Here’s an example of why even Ed is not a fan of lawyers in general.  You’ll never find him having a beer with an adversary either.

In a copyright infringement case brought in the Federal Court in Manhattan – formally The United States District Court for The Southern District of New York, entitled Matthew McDermott v. Monday Monday, LLC, Judge Cote had very harsh words for the plaintiff’s attorney Richard Liebowitz.

Quoting the judge’s decision of February 22, 2018: “Plaintiff’s counsel, Richard Liebowitz, is a known copyright “troll”, filing over 500 cases in this district alone in the past twenty four months.”

The judge footnotes that statement on page 9 and in her footnote states, and again we quote the decision directly:

“In common parlance, copyright trolls are more focused on the business of litigation than on selling a product or service or licensing their copyrights to third parties to sell a product or service. A copyright troll plays a numbers game in which it targets hundreds or thousands of defendants seeking quick settlement priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim” citing Creazioni Artistiche Musicali, SRl v. Carlin America, Inc.

Just SIX DAYS later, the very same Federal Court Judge, Denise Cote in the unrelated copyright action entitled Paul Steeger v. JMS Cleaning Service, LLC. fined Attorney Liebowitz the sum of $10,000 for his failure to comply with rather standard and ordinary court protocols – specifically his failure to give notice to his opposition, misrepresenting certain facts to the court and she goes on to cite his conduct generally.  To be termed a “troll” and get sanctioned to the tune of $10,000 just days apart in two different cases may be a first.

Both fairly brief decisions in their entirety can be read here: Case 1 , Case 2

It is quite rare that a Federal Court judge would ascribe such a pejorative term such as “troll” to an attorney. Indeed, if written by a layperson about Mr. Liebowitz it might constitute libel possibly leaving the author with the sole defense of “truth”.

It is a cliche that when there is money to be made all sorts companies, people and others, will rush into that space. The Wild West of copyright infringements has been tamed to some degree by photographers and illustrators who timely register their works and then retain competent legal counsel with a good reputation in their local Federal Court. Substantial monetary recoveries obtained by experienced attorneys has lead to a boom in copyright “search and rescue” companies which seek quick, low ball settlements without the use of experienced attorneys.

That is their business model. Settle early and keep preying on the fears creatives have over dealing with lawyers.

Ed wants to be crystal clear that he cannot fathom filing 500 copyright cases in one District (or even several) within 24 months.  For a small, medium or large firm to do so would indicate that likely few if any, attempts were made to settle any case before filing suit. The Federal Rules applicable to attorneys who practice in the Federal Courts where all copyright cases are heard, require attorneys to make reasonable attempts to avoid filing suit and to perform due diligence in every non-emergency case before filing it in court.

A representation by an attorney that he/she files “a lot of copyright cases” in and of itself ought to make any prospective client leery. A biography of each attorney who may be handling your case should appear on any attorney advertising, especially their websites. If the attorney appears “sue happy” it may be because he/she is unable to value a case for settlement purposes.

In a future column – what attorney advertising may or may not contain. What things included or omitted should alert you when considering retaining an attorney. In a profession where reputation is everything attorney advertising ought never be the determining factor on retaining an attorney or law firm.

UPDATE: The judge reduced the $10,000 sanction amount to $2,000, but Mr. Liebowitz has to take and complete a training course on “ethics and professionalism” by July 31st, 2018. Let’s see if there is more to come on this story.