Prosecco People Move On From Bullying Puns Over Trademark To Bullying Portmanteau Over Trademark
Back in 2018, we wrote about the Consorzio di Tutela della Denominazione di Origine Controllata Prosecco, heretofore called only "The Prosecco People" to save my brain, opposing the trademark for a pet treats company over its branded doggy drink "Pawsecco." The EU IPO, in one of the most bizarre trademark rulings I've ever seen, acknowledged that there was almost no chance for any actual customer confusion over the use of "Pawsecco", but found in favor of The Prosecco People anyway, strictly because Prosecco was a well-known thing, and Woof and Brew's pun was referencing a well-known thing. That is simply not the purpose of trademark law. The entire idea is that the public shouldn't be confused in a given market of goods as to the origin of competing products. Pet drinks and Italian knockoffs of champagne seem fairly distinct in the marketplace.As do alcoholic and non-alcoholic drinks, for that matter, and yet here come The Prosecco People again. This time, they are going after a French wine group that created a non-alcoholic sparkling grape drink and named it "Nosecco."
A French wine group is challenging a decision that its non-alcoholic Nosecco brand unlawfully evoked the protected Italian category Prosecco. Les Grands Chais de France said the name wasn’t meant to rival Prosecco in the U.K., but rather to highlight the lack of alcohol and the sweetness of its own version.“It’s emphatically saying ‘no’. No to alcohol, it’s no to being dry.” said Denise McFarland, a lawyer for the French group. “It sits there in gold and black,” on the label, she said Friday.Here we'll have to see just how and when British courts will break from EU precedent given the whole Brexit thing. But, if EU precedent still holds, it feels virtually impossible for the Nosecco people to win over The Prosecco People in this case. If pet drinks aren't distinct enough from alcohol to stave off trademark opposition, non-alcoholic human drinks probably don't stand a chance.And, yet, you'd have to expect that ruling to carry the same admission over a lack of consumer confusion. After all, the whole point of the Nosecco name is to give a nod towards Prosecco while creating the distinction of the lack of alcohol. Prosecco, mind you, isn't really a brand in and of itself. It's a drink type, like Champagne. That it has protected status in the EU at all is fairly silly, but it's still the case that Nosecco doesn't compete with a single brand, but rather a loose consortium of Prosecco producers.Even The Prosecco People are pointing to the idea that Nosecco brings "to mind" Prosecco.
The Italian producers said in a legal filing it was “abundantly clear” that the Nosecco brand brought to mind their own wine, which is protected by European Union rules on origin.Well, yeah. That's the entire point. Sort of like how the entire point of trademark law is to protect from customer confusion, which almost certainly doesn't exist in this case. It would be nice if the courts could keep that in mind this go-round.
Read more here
posted at: 12:00am on 01-Jul-2020
path: /Policy | permalink | edit (requires password)
Copyright Troll Richard Liebowitz Benchslapped And Sanctioned AGAIN In A Massive Filing Detailing Pages Upon Pages Of Him Lying Under Oath
Do you have a bit of time? I'd suggest, before digging in here, that you get yourself a nice cup of something warm, and maybe a little snack to go with it. Because there's a lot to read here, and you're not going to want to stop. It goes on for quite a while, but it's all worth it. Every bit of it.We've written a bunch about copyright trolling lawyer Richard Liebowitz and his long history of having judges yell at and issue monetary sanctions on him, and I'd repeat some examples and link back to them (though you can just click on the link above and see all our stories about him) but why go through all that work when Judge Jesse Furman in the Southern District of NY helpfully has done it for us in his latest opinion involving a Richard Liebowitz case. Let me just say, that when a judge's opinion opens this way, it's (1) going to be a fun read (2) except if your Richard Liebowitz (and his clients).
Richard Liebowitz, who passed the bar in 2015, started filing copyright cases in thisDistrict in 2017. Since that time, he has filed more cases in this District than any other lawyer: atlast count, about 1,280; he has filed approximately the same number in other districts. In thatsame period, he has earned another dubious distinction: He has become one of the mostfrequently 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'smisconduct, 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, No. 17-CV-9230 (DLC), 2018 U.S. Dist. LEXIS 184049, at *9-10 (S.D.N.Y. Oct. 26,2018); a clear and present danger to the fair and efficient administration of justice, Mondragonv. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *13 (D. Colo. May11, 2020); a legal lamprey, Ward v. Consequence Holdings, Inc., No. 18-CV-1734 (NJR),2020 WL 2219070, at *4 (S.D. Ill. May 7, 2020); and an example of the worst kind of lawyering, id. at *3. In scores of cases, he has been repeatedly chastised, warned, ordered tocomplete ethics courses, fined, and even referred to the Grievance Committee. And but for hispenchant for voluntarily dismissing cases upon getting into hot water, the list of cases detailinghis misconduct set forth in an Appendix here would undoubtedly be longer.Yeah. That opening does not bode well for Liebowitz. And what seems to confuse both me and Judge Furman is why the fuck does Liebowitz continue to do the same damn thing over and over again, pissing off judges. Especially when he's before a judge who has already called him out, you'd think that young Richard would be extra careful. But that does not appear to be within the skill set of Richard Liebowitz.
One might think that a lawyer with this record would tread carefully, particularly before ajudge who had recently sanctioned him. See Rice v. NBCUniversal Media, LLC, No. 19-CV-447(JMF), 2019 WL 3000808, at *4 (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 acriminal defense lawyer, before another judge on this Court after being held in contempt forrepeatedly lying, including under oath, about the date his own grandfather had died to justify hisfailure to attend a court conference. See Berger v. Imagina Consulting, Inc., No. 18-CV-8956(CS), ECF No. 62 (S.D.N.Y. Nov. 13, 2019) (Berger Tr.). The very next day, he appearedbefore the undersigned and despite an explicit warning to be very, very, very careful aboutthe representations he made in court lied about his compliance with a court Order that hadrequired an in-person mediation. See ECF No. 50 (Initial Conf. Tr.), at 7. Making mattersworse, Mr. Liebowitz then repeated that lie, over and over, and ultimately under oath during anevidentiary 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 theComplaint Mr. Liebowitz prepared and filed contained a false allegation namely, that thephotograph at issue in this case had previously been registered with the Copyright Office thatwould have required dismissal of the lawsuit at its inception.That's the second paragraph of the opinion. As for where all of this is heading, I'll cut to the chase: Judge Furman is sanctioning Liebowitz. And more.
For the reasons stated below, the Courtconcludes that sanctions are amply justified, indeed all but required, and orders a mix ofsubstantial monetary and non-monetary sanctions against Mr. Liebowitz and his firm. The Courtalso refers Mr. Liebowitz to the Court's Grievance Committee to evaluate whether he should beallowed to continue practicing law in this District.As for the specifics of what went wrong in this specific case, it's yet another example of Liebowitz doing the Liebowitz thing, which is basically not paying attention to any of the details or requirements involved in practicing law in this manner, and misrepresenting a variety of things to both the court and his client. It's... not good. This case, like the others, is a copyright trolling case, on behalf of a photographer, Arthur Usherson, claiming that an artist management firm, Bandshell, had infringed on a Usherson photo of musician Leon Redborne on its website. The court pushed the case into a mediation program to see if a settlement could be reached without having to waste everyone's time and money. The order for mediation was pretty straightforward, and told the parties to conduct a mediation effort before September 26, 2019. Liebowitz was also told to file proof of service of the complaint as well as some details on the licensing of the photograph. Guess how well he did in following these instructions?
Mr. Liebowitz failed to comply with these mandates. First, although the summons andComplaint were served on Bandshell on September 5, 2019, Mr. Liebowitz did not file proof ofthat service until September 21, 2019. ECF No. 7. Second, he failed to produce the requireddiscovery by September 19, 2019, fourteen days after service was made. When defense counselfollowed up about the missing discovery, Mr. Liebowitz responded on September 20, 2019: Myclient is still looking but as of now doesn't look like any licensing for this photo. ECF No. 16,at 12. Finally, Mr. Liebowitz failed to participate in mediation by September 26, 2019, twoweeks before the initial pretrial conference originally scheduled for October 10, 2019. Instead,more than a week after the deadline passed, Mr. Liebowitz filed a letter in which he suggestedthat the mediation had not taken place because of a failure on the part of the Mediation Office toassign a mediator. See ECF No. 12. In the same letter, Mr. Liebowitz requested leave to hold atelephonic mediation on October 8, 2019, or an extension of the mediation deadline andadjournment of the initial pretrial conference.Judge Furman, at this point, pointed out that Liebowitz blaming the Mediation Office for his own failures was not a good look, but gave him a chance to make it right. Let's see how that all went:
In an Order dated October 7, 2019, the Court admonished Mr. Liebowitz for unfairlytrying to place blame on the Mediation Office for his own failure to meet the mediation deadline.... The Court nevertheless concluded that early mediation in the normal course (i.e., in person) makes sense.... Accordingly, the Court adjourned the initial pretrialconference to November 14, 2019, and ordered, in no uncertain terms, that [t]he parties shallconduct the in-person mediation no later than October 31, 2019. ... In an email exchange laterthat day, Bandshell's counsel, Brad Newberg, asked Mr. Liebowitz if any of October 11, 16, 28or 31 work for the [sic] both of you and Mr. Usherson. ... Mr. Liebowitzresponded that October 31st at 12pm works. ... The mediator (the Mediator) a memberof this Court's mediation panel, but recruited by Mr. Liebowitz himself to mediate this particularcase approved the date and scheduled the mediation....On October 31, 2019, however, neither Mr. Liebowitz nor Mr. Usherson showed up atthe mediation. Instead, Mr. Liebowitz sent two associates James Freeman and RebeccaLiebowitz (Mr. Liebowitz's sister)... Neither had entered an appearance in thiscase. In fact, Mr. Liebowitz did not even tell Mr. Freeman about the existence of this matteruntil about 8:00 p.m. on October 30, 2019, the night before the mediation.... Ms.Liebowitz, moreover, was a newly admitted lawyer who was attending only to 'shadow' Mr.Freeman and learn from the process. ... Mr. Freeman and Ms. Liebowitz spokebriefly with Mr. Newberg and Bandshell's principal, who did attend in person, but no settlementwas reached. The Mediator later attributed the failure to reach an agreement in part to the lackof personal appearance[s] by Mr. Liebowitz and Mr. Usherson.Yikes! At that point, Bandshell, reasonably requested sanctions against Liebowitz. Now, if you were a betting person, would you think that Liebowitz apologized and promised to do better? Or that he kept digging. Oh, you guessed it right, didn't you? Because you know where this is going:
In response, Mr. Liebowitz asserted repeatedly that he and Mr. Usherson had received approval in advance from the Mediatornot to appear at the mediation in person. Mr. Liebowitz made this claim first in a joint letterfiled shortly before the initial pretrial conference.... In that letter, Mr.Liebowitz claimed that the Mediator had indicated that Plaintiff was permitted to appeartelephonically under Rule 9F of the mediation program.... Notably, in the same sectionof the letter, Bandshell responded that virtually everything in Plaintiff's statement is false, andDefendant's counsel has warned Plaintiff against filing a false statement regarding the scheduledmediation with the Court....Mr. Liebowitz doubled down in his next submission: his initial response to thesanctions motion, which took the form of a three-page letter (in violation of Local Rule 7.1,which requires that, with limited exceptions inapplicable here, opposition to a motion must be inthe form of a memorandum of law).... To the extent relevant here, Mr.Liebowitz asserted in that letter that [n]othing in the Court order or mediation rules states thatlead counsel needs to attend the mediation. ... Rule 9(c) of the Mediation Program'sProcedures, however, provides explicitly that [e]ach represented party must be accompanied atmediation by the lawyer who will be primarily responsible for handling the trial of the matter.Rule 9(c), Procedures of the S.D.N.Y. Mediation Program (Dec. 26, 2018) (Mediation Rules)....More significantly for present purposes, Mr. Liebowitzrepresented that Mr. Usherson had obtained permission from the assigned mediator . . . toappear at the scheduled mediation by telephone provided that counsel was present in person.... (citing Rule 9(f) of the Mediation Rules, which allows a party who residesmore than 100 miles from the Courthouse to participate in a mediation by telephone with theadvance approval of the mediator). He further claimed that he had told [the Mediator] that anassociate of Liebowitz Law Firm with knowledge of the facts of the case would appear in-person, and [the Mediator] consented.The Judge then points out that this all happened about the same time that Liebowitz was dealing with a situation in another courtroom in the same court having to do with lying about the death of his grandfather to explain his failings in another case. Right after the judge in that case had dressed down Liebowitz and told him to shape up was when this new hearing happened, and Judge Furman was well aware of the situation:
The very next day, appearing at the initial pretrial conference in this case, Mr. Liebowitzclaimed that he had sought permission from the Mediator for Mr. Usherson, who lives inGeorgia, to appear telephonically at the October 31, 2019 mediation and that the Mediator hadsaid yes. Initial Conf. Tr. 6-7. Aware of the proceedings before Judge Seibel, the Court thenstopped Mr. Liebowitz and warned him: I want to caution you that you're already in a lot of hotwater in this Court, and I think you know that. In that regard, I would be very, very, very carefulabout the representations you make to me. If you prefer to let Mr. Freeman do the speaking, thatis one thing, although they are still representations on your behalf. Id. at 7. The Court thenasked when Mr. Liebowitz had advised the Mediator that Mr. Usherson was not going to appearin person at the mediation, and the following colloquy occurred:It's at this moment that things go from bad to worse. The lawyer for the other side points out that Liebowitz filed the lawsuit... over a photograph that did not appear to be registered before the lawsuit was filed -- something the Supreme Court said you cannot do.
Mr. Liebowitz: I don't know the exact date, but it was before themediation, and he said yes.
The Court: [By] what means did you do that?
Mr. Liebowitz: It was telephone.
The Court: And you personally advised him?
Mr. Liebowitz: I personally.
The Court: And he said that was okay?
Mr. Liebowitz: He said that was okay.
Mr.Newberg advised that, the day before the initial conference, he had discovered that after this case was filed, Mr. Usherson filed a copyright registration, which . . . seems to be on thesephotographs, so now it is unclear whether the registration in the complaint actually does coverthe photograph or if it is the new copyright registration. Initial Conf. Tr. 17. Recognizing thatthe case would have to be dismissed if the Photograph had not been registered before theComplaint was filed, Mr. Newberg requested discovery purely on those aspects early. Id. Mr.Liebowitz responded: I don't know what defense counsel means about other registrations orother photographs. I will have to see what my office did, but this is the correct registration. Id.at 17-18. Mr. Liebowitz argued against limited discovery or early summary judgment on theregistration issue, stating that the appropriate thing to do at this stage is to just set discovery, setthe dates, and let the parties engage and hopefully during that process the parties couldeventually get to a settlement number.You'd think, at this point, that any reasonable person would recognize that he was in trouble. But this is Richard Liebowitz we're talking about. And so, he did what he does... and made things worse:
Following the initial pretrial conference, the Court ordered Mr. Liebowitz to file a formalopposition to the motion for sanctions and directed both sides to address whether the courtshould hold an evidentiary hearing and, if so, what witnesses should be called and how it shouldbe conducted. ... Mr. Liebowitz filed a formal opposition, but disregardingthe Court's Order he failed to address the evidentiary hearing.... Instead, hedoubled down again (quadrupled down, perhaps) on his claim that Mr. Usherson had obtainedpermission from the assigned mediator . . . to appear at the scheduled mediation by telephoneprovided that counsel was present in person and that the Mediator had consented to Mr.Liebowitz's associate appearing instead of Mr. Liebowitz.... In support of hisopposition, Mr. Liebowitz submitted a declaration, in which he stated under penalty of perjury that I sought and received approval from . . . the assigned mediator for Mr. Usherson to attendthe mediation via telephone and for my associate James Freeman to appear who had fullknowledge of the case. I obtained [the Mediator's] consent via telephone.That paragraph above is foreshadowing. Can you guess where this is heading? Of course you can...
Mr. Newberg took issue with Mr. Liebowitz's claims that he had secured advanceapproval from the Mediator for Mr. Usherson not to appear in person at the mediation and Mr.Freeman to attend on Mr. Liebowitz's behalf, citing emails showing that, even as late asOctober 30 the night before the mediation the Mediator and Mr. Newberg were underthe impression that Mr. Liebowitz (as lead and only admitted counsel) and Mr. Usherson wouldbe at the mediation in person.... Mr. Newberg noted that, because he wasconcerned at what appeared to be false statements being made to the Court by Mr. Liebowitz,he called the Mediator on November 19, 2019.... According to Mr. Newberg, the Mediator said that there had been other mediations where he allowed Mr. Liebowitz's client toappear by phone, but he stated clearly and pointedly . . . that this was not one of them. (emphasis in original). The Mediator allegedly also said that, on the night of October 30, Mr.Liebowitz had called and informed him (without asking for approval) that Mr. Liebowitz wasout of town and that Mr. Liebowitz's associate would be at the mediation instead.... Inthat call, no mention was made of Mr. Usherson at all. ... The Mediator only found outthat Mr. Usherson would not be at the mediation at the mediation itself.The Judge found this interesting, and asked the Mediator to weigh in directly. You'll never guess what the Mediator said. Oh, what am I talking about? Of course you know what the mediator said. It's why you're still reading this:
The next day, theMediator submitted a declaration, which stated that, on October 30, 2019, he had talked to Mr.Liebowitz and was informed that the mediation was on. He did not inform me that he would notpersonally appear but through an associate. But I have mediated a few prior mediationsinvolving Mr. Liebowitz where on at least one occasion that office appeared by an associatewithout incident.... The Mediator further stated: At no time was I informedthat the plaintiff would not personally appear but would be available by telephone. I should saythat in a few prior mediations his client appeared by telephone without incident. On this occasion no discussion was had by me as to client appearance.So... Liebowitz lied to the court multiple times, after being warned to be careful not to lie to the court. Guess how he responded to being called out on this lie? Did he admit to error? Or did he triple down? Oh, you know. You know.
On December 16, 2019, Mr. Liebowitz filed a letter stating that he contests certainstatements proffered by the Mediator in his declaration. ... Once again, Mr.Liebowitz asserted that he had notified the Mediator that Mr. Usherson would be appearingtelephonically and that such request was granted. ... But the December 16th letter alsoproffered a new line of defense: that the Mediator in this case had a custom and practice ofgranting Mr. Liebowitz's clients permission to appear telephonically at mediations.... Mr. Liebowitz cited five prior cases in which the Mediator had allegedly granted his clientspermission to appear telephonically; in one of these five cases, he maintained, the Mediator alsogranted Mr. Liebowitz permission to send an associate on his behalf. ... Mr. Liebowitzinsisted: This . . . corroborates Mr. Liebowitz's testimony and establishes a 'pattern or practice'of conduct showing that Mr. Liebowitz harbored a good faith belief that the requisite permissionswere granted by the Mediator in this case.At this point, the Judge ordered the lawyers and the mediator to show up in his courtroom to discuss this in person. Finally realizing he might possibly be in trouble, Richard Liebowitz tried to do what so many copyright trolls try and do when in this position (though, frankly, Richard seems to realize that the time has come much later than most copyright trolls): he tried to cut and run:
On December 17, 2019, the Court issued an Order scheduling thehearing and directing Mr. Liebowitz, Mr. Newberg, and the Mediator to appear for testimony... Just two days later, Mr. Liebowitz filed a stipulation of voluntary dismissal signed by bothparties, providing that the case should be dismissed with prejudice with each side to bear itsown costs and attorney's fees.And, of course, even in that joint stipulation, Liebowitz was misleading, leading the other side's lawyer to feel the need to explain things to the court.
In a letter filed the same day, Mr. Newberg noted that Bandshell had stipulated to Mr. Usherson's withdr[awal of] the . . . case with prejudice,but pointedly noted that he and his client would not have so stipulated had his firm not beenrepresenting [Bandshell] pro bono.Given that, the judge did dismiss the underlying case, but not the original motion for sanctions from the defendant. That led to a hearing, with both sides and the mediator that went about as well as you would expect for a situation in which Liebowitz has to justify his actions. After first claiming that "it could well be that the mediator simply forgot that he" gave Liebowitz and his client permission to not show up to the mediation, things went even further off the rails:
On the subject of his communications with the Mediator in this case, Mr. Liebowitzclaimed that, at about 7:30 to 8:00 p.m. on October 30, 2019, the night before the mediation, hehad called the Mediator from Los Angeles, California, and asked for permission for Mr.Usherson to appear by telephone from Georgia and for Mr. Freeman to appear as counsel. ... Mr. Liebowitz testified that the Mediator had approved both requests. ... Mr. Liebowitz acknowledged that he had made no record of the call and, indeed,that there was [n]othing in writing at all reflecting that the call had occurred. ... Whenasked how he suddenly remembered that the telephone call had occurred on October 30th, whenhe could not remember the relevant date when asked at the November 14, 2019 initial pretrialconference (only two weeks after the events in question), Mr. Liebowitz responded that certainemails had jogged his memory namely, emails that had been attached to Mr. Newberg's initialdeclaration in support of the sanctions motion.... But Mr. Newberg's initialdeclaration had been filed before the November 14th conference, and Mr. Liebowitz had actuallyresponded to it in writing. (When pressed on that point, Mr. Liebowitz testified: I often forgetthings. )I often forget things? That's going to convince the judge... And, of course, his forgetfulness seemed to work to his continuing disadvantage here as well.
More troubling, Mr. Liebowitz's account is not supported by the email trail. At 6:34 p.m.on October 30, 2019, Mr. Newberg emailed a proposed settlement agreement to the Mediator,and stated that unless Mr. Usherson sign[ed] the agreement that night, we will see Mr.Liebowitz and Mr. Usherson tomorrow . . . at the mediation.... At 8:15 p.m.,the Mediator replied: Talked to Richard and he has been tied up. He will review tonight and getback to us in the morning. Hopefully we can settle this before need [sic] to go to in personmediation.... Mr. Newberg responded: I'm headed to the train station wellbefore 6:00 am. And to be candid, I would have assumed Mr[.] Usherson either flew to NYtonight or is likewise on a very early plane. ... The Mediator said simply, I understand. (email sent at 10:03 p.m.). In addition, at 4:12 a.m. on October 31, 2019, Mr. Liebowitz sent Mr.Newberg an email stating: Attached please find revisions to the agreement which can bediscussed at the mediation.... Mr. Liebowitz did notmention that he and Mr. Usherson did not plan to attend, let alone that they had the Mediator'spermission not to attend.... At no point, in fact, did Mr. Liebowitz notify opposingcounsel that he and Mr. Usherson would not be attending.Ooops. Could it get worse? Oh, you know it could.
During Mr. Liebowitz's testimony at the hearing, the Court asked him what he wouldhave done had the Mediator denied his alleged requests on the night of October 30th.... Mr. Liebowitz claimed that he and Mr. Usherson would have attended the mediation thenext day in person... But on the night of October 30th, Mr. Liebowitz was in LosAngeles hosting a networking event for photographers, and Mr. Usherson was at home inGeorgia.... Mr. Liebowitz never booked any flights or checked when the last flight toNew York from either location was.... Nevertheless, he claimed that he had been prepared to book flights and fly overnight.... hen pressed about whether he hadcommunicated this alleged plan to Mr. Usherson, Mr. Liebowitz equivocated: Well, if he ifhe if he didn't have to appear in person, then then I would have just called him that dayand know that he's always around.... It is clear, therefore, that Mr. Liebowitz didnot advise Mr. Usherson that he might need to jump on a plane at a moment's notice and appearin New York. It follows that Mr. Liebowitz had no way of knowing whether Mr. Usherson couldhave complied if asked to do so.Oh yeah, also, Liebowitz contradicted his own associate, who had shown up to "represent" him in this matter:
Notably, Mr. Liebowitz's testimony was in tension, if not direct conflict, with therepresentations of his own associate, Mr. Freeman. For example, Mr. Liebowitz claimed that hehad told Mr. Freeman on October 30th that the Mediator had approved Mr. Liebowitz's requests. ... But at the initial pretrial conference, Mr. Freeman advised the Court thathe had not known what clearances were given. ... When confronted with thisdiscrepancy, Mr. Liebowitz responded: [P]eople forget things. ... Mr. Liebowitzalso claimed that he had spoken with Mr. Freeman about the case on numerous occasionsbefore October 30th. ... But, as noted, Mr. Freeman repeatedly confirmed that he did noteven know about the existence of the case before October 30th a representation that he hadreiterated in his sworn declaration, ... which Mr. Liebowitz himself had filed andeven cited in Mr. Usherson's opposition brief... (Despite that, Mr.Liebowitz claimed that he had not read Mr. Freeman's declaration before filing the brief. ... )And worse:
Finally, to the extent relevant here, Mr. Liebowitz also took the position that he wasnever required to attend the mediation, as it was Mr. Freeman who was the lawyer who will be primarily responsible for handling the trial of this matter.... But Mr. Liebowitzacknowledged that Mr. Freeman had not even entered an appearance in this case and that he hadnever advised the Mediator or Mr. Newberg that Mr. Freeman was principal trial counsel. ... Moreover, he was forced to admit that the Court's Order scheduling theinitial pretrial conference had required principal trial counsel to attend all pretrialconferences and that he not Mr. Freeman had appeared on Mr. Usherson's behalf at theinitial pretrial conference. ... Similarly, Mr. Liebowitz claimed that Mr.Usherson was also never required to attend the mediation because, in Mr. Liebowitz's view, theCourt's Order requiring in-person mediation referred only to the attorneys, [n]ot parties. ... When asked why, then, he had bothered to confirm that he and Mr. Usherson could bein New York on October 31st, and later asked the Mediator to excuse his and Mr. Usherson'sattendance, Mr. Liebowitz responded that he wanted to double double you know, justcover myself."He wanted to double -- double -- you know, just cover myself."Remember, all of this is after he'd already been sanctioned multiple times for lying to the court. This is just two months after a different judge in the same courthouse had ordered him to get some professional training and warned him to stop this kind of thing. But he can't seem to help himself.After that mess, there was still the matter of the bogus filing of the lawsuit over a photograph that didn't have a registered copyright. Of course, when the case was filed, Liebowitz claimed that it was registered, but (and, in case this is not clear, this is really, really bad) he was misrepresenting that to the court and used a registration on another photo -- and that they hadn't actually registered this one. Again, that's really bad. On top of all the other really bad stuff above.
Mr. Newberg revealed that he had just received the Copyright Office's deposit files for the 046Registration and confirmed that the Photograph was not in fact registered under that number. In response, Mr. Freeman admitted that it is the regular practice of theLiebowitz Law Firm to file copyright infringement cases without verifying that the works in question are properly registered, because of the additional expense.Holy shit.
Mr. Freemanstated that [t]he client will say to us, 'This photograph is on deposit with this registration.' Andwe take them for their word. ... Mr. Freeman stated that, in this case, Mr. Ushersonhad represented to us that he had registered the Photograph.... Mr. Freeman furtherstated that, prior to filing the Complaint, the firm had checked on the Copyright Office's websitethat Mr. Usherson was the copyright claimant in that particular case.I mean, beyond all the other bad lawyering, what's described here is really bad lawyering. So, that left the judge to order both parties to address this issue, and guess how that worked out?
In his letter, Mr. Liebowitz admitted that Paragraph 9 of the Complaint was inaccuratebecause the Photograph was not, in fact, registered as part of the 046 Registration.... Mr. Liebowitz disclosed that his firm had registered the Photograph under registrationnumber VAu 1-373-272 (the 272 Registration), but not until August 22, 2019 more than amonth after the Complaint in this case was filed.... Mr. Liebowitz attributed the falsestatement in the Complaint to clerical error, noted that administrative mistakes or clericalerrors do happen in the copyright registration process, and insisted that, but for dismissal of thecase, Mr. Usherson could have cured the problem by amending the Complaint.Sure, sure, clerical error. Happens all the time. But...
InBandshell's response, Mr. Newberg reminded the Court that, at the initial pretrial conference,Mr. Liebowitz had denied any knowledge of other registrations or other photographs.Oh, right.
Mr. Newberg argued that Mr. Liebowitz's new explanation thus defie[d] belief.It does, but this is Richard Liebowitz we're talking about, so the bar is pretty low.
Mr. Newberg also pointed out that Mr. Liebowitz had incorrectly asserted that thefailure to obtain a registration prior to filing suit provides grounds to amend the complaint,... , citing this Court's decision in Malibu Media holding that premature filing necessitates dismissal.So, the judge wasn't done yet. He then asked Liebowitz, the photographer Usherson, and the associate/Liebowitz's lawyer, to each give their sides of the "administrative mistake" story. And guess how that worked out?
In his declaration, Mr. Freeman admittedthat the Photograph was registered by the Liebowitz Law Firm after the Complaint was filed butclaimed that he had no personal knowledge of this administrative mistake until after the January8, 2020 hearing. ... Mr. Freeman explained his representations at the close ofthe January 8th hearing by saying (not altogether convincingly) that he had been speaking basedon his general knowledge of [the Liebowitz Law Firm's] custom and practices. ... Mr. Usherson averred that he had identifi[ed] the 046 Registrationwhen he authorized Mr. Liebowitz to file a copyright infringement action.... But Mr. Usherson also stated that, before the Complaint was filed, he had provided to theLiebowitz Law Firm a CD-ROM containing all of the photographs in the 046 Registration... The Photograph was not among them. Then, [s]ometime after the lawsuit was filed, Mr.Usherson provided the firm with a CD-ROM containing thirty additional photographs, includingthe Photograph, which the firm registered in the 272 Registration.And last, and very most least, was Liebowitz's turn to try to dig himself out of the ditch he'd just kept digging. And, finally, he seemed to tell the truth and talk about how totally incompetent he was as a lawyer:
Finally, Mr. Liebowitz admitted that he had conducted no investigation into whether thePhotograph was properly registered before filing the Complaint, even though he and his firmhad the ability as of June 2019 to double-check whether the Photograph was part of [the]images that were included on a CD-Rom that Mr. Usherson had previously sent. ... Instead, Mr. Liebowitz relied solely on an entry in the firm's internal case-tracking system,which noted that the Photograph was associated with the 046 Registration.... This entry was made by a member of [the firm's] administrative staff, Zachary Cuff.... Mr.Liebowitz also stated that he had no role in filing the 272 Registration, which was performed byhis firm's internal staff at the request of Mr. Cuff. ... Mr. Liebowitz claimed that he didnot realize the Photograph was not properly registered which he described as a technicalpleading deficiency until subsequent to the January 8, 2020 hearing.A technical deficiency? Yikes.At some point this has to end, and it does with the Judge dropping the hammer:
Applying the foregoing standards here, the Court concludes that a range of substantialmonetary and non-monetary sanctions against Mr. Liebowitz and his firm, including referral ofMr. Liebowitz to the Grievance Committee, are amply justified. Sanctions are appropriate for(1) Mr. Liebowitz's repeated violations of the Court's Orders; (2) Mr. Liebowitz's repeated liesto the Court, including under oath, about whether the Mediator granted Mr. Usherson permissionto participate in the mediation by telephone; and (3) the false allegation in the Complaintregarding registration of the Photograph and the failure to reasonably investigate the issue, bothprior to filing suit and when put on notice about the issue during the litigation.He then goes on to catalog, one by one, all of the things Liebowitz did which no lawyer should ever do. Friends, it goes on for 19 pages. There are three and a half pages detailing his "repeated violations of the court's orders." The court counts six such failures to follow court orders in this case alone. There are then eight and a half pages talking about Liebowitz's lies to the court. In the midst of discussing all of those, the judge notes that when called out on his lies in other cases, like this one, Liebowitz tries to cut and run:
In both cases, he tried without success to make his problems go away by voluntarily dismissing the case before sanctions were imposed. And in both cases, he ultimatelysought to excuse his misconduct by invoking his relative youth and inexperience, his heftycaseload, and poor case management practices.The Judge ain't buying it:
... while Mr. Liebowitz's failures to obey court orders can arguably beexplained (though not justified) by his relative inexperience, heavy caseload, and inadequate casemanagement practices, the same cannot be said for his dishonesty.And then we get this realization that Liebowitz seems to have a problem. And that problem is that he regularly lies under oath.
The simple fact is that Mr. Liebowitz has aproblem: He does not feel constrained by the truth and, when cornered, has no compunction about lying, even under oath. It follows that sanctions should be, and are, imposed.And then seven more pages, just about one particular lie: that the photograph was registered at the Copyright Office before the lawsuit was filed. Here, the judge notes that Liebowitz had gotten in trouble on this very issue before:
Finally, the evidence clearly and convincingly shows that Mr. Liebowitz brought andmaintained this case in bad faith by willfully disregarding the fact that the case was fatallyflawed from its inception. As noted, under Section 411(a) of the Copyright Act, an infringementaction may not be filed until . . . registration of the copyright claim has been made. 17 U.S.C.§ 411(a); see Rudkowski v. MIC Network, Inc., No. 17-CV-3647 (DAB), 2018 WL 1801307, at*3 (S.D.N.Y. Mar. 23, 2018) (warning Mr. Liebowitz that possession of a registration certificateis a condition precedent to filing a copyright claim). Paragraph 9 of the Complaint in this casedid allege that the Photograph was registered as part of the 046 Registration. But in the face ofirrefutable evidence to the contrary, Mr. Liebowitz now concedes as he must that thatallegation was false and that the Photograph was not registered until August 22, 2019, almost amonth and a half after the lawsuit was filed. Mr. Liebowitz has two responses to thisextraordinary revelation. First, he seeks to trivialize it by calling it a technical pleadingdeficiency and suggesting that, but for the voluntary dismissal, he could have cured the problemby amending the Complaint.... Second, throwing his ownclient and a member of his administrative staff under the proverbial bus, he claims that he did notknow about the untimely registration.... Neither response is persuasiveNo. Neither response is persuasive at all. The Judge explains why the claim that this could be cured with an amended complaint is wrong, and notes that this wrongness was not just a mistake by Liebowitz but again part of the pattern you may have already noticed:
Notably, there is a strong argument that Mr. Liebowitz's suggestion that he could havecured the defect through amendment is itself made in bad faith. First, it is hard to believe that hewould be unaware of the recent law on that issue. His practice is devoted to copyrightinfringement cases; in little more than four years, he has filed approximately 2,500 such casesand, at the time of the mediation in this case, his firm had more than 400 such cases pending infederal court. ... But assuming for the sake of argument thatMr. Liebowitz does not keep up on developments in copyright law (which would be inexcusable,but is nevertheless all too plausible), he was explicitly put on notice of the fact that an untimelyregistration is not curable at the initial pretrial conference in this case, when Mr. Newberg firstraised the issue and noted that dismissal would be required if the Photograph was registered after the Complaint was filed, citing Fourth Estate and this Court's holding in Malibu Media that apremature filing is a non-curable error. ... Making matters even worse, Mr.Liebowitz persisted in pressing the point even after Mr. Newberg, in his post-hearing letter,explicitly noted that the suggestion was incorrect, citing Malibu Media and other precedent. ... These facts support an inference of badfaithThe court also does not look kindly on Liebowitz trying to blame others for this:
Mr. Liebowitz's efforts to distance himself from responsibility for the untimelyregistration and the false allegation in the Complaint, and his attempt to pin blame on either hisclient or an administrative assistant at his firm, are similarly unavailing. For one thing, theevidence clearly and convincingly shows that Mr. Liebowitz did know about the untimelyregistration, at least as of August 22, 2019, when his firm registered the Photograph under the272 Registration, if not earlier. Indeed, as Mr. Freeman explained at the January 8th hearing, thefirm increasingly files copyright registration applications itself [s]o we know for sure it's ondeposit. And that is what happened here: Sometime after July 10, 2019,when the Complaint in this case was filed, Mr. Usherson sent the firm a CD-ROM containing allof the photographs that he had not yet registered including the Photograph and Mr. Liebowitz's firm proceeded to register them.... The firm thus had knowledgethat the Photograph had not been registered prior to the filing of the Complaint. And it is hard tobelieve that Mr. Liebowitz, as lead counsel for Plaintiff and the founding member ofLiebowitz Law Firm,... was unaware of the fact himself. It is far moreplausible indeed likely that, upon receiving the Photograph from Mr. Usherson, Mr.Liebowitz realized that it had not yet been registered and sought to quietly take care of theproblem, hoping that Bandshell and the Court would be none the wiser and he would escapedismissal.Indeed, the Judge points out that it's reasonable to infer that Liebowitz tried to get out of the case before all of this came to light:
It is no answer to say, as Mr.Liebowitz does, that he relied on his administrative assistant; Mr. Liebowitz is the lawyer whosigned the Complaint containing the affirmatively false allegation. Making matters worse, Mr.Liebowitz and his firm received a second CD-ROM, which would have revealed that thePhotograph was not among those registered as part of the 046 Registration, and the firm thenregistered the Photograph itself. And to top it off, at the initial pretrial conference in November2019, Mr. Newberg specifically addressed the 272 Registration and raised doubts about whetherthe Photograph had been timely registered putting Mr. Liebowitz on notice of what turns outto have been a fatal defect in the Complaint.... Under these circumstances, itwas Mr. Liebowitz's obligation to investigate whether the Photograph was properly registered.Nevertheless, Mr. Liebowitz and his firm conducted no investigation until after theJanuary 8, 2020 hearing and, even then, did so only because the Court ordered them to file aletter addressing the issue and, when that did not clear things up, declarations.... In fact, Mr. Liebowitz actively stonewalled Mr. Newberg's request for discovery on the issue at the initial pretrial conference, stating: I don't know what defensecounsel means about other registrations or other photographs. I will have to see what my officedid, but this is the correct registration.... It is hard to avoid the conclusionthat Mr. Liebowitz hoped to settle the case before the truth came to lightIt goes on. And on. And on. And the Judge points out that all of these mistakes have also shown up in other Liebowitz cases, so it's not like it's the first time he's been told about this stuff.Finally, after 45 pages detailing what a terrible lawyer Liebowitz is, the Judge tries to figure out what sanctions are warranted. And he notes, that this is a special case:
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 dresseddown by Judge Seibel for repeatedly lying about his grandfather's death, and despite a warningfrom the Court to be very, very, very careful about what he said... Andthereafter, as in the case before Judge Seibel, he dug his hole even deeper, repeating his lies overand over, including under oath. (In fact, he arguably expanded upon his lies, concocting, afterthe fact, his custom and practice excuse.) Even more troubling, as the discussion above makesclear, Mr. Liebowitz's misconduct in this case is part of a larger pattern that has led judges onthis court and, as his practice has expanded to other districts, judges on other courts tochastise him, impose sanctions on him, and require his clients to post bonds to cover futureadverse awards of attorney's fees and costs resulting from his misbehavior. The list of suchcases 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. For one thing, there may well be orders imposingsanctions or requiring a bond that are not easily searchable on Westlaw or Lexis. For another, asthis case, the case before Judge Seibel, and this Court's prior decision imposing sanctions in Ricemake clear, Mr. Liebowitz frequently drops his cases when the going gets tough and sanctionsare on the horizon. ... Undoubtedly there are cases in which that tacticsucceeded and Mr. Liebowitz was never held to account. Thus, there may be no sanction shortof disbarment that would stop Mr. Liebowitz from further misconduct.However, the Judge sadly notes, the court cannot disbar a lawyer. It can only send the issue to the Grievance Committee (which the judge absolutely does). So, now we get to the sanctions, which may not sound like much after all that: but he has to pay $103,517.49. This is basically the attorneys' fees and costs from the other side, plus an additional $20,000 (for the filing with the wrong registration). That's a decent amount of money, but not a staggering amount. As the court notes, though, when issuing sanctions they must be "no more severe than reasonably necessary to deter repetition... or comparable conduct by similarly situation persons." And, in theory, such a sanction might deter "similarly situation persons."But, the real problems for Liebowitz are in the non-monetary arena. Beyond the fact that the court is sending this on to the Grievance Committee, which could lead to Liebowitz being disbarred, there are a few more things he needs to do:
Within thirty days of the date of this Opinion and Order, Mr. Liebowitz and hisfirm shall serve a copy of this Opinion and Order, either by email or by overnightcourier, on every one of the firm's current clients and Mr. Liebowitz shall file adeclaration attesting to such service on ECFAnd also:
By the same date, Mr. Liebowitz and his firm shall file a copy of this Opinion andOrder on the docket of any currently pending case that was brought by Mr. Liebowitzor his firm and Mr. Liebowitz shall file a declaration attesting to the same on ECF;And not just current cases, but every case he files in the next year:
In any action that is filed within one year of the date of this Opinion and Order byMr. Liebowitz or his firm, Mr. Liebowitz and his firm shall file a copy of thisOpinion and Order on the docket of the case within two days of filing the complaintor otherwise initiating the case; andIn any action that is filed within one year of the date of this Opinion and Order byMr. Liebowitz or his firm that involves allegations or claims of copyrightinfringement, the complaint shall include as an attached exhibit a copy of the depositfiles maintained by the U.S. Copyright Office reflecting prior registration of therelevant copyrighted work or works at issue.Oh, and then after all of that, the Judge includes a lovely appendix detailing 40 other cases in which judges sanctioned or otherwise benchslapped Liebowitz. FORTY CASES. Each one includes a quote of the benchslap in question. It's like a "greatest hits" of benchslaps, but they're all for Richard Liebowitz. It includes some amazing ones I hadn't seen before (hey, there are only so many hours in a day), including:
In re Richard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 17, at 1-2 (N.D. Cal. June12, 2020) (finding that Mr. Liebowitz has falsely held himself out as a member of thisCourt's bar on multiple occasions, even though he never has been a member; notingthat his unprofessional and blameworthy conduct is consistent with the extensivepublic record of discipline he has amassed in courts across the United States; andconcluding that there are good grounds for doubting that Liebowitz should be permittedto practice in this District even on a pro hac vice basis).Oof. And this coming right after it:
Geerds v. San Francisco Bay View Inc., No. 19-CV-6465 (JST), ECF No. 29 (N.D. Cal.June 10, 2020) (denying Mr. Liebowitz's motion for admission pro hac vice in a case hefiled in the Northern District on October 8, 2019, one day after he was disbarred in In reRichard P. Liebowitz, No. 19-MC-80228 (JD), ECF No. 3 (N.D. Cal. Oct. 7, 2019)).And:
Alvarado v. Mother Jones, LLC, No. 19-CV-6417 (JST), ECF No. 25, at 2-4 (N.D. Cal.May 14, 2020) (denying Mr. Liebowitz's motion to appear pro hac vice after finding thatMr. Liebowitz continues to regularly file and litigate cases in the Northern District ofCalifornia following his order of disbarment in In re Richard P. Liebowitz).And:
Mondragon v. Nosrak LLC, No. 19-CV-1437 (CMA) (NRN), 2020 WL 2395641, at *1, *14 (D. Colo. May 11, 2020) (concluding that Mr. Liebowitz's continued practice oflaw represents a clear and present danger to the fair and efficient administration ofjustice, and steps should be taken promptly by appropriate disciplinary authorities tosuspend his ability to file new cases unless and until he has demonstrated he hasappropriate systems in place to assure regular compliance with court rules and rules ofprofessional conduct, and requiring that Mr. Liebowitz associate with a Colorado-basedattorney with at least five years of experience, who must co-sign any filings in the case,and that Mr. Liebowitz file a copy of the sanctions order in all other cases he has filed inthe District of Colorado or files in the following sixth months)And on and on and on.I've asked in the past why anyone who can do a basic Google search would hire Richard Liebowitz after being repeatedly sanctioned (again and again and again) over these issues. There are other copyright lawyers out there. There are even other trollish copyright lawyers who will take on most of these cases. But none of them seem to run into these issues so consistently and to so regularly demonstrate their own incompetence at practicing law as Richard Liebowitz.
Read more here
posted at: 12:00am on 01-Jul-2020
path: /Policy | permalink | edit (requires password)