(Reuters) - Richard Liebowitz was admitted to practice in New York a scant three years ago, after graduating from Hofstra Law School on Long Island. But he has already made a deep impression on the judges of his preferred venue, Manhattan federal district court. Representing photographers and videographers, Liebowitz has filed hundreds of copyright infringement suits in Manhattan federal court in the past three years against defendants both large and small – from television and cable networks to a mom-and-pop cleaning service that displayed a photo of a leaf on its website. In a profile of Liebowitz last May, Slate called him the most litigious copyright lawyer in the country.
U.S. District Judge Denise Cote of Manhattan had rather a different description of Liebowitz in her opinion last February in McDermott v. Monday Monday, a copyright infringement case against an Idaho-based free digital newspaper (2018 WL 1033240). Judge Cote denied the defendant’s motion for fees under the Copyright Right because Liebowitz’s client dismissed the suit after the Idaho newspaper challenged New York’s personal jurisdiction. But she called Liebowitz “a known copyright ‘troll,’” and put him on notice that he was risking sanctions if he filed another heedless suit.
Judge Cote made good on her warning just a few days later. In Steeger v. JMS Cleaning Services (2018 WL 1136113), she hit Liebowitz with $10,000 in sanctions for failing to serve the defendant, the aforementioned mom-and-pop cleaning service, with notice of a pretrial conference, for “material omissions” in a letter to the court and for “needless infliction of costs on the defendant. After Liebowitz moved for reconsideration, the judge reduced the sanction (2018 WL 1363497) to $2,000 but also ordered Liebowitz to attend classes on legal ethics and professionalism, citing his “pattern of omissions and misrepresentations.”
In a decision Thursday in a copyright case Liebowitz filed against Kendall Jenner’s business, U.S. District Judge Ronnie Abrams of Manhattan suggested that the Long Island lawyer has not changed his ways, despite warnings from Cote and other judges in the Manhattan federal courthouse. Abrams faulted Liebowitz for failing to serve the initial pretrial conference notice on the defendants; for failing to meet deadlines to respond to a show-cause order she issued after defense counsel Jeffrey Kobulnick of Brutzkus Gubner Rozansky Seror Weber pointed out that Liebowitz had named the wrong defendant; and for violating her rules in asking for extensions.
“The court is troubled by Mr. Liebowitz’s conduct in this case, as in many of his law firm’s hundreds of other copyright cases,” Judge Abrams wrote. “The court finds particularly concerning Mr. Liebowitz’s repeated failures to follow the orders and rules of this court and others within the district, as well as his propensity to take unreasonable positions and to omit crucial facts – or even to make outright misrepresentations – in an apparent attempt to increase costs and to extort unwarranted settlements.”
Her description of the events of the case reveals the Liebowitz business model. Kendall Jenner’s company allegedly reproduced on a T-shirt a photo by photographer Al Pereira of the rappers Tupac Shakur, Notorious B.I.G. and Redman. The day after Liebowitz filed Pereira’s suit, Jenner’s lawyer sent an email informing him he’d sued the wrong corporate entity. Liebowitz, according to Judge Abrams, responded with a $25,000 settlement demand.
Defense counsel then researched Pereira’s copyright, which turned out to have been registered well after the alleged infringement. He offered to settle the case for $100 – more, he told Liebowitz, than the photographer could recover in those circumstances. Liebowitz said he’d take $25,000, though he later cut the settlement demand to $12,500. After Judge Abrams directed him to show cause why she should not require him to post a bond to continue litigating, Liebowitz ended up dismissing the case. He has since refiled the suit in federal court in Los Angeles.
But here’s the thing: Judge Abrams opted not to sanction Liebowitz nor to order him to pay Jenner’s fees and costs. She said it was a close call, but that Pereira’s claims were “at least colorable,” even if they were as nearly worthless as Jenner contended, and Liebowitz voluntarily dismissed the suit at an early stage. “The court is not persuaded that sanctions are justified in this particular case,” the judge wrote.
Judge Abrams let Liebowitz off with a warning that she won’t hesitate to impose sanctions if he or his law firm engage in misconduct in the future. Her own opinion shows the value of that warning.