Chosen Figure LLC v. Smiley Miley, Inc.

Background

The court was concerned about whether Richard Liebowitz, the plaintiff’s attorney, had actually been retained by Chosen Figure LLC and authorized to bring and settle the case. The order noted Liebowitz’s history of failing to comply with court rules and orders, being sanctioned, and lying to judges in some cases.

On July 29, 2020, Liebowitz told the court that the parties had agreed in principle to settle and requested a 30-day order. On July 30, the court ordered Liebowitz and the plaintiff to provide personal affidavits or declarations stating whether and when Chosen Figure specifically authorized Liebowitz to file and settle the action. The court also required the full retainer agreement or other supporting documents and warned that failure to comply could result in sanctions.

Submissions and Court’s Concerns

On August 6, Liebowitz submitted a declaration and Kamau submitted a declaration. Liebowitz said that Kamau had signed a retainer agreement on February 28, 2019, authorizing the law firm to file copyright lawsuits on his behalf. Liebowitz also said he filed this action on June 23, 2020, notified Kamau that day, and had authority to settle.

The court found that Liebowitz had not submitted the full retainer agreement. The signature page he provided was signed by Kamau personally rather than on behalf of Chosen Figure LLC. The page also predated the alleged infringement, which the complaint identified as occurring on February 12, 2020. The court stated that, regardless of the agreement’s terms, it could not serve as evidence that Chosen Figure specifically authorized Liebowitz to file and settle this action.

Kamau’s declaration said he personally signed the February 28, 2019 retainer agreement, that Liebowitz had authority to file this lawsuit as of March 17, 2020, and that Liebowitz had authority to settle. But Kamau provided no evidence supporting the claimed March 17 authorization or settlement authority. The court also noted an apparent inconsistency between Liebowitz’s claim that the 2019 agreement authorized the filing and Kamau’s statement that authority to file began on March 17, 2020.

Ruling

The court ordered Liebowitz and Kamau to file the full retainer agreement or agreements and all documentary evidence concerning Liebowitz’s authority to bring and settle the case no later than August 18, 2020. The required materials included emails, letters, notes, and other writings or electronically stored information concerning the retention, the scope of the engagement, any changes to that engagement, and the settlement.

This order addressed the documentation of counsel’s authority and did not decide the underlying copyright claims. The opinion did not state that sanctions were imposed in this order.