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September 2021 Millar's JurisDiction - Troll Booth

by Richard W. Millar, Jr.

When I was young, trolls were ugly, evil creatures that lived in caves or under bridges and did bad things to passersby and, if you read enough about them, they also caused nightmares. In my effort to stay current, a climb that becomes steeper every year, I have learned they have left their caves behind and migrated to the internet. Instead of jumping out from under bridges or behind rocks, they now insert themselves into social media platforms with inflammatory remarks instigating conflict or hostility.

They also file lawsuits.

Which brings me to one Richard P. Liebowitz.

Mr. Liebowitz has been described by different courts as “a copyright troll,” “a legal lamprey,” “a clear and present danger to the fair and efficient administration of justice,” and “an example of the worst kind of lawyering.”

If you are wondering how someone could garner such consistent effusion, consider this excerpt from the opening paragraph of a United States district court opinion:

Richard Liebowitz, who passed the bar in 2015, started filing copyright cases 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.

The case that engendered those opening comments was one in which Mr. Liebowitz represented plaintiff Arthur Usherson who alleged that the defendant Bandshell Artist Management had infringed on Mr. Usherson’s copyright for a photograph of a musician named Leon Redbone. The complaint confidently alleged that the “photograph was registered with the United States Copyright Office and was given Copyright Registration Number VAu 1-080-046.”

After the filing of the complaint, the court issued two orders: an order scheduling an initial pre-trial conference and another for mediation through the court’s mediation program. As part of the mediation referral, Mr. Liebowitz was ordered to provide proof of service of the summons and complaint and produce limited discovery relating to the licensing of the photograph. Unsurprisingly, given the opinion’s first paragraph, “Mr. Liebowitz failed to comply with these mandates.”

Mr. Liebowitz did not appear at the mediation, sending instead an associate who had just learned about the case the night before. As one who mediates and presides over Mandatory Settlement Conferences, I refer to this all too frequent phenomenon as the “night before associates,” but I digress. His client, Mr. Usherson, was also a “no-show.”

At the initial pre-trial conference, the court, which had learned about another conference with Mr. Liebowitz before another judge that did not go well, alerted Mr. Liebowitz: “I want to caution you that you’re already in a lot of hot water in this court, and I think you know that. In that regard, I would be very, very, very careful about the representations you make to me.” This is sometimes referred to as “the triple very” warning, but, again, I digress.

Faced with declarations creating factual disputes, the court set an evidentiary hearing. Two days later, Mr. Liebowitz filed a stipulation for dismissal hoping, I’m sure, that would be the end of it. However, the hearing went forward and led to the additional discovery that the photograph in question had only been copyrighted after the case had been filed. (I don’t know a thing about copyright law, but even I would have probably tumbled upon the idea that something would have to be copyrighted before you can accuse someone of copyright infringement.)

The court ordered Mr. Liebowitz to pay sanctions totaling $103,517.49 to the Clerk of the Court within seven days, and required he send a copy of the order to his client and every one of his firm’s current clients and to file it on the docket of all the firm’s nationwide pending cases. The court further ordered that a copy of the order had to be filed on the docket of any new case brought by Mr. Liebowitz or his firm nationwide within one year from the date of the order.

Mr. Liebowitz appealed. On June 25, 2021, the Court of Appeals for the Second Circuit issued a Summary Order affirming the nationwide non-monetary sanctions and stating it would issue a “forthcoming” opinion on the monetary sanctions.

All in all, a warning that trolls will pay tolls.

Richard W. Millar, Jr. is Of Counsel with the firm of FSG Lawyers PC in Irvine. He can be reached at rmillar@fsglawyers.com.