparable harm" and "is enough to defeat [their] claim." …

[Likelihood of Success on the Merits:] At best, the Movants make only a weak showing that they would suffer harm in the absence of a stay. It follows that they need to make a correspondingly "strong showing" of likelihood on the merits….

Their first attack is on the Court's factual findings about Mr. Liebowitz's lies with respect to the Mediator and his knowledge that the Photograph in question was not registered prior to filing the Complaint. But reading their motion papers, one wonders if they even read the Court's Opinion and Order. With respect to Mr. Liebowitz's lies regarding the Mediator, the Movants do little more than cherry pick a single email that they argue (unpersuasively) is more "equivocal" than the Court acknowledged. In doing so, however, they all but ignore the fact that the Court's findings were based in large part on its credibility assessments, following a full-blown evidentiary hearing, of the Mediator's and Mr. Liebowitz's testimony. [Further details omitted. -EV]

Next, the Movants contend that the scope and severity of the sanctions are disproportionate to the misconduct. The Court is confident, however, that the record set forth in the Opinion and Order, taken as a whole, justifies the scope and severity of the chosen sanctions. {… [T]he Movants suggest that the Court may have separately erred "in sanctioning Mr. Liebowitz and [his firm] for their conduct before other courts." … [But t]he Court did not rely on the Movants' "[v]iolations of orders in other litigation" as "the basis" of its decision to impose sanctions. Instead, it took stock of Mr. Liebowitz's "long and ignominious history" in evaluating what sanctions were necessary to deter further misconduct. The Court is not aware of, and the Movants do not cite, any authority for the extreme proposition that a court should blind itself to an attorney's history of misconduct in crafting appropriate sanctions….

Indeed, if anything, the Movants' own cases suggest that the Court did not go as far as it could have, given that the sanctions are limited in time and do not limit their ability to file new cases, but merely require disclosure. The Movants are undoubtedly correct in asserting that "nationwide sanctions" are rare, but that is only because they are rarely warranted. Here, they were, as the record makes clear that the Movants' practice—and misconduct—has begun to spread to other districts. {The Movants may have expanded the geographic scope of their practice in order to file more cases and make more money. Or they may have done so in an effort to escape Mr. Liebowitz's well-earned reputation as a problem in this District. (Not surprisingly, Mr. Liebowitz's reputation seems to have either preceded him or to be catching up with him. [Citations of courts faulting him in other districts omitted. -EV]) …

[Public Interest:] The final relevant factor is whether the public interest favors or disfavors a stay. In the Court's view, there is a strong public interest in shining a bright light on Mr. Liebowitz's extraordinary record of misconduct and in ensuring that both courts and his clients, current and future, are aware of that history so that they can be vigilant in scrutinizing Mr. Liebowitz's conduct….

Against that strong public interest, the Movants cite the "interest in the continuation of [their] law practice" because they have carved out "a successful law practice that provides a realistic prospect of recovery to copyright plaintiffs in relatively low-dollar infringement cases that otherwise could go unfiled." But the sanctions do not bar the Movants from "continu[ing their] law practice," and Movants' conclusory assertion that such cases would not be filed without them is unsubstantiated. (Moreover, to the extent that the Movants' success is built on unsavory business practices or conduct unbecoming an officer of the court, it is, of course, not at all in the public interest for it to be perpetuated.)

Nor do the Court's sanctions deprive photographers of the opportunity to hire Mr. Leibowitz or his firm to bring suit. The sanctions merely ensure that such photographers do so with their eyes wide open, cognizant of the fact that they could be left holding the bag on a hefty attorney's fee or sanctions award, and of Mr. Liebowitz's tendency to cut and run, perhaps sacrificing their interests in the process, when he feels that the heat is on him personally….