2nd Circuit Upholds Non-Monetary Sanctions Against Copyright Troll Richard Liebowitz
Here's a quick update on infamous copyright troll Richard Liebowitz. As you may recall, after tons of stories about Liebowitz's horrendously bad activities in and out of court, federal district court Judge Jesse Furman finally threw the book at Liebowitz in an incredible ruling that literally catalogued dozens upon dozens of examples of Liebowitz lying to his and other courts. Furman issued both monetary and non-monetary sanctions. Among the non-monetary sanctions was a requirement that Liebowitz file a copy of this particular benchslap in basically every court where he is representing a client.
Liebowitz whined about how unfair it all was, and appealed the ruling. On Friday, the 2nd Circuit Court of appeals upheld the non-monetary sanctions, saying it will release its opinion on the monetary sanctions shortly. The ruling is pretty short (unlike Furman's explanation of all of Liebowitz's wrongdoing), but the general conclusion is: all the evidence says that Furman was exactly right, so his sanctions order was fine.
In this summary order, we focus on the court's non8 monetary sanctions. We review a district court's imposition of sanctions for abuse of discretion"; however, because the district court is the accuser, fact finder and sentencing judge' all in one" when imposing sanctions, our review is more exacting than under the ordinary abuse-of-discretion standard.'" Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 113 (2d Cir. 2009) (citation omitted). A district court abuses its discretion if its sanctions are based on an erroneous view of the law or on a clearly erroneous assessment of the evidence," and where its sanctions cannot be located within the range of permissible decisions." Id. (citations omitted).
Appellants' arguments that the district court abused its discretion in imposing the non-monetary sanctions are unavailing. First, the court's findings that Liebowitz lied and acted in bad faith when he represented to the court that the mediator gave Usherson permission to attend the mediation by phone and when he alleged in the complaint that the photograph was registered were not clearly erroneous. The evidence in the record--for example, the mediator's testimony and the email exchange between the mediator and Bandshell's counsel the night before the mediation--supports both conclusions. United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (When . . . credibility determinations are at issue, we give particularly strong deference to a district court finding."). Liebowitz's conduct was also not colorable" as required to contest the court's bad-faith finding. See Wolters Kluwer Fin. Servs., Inc., 564 F.3d at 114. There exists no legal or factual basis" to excuse Liebowitz of his duty to reasonably investigate the claims in his complaint. Id.
Second, Appellants' arguments that the non-monetary sanctions are overbroad because of their nationwide scope fail to persuade. Appellants rely on our decision in Enmon v. Prospect Cap. Corp., 675 F.3d 138 (2d Cir. 2012), where the law firm made several misrepresentations and the district court only required the firm to file a copy of its sanctions order with future pro hac vice applications in the Southern District of New York. See id. at 148. However, unlike the law firm's misconduct in Enmon, Liebowitz's misconduct in this case--including violating multiple court orders, repeatedly lying to the court, and filing a complaint with a false allegation--justify the nationwide scope of the court's sanctions. Moreover, Liebowitz's pattern of misconduct before many judges of the Southern District of New York and across the country, described at length in the district court's opinion, squarely defeats Appellants' suggestions to the contrary. See, e.g., In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984) (affirming restrictions placed upon [attorney's] bringing of new actions in all federal district courts" (emphasis added)). See generally Usherson v. Bandshell Artist Mgmt., No. 19-CV-6368 (JMF), 2020 WL 3483661 (S.D.N.Y. June 26, 2020).
Finally, the district court did not abuse its discretion by ordering Liebowitz and his firm to include a copy of the deposit files with each copyright infringement complaint they file for a year. Requiring Appellants to include a copy of the deposit files does not impermissibly shift the burden of proof. Although the party challenging the validity of a copyright registration bears the burden of proof, that burden attaches only for presumptively valid copyrights; plaintiffs bear the burden of establishing that presumption. See Urbont v. Sony Music Ent., 831 F.3d 80, 88-89 (2d Cir. 2016); see also Carol Barnhart Inc. v. Econ. Cover Corp., 773 F.2d 411, 414 (2d Cir. 1985). Courts cannot rely on the face of the complaint to establish this presumption in the cases Appellants bring, given that Liebowitz's associate admitted that it is the regular practice of [their firm] to file copyright infringement cases without verifying that the works in question areproperly registered." Special App. 19-20; see also Joint App. 483.
There's also a fun footnote dismissing one of Liebowitz's classically silly arguments:
Appellants' argument that the sanction would impose a substantial burden because deposit filesare expensive to obtain is unpersuasive. As the district court noted, Liebowitz often settles casesin the low thousands or tens of thousands of dollars' . . . a far cry from the $200 to $1,200 cost ofobtaining a deposit copy."
Liebowitz made some other arguments as well, but the Court notes: "We have considered Appellants' remaining arguments and find them to be without merit." Nice try, Richard.