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Judge Cote and Richard Liebowitz

By Cynthia Arato

For the third time in two weeks, SDNY Judge Cote has skewered Richard Liebowitz, this time ordering his client to post a $10,000 bond for costs. Below is part of the decision: (citations and footnotes omitted)

Mr. Liebowitz has filed over 500 cases in this district in the past twenty-four months. He has been labelled a copyright "troll." . . . Mr. Liebowitz has been sanctioned by this Court for failure to comply with court orders and for filing misleading documents with the Court. . . . (imposing sanctions on Mr. Liebowitz and listing cases where Mr. Liebowitz has failed to comply with court orders). A number Mr. Liebwoitz's cases have been dismissed from the bench as frivolous. . . . (Judge Kaplan noted that he "awarded over $121,000 in attorney's fees against a client of Mr. Liebowitz in three other, related copyright infringement cases that were dismissed from the bench." . . . In this case as with others, there is no record that Mr. Liebowitz complied with the court order that required him to serve a notice of the initial pretrial conference on the defendant and to file proof of such service. Multiple courts, on their own initiative, have ordered Mr. Liebowitz to show cause why he should not be required to post security for costs as a condition of proceeding further with an action. . . . (Mr. Liebowitz voluntarily dismissed the case before responding to the Judge Abrams' Show Cause Order.); . . . (Mr. Liebowitz informed the court that the parties had settled the case before responding to Judge Kaplan's Show Cause Order.). . . . (Judge Torres ordered Mr. Liebowitz to show cause why the action should not be transferred. Mr. Liebowitz voluntarily dismissed the case before responding to the Order to Show Cause.); . . .

Based on this record, the imposition of a bond is entirely appropriate. The defendant seeks a bond of at least $105,000. This is in large part based on the attorney' fees that Hearst would be entitled to if it prevailed in this action. The plaintiff asserts that he lives paycheck to paycheck and cannot pay a bond.

The plaintiff argues that his claims are not frivolous and so a bond is inappropriate in this case. Frivolousness is one ground for imposition of a bond; a bond may be justified based on a variety of other factors, see supra. If the Campaign violated the plaintiff's rights in providing the photograph to the defendant, the plaintiff's case may have merit. But, to this point, it has been irresponsibly litigated.

For example, in opposition to this motion, Mr. Liebowitz argues that his client's sworn testimony definitively precludes the possibility that he granted the Campaign the right to distribute his photograph. But Mr. Reynold's testimony does no such thing: he merely asserts that he did not have the "intention" of allowing the Campaign to distribute his work for publication. Plaintiff describes no communication between him and the Campaign that could justify the claim made in the opposition brief.

Mr. Liebowitz also argues that plaintiff has not willfully disobeyed court orders, obstructed discovery, or increased the cost of litigation. This is demonstrably false. . . .

The opinion is available at: Reynolds v. Hearst Communs._ Inc._ 2018 U.S. Dist. LEXIS 35453.PDF

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This page contains a single entry from the blog posted on March 13, 2018 5:26 PM.

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