Case 1:20-cv-01949-VEC Document 20 Filed 05/08/20 Page 1 of 10
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
UNITED STATES DISTRICT COURT
DATE FILED: 5/8/2020
SOUTHERN DISTRICT OF NEW YORK
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ANGEL CHEVRESTT,
:
:
Plaintiff,
:
:
20-CV-1949 (VEC)
-against:
:
OPINION AND ORDER
BARSTOOL SPORTS, INC.,
:
:
:
Defendant. :
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VALERIE CAPRONI, United States District Judge:
On April 15, 2020, this Court ordered Plaintiff’s counsel, Richard Liebowitz, Esq., to
show cause why he should not be sanctioned for failing to comply with the Court’s March 5,
2020 order (the “March 5 Order”). Dkt. 14. Mr. Liebowitz responded to the Court’s order with
a declaration. See Dkt 17. Having considered his declaration, the Court finds that Mr. Liebowitz
has failed to provide adequate reasons for his failure to comply with the two explicit and simple
directions contained in the March 5 Order. As a result, pursuant to Fed. R. Civ. P. 16(f)(1)(C),
the Court orders Mr. Liebowitz to: (i) pay a civil sanction to the Clerk of Court of $3,000; (ii)
pay Defendant’s counsel in an amount equal to the fees incurred by bringing his non-compliance
with this Court’s Order to the attention of the Undersigned; and (iii) enroll in and complete a
course on managing a small law practice.
BACKGROUND
This case involves claims under the Copyright Act, 17 U.S.C. § 101 et seq. Dkt. 1.
Plaintiff Angel Chevrestt alleges that Defendant Barstool Sports engaged in an unauthorized
reproduction and public display of copyrighted photographs, in violation of Section 501 of the
Copyright Act. Id.

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On March 5, 2020, the Undersigned issued an order referring the case to Magistrate
Judge Netburn for a settlement conference. Dkt. 4. The March 5 Order directed Plaintiff to “file
proof of service no more than three days after service has been effected; and to produce to
Defendant(s), by the earlier of 1) 14 days after service of process or 2) three business days in
advance of any mediation session, copies of records sufficient to show the royalty paid the last
three times the picture that is at issue in this case was licensed, as well as the number of times the
picture was licensed in the last five years; if the picture at issue has never been licensed, Plaintiff
must expressly certify that fact to Defendant(s) as part of Plaintiff’s production.” Id.
Despite the simplicity of the March 5 Order, Plaintiff’s counsel, Mr. Liebowitz, failed to
comply with both directions. First, although service was effected on March 6, 2020, Mr.
Liebowitz did not file an affidavit of service until March 31, 2020. Dkt. 8. Second, as of April
13, 2020, Mr. Liebowitz had not produced the required royalty information to Defendant. See
Dkt. 9. 1 In light of Mr. Liebowitz’s failure to comply with the March 5 Order, the Court ordered
Mr. Liebowitz to show cause why sanctions should not be imposed on him. Dkt. 14.
DISCUSSION
Federal Rule of Civil Procedure 16(f)(1)(C) allows a district court, on motion or sua
sponte, to impose sanctions on an attorney who “fails to obey a scheduling or other pretrial
order.” The Rule’s “‘explicit reference to sanctions’ reflects the Rule’s intention to ‘encourage
forceful judicial management’” and “vests a district court with ‘discretion to impose whichever

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On April 30, 2020, having been ordered by the Court to: “submit an affidavit from the Plaintiff explaining
exactly what the invoice that was produced to Defendant’s counsel on April 14, 2020 was for and further stating
whether the picture at issue in this case has ever been licensed. If it has been licensed, the affidavit must state the
last three times it was licensed and the fee for each,” Plaintiff submitted an affidavit indicating that one of the
photographs at issue in this case has been licensed once. Dkt. 19. In addition, he attached an invoice that had been
belatedly produced to Defendant and explained that he was paid his day rate by the New York Post to take the
photographs as a freelance photographer. Apparently the New York Post received a license for all of the
photographs at issue in consideration for the Plaintiff’s “day rate.” Id. ¶ 6.

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sanction it feels is appropriate under the circumstances.’” Huebner v. Midland Credit Mgmt.,
Inc., 897 F.3d 42, 53 (2d Cir. 2018) (quoting Advisory Committee’s notes to 1983 amendment of
Fed R. Civ. P. 16(f)). A district court’s decision to impose sanctions under Rule 16(f) does not
require a finding that the party acted in bad faith. Huebner, 897 F.3d at 53; Rice v.
NBCUniversal Media, LLC, No. 19-CV-447, 2019 WL 3000808 at *3 (S.D.N.Y. July 10, 2019).
A district court may impose sanctions under Rule 16(f) when there is “clear and convincing
evidence that counsel disregarded a clear and unambiguous scheduling or other pretrial order.”
Rice, 2019 WL 3000808 at *3; see also S. New England Tel. Co. v. Glob. NAPs Inc., 624 F.3d
123, 145 (2d Cir. 2010); 6A Charles Alan Wright et al., Federal Practice and Procedure § 1531
(3d ed. 2010) (“the fact that a pretrial order was violated is sufficient to allow some sanction.”).
Moreover, “in addition to any other sanction, the court must order the party, its attorney, or both
to pay the reasonable expenses—including attorney’s fees—incurred because of any
noncompliance with [Rule 16(f)], unless the noncompliance was substantially justified or other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 16(f)(2).
Mr. Liebowitz, who has been described as a “copyright troll,” is no stranger to sanctions
orders issued by the undersigned and other Judges in this District. See e.g., Polaris Images Corp.
v. CBS Interactive, Inc., No. 19-CV-3670, 2019 WL 5067167, at *1 (S.D.N.Y. Oct. 9, 2019). In
fact, in his relatively short career, 2 Mr. Liebowitz has “earned the dubious distinction of being a
regular target of sanctions-related motions and orders,” and “it is no exaggeration to say that
there is a growing body of law in this District devoted to the question of whether and when to
impose sanctions on Mr. Liebowitz alone.” Rice, 2019 WL 3000808 at *1. This Court, once
again, joins that growing body of law, and finds that a sanction under Rule 16(f)(1)(C) for Mr.

2

Mr. Liebowitz graduated from law school in 2014 and became a member of the New York bar in 2015.

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Liebowitz’s violations is appropriate. The Court’s March 5, 2020 Order contained two simple
and clear instructions, both of which Mr. Liebowitz ignored. Mr. Liebowitz is familiar with both
instructions; not only are they given in every similar copyright case filed before the Undersigned,
but Mr. Liebowitz has been previously sanctioned by the Undersigned for failing to adhere to
them. See Polaris Images Corp., 2019 WL 5067167. Moreover, Mr. Liebowitz’s explanation
in response to the Court’s show-cause order is inadequate and entirely unconvincing.
i.

Failure to Timely File Affidavit of Service

Although Mr. Liebowitz admits that the “affidavit of service was filed 22 days past the
Court’s deadline,” he maintains that his “non-compliance was substantially justified on account
of the fact that Liebowitz Law Firm, PLLC (“LLF”) did not actually receive a copy of the
affidavit of service from its Delaware process server until March 15, 2020.” Dkt. 17 ¶ 5. Even
assuming that is true, 3 Mr. Liebowitz offers no legitimate explanation as to why it then took an
additional 16 days to file the affidavit of service. Mr. Liebowitz’s explanation that the COVID19 pandemic “disrupted LLF’s ordinary work flow, thereby causing administrative oversights,”
Dkt. 17 ¶ 5, is wholly unconvincing. First, the notion that LLF needed over two weeks to “[get]
its bearings” before Mr. Liebowitz was able to accomplish the simple task of filing an affidavit
of service is preposterous. Although the COVID pandemic has presumably had some effect on
LLF, as it has affected all lawyers and law firms throughout the country, it does not serve as an
excuse to disregard the Court’s orders. Had Mr. Liebowitz requested an extension of the
deadline to file an affidavit of service, the Court would have considered it. Mr. Liebowitz’s

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Normally the Court would not be skeptical of the truth of such a representation from a licensed attorney.
Mr. Liebowitz has, however, a track record of misrepresenting facts to judges on this Court. See Berger v. Imagina
Consulting, Inc., 18-CV-8956, Dkt. 53 (holding Mr. Liebowitz in contempt for lying to the Court about the reason
for missing a Court appearance).

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attempt to attribute his “administrative oversight” to the COVID pandemic is disingenuous,
distasteful, unpersuasive, and likely perjurious. 4 Moreover, this is not the first time that Mr.
Liebowitz has attributed his failure to follow this Court’s order to file proof of service to
“administrative oversight,” nor is it the first time that this Court has found such an excuse to be
inadequate or sanction-worthy. See Polaris Images Corp., 2019 WL 5067167, at *3 (“[G]iven
the frequency with which Mr. Liebowitz commits “administrative errors,” the undersigned is
unconvinced that they are indeed good faith oversights.”); Dvir v. Dancing Astronaut, Inc., No.
18-CV-9416, Dkt. 31 (the undersigned rejected Mr. Liebowitz’s excuse that his failure to file a
revised proposed default judgment was the result of “administrative oversight.”). 5 As a result,
the Court once again, rejects Mr. Liebowitz’s recurring, unacceptable excuse.
ii.

Failure to Provide Licensing Information

As noted, supra, the March 5 Order directed Mr. Liebowitz to “produce to Defendant(s),
by the earlier of 1) 14 days after service of process or 2) three business days in advance of any
mediation session, copies of records sufficient to show the royalty paid the last three times the
picture that is at issue in this case was licensed, as well as the number of times the picture was
licensed in the last five years; if the picture at issue has never been licensed, Plaintiff must
expressly certify that fact to Defendant(s) as part of Plaintiff’s production.” Dkt. 4. On April 13,

4

The Court notes that between March 15, 2020 and March 31, 2020, the time period during which Mr.
Liebowitz was purportedly unable to file an affidavit of service as he was getting his bearings from COVID-19
caused dislocation, he filed twenty five (25) separate lawsuits in this district alone. See 20-cv-2309, 20-cv-2340, 20cv-2341, 20-cv-2343, 20-cv-2344, 20-cv-2374, 20-cv-2399, 20-cv-2401, 20-cv-2437, 20-cv-2438, 20-cv-2439, 20cv-2486, 20-cv-2544, 20-cv-2545, 20-cv-2574, 20-cv-2595, 20-cv-2596, 20-cv-2597, 20-cv-2628, 20-cv-2629, 20cv-2631, 20-cv-2644, 20-cv-2645, 20-cv-2649, 20-cv-2668. His filing rate for that period in 2020 is approximately
30% higher than his rate of filing cases during the same period in 2019.
5

See also Sands v. Bauer Media Grp. USA, LLC, No. 17-CV-9215, 2019 WL 4464672, at *6 (S.D.N.Y.
Sept. 18, 2019) (sanctioning Mr. Liebowitz and noting that “a ‘mere oversight’ that happens once or twice is one
thing. A pattern of discovery and related abuse is quite another, and rings of deliberate indifference to an attorney’s
obligation to behave in a professional, responsible, and competent manner in each and every case he handles.”).

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2020, Defendant informed the Court that Mr. Liebowitz had not provided any of the required
documentation. Dkt 9. 6 On April 14, 2020, more than a month after service, Mr. Liebowitz sent
defense counsel a one-page invoice from Plaintiff to the NY Post listing four dates and dollar
amounts; Mr. Liebowitz included no accompanying explanation. Dkt. 12. The invoice failed to
indicate whether the pictures at issue in this case have ever been licensed. 7 Id.
Mr. Liebowitz “admits that the licensing fee information was not produced 14 days after
service of process, as per the Court’s March 5, 2020 order.” Dkt. 17 ¶ 6. In a lackluster attempt
to justify his utter disregard of the Court’s order, Mr. Liebowitz simply stated that “noncompliance was substantially justified for all the same reasons set forth in paragraph 5 above.”
Id. This explanation (i.e., that COVID-19 disrupted normal work flows) is conclusory and
unacceptable. If Mr. Liebowitz was unable to produce the documents by the Court-ordered
deadline, he should have moved to adjourn the deadline to produce the documents, rather than
ignoring it altogether. See Polaris, 2019 WL 5067167, at *3 n.3. (“Mr. Liebowitz is cautioned
that future failure to comply with the requirement[]…to provide the defendant with royalty
information not later than the earlier of 14 days after service of process or three business days in
advance of any scheduled mediation session will not be tolerated.”). The Court finds it
particularly ironic that Mr. Liebowitz chastised defense counsel for violating the Court’s

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Defendant’s letter also requested that the Court issue an order “(1) barring plaintiff from submitting any
evidence of actual damages in this case with respect to both causes of action for alleged copyright infringement and
removal of copyright management information, and (2) with respect to any claim for statutory damages for alleged
removal of copyright management information under 17 U.S.C. § 202(b), a negative inference be imposed, deeming
plaintiff to have no evidence of any prior licensing revenues to justify more than a minimum statutory award under
17 U.S.C. § 1203(c) (should plaintiff ultimately establish any liability by Barstool under that claim).” Dkt. 9. The
Court will not rule on these requests at this time. Defendant is free to bring a separate motion seeking such an order
if the parties are unable to settle the case.

7

On April 30, 2020, in response to the Court’s subsequent order dated April 23, 2020, Plaintiff submitted an
affidavit indicating that one of the photographs has been licensed once, in addition to the license the New York Post
obtained as consideration for the photographer’s freelance fee. Thus, it was only after the Court directly ordered Mr.
Liebowitz to submit an affidavit from his client that the invoice was explained and the licensing history produced.

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individual rules and “clear mandate,” Dkt. 11, when it is Mr. Liebowitz who continually fails to
adhere to this Court’s simple instructions.
Moreover, Mr. Liebowitz’s statement that he somehow complied with the Court’s March
5 order by producing “the only financial information that he has in his possession,” Dkt. 17 ¶ 7,
is nonsensical. As noted supra, Mr. Liebowitz did not produce the invoice until April 14, 2020,
almost a month past the deadline set by the March 5 Order. In addition, the invoice failed to
indicate whether any of the photographs had ever been licensed or to certify that none had.
Thus, Mr. Liebowitz has indisputably violated the clear and unambiguous instruction of the
March 5 Order. Lastly, Mr. Liebowitz’s statement, which was made in response to the Court’s
order to show cause why he should not be sanctioned that expressly informed him that “[t]he
Court concurs with the Defendant that the single document produced on April 14, 2020 does not
comply with the Court’s Order,” Dkt. 14, that “to the extent Defendant does not understand the
document that was produced, [it] is free to meet-and-confer in good faith with Plaintiff’s
counsel,” Dkt. 17 ¶ 7, is close to contemptuous and is definitely disrespectful. 8 Moreover, the
subsequent affidavit by the Plaintiff revealed that only one of the dates reflected on the invoice is
even relevant and that, separately, on January 26, 2015, one of the photographs was licensed.
Dkt. 19. None of the other photographs at issue has been licensed. Mr. Liebowitz has entirely
failed to explain why he did not notify the Defendant of the actual license of the photograph 9 or

8

In a separate endorsement responding to Plaintiff’s motion to strike the invoice as containing confidential
information, the Court ordered: “if Plaintiff wishes to pursue this issue, he must explain, in detail, how the invoice,
which merely reflects payment for unknown work on 4 days, discloses anything remotely confidential.” Dkt. 15.
Plaintiff’s counsel failed to offer any further explanation.
9
It is conceivable that Mr. Liebowitz failed to disclose the single license because it was beyond the five year
period covered by the order. Of course, if that were his reasoning, it is not clear why he produced the invoice, which
was also beyond the five year period. Moreover, he failed to certify as required that none of the other pictures has
ever been licensed.

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why it should take multiple orders from this Court to get him to produce the most basic of
information regarding this case.
In sum, as a result of Mr. Liebowitz’s blatant disregard of the Court’s Order, a sanction is
appropriate. Notably, Mr. Liebowitz does not expressly argue that sanctions are unwarranted; he
merely states that the Court “should exercise leniency and not penalize LLF or its counsel for
this infraction which caused no prejudice whatsoever to the defendant.” 10 Dkt. 17 ¶ 5. The
Court reminds Mr. Liebowitz again that a sanction under Rule 16(f)(1)(C) does not require a
showing of bad faith or prejudice; the Court need only find that counsel disregarded a clear and
unambiguous pretrial order. See Huebner, 897 F.3d at 53. (“The fact that a pretrial order was
violated is sufficient to allow some sanction.”). As explained supra, the Court has no trouble
making such a finding; Mr. Liebowitz indisputably ignored both instructions in the March Order.
Moreover, although Mr. Liebowitz characterizes his violations as mere “oversights” or
“infractions,” given the frequency of such behavior, the Court highly doubts that they continue to
occur in good faith. Regardless, Mr. Liebowitz’s unexcused failure to follow this Court’s orders
has “wasted the time of both the Court and Defendant[].” Petrisch v. JP Morgan Chase, 789 F.
Supp. 2d 437, 455 (S.D.N.Y. 2011).

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The Court disagrees that the Defendant has not been prejudiced. This case should have moved seamlessly
from a complaint being filed, to Plaintiff providing basic information to facilitate settlement, to a settlement
conference to, hopefully, a settlement. Instead, it foundered on the first step. Because Plaintiff failed to provide the
required information, Defendant was required to enlist the help of the Court in obtaining the required information.
Then, the Plaintiff, rather than promptly coming into compliance, filed a letter that was sneering and unprofessional
and, in essence, argued that it was Defendant’s fault that the Court was bothered as the Defendant failed to alert him
that he had failed to comply with the Court’s Order. It was only at that point that Mr. Liebowitz produced to the
Defendant the one page invoice for four freelance assignments, only one of which was relevant – a fact he failed to
disclose to the Defendant. When the Defendant was then forced to again involve the Court, Mr. Liebowitz
responded not with a civil explanation of the cryptic invoice, but again with complaints about defense counsel’s
professionalism and a motion to strike Defendant’s submission on the ground that it disclosed confidential
information. When the Court denied the motion with direction to Mr. Liebowitz to explain how it could possibly
contain confidential information, Mr. Liebowitz responded with silence. In short, Defendant was prejudiced by
having to spend time and money obtaining from Mr. Liebowitz information that Mr. Liebowitz was under Court
order to provide.

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Because Rule 16(f)(1)(C) grants a district court discretion to “impose whichever sanction
it feels is appropriate under the circumstances,’” and to “encourage forceful judicial
management,” Huebner, 897 F.3d at 53 (quoting Advisory Committee’s notes to 1983
amendment of Fed R. Civ. P. 16(f)), a sanction of $3,000 is warranted. 11 In addition, Mr.
Liebowitz must pay Defendant’s attorney’s fees associated with this issue.
As noted above, this Order is neither the only time the Undersigned has sanctioned Mr.
Liebowitz nor is the Undersigned the only judge in this district who has sanctioned him. In
Berger v. Imagina Consulting, Inc., 18-CV-8956 , in responding to a contempt citation that was
precipitated by Mr. Liebowitz having lied to Judge Siebel, Mr. Liebowitz’s attorney argued that
Mr. Liebowitz should not be held in contempt and recommended a number of steps Mr.
Liebowitz should take to improve the professionalism of his practice. Among counsel’s
recommendations was professional psychological help and a CLE course on small law firm
management. See 18-CV-8956, Dkt. 61 at 4. While both may be helpful, psychological help is
best obtained because the patient wants help. Whether Mr. Liebowitz wants to improve or not
(and the Court questions whether he does), this Court concurs with Mr. Liebowitz’s attorney in
Berger that management training is in order. Accordingly, Mr. Liebowitz is ordered to
participate in CLE training regarding management of a small law firm. Mr. Liebowitz must
attend such training on or before September 1, 2020. The course must cover the basics of setting
up and running a law practice, including how to maintain systems so that Court obligations are
tracked and obeyed. Mr. Liebowitz is directed to provide the Court with information about the

11
In Polaris, the Court sanctioned Mr. Liebowitz for $1,500 for his failure to adhere to the exact same
instructions as are at issue here. Evidently, that was insufficient to deter Mr. Liebowitz from violating court orders.
Accordingly, the prior sanctioned is doubled. Mr. Liebowitz is warned that a future unexcused violation of these
requirements is likely to be sanctioned by an increased fine.

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course he wishes to attend for the Court’s approval. He will, at the end of the course, be required
to present proof of attendance and to provide a sworn statement to the Court on what he learned
from the course and what concrete steps he has instituted in his practice to improve compliance
with the Federal Rules of Civil Procedure and Court orders.
CONCLUSION
For the reasons set forth above, the Court finds that Mr. Liebowitz failed to show cause
why he should not be sanctioned pursuant to Fed. R. Civ. P. 16(f). As a result, the Court
ORDERS Mr. Liebowitz to pay a civil sanction to the Clerk of Court of $3,000 for his failure to
comply with the March 5 Order; to pay the Defendant’s fees associated with bringing the Court’s
attention to his failure to comply; and to attend an approved law firm management course. Not
later than May 11, 2020, Defendant shall provide Mr. Liebowitz with his billing rate and the
number of hours spent in connection with this issue. Within 15 days of this Order, Mr.
Liebowitz must pay a total civil sanction to the Clerk of Court of $3,000, file proof of payment
of the civil sanction and proof of payment of Defendant’s fees associated with this issue. Mr.
Liebowitz must provide the Court with information about the management course he wishes to
attend not later than June 1, 2020.

SO ORDERED.
_________________________________
VALERIE CAPRONI
United States District Judge

Date: May 8, 2020
New York, NY

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