Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 1 of 31

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARTHUR USHERSON,
Plaintiff,
v.
BANDSHELL ARTIST MANAGEMENT,

No. 19-CV-6368 (JMF)
ORAL ARGUMENT REQUESTED

Defendant.
RICHARD LIEBOWITZ; LIEBOWITZ LAW
FIRM, PLLC,
Miscellaneous.

MEMORANDUM OF LAW IN SUPPORT OF
MOTION BY PROPOSED ORDER TO SHOW CAUSE FOR STAY PENDING APPEAL

MORVILLO ABRAMOWITZ GRAND
IASON & ANELLO P.C.
565 Fifth Avenue
New York, New York 10017
Tel: (212) 856-9600
Fax: (212) 856-9494

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 2 of 31

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................2
RELEVANT FACTS .......................................................................................................................4
ARGUMENT .................................................................................................................................10
I.

The Court’s Non-Monetary Sanctions Irreparably Will Harm Mr. Liebowitz And LLF
Because The Sanctions Will Cause Severe Economic And Reputational Damage To
Mr. Liebowitz And LLF’s Law Practice......................................................................11

II.

“Serious Questions” Exist As To Whether The Court’s Factual Findings And Legal
Conclusions Were An Abuse Of Discretion ................................................................13
1. A “serious question” exists as to whether the Court’s factual findings were
supported by clear and convincing evidence .........................................................14
2. A “serious question” exists as to whether the Court abused its discretion by
imposing sanctions beyond what was reasonably necessary for deterrence ..........18
3. A “serious question” exists as to whether the Court abused its discretion by
altering the statutory presumption of validity in copyright cases ..........................23

III.

A Stay Will Not Harm Defendant Bandshell ...............................................................23

IV.

A Stay Is In The Public Interest Because It Will Permit Continued Vindication
Of The Rights Of Copyright Plaintiffs Who Have Limited Alternatives For
Recovery ......................................................................................................................24

CONCLUSION ..............................................................................................................................24

ii

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 3 of 31

TABLE OF AUTHORITIES
Cases

Page(s)

Arista Records LLC v. Usenet.com, Inc.,
608 F. Supp. 2d 409 (S.D.N.Y. 2009) ........................................................................................ 19
Brenntag Int’l Chem., Inc. v. Bank of India,
175 F.3d 245 (2d Cir. 1999) ................................................................................................. 11, 13
Chambers v. NASCO, Inc.,
501 U.S. 32 (1991) ............................................................................................................... 18, 19
Chicoineau v. Bonnier Corp.,
No. 18-CV-3264, 2018 WL 6039387 (S.D.N.Y. Oct. 16, 2018) ............................................... 23
Citigroup Global Mkts, Inc. v. VCG Special Opportunities Master Fund, Ltd.,
598 F.3d 30 (2d Cir. 2010) ......................................................................................................... 14
DC Comics v. Pac. Pictures Corp.,
No. 10-CV-3633, 2013 WL 1389960 (C.D. Cal. Apr. 4, 2013) ................................................ 24
Dexter 345 Inc. v. Cuomo,
663 F.3d 59 (2d Cir. 2011) ......................................................................................................... 11
Dow Chem. Pac. Ltd. v. Rascator Mar. S.A.,
782 F.2d 329 (2d Cir. 1986) ....................................................................................................... 18
Enmon v. Prospect Capital Corp.,
675 F.3d 138 (2d Cir. 2012)................................................................................................. 20, 22
Front Carriers Ltd. v. Transfield ER Cape Ltd.,
No. 07-CV-6333, 2010 WL 571967 (S.D.N.Y. Feb. 15, 2010) ................................................. 25
Gallop v. Cheney,
667 F.3d 226 (2d Cir. 2012)....................................................................................................... 20
Goodman v. Univ. Beauty Prods. Inc.,
No. 17-CV-1716, 2018 WL 1274855 (S.D.N.Y. Mar. 9, 2018) ................................................ 23
Grand River Enter. Six Nations, Ltd. v. Pryor,
481 F.3d 60 (2d Cir. 2007) ......................................................................................................... 13
Hammer v. Amazon.com,
392 F. Supp. 2d 423 (E.D.N.Y. 2005)........................................................................................ 21

iii

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 4 of 31

HC Trading Int’l Inc. v. Crossbow Cement, SA,
No. 08-CV-11237, 2009 WL 4931341 (S.D.N.Y. Dec. 21, 2009) ............................................ 25
Hill v. Carpenter,
323 F. App’x 167 (3d Cir. 2009) ............................................................................................... 21
Hirschfeld v. Bd. of Elections in City of N.Y.,
984 F.2d 35 (2d Cir. 1993) ......................................................................................................... 10
In re A2P SMS Antitrust Litig.,
No. 12-CV-2656, 2014 WL 4247744 (S.D.N.Y. Aug. 27, 2014) .............................................. 13
In re Accent Delight Int’l Ltd.,
16-MC-125, 2018 WL 7473109 (S.D.N.Y. June 27, 2018) ....................................................... 11
In re Hartford Textile Corp.,
681 F.2d 895 (2d Cir. 1982)....................................................................................................... 21
In re Martin-Trigona,
592 F. Supp. 1566 (D. Conn. 1984) ........................................................................................... 21
In re Petrobras,
193 F. Supp. 3d 313 (S.D.N.Y. 2016) ........................................................................................ 24
KDH Consulting Grp. LLC v. Iterative Capital Mgmt. L.P.,
No. 20-CV-3274, 2020 WL 2554382 (S.D.N.Y. May 20, 2020) .............................................. 13
Koehl v. Bernstein,
740 F.3d 860 (2d Cir. 2014) ....................................................................................................... 14
Krieger v. Alison Lou LLC,
No. 20-CV-2628, Dkt. 17 (S.D.N.Y. June 30, 2020)................................................................. 13
Macolor v. Libiran,
No. 14-CV-4555, 2015 WL 1267337 (S.D.N.Y. Mar. 18, 2015) .............................................. 19
Manti’s Transp. v. Kenner,
No. 13–CV–6546, 2015 WL 1915004 (E.D.N.Y. Apr. 27, 2015) ............................................. 22
McDermott v. Monday Monday, LLC,
No. 17-CV-9230, 2018 U.S. Dist. LEXIS 184049 .................................................................... 19
Mohammed v. Reno,
309 F.3d 95 (2d Cir. 2002) ......................................................................................................... 10

iv

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 5 of 31

Mone v. Comm’r,
774 F.2d 570 (2d Cir. 1985) ....................................................................................................... 18
NatTel LLC v. SAC Capital Advisors,
No. 04-CV-1061, 2005 WL 2253756 (D. Conn. Sept. 16, 2005) .............................................. 17
Nken v. Holder,
556 U.S. 418 (2009) ............................................................................................................. 10, 23
Passlogix, Inc. v. 2FA Tech., LLC,
708 F. Supp. 2d 378 (S.D.N.Y. 2010) ........................................................................................ 22
Polur v. Raffe,
912 F.2d 52 (2d Cir. 1990)......................................................................................................... 22
Shangold v. Walt Disney Co.,
275 F. App’x 72 (2d Cir. 2008) .................................................................................................. 20
Thapa v. Gonzalez,
460 F.3d 323 (2d Cir. 2006) ....................................................................................................... 10
U.S. C.F.T.C. v. eFloorTrade,
No. 16-CV-7544, 2020 WL 2216660 (S.D.N.Y. May 7, 2020) ................................................ 25
United States v. Am. Express Co.,
No. 10-CV-4496, 2015 WL 13735045 (E.D.N.Y. May 19, 2015) ............................................ 11
United States v. Stewart,
433 F.3d 273 (2d Cir. 2006) ....................................................................................................... 15
Urbont v. Sony Music Entm’t,
831 F.3d 80 (2d Cir. 2016) ......................................................................................................... 23
Ward v. Consequence Holdings Inc.,
No. 18-CV-1734, 2020 WL 2219070 (S.D. Ill. May 7, 2020) .................................................. 24
Wolters Kluwer Fin. Servs. v. Scivantage,
564 F.3d 110 (2d Cir. 2009) ................................................................................................. 14, 22
Statutes
17 U.S.C. § 410(c) ........................................................................................................................ 23
28 U.S.C. § 1927 ....................................................................................................................... 9, 18

v

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 6 of 31

Rules
Fed. R. Civ. P. 16(f) ....................................................................................................................... 9
Fed. R. Civ. P. 62(b) ....................................................................................................................... 9
Fed. R. App. P. 8(a)(2) .................................................................................................................. 25
Other Authorities
Shyamkrishna Balganesh, Copyright Infringement Markets,
113 COLUM. L. REV. 2277 (2013) .............................................................................................. 25

vi

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 7 of 31

Richard Liebowitz and the Liebowitz Law Firm (“LLF”), by and through their counsel,
hereby respectfully submit this memorandum of law, along with the accompanying Declaration
of Richard Liebowitz and Declaration of Bruce Cotler, in support of their motion by proposed
order to show cause to stay all aspects of non-monetary sanctions three, four, five, and six
imposed by this Court in its June 26, 2020 Opinion and Order (the “Opinion”) (Dkt. No. 68)
pending appeal (see Dkt. No. 74 (Notice of Appeal)).1 Mr. Liebowitz and LLF further request
this Court issue a stay on an interim basis, pending its resolution of this application.
INTRODUCTION
This Court imposed an extraordinary set of non-monetary sanctions upon Mr. Liebowitz
and LLF that threaten to effectively end their practice of law for a year. The Court should stay
those sanctions pending appeal. Mr. Liebowitz and LLF easily meet each of the requirements for
a stay: they will suffer irreparable harm absent a stay, “serious questions” on the merits exist, a
stay will not harm Defendant Bandshell, and a stay is in the public interest.
As to irreparable harm, the breadth of the Court’s expansive and unwarranted nationwide
sanctions will cause severe economic and reputational damage that will have a significant
negative impact on Mr. Liebowitz and LLF’s law practice, while simultaneously risking
prejudice to Mr. Liebowitz’s current clients and removing Mr. Liebowitz’s valuable services
from the market for future copyright plaintiffs. As to the merits, serious questions exist as to
whether the Second Circuit will affirm the Court’s sanctions, given both the nationwide breadth
and severity of the sanctions as well as grounds given for imposing them. In particular, serious
questions exist as to whether the Court’s factual findings were supported by clear and convincing

1

For the reasons described in the accompanying Declaration of Brian A. Jacobs, Mr. Liebowitz
and LLF are proceeding by order to show cause rather than notice of motion because the
standard briefing schedule will not allow sufficient time to obtain effective relief.
1

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 8 of 31

evidence, whether the Court abused its discretion by imposing sanctions beyond what was
reasonably necessary to deter Mr. Liebowitz and LLF, and whether the Court impermissibly
altered the statutory presumption of validity in copyright cases. Moreover, a stay will cause no
injury to Defendant, which settled Plaintiff’s claim and receives no benefit from the sanctions
imposed. Finally, a stay will promote the public interest, as it will permit the continued
vindication of the rights of LLF’s clients around the country who otherwise would be prejudiced
by these costly, burdensome requirements, and who have limited alternatives for recovery.
BACKGROUND
Mr. Liebowitz was admitted to practice in 2015. Liebowitz Decl. ¶ 3.2 In his brief legal
career, he has championed small-dollar claims (on a contingency basis) on behalf of artists
whose copyrights otherwise could have gone unprotected, given the limited nature of their
potential recovery and high cost of litigation. Id. ¶¶ 4–5.
Mr. Liebowitz has pursued this unique business model intentionally, because he learned,
during his several years as an intern with Bruce Cotler, now President of the New York Press
Photographers Association, about working artists’ difficulties protecting their rights. Id. ¶ 2.
Himself a photographer, and moved by these artists’ struggles, Mr. Liebowitz started LLF even
though he had no experience or training in running a legal practice. Id. ¶ 4.
In order to provide a sound economic basis for his practice, Mr. Liebowitz accepts a large
number of clients and pursues a high number of cases simultaneously. Id. ¶¶ 5–8. Because
copyright laws primarily are federal, these cases typically are litigated in federal courts, with
concomitant higher costs and burdens. Mr. Liebowitz has been able to pursue so many cases in

2

Citations in the form of “Liebowitz Decl. ¶ __” and “Cotler Decl. ¶ __” refer to the Declaration
of Richard Liebowitz and Declaration of Bruce Cotler submitted herewith.

2

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 9 of 31

part because the federal copyright violations are often beyond question and, as a result, many
settle at an early stage. Id. ¶ 6. Even so, he and his firm are often stretched thin, and face the
constant challenges of an unpredictable and geographically scattered caseload. Id. ¶¶ 4, 7.
In accordance with this model, Mr. Liebowitz has represented over 1,200 clients in at
least 2,500 individual federal lawsuits. Id. ¶¶ 7–8. The vast majority of these cases have
resulted in a recovery to Mr. Liebowitz and LLF’s clients. Id. ¶ 6. One of their largest sources
of business is word of mouth. Id. ¶ 9.
Mr. Liebowitz and LLF’s cases often settle, as Mr. Liebowitz estimates, in the low
thousands of dollars. Id. ¶ 6. Of such settlements, Mr. Liebowitz accepts a percentage as a
contingency fee, less his costs. Id. ¶ 5. Given the often limited individual recovery, higher costs,
or reduction to the settlement value of Mr. Liebowitz and LLF’s cases, could make many claims
they currently pursue impractical. Id. ¶¶ 5, 10–11. Such harm to Mr. Liebowitz and LLF’s
practice also would harm their clients, with their otherwise unmet needs. See id. ¶¶ 4, 10–11.
Mr. Liebowitz’s troubles with various federal courts around the country, the result of his
inexperience and perhaps overly ambitious business model, must therefore be considered in
context. Even if Mr. Liebowitz possibly is “one of the most frequently sanctioned lawyers” in
this District, he is without question one of its most frequent filers. Op. 1; Liebowitz Decl. ¶ 7.
Mr. Liebowitz and LLF resolve the vast majority of cases without incident. Liebowitz Decl. ¶ 6;
compare Op. 1 (noting that Mr. Liebowitz has filed approximately 2,500 cases nationwide) with
id. at App’x (listing 40 cases in which Mr. Liebowitz was sanctioned). Mr. Liebowitz and LLF
can do better, and they have, since the motion for sanctions was filed in this action, set in motion
plans to correct the negligence and public faults that they know have harmed their reputation.
Taken as a whole, however, their record is more fairly considered not that of the pejoratively

3

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 10 of 31

termed “troll[s]” or “lampreys,” Op. 1, but rather the result of zealous advocacy to enforce
artists’ otherwise unprotected federally guaranteed rights at affordable contingent rates—marred
by the consequences of overwork and relative inexperience.
RELEVANT FACTS
The underlying action in this case is a claim for damages stemming from infringement of
Plaintiff Arthur Usherson’s copyright to a particular photograph of the musicians Bob Dylan and
Leon Redbone (the “Photograph”) taken at the 1972 Mariposa Folk Festival. Among other
things, the Complaint filed on July 10, 2019 alleged that the Photograph was registered with the
U.S. Copyright Office under registration number VAu 1-080-046 (the “046 Registration”), and
that Defendant had published the Photograph without permission or license from Mr. Usherson
in violation of the Copyright Act. Complaint ¶¶ 9–11 (Dkt. No. 1).
On July 14, 2019, this Court referred the case to mediation, and set a pretrial conference
for October 10, 2019. Dkt. No. 6. Subsequently, on motion by LLF, this Court adjourned that
conference to November 14, 2019, and ordered that the “parties shall conduct the in-person
mediation no later than October 31, 2019.” Dkt. No. 13. The mediation went forward on
October 31, 2019, Op. 5, though the parties had already advanced toward a settlement via
negotiation, Transcript of January 8, 2020 Hearing (“Hearing Tr.”) (Dkt. No. 66) at 98–99.
However, Mr. Liebowitz’s associate James Freeman appeared in Mr. Liebowitz’s stead, and Mr.
Usherson appeared via telephone. Op. 5; Hearing Tr. 105–06.
On November 6, 2019, Defendant moved for sanctions against Mr. Usherson, as well as
Mr. Liebowitz and LLF, primarily on the basis that their failure to appear at the mediation in
person had violated the Court’s order for an in-person mediation. Dkt. Nos. 14–16. In the pretrial conference on November 14, 2019, as relevant here, Defendant raised the possibility that the
Photograph had been part of a later registration rather than the 046 Registration; Mr. Liebowitz
4

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 11 of 31

responded, on the basis of his current information, that he would “have to see what my office
did, but this is the correct registration.” Dkt. No. 58-1, at 3–4.
A day later, this Court ordered the parties to file written submissions addressing
Defendant’s motion for sanctions. Dkt. No. 20. On November 18, 2020, Mr. Liebowitz and
LLF filed a memorandum of law in opposition arguing, among other things, that Mr. Usherson’s
telephone appearance substantially complied with the Local Rules and common practice, and
that the mediator had granted Mr. Usherson permission to appear remotely and for Mr. Freeman
to attend in place of Mr. Liebowitz. See Dkt. No. 21 at 3–4; see also Dkt. No. 22 ¶¶ 12–13.
After further submissions from the parties and the mediator, on December 17, 2019, the
Court directed that an evidentiary hearing on the proposed sanctions would take place on January
8, 2020 (the “Hearing”). Dkt. No. 42. On December 18, 2019, the parties filed a stipulation of
voluntary dismissal, informing this Court that they had settled the case and agreed that each party
would bear its own costs and fees, which the Court so-ordered on December 20, 2019. Dkt. No.
48. The Court further directed that it “retains jurisdiction to adjudicate Defendant’s pending
motion for sanctions,” Dkt. No. 48, and that the Hearing would proceed as planned, Dkt. No. 47.
The Court specified that testimony would consist only of “cross-examination limited to the
issues of whether Mr. Liebowitz obtained advance permission from the Mediator for an associate
to appear at the mediation instead of Mr. Liebowitz[,] and for Plaintiff to participate in the
mediation by telephone.” Dkt. No. 47.
During the Hearing, the Court heard testimony from Mr. Liebowitz, counsel for
Defendant, and the mediator.3 As to the issue of whether Mr. Usherson had the mediator’s

3

The Court further deemed part of the record “[a]nything that’s already on the docket,” and took
judicial notice of “anything that’s docketed in another case.” Hearing Tr. 17.

5

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 12 of 31

permission to appear by telephone, Mr. Liebowitz and the mediator’s recollections differed.
Compare Hearing Tr. 7–8, 21–22, 38 (Mr. Liebowitz’s testimony that he had received
permission) with id. at 100 (mediator’s testimony stating he had not). Mr. Liebowitz also
testified that he did not make a written record of their discussion on October 30, 2019, id. at 39,
42, and the mediator testified that he would not have made a written record if he had granted
permission, id. at 101. The mediator also testified that he could not say whether he expected at
the time that Mr. Usherson would appear in person at the mediation, and said “nothing at all”
about it during the mediation itself. Id. at 104; see also id. at 103 (mediator’s testimony that he
“[p]robably” would have said something about Mr. Usherson’s telephonic appearance in email
exchange with counsel, but expressing uncertainty as to whether he would have in fact done so).4
The testimony at the Hearing, pursuant to the Court’s prior order, focused solely on the
issues of Messrs. Liebowitz’s and Usherson’s personal appearances at the mediation, and at the
outset, the Court noted that “the hearing is limited to the two issues that I’ve flagged.” Hearing
Tr. 2.5 Nevertheless, in summation, counsel for Defendant advised the Court of “one last fact,”
namely, Defendant’s surprise allegation—and submission of related evidence—that the
Photograph had not been part of the 046 Registration (as alleged in the Complaint). Hearing Tr.
127–28. In their own summation, Mr. Liebowitz and LLF advised the Court that they were not
aware of or prepared to address this concern, but confirmed that where their firm did not handle

4

Counsel for Defendant testified that the mediator had told him on the day of the mediation he
had not granted permission for Mr. Usherson to appear telephonically, Hearing Tr. 88, but the
mediator did not confirm this account, id. at 103–05.
5

Much of the testimony at the Hearing concerned the question of whether Mr. Liebowitz had
permission from the mediator to send Mr. Freeman to the mediation in his stead, an issue the
Court later concluded was too “muddled” to make factual findings as to Mr. Liebowitz’s bad
faith by clear and convincing evidence. Op. 30 n.3.

6

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 13 of 31

the registration, they typically rely in large part upon their clients’ representations as to whether a
particular photograph was registered. Hearing Tr. 139–41.
Following the Hearing, in accordance with this Court’s order, Dkt. No. 52, on January 17,
2020, Mr. Liebowitz and LLF filed a letter that acknowledged their mistake as to the copyright
registration alleged in the Complaint, but explained that Mr. Usherson had in fact registered the
Photograph with the Copyright Office, just under a different registration (the “272 Registration”)
that was “effectuated . . . after this lawsuit was filed.” Dkt. No. 57 at 1. Id. Defendant’s
response argued that Mr. Liebowitz and LLF had known all along the Photograph had not been
copyrighted at the time they filed the Complaint, and had sought to conceal this fact from the
Court. Dkt. No. 58.
On January 24, the Court ordered Mr. Liebowitz, Mr. Freeman, and Mr. Usherson to file
declarations explaining, among other things: “the nature and cause” of the registration error,
including the responsible person; their respective roles in filing the post-Complaint registration
of the Photograph; and when and how they became aware that the Photograph had not been
registered until after the filing of the Complaint. Dkt. No. 59.
In his responsive declaration, Mr. Liebowitz stated that—since the Hearing—he had
learned that Zachary Cuff, an administrative employee of LLF, had been told in February 2019
by Mr. Usherson that the Photograph was part of the 046 Registration and had erroneously
recorded the same in LLF’s internal case-tracking systems. Dkt. No. 63 ¶¶ 4–8. Mr. Liebowitz
explained that he had relied on this internal note in drafting the Complaint. Id. ¶ 10. Mr.
Liebowitz also explained that he had not played any role in the subsequent registration of the
Photograph in the 272 Registration, which took place at Mr. Usherson’s request, and was

7

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 14 of 31

handled as a routine matter by LLF’s staff. Id. ¶¶ 13–14. Mr. Liebowitz also confirmed that he
was not aware of this error at the November 14, 2019 conference. Id. ¶ 17.
Mr. Usherson’s declaration corroborated Mr. Liebowitz’s account. Mr. Usherson
explained that in 2011 he had personally registered, as part of the 046 Registration, a series of
photographs he took at the 1972 Mariposa Folk Festival portraying Bob Dylan and Leon
Redbone. Dkt. No. 62 ¶¶ 3–4. Mr. Usherson also explained that shortly after he retained Mr.
Liebowitz and LLF as counsel in early 2019, he shared with Mr. Cuff several instances of what
he believed to be infringements of his copyrighted work, including a use of the Photograph. Id.
¶¶ 5–7. As part of these exchanges, Mr. Cuff had asked Mr. Usherson to confirm the Photograph
was registered. Id. ¶ 8. Mr. Usherson stated that he confirmed to Mr. Cuff that the Photograph
was registered under the 046 Registration later used in the Complaint, and further mailed Mr.
Cuff a CD containing all photographs associated with the 046 Registration. Id. ¶¶ 8–9.
Months later, Mr. Usherson told the Court, he alerted Mr. Liebowitz and Mr. Cuff to
what he believed to be Defendant’s infringing use of the Photograph, which at that time Mr.
Usherson still believed to be part of the 046 Registration. Id. ¶¶ 10–11, 13. This infringement
was the basis for the Complaint. Id. ¶ 12. Mr. Usherson also explained to the Court that,
because he understood his photographs of the Mariposa Folk Festival to be targets for
infringement, some time after filing the Complaint, he had asked Mr. Cuff to register an
additional set of 30 photographs of the festival (including the Photograph). Id. ¶¶ 16–17. Mr.
Usherson affirmed that he had, until shortly before making his declaration, consistently believed
that the Photograph had been registered in 2011 as part of the 046 Registration. Id. ¶ 19. Mr.
Usherson attributed this error to the similarities between the Photograph and other photographs
of Bob Dylan and Leon Redbone that were part of the 046 Registration. Id. ¶ 20.

8

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 15 of 31

On June 26, 2020, the Court issued its Opinion, in which the Court found that clear and
convincing evidence supported three findings: (1) that Mr. Liebowitz and LLF violated multiple
court orders; (2) that Mr. Liebowitz misrepresented to the Court whether the mediator had
granted Mr. Usherson permission to appear by phone; and (3) that Mr. Liebowitz and LLF
falsely alleged copyright registration of the Photograph, and failed to reasonably investigate the
registration of that Photograph. Op. 25. On this basis, the Court imposed a set of monetary and
non-monetary sanctions upon both Mr. Liebowitz and LLF on three legal bases: Rule 16(f) of the
Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and the Court’s inherent authority. Op. 22–
24, 54.
As part of its non-monetary sanctions, this Court required: that, within thirty days, Mr.
Liebowitz and LLF serve a copy of the Opinion on all of their clients (Sanction 3), and file a
copy of the Opinion in all of their pending cases (Sanction 4); that, in any action initiated
through June 26, 2021, Mr. Liebowitz and LLF file a copy of the Opinion within two days of
initiating the case (Sanction 5); and that, in any copyright infringement action initiated through
June 26, 2021, Mr. Liebowitz and LLF file as an exhibit to the complaint a copy of the deposit
files maintained by the U.S. Copyright Office reflecting prior registration of the relevant
copyrighted work (Sanction 6). Op. 54. Mr. Liebowitz and LLF now seek to stay the
enforcement of these non-monetary sanctions pending appeal.6

6

This Court’s order also imposed two other sanctions, which Mr. Liebowitz and LLF are also
appealing. As to Sanction 1, which directed that by July 6, 2020, Mr. Liebowitz and LLF pay to
the Clerk of Court sanctions totaling $103,517.49, a Chase Bank cashier’s check (with LLF as
remitter) in the full amount of the sanction was timely deposited with the Clerk of Court. See
Dkt. (unnumbered entry for July 6, 2020). The check represents security for the full monetary
sanction, operates as an automatic stay of the enforcement of the monetary sanction pursuant to
Fed. R. Civ. P. 62(b), and, accordingly, should not be construed as a waiver of Mr. Liebowitz
and LLF’s right to appeal the monetary sanction or any aspect of the Court’s decision thereto.

9

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 16 of 31

ARGUMENT
This Court should grant Mr. Liebowitz and LLF a stay pending appeal, as they satisfy the
applicable standard. Courts consider four factors: “(1) whether the movant will suffer irreparable
injury absent a stay, (2) whether a party will suffer substantial injury if a stay is issued,
(3) whether the movant has demonstrated a substantial possibility, although less than a
likelihood, of success on appeal, and (4) the public interests that may be affected.” Hirschfeld v.
Bd. of Elections in City of N.Y., 984 F.2d 35, 39 (2d Cir. 1993) (citations and quotation marks
omitted). The irreparable harm and possibility of success factors “are the most critical,” Nken v.
Holder, 556 U.S. 418, 434 (2009), and are treated “somewhat like a sliding scale,” Thapa v.
Gonzalez, 460 F.3d 323, 334 (2d Cir. 2006); that is, “more of one excuses less of the other,”
Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002) (citation and quotation marks omitted).
The Court’s extraordinarily expansive nationwide non-monetary sanctions will, absent a
stay, irreparably harm Mr. Liebowitz and LLF, as well as their present and future clients,
because those sanctions will cause severe economic and reputational damage which will have a
significant negative impact on Mr. Liebowitz and LLF’s law practice. As to the merits, serious
questions exist as to whether the Second Circuit will affirm given both the scope of the Court’s
sanctions and the reasons given for imposing them. In particular, serious questions will be raised
on appeal as to whether the Court abused its discretion in finding by clear and convincing
evidence that Mr. Liebowitz acted in bad faith, in imposing geographically and substantively
expansive sanctions far beyond what was reasonably necessary to deter Mr. Liebowitz and LLF,
and in altering the statutory presumption of validity in copyright cases. A stay will cause no

As to Sanction 2, which directed that by July 6, 2020, Mr. Liebowitz and LLF serve a copy of
the Opinion on Mr. Usherson, Mr. Liebowitz timely complied. Dkt. No. 69.

10

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 17 of 31

injury to Defendant, and will serve the public interest, by permitting continued defense of the
rights of Mr. Liebowitz and LLF’s clients, who may have limited alternatives for recovery.
I.

The Court’s Non-Monetary Sanctions Irreparably Will Harm Mr. Liebowitz And
LLF Because The Sanctions Will Cause Severe Economic And Reputational
Damage To Mr. Liebowitz And LLF’s Law Practice.
Irreparable harm exists “where, but for the grant of equitable relief, there is a substantial
chance that upon final resolution of the action the parties cannot be returned to the positions they
previously occupied.” Brenntag Int’l Chem., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir.
1999). Irreparable harm must be “actual and imminent,” as opposed to “speculative.” Dexter
345 Inc. v. Cuomo, 663 F.3d 59, 63 (2d Cir. 2011).
If the non-monetary sanctions imposed by this Court are enforced before the Second
Circuit has an opportunity to consider Mr. Liebowitz and LLF’s appeal, Mr. Liebowitz and LLF
will suffer severe and irreparable reputational and economic harm to their law practice. Absent a
stay of enforcement pending appeal, therefore, their right to appeal may lose all practical value.
The Court’s non-monetary sanctions are extraordinarily broad in their scope and severe in
their effect. Sanctions 3, 4, and 5 require Mr. Liebowitz and LLF to serve a copy of the
Opinion—which discusses at length and in detail Mr. Liebowitz and LLF’s shortcomings in this
case and in others—on current and future clients, as well as in current and future actions, on a
nationwide basis. These sanctions are likely to have the predictable effect of undermining Mr.
Liebowitz and LLF’s relationships with its current and future clients and, beyond that, chilling
Mr. Liebowitz and LLF’s relationships with courts across the country, also to the prejudice of
Mr. Liebowitz, LLF, and their clients. See Liebowitz Decl. ¶ 11; In re Accent Delight Int’l Ltd.,
No. 16-MC-125, 2018 WL 7473109, at *1 (S.D.N.Y. June 27, 2018) (Furman, J.) (granting stay
in part on basis “the proverbial bell cannot be unrung” once court’s order is enforced); United
States v. Am. Express Co., No. 10-CV-4496, 2015 WL 13735045, at *6 (E.D.N.Y. May 19,
11

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 18 of 31

2015) (collecting cases in which “loss of market share and goodwill” were considered evidence
of irreparable harm). Put simply, Sanctions 3, 4, and 5 amount to a nationwide scarlet letter on
Mr. Liebowitz and LLF. These sanctions place Mr. Liebowitz in an impossible position: he must
choose between either not initiating cases so as to avoid having to file the Opinion, or continuing
to initiate cases, filing the Opinion, and thereby risk causing the court to view the client in a
negative light by virtue of the client’s association with Mr. Liebowitz. Mr. Liebowitz must, in
other words, choose between not practicing, and practicing in a way in which his actions will
redound to the detriment of his clients. This Court has forced Mr. Liebowitz to make this
impossible choice notwithstanding that Mr. Liebowitz and LLF have, over the past several years,
successfully represented and vindicated the rights of copyright holders in thousands of
proceedings. See Liebowitz Decl. ¶¶ 7–8; Cotler Decl. ¶ 4.
Further, Sanction 6 will impose enormous monetary and time-related burdens on Mr.
Liebowitz and LLF, as well as their future clients. Ordering a deposit copy of the copyrighted
work from the U.S. Copyright Office has cost Mr. Liebowitz, per his Declaration, between $200
and $1,200, and deposit copies often are not delivered for several months—a time period which
has been further lengthened during the current pandemic. See Liebowitz Decl. ¶ 10. Given the
nature of Mr. Liebowitz and LLF’s practice, which relies on a high volume of cases to make it
economically feasible to provide legal services to artists whose cases, individually, generally
have small maximum recoveries, the deposit copy requirement could impose on Mr. Liebowitz
and LLF costs of thousands of dollars and thus render the filing of many copyright infringement
actions—and the firm’s continued operation—financially untenable. See Liebowitz Decl. ¶¶ 5–
7, 10; Cotler Decl. ¶¶ 3–4; Hearing Tr. 139. In addition, Sanction 6 risks precluding Mr.
Liebowitz and LLF—and their clients—from pursuing otherwise meritorious cases on statute of

12

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 19 of 31

limitations grounds if deposit copies do not timely arrive. See Liebowitz Decl. ¶ 10; Cotler Decl.
¶¶ 3–4; Hearing Tr. 127 (statement from counsel for Defendant that “it takes the [C]opyright
[O]ffice a really long time” to send deposit copies).7
In sum, the non-monetary sanctions will impose severe monetary and reputational costs,
along with legal risks, on Mr. Liebowitz, LLF, and their clients. Absent a stay pending appeal,
therefore, “unscrambl[ing] the eggs” will not be possible even if Mr. Liebowitz and LLF prevail
on appeal. KDH Consulting Grp. LLC v. Iterative Capital Mgmt. L.P., No. 20-CV-3274, 2020
WL 2554382, at *7 (S.D.N.Y. May 20, 2020) (citation and quotation marks omitted); see also
Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (per curiam)
(irreparable harm exists where the harm “cannot be remedied” by a favorable ruling from the
court of appeals). Because there is a “substantial chance” that, absent a stay pending appeal, Mr.
Liebowitz and LLF “cannot be returned to the positions they previously occupied,” Brenntag,
175 F.3d at 249, this factor strongly favors a stay.
II.

“Serious Questions” Exist As To Whether The Court’s Factual Findings And Legal
Conclusions Were An Abuse Of Discretion.
Because Mr. Liebowitz and LLF will suffer severe and irreparable harm if a stay pending
appeal is not granted, they need only demonstrate that “there are ‘serious questions’ going to the
merits of the dispute” and that “the balance of hardships tips decidedly in [their] favor.” In re
A2P SMS Antitrust Litig., No. 12-CV-2656, 2014 WL 4247744, at *2 (S.D.N.Y. Aug. 27, 2014)
(emphasis in original) (quoting Citigroup Global Mkts, Inc. v. VCG Special Opportunities
7

Indeed, Sanction 6 already is affecting LLF’s practice. Liebowitz Decl. ¶ 10. On June 30,
2020, in another action, Magistrate Judge Cave, relying on this Court’s Opinion, directed Mr.
Liebowitz file a deposit copy of the work at issue by July 8, 2020. Krieger v. Alison Lou LLC,
No. 20-CV-2628, Dkt. 17, at 2–3 (S.D.N.Y. June 30, 2020). Mr. Liebowitz sought modification
of the order, explaining that timely compliance would be impossible given the processing time
required to obtain a deposit copy. Id. at Dkt. 19. Notwithstanding this, Judge Cave denied
modification. Id. at Dkt. 21.
13

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 20 of 31

Master Fund, Ltd., 598 F.3d 30, 35 (2d Cir. 2010)). “The ‘serious questions’ standard permits a
district court to grant a . . . stay in situations where it cannot determine with certainty that the
moving party is more likely than not to prevail on the merits . . . , but where the costs outweigh
the benefits of not granting the . . . stay.” Id. (quotation marks and alterations omitted) (quoting
Citigroup, 598 F.3d at 35). As Judge Nathan has explained:
A “serious questions” standard is particularly appropriate when a district court is
asked to stay its own order; under such circumstances, the court has already
determined that the applicant failed to succeed on the merits. Asking the district
court to then find that the movant is likely to succeed on the merits on appeal would
require the district court to find that its own order is likely to be reversed—a
standard that for practical purposes is rarely going to be satisfied.
Id.
1. A “serious question” exists as to whether the Court’s factual findings were
supported by clear and convincing evidence.
“A district court’s imposition of sanctions for misconduct is reviewed for abuse of
discretion.” Koehl v. Bernstein, 740 F.3d 860, 862 (2d Cir. 2014) (per curiam) (citation omitted).
Because in imposing sanctions “the district court [acts as] accuser, fact finder[,] and sentencing
judge all in one, . . . review is more exacting than under the ordinary abuse-of-discretion
standard.” Wolters Kluwer Fin. Servs. v. Scivantage, 564 F.3d 110, 113–14 (2d Cir. 2009)
(citation and quotation marks omitted).
The record in this case presents a “serious question,” Citigroup, 598 F.3d at 35, whether
this Court abused its discretion in finding that the second and third grounds upon which it
sanctioned Mr. Liebowitz and LLF were supported by clear and convincing evidence.
With respect to the second ground for sanctions, the Court found “by clear and
convincing evidence” that Mr. Liebowitz and LLF’s representations that the mediator granted
Mr. Usherson permission to participate in the mediation by phone “were false and made in bad
faith.” Op. 29–30, 35. As the Hearing transcript reveals, a serious question exists as to whether
14

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 21 of 31

this factual finding was an abuse of discretion, as there was insufficient evidence in the record
for the Court to conclude that the mediator did not grant Mr. Usherson permission to appear by
phone. The primary evidence the Court relied on for this point was the mediator’s testimony that
Mr. Liebowitz did not ask for such permission. See Op. 30; Hearing Tr. 100–01; Decl. of
Mediator ¶ 7 (Dkt. No. 39). But the other evidence cited by the Court to corroborate the
mediator’s testimony was equivocal at best, and the testimony alone does not support the finding.
For example, although the Court read the mediator’s email exchange with counsel for
Defendant—in which counsel stated, the night before the mediation, that he “would have
assumed Mr. Usherson either flew to NY tonight or is likewise on a very early plane” and the
mediator responded, “I understand”—as indicating the mediator did not know that Mr. Usherson
would appear by phone, Op. 30–31, an equally plausible reading of the mediator’s email is that
he was so aware. If the mediator believed, having spoken with Mr. Liebowitz earlier that
evening, that Mr. Usherson would be attending the mediation in person (as the Court suggests is
the case), the mediator equally likely would have said so in his response to counsel, rather than
merely acknowledging counsel’s assumption. In sum, there is, on this record, a serious question
whether this Court abused its discretion in relying on the mediator’s essentially uncorroborated
testimony to find by clear and convincing evidence that Mr. Liebowitz lied about requesting
permission for Mr. Usherson to appear by phone. Cf. United States v. Stewart, 433 F.3d 273,
315 (2d Cir. 2006) (“[A] conviction [for perjury] may not be obtained solely on the
uncorroborated oath of one witness.” (citation and quotation marks omitted)).8

8

Notwithstanding that the Court found the mediator to be credible, Op. 30, the Court
nevertheless discounted portions of the mediator’s testimony that were corroborative of Mr.
Liebowitz’s testimony and argument. In particular, although the mediator acknowledged,
critically, that “in a few prior mediations [Mr. Liebowitz’s] client appeared by telephone without

15

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 22 of 31

With respect to the third ground for sanctions—the Court’s conclusion that Mr.
Liebowitz acted in bad faith by falsely alleging, without investigation, that the Photograph was
registered before filing suit—a serious question exists whether this Court abused its discretion in
finding that clear and convincing evidence supported its conclusion. The record evidence
plausibly provides that Mr. Usherson, years prior to engaging LLF on this matter, sought
copyright registration of over two thousand photographs he took at a 1972 music festival (the
“046 Registration”), which included five similar photographs of the musicians Bob Dylan and
Leon Redbone; that, after engaging LLF, Mr. Usherson sent the images contained on the 046
Registration to Zachary Cuff, an LLF staff employee, who entered the photographs into LLF’s
records; that, in June 2019, Mr. Usherson discovered Defendant’s use of the Photograph, which
he mistakenly believed to be a cropped version of one of the photographs contained within the
046 Registration; that, in July 2019, Mr. Usherson authorized Mr. Liebowitz to initiate an
infringement action as to the Photograph based on this mistaken belief; that Mr. Usherson, aware
that his photographs were targets of infringement, thereafter sent Mr. Cuff a CD containing a set
of thirty additional photographs from the same 1972 music festival for registration; that LLF’s
staff (but not Mr. Liebowitz) registered those photographs in August 2020 (the “272
Registration”), as it often does for clients separate from its litigation practice; and that neither
incident,” Decl. of Mediator ¶ 7, thus lending credence to Mr. Liebowitz’s testimony and
argument that he had a past practice with the mediator of client participation by phone, Hearing
Tr. 4–5, 7–15, 46, 74–79, 132–35, the Court found Mr. Liebowitz’s argument to be an after-thefact justification, first made in December 2019, that was incompatible with his conduct in asking
the mediator for permission, Op. 34–35. But Mr. Liebowitz’s past-practice argument was first
made at the November 14, 2019 conference—the first conference at which the issue was
discussed. See Dkt. No. 36, at 9. In any event, the past-practice argument—beyond being
corroborated by the mediator’s credible testimony—is compatible with Mr. Liebowitz’s not
having arranged a flight for Mr. Usherson to appear in person: If Mr. Liebowitz reasonably
believed the mediator would likely approve client participation by phone, he would not have
believed it necessary to have arranged a flight.

16

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 23 of 31

Mr. Liebowitz nor Mr. Usherson knew the Photograph was in fact part of the 272 Registration
rather than the 046 Registration until Defendant obtained a deposit copy. See generally Dkt.
Nos. 62–63; see also Hearing Tr. 127–28, 140–41; Dkt. No. 63-1 (juxtaposing the Photograph
with five similar photographs in the timely 046 Registration).
Notwithstanding this evidence, the Court found:
[I]t is hard to believe that Mr. Liebowitz, as “lead counsel for Plaintiff” and the
“founding member of Liebowitz Law Firm,” was unaware [that the firm had
knowledge that the Photograph had not been registered prior to the filing of the
complaint]. It is far more plausible—indeed likely—that, upon receiving the
Photograph from Mr. Usherson, Mr. Liebowitz realized that it had not yet been
registered and sought to quietly take care of the problem, hoping that Bandshell and
the Court would be none the wiser and he would escape dismissal.
Op. 41 (citations omitted). But there is no clear and convincing record evidence that Mr.
Liebowitz in fact initiated this action knowing the Photograph was unregistered. No evidence as
to Mr. Liebowitz or other LLF staff members’ knowledge at the time of filing was presented at
the Hearing, which focused on the mediation issue. Moreover, Mr. Usherson stated that,
although he sent a CD containing the Photograph (among other photographs) to LLF after
initiation of this action for copyright registration, he did not know that the Photograph was not
registered until January 2020. Dkt. No. 62 ¶¶ 11–15, 19–20. That account is unrebutted. Given
the photographer’s own confusion as to whether the Photograph was a cropped version of a
similar photograph contained within the timely 046 Registration, it stands to reason that Mr.
Liebowitz and LLF also did not know on filing the action that the Photograph was not registered.
The more consistent reading of the record is that the registration error in this case was the
product of Mr. Liebowitz and LLF’s reliance on their client, where two photographs were
similar. Cf. NatTel LLC v. SAC Capital Advisors, No. 04-CV-1061, 2005 WL 2253756, at *16
(D. Conn. Sept. 16, 2005) (declining to impose Rule 11 sanctions for alleged frivolous claims
where it was not “clear-cut” that the claims were foreclosed by law), aff’d, 370 F. App’x 132 (2d
17

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 24 of 31

Cir. 2006).9 In sum, the record presents a serious question as to whether this Court erred in
finding “that Mr. Liebowitz brought—and maintained—this case in bad faith by willfully
disregarding the fact that the case was fatally flawed from its inception.” Op. 38.10
2. A “serious question” exists as to whether the Court abused its discretion by
imposing sanctions beyond what was reasonably necessary for deterrence.
The non-monetary sanctions imposed by this Court are extraordinarily broad in their
geographic scope and unusually severe in their substantive impact. The Second Circuit has
warned that, because the power to sanction “carries with it the potential for abuse,” statutes
authorizing sanctions “should be construed narrowly and with great caution, so as not to stifle the
enthusiasm or chill the creativity that is the very lifeblood of the law.” Mone v. Comm’r, 774
F.2d 570, 574 (2d Cir. 1985) (discussing 28 U.S.C. § 1927) (citation and quotation marks
omitted). The Supreme Court has underlined that the inherent power to sanction “must be
exercised with restraint and discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).
Sanctions therefore must be “no more severe than reasonably necessary to deter repetition” of the
conduct “or comparable conduct by similarly situated persons.” Macolor v. Libiran, No. 14-CV-

9

Mr. Liebowitz testified, without contradiction, that in November 2019 LLF retained
experienced outside counsel “to help out on business management and . . . situations that may
arise and that could help with the practice.” Hearing Tr. 81. Mr. Liebowitz further
acknowledged that “certain things are not best practice,” “that things need to change,” and that
he retained counsel “to help out . . . so that things like this don’t happen again; and that all the
T’s are crossed and I’s are dotted.” Hearing Tr. 81–82. Mr. Liebowitz has continued these
efforts since the Hearing; in particular, LLF has adopted new practice management software,
which helps the firm manage case calendaring and alerts, case documents and discovery,
copyright registration information, and other important case details. Liebowitz Decl. ¶ 12.
10

The record in this case also presents a serious question whether the Court abused its discretion
in sanctioning Mr. Liebowitz and LLF for their conduct before other courts. The Second Circuit
has held that “[v]iolations of orders in other litigation should not be the basis for an award of fees
in the instant litigation; such violations are best dealt with in the actions in which they have
occurred.” Dow Chem. Pac. Ltd. v. Rascator Mar. S.A., 782 F.2d 329, 345 (2d Cir. 1986).

18

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 25 of 31

4555, 2015 WL 1267337, at *5 (S.D.N.Y. Mar. 18, 2015) (Furman, J.) (citation and quotation
marks omitted). The record in this case presents a serious question whether this Court abused its
discretion by imposing sanctions that violate this bedrock principle of proportionality.
As noted, while pejoratively referring to Mr. Liebowitz and LLF’s low-priced service to
underserved artists as characteristic of “troll[s],” Op. 1 (quoting McDermott v. Monday Monday,
LLC, No. 17-CV-9230, 2018 U.S. Dist. LEXIS 184049, at *9–10 (S.D.N.Y. Oct. 26, 2018)), this
Court has imposed severe, nationwide sanctions that impose enormous monetary and
reputational costs on Mr. Liebowitz and LLF, as well as its clients. The geographic scope and
substantive impact of the sanctions present the serious question whether this Court acted with
“restraint and discretion” and went beyond ensuring only “the orderly and expeditious
disposition of cases.” Chambers, 501 U.S. at 43–44; see also Arista Records LLC v. Usenet.com,
Inc., 608 F. Supp. 2d 409, 442 (S.D.N.Y. 2009) (holding “effectively case-dispositive” sanction
to be “disproportionate to [the] sanctionable conduct” and citing cases). Further, in imposing
sanctions, this Court repeatedly referred to Mr. Liebowitz’s possible disbarment, even suggesting
its desirability, before ultimately acknowledging that disbarment “is an issue for the [Southern
District’s] Grievance Committee.” Op. 3, 45–46. Notwithstanding this acknowledgment, the
non-monetary sanctions imposed will negatively impact Mr. Liebowitz’s nationwide practice for
a year. Sanction 5 in particular, which requires that Mr. Liebowitz and LLF file a copy of the
Opinion in any new case for a year, will require that Mr. Liebowitz and LLF either refrain from
taking on new cases, or else comply and risk immediately tainting each new court’s view of them
and, by extension, their clients—an impossible choice that could lead them not to file new cases
at all. In imposing such a sanction, the Court circumvents the Grievance Committee, the New
York State bar, and other formal disciplinary bodies better suited to address such issues.

19

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 26 of 31

Even in cases of egregious conduct, courts have not imposed sanctions of the geographic
scale and substantive impact imposed here. For example, in Gallop v. Cheney, the plaintiff’s
attorney (in an action accusing officials of orchestrating the 9/11 attacks), after losing an initial
appeal, filed a “frivolous and vexatious motion to disqualify the panel ‘and any like-minded
colleagues’” from further considering the case. 667 F.3d 226, 227 (2d Cir. 2012) (per curiam).
The Second Circuit “conclud[ed] that [the attorney] acted in bad faith,” and accordingly directed
the attorney “to provide notice of the sanctions imposed upon him in this case . . . to any federal
court in this Circuit before which he appears or seeks to appear.” Id. at 230. The Second Circuit
thereby limited the geographic scope of the sanction to courts within the Circuit only.
Similarly, in Enmon v. Prospect Capital Corp., a law firm made numerous material
misrepresentations and frivolous arguments in connection with several motions and other filings.
675 F.3d 138, 144–47 (2d Cir. 2012). The Second Circuit affirmed the aspect of the sanctions
imposed by the district court directing the law firm to “submit [its] sanctions order . . . with any
future pro hac vice applications in the Southern District of New York.” Id. at 148. Other courts
have imposed similarly delimited sanctions even when faced with more egregious conduct. See,
e.g., Shangold v. Walt Disney Co., 275 F. App’x 72, 73–74 (2d Cir. 2008) (affirming sanction
limited to dismissal of action where plaintiffs submitted fraudulent document to support their
copyright claim and gave false testimony to support that claim).
In the small number of cases courts have imposed nationwide sanctions, such decisions
appear generally to involve parties who either repetitively litigated the specific matter despite
prior findings that they lacked any basis to do so, or made outrageous and repeated use of the
court system to harass apparent personal enemies. In In re Hartford Textile Corp., for example,
the Second Circuit prohibited a litigant and her attorney from further litigation based on a

20

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 27 of 31

particular set of facts, but did so on a record showing the litigant had made “at least twenty-five
motions, most of which were meritless and repetitious” before even reaching the Court of
Appeals for the first time, and had continued to pursue her unsupported claim for four more
years (including via twelve petitions to the Supreme Court) after her initial defeat upon appeal.
681 F.2d 895, 896–97 (2d Cir. 1982) (per curiam). Even then, neither the litigant nor her
attorney were barred from future actions beyond the subject matter of the claim. Id.
Similarly, in In re Martin-Trigona, the court entered an order enjoining the litigant from
filing future actions without leave only after finding he had a “well-documented practice of
abusing his imagined enemies through legal process,” resulting in not only “countless” frivolous
filings, but also “emotional distress and injury to his victims and subject[ing] them to
embarrassment among professional colleagues, insurers, and the general public.” 592 F. Supp.
1566, 1569–70 (D. Conn. 1984), aff’d, 763 F.2d 140 (2d Cir. 1985); see also Hammer v.
Amazon.com, 392 F. Supp. 2d 423, 433 (E.D.N.Y. 2005) (prohibiting litigant from “commencing
any subsequent action in federal court relating to . . . review of his books on Amazon.com,” but
rejecting requirement for litigant to include copy of injunction in future unrelated actions).
In keeping with this precedent, courts have modified, vacated, or reversed sanctions that
went beyond the scope of the conduct at issue or impermissibly limited access to the courts. For
example, in Hill v. Carpenter, the district court had imposed sanctions that “bar [the litigant]
from ever bringing another lawsuit in the [Middle District of Pennsylvania].” 323 F. App’x 167,
171 (3d Cir. 2009) (summary order). The Third Circuit vacated the sanctions as “overly broad”
and remanded to the district court to “impose more tailored sanctions.” Id. at 171–72.
Along the same lines, in Polur v. Raffe, the district court had prohibited a litigant “from
filing further suits in the federal courts against [the defendants] relating to the matters at bar.”

21

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 28 of 31

912 F.2d 52, 57 (2d Cir. 1990). The Second Circuit, reasoning that the “parameters of the
injunction [were] not adequately defined,” narrowed the sanction to only “enjoin [the litigant]
from filing without leave of the district court further suits in the federal district courts of New
York against [the defendants],” so as to ensure that the litigant was not “den[ied] . . . complete
access to the New York federal district courts.” Id. In Wolters Kluwer, the district court had
imposed sanctions on both individual attorneys and their law firm. 564 F.3d at 114. The Second
Circuit, holding that the district court did not find “specific evidence of [the law firm’s] bad
faith,” overturned the sanctions imposed on the law firm. Id. at 114–15. Finally, in Enmon, the
Second Circuit noted that the district court’s sanctions were not limited temporally and “involved
an entire law firm, including lawyers who joined the firm after this litigation had already
concluded,” and accordingly “remand[ed] to the District Court to consider . . . whether to impose
a temporal limit . . . , and whether to exclude from the scope of the order all attorneys who joined
the firm after [entry of] . . . the sanctions order,” Enmon, 675 F.3d at 148.
As in these cases, the Court’s extraordinarily severe non-monetary sanctions were not
“the least severe sanctions necessary to achieve the goal [of deterrence].” Manti’s Transp. v.
Kenner, No. 13-CV-6546, 2015 WL 1915004, at *14 (E.D.N.Y. Apr. 27, 2015) (citation and
quotation marks omitted). The sanctions go far beyond the geographic scope and subject matter
of this litigation, rely upon lesser misconduct than that of the litigants who have faced
comparably broad sanctions, and could well have the effect of preventing Mr. Liebowitz and
LLF from practicing for a year. As such, a serious question exists as to whether this Court
abused its discretion in imposing sanctions that go beyond what was “reasonably necessary.”
Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378, 394 (S.D.N.Y. 2010).

22

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 29 of 31

3. A “serious question” exists as to whether the Court abused its discretion by
altering the statutory presumption of validity in copyright cases.
A serious question exists as to whether this Court abused its discretion by imposing
Sanction 6, specifically, which alters the statutory presumption of validity in copyright cases.
Under federal law, “the certificate of a registration . . . shall constitute prima facie evidence of
the validity of the copyright.” 17 U.S.C. § 410(c). In keeping with this presumption, “[a]lthough
the plaintiff bears the burden of proving copyright ownership, [once registration is shown], the
party challenging the validity of the copyright registration has the burden to prove the contrary.”
Urbont v. Sony Music Entm’t, 831 F.3d 80, 89 (2d Cir. 2016) (citation and quotation marks
omitted). By requiring Mr. Liebowitz and LLF to file a deposit copy upon initiation of actions,
the Court improperly overrode this statutory presumption.11
III.

A Stay Will Not Harm Defendant Bandshell.
Defendant—which has settled Mr. Usherson’s claim—will suffer no harm whatsoever if
a stay is issued. None of the monetary and non-monetary sanctions imposed by this Court run to
Defendant’s benefit. Rather, as this Court found, the purpose of the sanctions was to deter Mr.
Liebowitz and LLF, and to inform their clients and other courts of the sanctions; because
Defendant’s counsel represented Defendant pro bono, the Court has specified the monetary
sanctions are payable to the Clerk of Court. Op. 45–48, 50–51. No basis exists for this Court to
consider potential harm to unspecified entities or persons not party to the proceedings or
factually related matters. See, e.g., Nken, 556 U.S. at 426 (stating test is whether stay will
“substantially injure the other parties interested in the proceeding”). But cf. In re Petrobras Sec.,
11

See, e.g., Goodman v. Univ. Beauty Prods. Inc., No. 17-CV-1716, 2018 WL 1274855, at *5
(S.D.N.Y. Mar. 9, 2018) (granting summary judgment to Mr. Liebowitz’s client where plaintiff
submitted copyright registration and defendant, having “had the opportunity to request [and
submit] a certified deposit copy,” failed to do so); Chicoineau v. Bonnier Corp., No. 18-CV3264, 2018 WL 6039387, at *2 (S.D.N.Y. Oct. 16, 2018) (same).
23

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 30 of 31

193 F. Supp. 3d 313, 317 (S.D.N.Y. 2016) (considering effect of stay pending appeal of decision
to grant class certification on parallel individual actions).
IV.

A Stay Is In The Public Interest Because It Will Permit Continued Vindication Of
The Rights Of Copyright Plaintiffs Who Have Limited Alternatives For Recovery.
There is a strong public interest in the continuation of Mr. Liebowitz and LLF’s law
practice. Mr. Liebowitz and LLF have carved out a successful law practice that provides a
realistic prospect of recovery to copyright plaintiffs in relatively low-dollar infringement cases
that otherwise could go unfiled. See Liebowitz Decl. ¶¶ 5–8; Cotler Decl. ¶¶ 3–4; Ward v.
Consequence Holdings Inc., No. 18-CV-1734, 2020 WL 2219070 (S.D. Ill. May 7, 2020)
(“[F]reelance photographers like [Mr. Liebowitz’s client] . . . often lack the resources to pursue
claims in court . . . , knowing that even if successful they may receive mere token payments of a
few hundred dollars for their work, far less than their legal fees.”); DC Comics v. Pac. Pictures
Corp., No. 10-CV-3633, 2013 WL 1389960, at *5 (C.D. Cal. Apr. 4, 2013) (“The Ninth Circuit
has noted particular concern that copyright holders will not prosecute infringement actions when
the amount at stake is low.” (citations omitted)); Shyamkrishna Balganesh, Copyright
Infringement Markets, 113 COLUM. L. REV. 2277, 2288–89 (2013) (“[C]opyright litigation
remains unaffordable to a large number of litigants.”). Absent a stay, Mr. Liebowitz, LLF, and
their clients will suffer harm.
CONCLUSION
Mr. Liebowitz and LLF respectfully request that the Court issue a stay pending appeal as
to the enforcement of non-monetary sanctions three, four, five, and six. Mr. Liebowitz and LLF
further request that this Court issue a stay on an interim basis, pending its resolution of their
request. In the alternative, should this Court conclude that a stay pending appeal is unwarranted,
Mr. Liebowitz and LLF respectfully request that this Court, at a minimum, issue a stay for

24

 Case 1:19-cv-06368-JMF Document 78 Filed 07/20/20 Page 31 of 31

sufficient time to allow Mr. Liebowitz to promptly move in the Second Circuit for a stay
pursuant to Federal Rule of Appellate Procedure 8(a)(2) and, assuming that such motion is
promptly made, until the Second Circuit determines the stay motion.12
Dated: July 20, 2020
New York, N.Y.

MORVILLO ABRAMOWITZ GRAND IASON &
ANELLO P.C.
/s/ Robert J. Anello
Robert J. Anello
Brian A. Jacobs
Kevin Grossinger
A. Dennis Dillon
565 Fifth Avenue
New York, New York 10017
Tel: (212) 856-9600
Fax: (212) 856-9494
ranello@maglaw.com
bjacobs@maglaw.com
kgrossinger@maglaw.com
ddillon@maglaw.com
Counsel for Richard Liebowitz and Liebowitz
Law Firm, PLLC

12

See, e.g., U.S. C.F.T.C. v. eFloorTrade, No. 16-CV-7544, 2020 WL 2216660, at *10
(S.D.N.Y. May 7, 2020) (granting brief stay “to allow [movant] to seek a stay from the Court of
Appeals); Front Carriers Ltd. v. Transfield ER Cape Ltd., No. 07-CV-6333, 2010 WL 571967, at
*1 (S.D.N.Y. Feb. 15, 2010); HC Trading Int’l Inc. v. Crossbow Cement, SA, No. 08-CV-11237,
2009 WL 4931341, at *3 (S.D.N.Y. Dec. 21, 2009).

25