How do you anger a judge? First, lie to her about why you missed a court date. Then, accuse her of “usurpation of judicial authority” or “a breach of judicial decorum.” That language was among many bad decisions made by attorney Richard Liebowitz in a copyright infringement case over which the Hon. Cathy Seibel in the Southern District of New York in White Plains presided.
To be fair, Liebowitz has made a number of decisions that have resulted in a bustling practice. Taking cases on contingency, his business model made it possible to pursue small infringement claims that would have otherwise been dwarfed by the attorney’s fees required to obtain them. He reportedly is a hero to freelance photographers. According to Slate, his past adversaries include: “Condé Nast, Hearst, Time Inc., Univision, Forbes, Barstool Sports, Breitbart News, Business Insider, Inside Edition, Zagat, Rolling Stone, the Daily Beast, the Daily Caller, the Daily Dot, the Daily Voice, the Village Voice, NBC, ABC, CBS, CNN, Fox News, Vox Media, Cox Media, Uproxx Media, and, yes, The Slate Group.”
On the other hand, those of us in the copyright bar see the 1,600+ lawsuits filed by Liebowitz in his short career, which often appear to be devoid of merit, to be merely a means of obtaining quick payment for attorney’s fees for “nuisance value”: an outrageous but relatively affordable sum that is less than the cost of defending the allegations, even if the allegations are spurious. As we’ve noted before, he has been called a copyright troll by at least one judge in the Southern District.
Liebowitz’s most recent predicament began when he failed to appear by phone at a discovery conference with SDNY Judge Seibel. He claimed there was a sudden death in the family, later clarifying that it was his grandfather who had died. The judge said, effectively, “Prove it.” This allegation among others, she said, strained his credibility and suggested that his representation was not candid. The other credibility problems came from representations Liebowitz had made earlier in the case:
- He claimed in a discovery response that there were contracts that supported his client’s claim, but when asked for those documents failed to produce them.
- He stated that his client had incurred $5,000 in actual damages, and the judge questioned whether that figure had any basis in fact or law (meaning, potentially frivolous).
In light of all this, the judge demanded to see a death certificate. At this point Liebowitz had to be rethinking the wisdom of his previous representations to the Court. Indeed, shortly after the judge demanded the death certificate, Liebowitz found a way to settle the case, perhaps in the hopes of making the whole thing go away.
Judge Seibel said, as far as she was concerned, regardless of any settlement, Liebowitz’s representation to the Court was not yet factually supported. After giving Liebowitz several opportunities to demonstrate his grandfather’s death, she began sanctioning him for contempt of court.
Liebowitz filed an affirmation stating that his account was true. The judge wrote back saying that declaring himself to be telling the truth was not enough. She noted that it should be relatively simple to provide a death certificate, even offering to keep the document out of the public record.
As it went on, Liebowitz appeared to dig himself deeper and deeper into an apparent failure to tell the truth — and even went as far as saying that the judge had no right to sanction him for his conduct. That was a very bad idea. Judge Seibel fined him $100 a day until he provided proof of his grandfather’s death. After a month, that appeared not to be sufficiently inspiring for Liebowitz to comply. After Judge Seibel raised the amount to $500 per day, Liebowitz’s newly obtained attorney wrote a letter to the judge dated November 11, 2019.
The letter to the Court proposes to be “FILED UNDER SEAL TO PROTECT THE CONFIDENTIALITY OF PERSONAL AND INTIMATE DETAILS.” However, the Docket Report indicates that the letter was e-filed without requesting, let alone obtaining, a protective order from the judge as required by local rules. (That’s like undressing in front of an open window and hoping for privacy.)
It turns out that Liebowitz had not lied about his grandfather dying, but he did lie about the circumstances surrounding it, most notably the date; his grandfather was buried on the same day he died, which was three days before the missed discovery conference. Still, Liebowitz argued, his lapses occurred within the seven days of mourning that is traditional for observant Jews. (One could have sympathy for such circumstances — but not for the way he handled them.)
During a hearing on an Order to Show Cause on November 13, at which Liebowitz was represented by criminal defense counsel to try to vacate the contempt charges and the fines, Seibel appeared unmoved. However, and fortunately for Liebowitz, “the truth will set you free”: because he admitted to lying to the Court — and paid his fines in the amount of $3,700 — Judge Seibel deemed that he had “purged the contempt.”
The takeaway from this story is that lying to a judge, and especially a federal judge, is a big deal. In my view, ensuring compliance with not only decorum and deference but also with simply telling the truth in our court system should be applauded. Shaping the facts as best you can is advocacy; making up the facts is not. No doubt, for as long as Liebowitz continues his prolific business model without sufficient resources to pay attention to hundreds of cases (not all of which might settle quickly), he will continue to attract the ire of judges.
