Judge Recommends Copyright Troll Richard Liebowitz Be Removed From Roll Of The Court For Misconduct In Default Judgment Case (original) (raw)

from the ouch dept

Would you believe it? Copyright troll Richard Liebowitz is in trouble yet again. And yes, we just had a different article about him yesterday, but it’s tough to keep up with all of young Liebowitz’s court troubles. The latest is that a judge has sanctioned Liebowitz and recommended he be removed from the roll of the court in the Northern District of NY.

But here’s the amazing thing: this is all happening in a case where they’re trying to get damages in a default judgment case. As we noted just last week, it’s quite rare for a court to do anything other than rubber stamp a default judgment request (what usually happens when the defendant doesn’t show up in court and ignores a lawsuit). Yet, last week we saw a judge deny a default judgment in a different copyright trolling case, involving Malibu Media. And here, Richard Liebowitz has managed to not only lose a case in which the court clerk had already entered a default, but to get sanctioned and possibly kicked off the rolls of the court. That’s… astounding.

The judge, Lawrence Kahn, is clearly having none of Liebowitz’s usual bullshit. The ruling cites many of Liebowitz’s other bad cases. Ostensibly, at this point the issue is that Liebowitz took the default and wanted to have the court order statutory damages against the defendant (Buckingham Brothers LLC), but instead the court just slams Liebowitz for a wide variety of issues. First, the court points out that despite the default, the original legal pleading was insufficient for statutory damages (and for attorney’s fees) in part because, in typical Liebowitz fashion, he tried to hide stuff from the court. In particular, Liebowitz didn’t allege the date of infringement or the date of the copyright registration. This is important, because you can’t get statutory damages if the infringement is before the registration. This is an issue that Liebowitz has been known to fudge in the past. And here, the failure to plead those key points dooms the request for statutory damages and attorneys fees here:

Although Plaintiff would properly state a claim for copyright infringement if it sought some other remedy, Plaintiff fails to adequately state a claim for statutory damages and attorney?s fees. Plaintiff alleges that it registered the Photograph with the U.S. Copyright Office but fails to include the effective date of the copyright registration as required by § 412(1)…..

In a footnote, the court points out Liebowitz also failed to note the date of infringement, though notes the evidence at least indicates when it may have occurred:

Plaintiff does not include the date of infringement in the Complaint, but an attached document reasonably indicates two separate dates when Defendant infringed the Photograph.

Either way, the lack of information about the registration is just bad lawyering and dooms the statutory damages claim.

But the judge is just getting warmed up. It then says that Liebowitz deserves sanctions for three separate “frivolous assertions.” First up, the billing hours that Liebowitz claimed were at stake in this case (as part of his request for attorney’s fees). The judge notes that Liebowitz has a history of reusing filings, and that raises significant questions about how much time he’s really putting into these cases:

The Court finds that the time LLF recorded for attorney hours is fraudulent and materially false. Plaintiff?s Motion and Liebowitz?s Declaration are almost entirely copy-pasted from counsel?s previous work.

He then names multiples cases with nearly identical filings.

In the present case, Liebowitz alleged that it took seven hours to research, draft, and file documentation that had already been written, in an apparent attempt to gouge Defendant for time and expenses his firm never spent.

Ouch.

Another judge in this District recently identified a similar pattern in Liebowitz?s filings. Judge Hurd noted that Liebowitz ?recycles much of his filings?even his fee requests?from earlier cases,? and suggested that ?[t]his evident redundancy casts significant doubt as to how much time he actually spent preparing his motions.?

And, though you wouldn’t think it could get worse, it does. It appears that not only is Liebowitz copy-pasting the filings, he also did that for his time logs. That’s really bad. That’s fraud.

In this case, even some of Liebowitz?s time logs are identical to his past filings….

And worse. It turns out Liebowitz has already been called out on the excessive nature of the time claims, and yet he still used the identical time claims in this case:

Additionally, Liebowitz asserts that it took one hour to ?Process service of summons and complaint? and ?Request Clerks Entry of Default.? … He has repeated this assertion in this case after at least two other judges found this precise calculation to be excessive.

The court is well aware of Liebowitz’s reputation, obviously, and highlights that all of this seems preposterously stupid by Liebowitz, but… par for the course:

Given the large workload that Liebowitz has placed on his firm, it is not surprising that the majority of the firm?s filings are identical. In May 2020, Liebowitz admitted that he ?ha[s] two lawyers handling over 400 cases at one time.?… On the week of May 4?8, 2020, ?Liebowitz filed nineteen new copyright cases in federal courts around the United States. At the rate of 19 cases a week, he is on track to file more than 900 new cases this year alone.?….LLF has filed over 1,200 cases since 2017 in the Southern District of New York, more than any other lawyer…. This mass-filing approach has resulted in many procedural and substantive errors, and at times, frivolous claims….

It is thus clear by a review of his filings that Liebowitz?s request for attorney?s fees is both frivolous and indicative of bad faith.

Next up: Liebowitz’s claimed hourly rates.

The Court also finds that Liebowitz has used misleading citations in an attempt to recover an unjustifiable high hourly rate of attorney?s fees. ?According to the ?forum rule,? courts should employ ?the hourly rates . . . in the district in which the reviewing court sits in calculating the presumptively reasonable fee.??

The court details a bunch of similar cases where the reasonable hourly rate in that district, was generally around 300perhour.Yetinthiscase,Liebowitzclaimed300 per hour. Yet in this case, Liebowitz claimed 300perhour.Yetinthiscase,Liebowitzclaimed425. That might not seem that far off the mark, except for a couple of things. First, Liebowitz falsely claimed it was “well below” what “other courts in this district have found as reasonable” and… then citing examples from the Southern District of NY. This case is in the Northern district. Something another court in NDNY had already smacked him around for doing. Oops.

In spite of the above case law, in Liebowitz?s Declaration, he states that his hourly rate of 425is?wellbelowwhatothercourtsinthisdistricthavefoundasreasonableforpartners.?…HethencitestoseveralcasesfromtheSouthernDistrictofNewYorkinsupportofthisrate,assertingthatpartnersusuallyrecover425 is ?well below what other courts in this district have found as reasonable for partners.?… He then cites to several cases from the Southern District of New York in support of this rate, asserting that partners usually recover 425is?wellbelowwhatothercourtsinthisdistricthavefoundasreasonableforpartners.?…HethencitestoseveralcasesfromtheSouthernDistrictofNewYorkinsupportofthisrate,assertingthatpartnersusuallyrecover400 to 800anhour….Liebowitzis∗∗clearlyawarethatthisrateisincorrectinthisDistrict,ashehasrecentlybeencorrectedforassertingarateof800 an hour…. Liebowitz is clearly aware that this rate is incorrect in this District, as he has recently been corrected for asserting a rate of 800anhour….Liebowitzis∗∗clearlyawarethatthisrateisincorrectinthisDistrict,ashehasrecentlybeencorrectedforassertingarateof425 based on S.D.N.Y. precedent…. (correcting Liebowitz for failing to cite to any N.D.N.Y. rates and concluding that he is entitled to a reasonable hourly rate of $120-150 based on the District?s reasonable rate for an attorney with his experience). Liebowitz has thus exhibited bad faith in making this argument only a few months after being advised that it lacks any legal basis.

Moreover, multiple judges have adjusted Liebowitz?s rate below even the prevailing rate for partners in N.D.N.Y. based on his preceding reputation and his limited experience, putting him on notice that his claim to be entitled to an abnormally high partner rate in this case is legally baseless for an additional reason….

As the judge notes, lawyers overstating rates happens all the time and ordinarily isn’t a sanctionable offense. But Liebowitz is just so bad at this and has been smacked around so many times on this… the fact that he continues to make these claims makes it sanctionable:

Ordinarily, an overstated request for an attorney rate would not be enough to warrant sanctions. However, considering that Liebowitz has in prior cases repeatedly made similar misrepresentations and been corrected and warned to cease doing so, the Court concludes that this conduct was committed in bad faith in order to recover what Leibowitz knew to be an unjustifiably high attorney rate.

The next problem: Liebowitz inflated the value of the copyright in question:

Liebowitz has also asserted an unreasonable value for Adlife?s copyright. Liebowitz cites to several cases that award $30,000 in statutory damages in default judgments…. However, as the court noted in Sadowski, ?those cases all involve complex and substantial copyrighted works? and ?a more substantial infringement than only a single photograph.?…

Liebowitz also cites to eleven of his own cases in which $30,000 in statutory damages were provided for the infringement of a single photograph…. 23. But as another court has noted in reviewing a similar filing from Liebowitz in the default judgment context, he has not provided a factual record sufficient to support the amount of statutory damages he seeks…. Although the courts in the cases he cites do not provide any reasoning in their ?so ordered? judgments (which reduces the persuasive force of those opinions), these cases appear to be distinguishable in a variety of ways. For instance, among other potentially relevant differences, every infringement was of a unique and relatively sophisticated photograph prominently featured on the infringer?s website. Additionally, several of these cases involved a secondary cause of action for the willful removal of identifying copyright information.

And, once again, what gets Liebowitz in trouble is… he’s already been told all of this:

Once again, Liebowitz is clearly aware of the law in this area, as he has recently been denied a request for $30,000 in statutory fees for the infringement of a single photograph….

Liebowitz has submitted other recent filings that seem to consciously disregard the Court?s correction from Stridiron. Earlier this year, Liebowitz was once again corrected for ?consistently and undeniably assert[ing] inflated values? for a plaintiff?s copyright that were ?wholly unsupported by the evidentiary record.?… Liebowitz and his client in that case claimed that a reasonable license fee for a photograph of President Trump was 4,000….However,thecourtestimatedareasonablelicensefeeof4,000…. However, the court estimated a reasonable license fee of 4,000….However,thecourtestimatedareasonablelicensefeeof100.00 and awarded his client the minimum statutory recovery of $750….

Also, (because it always gets worse), Liebowitz provided misleading statements in trying to claim that the $30,000 amount is correct — again appearing to confuse which district court in NY he’s in.

Not only does Liebowitz fail to provide any evidence that might support a 30,000awardfortheinfringementofsinglestockphotographofpork,andnotonlydoeshecitetodisanalogouscasesinattempttojustifythisamount,buthefurthermakesmisleadingstatementsincharacterizingthatinapplicablecaselaw.Whencitingtothiscaselaw,Liebowitzstates,?inthelastthreeyears,CourtsinthisDistricthaveroutinelyawarded30,000 award for the infringement of single stock photograph of pork, and not only does he cite to disanalogous cases in attempt to justify this amount, but he further makes misleading statements in characterizing that inapplicable case law. When citing to this case law, Liebowitz states, ?in the last three years, Courts in this District have routinely awarded 30,000awardfortheinfringementofsinglestockphotographofpork,andnotonlydoeshecitetodisanalogouscasesinattempttojustifythisamount,buthefurthermakesmisleadingstatementsincharacterizingthatinapplicablecaselaw.Whencitingtothiscaselaw,Liebowitzstates,?inthelastthreeyears,CourtsinthisDistricthaveroutinelyawarded30,000 in statutory damages for a single photograph without holding an inquest and without proof of damages.?…. This assertion suggests that the following case law was filed in the Northern District of New York. However, every case thereafter was filed in the Southern District of New York.

And, even though the Court recognizes this is likely because he’s copy-pasting his work, that’s no excuse:

Although this misstatement conceivably could result from hurried filing, Liebowitz?s citations also omit the location of the filing…. This omission leads the Court to infer that Liebowitz had the intention of misleading the Court….

Given Mr. Liebowitz?s history of similar arguments in other cases and of corrections by courts in those cases, these errors appear to be a strategic choice rather than an honest oversight. Therefore, the Court concludes that Liebowitz acted in bad faith by presenting frivolous arguments and misleading the court with respect to statutory damages.

From there, the Court mentions Liebowitz’s fairly long “history of misconduct.” And thus he issues a relatively small $1,000 sanction. And, yes, that may seem small, but given that this is a sanction in case where Liebowitz has already gotten a default judgment, that’s kind of stunning. And the court notes that the sanctions may be more about “ensuring public knowledge of Liebowitz’s misconduct,” and further notes that his client in this case, AdLife, doesn’t seem to mind using a terrible lawyer, and perhaps this will better inform them of their poor choice in lawyers:

The Court notes Adlife?s continued use of an attorney who has little respect or knowledge of local procedures, violates court orders, lies under oath, and is continuously sanctioned for frivolous lawsuits. Adlife is known for being litigious and has been represented by LLF in at least 41 proceedings since 2018…. Several of Adlife?s cases were voluntarily dismissed shortly after a court request for registration verification, text/minute order for failure to comply with local laws, or a show cause order for a lack of proper service…. This is of no surprise, as LLF is known to voluntarily dismiss suits that are subject to dismissal when it is clear they are in ?hot water.?…

And then the Court pulls out a bigger gun: recommending he be removed from the rolls of the court in NDNY, because of shenanigans he pulled earlier this summer in the Northern District of California… and his failure to notify other courts.

As a separate matter, pursuant to N.D.N.Y. Local Rule 83.1(h), the Court recommends the removal of Liebowitz from the roll of the court for failure to notify the Court of his recent disbarment in the Northern District of California. N.D.N.Y. Local Rule 83.1(h) states, ?[a]n attorney admitted pursuant to this section who is disciplined in any other jurisdiction shall advise this Court of such discipline within 15 days thereof. Failure to do so will result in removal from the roll of the Court.? L.R. 83.1(h). ?On October 7, 2019, an order of disbarment was entered against Mr. Liebowitz by the North District of California after it came to that court?s attention that Mr. Liebowitz had been filing numerous cases in the Northern District without being a member of the State of California bar and without seeking pro hac vice admission, as was required under the Northern District of California?s rules.? Mondragon, 2020 WL 2395641, at *5 (citing In the Matter of Richard P. Liebowitz, No. 19-MC-80228 (N.D. Cal. October 7, 2019)). Ten days later, the judge in In the Matter of Richard P. Liebowitz entered a supplemental order due to Liebowitz?s failure to notify all judges in the Northern District of California of his disbarment….

Liebowitz then filed a motion to ?Correct or Otherwise Vacate the Court?s [October 7, 2019] Order.? In the Matter of Richard P. Liebowitz, Dkt. No. 5 (October 21, 2019). In this motion, Liebowitz argued that he could not be disbarred in the Northern District because he was never admitted in the first place. See generally id. Liebowitz made this contention after having filed a number of cases in California as if he were a member in good standing, see Dkt. No. 17 at 1, and after previously stating in his motion to show cause, ?My membership with the bar of the United States District Court for the Northern District of California should not be terminated,? see Dkt. No. 2 ? 1. In an order issued on June 12, 2020, the court corrected its prior technically incorrect use of the term ?disbarment,? but barred Liebowitz from ever practicing in the district, even on a pro hac vice basis, and ordered Liebowitz to submit a copy of that order in every open case in the Northern District of California in which Liebowitz had been admitted pro hac vice and to attach a copy of the order to any future pro hac vice application. See generally In the Matter of Richard P. Liebowitz, Dkt. No. 17 (June 12, 2020).

On June 3, 2020, after receiving notice of Liebowitz?s disbarment in the Northern District of California, an Advisory Notice was issued by the Clerk of Court in the District of Colorado informing Liebowitz that he was no longer in good standing in that district. Under D. COLO. Atty. R. 3(c), ?[a]n attorney who is not in good standing shall not practice before the bar of this court of continue to be an attorney of record in any pending case.?….

Considering this recent action in the District of Colorado, the disbarment order in Northern District of California appears to constitute substantial discipline as it affected Liebowitz?s good standing to practice in the District of Colorado. Nevertheless, this District received no record from Liebowitz of his disbarment in the Northern District of California, nor, for that matter, of the discipline imposed in the June 12, 2020 order. Accordingly, the Court recommends to the Chief Judge of this District that Liebowitz be removed from the roll of the Court for failure to comply with L.R. 83.1(h).

And yet, Liebowitz, somehow, still appears to have clients. Wonders never cease.

Filed Under: attorney's fees, copyright, copyright troll, default judgment, misconduct, ndny, richard liebowitz
Companies: adlife