Usherson v. Bandshell Artist Management

Background

The court had previously imposed monetary and non-monetary sanctions on Richard Liebowitz and the Liebowitz Law Firm, PLLC, who represented the plaintiff. The earlier sanctions order found that Liebowitz violated at least six court orders, repeatedly lied to the court—including under oath at a hearing—about whether a mediator had allowed the plaintiff to participate in a mediation session by telephone, and failed to reasonably investigate whether the photograph involved in the case had been registered with the Copyright Office. The court said the photograph had not been registered.

Several sanctions required Liebowitz and his firm to provide the court’s sanctions opinion and order to current and future clients and to courts where they appeared. Another sanction required them to file a deposit copy of a copyright registration when beginning a new action. The earlier order gave them thirty days to comply with several sanctions. On the twenty-fourth day, they filed a motion seeking a stay pending appeal, leaving four business days before the deadline.

Legal standard

A stay pending appeal is discretionary. The court considered four factors: whether the applicants showed a strong likelihood of success on appeal; whether they were likely to suffer irreparable harm without a stay; whether a stay would substantially harm other interested parties; and where the public interest lay. The applicants carried the burden of showing that a stay was warranted. The court described the likelihood-of-success and irreparable-harm factors as the most important, but said both still had to be satisfied.

Court’s analysis

The court found that the applicants had not shown likely irreparable harm. They argued that sharing the sanctions opinion and order would cause serious reputational and economic harm to their law practice. The court rejected that argument, reasoning that the reputational harm came from increased awareness of Liebowitz’s conduct as described in the opinion and order, rather than from the sanctions themselves. It also noted that the opinion and order were public and had already received substantial press and social-media attention. The court further relied on the applicants’ delay in seeking relief, which undermined their claim that immediate harm was likely.

The court also found little likelihood that the applicants would succeed on appeal. It rejected their challenges to the factual findings about the mediator and the photograph’s registration. The court said those challenges did not adequately address the credibility determinations made after an evidentiary hearing. It also explained that the sanctions ruling did not depend on a finding that Liebowitz personally knew before filing the complaint that the photograph was unregistered. Instead, the ruling found that Liebowitz and his firm failed to conduct a reasonable investigation before and during the case, including after defense counsel put them on notice of the registration problem.

The court rejected the argument that the sanctions were disproportionate. It concluded that the record justified their scope and severity, including their nationwide application and requirements that Liebowitz and his firm disclose the sanctions to clients and courts. The court emphasized that the sanctions did not prevent them from filing new cases; they required disclosure and verification intended to deter future misconduct.

The court also rejected the argument that requiring deposit copies improperly changed copyright law’s presumption that a registration certificate supports copyright validity. It explained that the requirement merely required Liebowitz and his firm to confirm that the work at issue was actually registered before filing a copyright claim. The sanction applied to the lawyers and firm, not their clients, and did not itself alter the clients’ substantive rights.

The court agreed that a stay would not substantially injure the defendant because the sanctions did not directly benefit that party. But it found that the public interest favored allowing the sanctions to take effect. In the court’s view, clients and courts should be aware of Liebowitz’s record so they could scrutinize his conduct. The sanctions did not prohibit the lawyers from continuing their practice or prevent photographers from hiring them.

Disposition

The court denied the motion for a stay pending appeal. It also denied the alternative request for an administrative stay, explaining that granting one would reward the applicants’ delay and would force the court to alter its deadline at the last minute.

The sanctions remained in full force and effect, with one modification. If the lawyers had a good-faith belief that waiting for deposit copies could cause a client’s claim to be barred by the statute of limitations, they could file an affidavit instead. The affidavit had to state that belief, confirm that deposit copies had been requested and were awaited, and represent that the copies would be filed promptly after receipt.