Attorney challenged District Court order imposing sanctions against him for bringing and maintaining copyright infringement action in bad faith; violating multiple court orders; and, when questioned about his conduct, repeatedly lying to the Court, including under oath. In addition to monetary sanctions and the award of defendant’s attorneys’ fees, the District Court further ordered him to: (1) to serve a copy of the district court’s Order on every one of the firm’s clients, including the plaintiff in the underlying suit; (2) to file a copy of the Order on the docket of any pending cases in which Liebowitz or his firm are involved; (3) to file a copy of the Order on the docket of any case brought by Liebowitz for one year; and (4) in any copyright infringement action brought by Liebowitz during this same time period, to file a copy of the deposit files maintained by the U.S. Copyright Office reflecting the plaintiff’s registration. The Court of Appeal affirmed.

“Liebowitz concedes he took no subsequent action to ensure that his factual representation to the district court was accurate. Indeed, even after being put on notice that there was an issue as to the 046 Registration and even though his firm was in possession of material from Usherson that could easily have resolved the question, Liebowitz finally admitted to the flaw in the complaint only in January 2020 when confronted by Bandshell with definitive evidence that the complaint’s allegation regarding the 046 Registration was false. And as the district court found, Appellants admitted the falsehood even then only because the Court ordered them to file a letter addressing the issue and, when that did not clear things up, declarations. In sum, the district court’s finding that the claim lacked a factual basis and was maintained in bad faith – that Liebowitz ‘actively stonewalled Mr. Newberg’s request for discovery’ and pressed forward, ‘hoping to settle the case before the truth came to light’ – had ample factual support.”

The Court noted that sanctions pursuant to Rule 16(f) may sometimes require the protection of criminal procedures. “But in assessing Rule 16(f) sanctions, it must be kept in mind that the Rule itself requires a district court, absent special circumstances, to order the payment of reasonable expenses, including attorney’s fees, incurred as a result of noncompliance. It then expressly provides that this sanction may be ‘in addition to’ any other. And we have no hesitation on the present record in concluding that the $20,000 sanction was not punitive in character, when considered in light of Rule 16’s mandate that district courts assess sanctions so as compensate for Appellants’ misconduct and to deter it from happening again….

“Given Liebowitz’s serious and repeated misconduct, the Appellants here merited sanctions reserved for attorneys and litigants who demonstrate via their actions that unusual measures are required to deter future misbehavior, protect other litigants, and maintain the integrity of the judicial system. Liebowitz’s brief time as a member of the bar so far has been replete with actions suggesting an unwillingness to comply with his obligations as an officer of the court. The district court did not abuse its discretion in determining that sanctions were appropriate and in imposing the sanctions here.”

 

Liebowitz v. Bandshell Artist Management, No.20-2304, 2021 WL 3118938 (2d Cir. July 23, 2021).