Chevrestt v. Barstool Sports, Inc.

Background

Angel Chevrestt sued Barstool Sports, Inc. under the Copyright Act, alleging unauthorized reproduction and public display of copyrighted photographs. The opinion addressed the conduct of Chevrestt’s attorney, Richard Liebowitz, rather than deciding the copyright claims.

On March 5, 2020, the court referred the case to Magistrate Judge Netburn for a settlement conference. The court’s order required Chevrestt to file proof of service within three days after service and to provide Barstool with records showing the royalty paid the last three times the photograph at issue had been licensed, along with the number of licenses during the previous five years. If the photograph had never been licensed, the order required an express certification of that fact.

Service occurred on March 6, 2020, but Liebowitz did not file an affidavit of service until March 31. He also did not provide the required licensing information by the deadline. On April 14, he sent defense counsel a one-page invoice, but the invoice did not explain whether the photographs had been licensed. After a later court order, Chevrestt submitted an affidavit stating that one photograph had been licensed once and that the New York Post had obtained a license for the photographs as part of the payment of a freelance photographer’s day rate.

Court’s analysis

The court ordered Liebowitz to explain why he should not be sanctioned. Under Federal Rule of Civil Procedure 16(f), a court may sanction an attorney who fails to obey a scheduling or other pretrial order. The court explained that a violation of a clear and unambiguous pretrial order can support a sanction without a finding of bad faith or prejudice. The rule also generally requires payment of reasonable expenses caused by the noncompliance unless the violation was substantially justified or other circumstances make an award unjust.

The court found that the March 5 order contained two simple and clear instructions and that Liebowitz ignored both. The court rejected his explanation that his law firm’s administrative work was disrupted by the COVID-19 pandemic. It also found his explanation for failing to provide the licensing information conclusory and unacceptable. The court stated that he should have requested an extension if he could not meet the deadline.

The court further found that Barstool was prejudiced because it had to spend time and money asking the court to obtain information that Liebowitz was required to provide. The court also noted that Liebowitz had previously been sanctioned for similar conduct, but the present sanctions were based on his violations of the March 5 order in this case.

Ruling and disposition

Judge Valerie Caproni found that Liebowitz failed to show cause why he should not be sanctioned under Rule 16(f). The court ordered him to:

- Pay a $3,000 civil sanction to the Clerk of Court within 15 days and file proof of payment. - Pay Barstool’s attorneys’ fees associated with bringing his noncompliance to the court’s attention and file proof of payment. The opinion did not yet state the amount; Barstool was ordered to provide Liebowitz with its billing rate and hours by May 11, 2020. - Attend an approved continuing legal education course on managing a small law practice by September 1, 2020, provide course information to the court by June 1, 2020, and later submit proof of attendance and a sworn statement describing what he learned and what compliance steps he adopted.

The opinion did not rule on Barstool’s separate requests to bar evidence of actual damages or impose a negative inference concerning licensing revenues. The court stated that Barstool could bring a separate motion on those requests if the parties were unable to settle the case.