Copyright lawyer Richard Liebowitz failed to get Manhattan federal judge Lewis A. Kaplan to recuse himself from one of his cases for allegedly calling him a “copyright troll” who sues to extort settlements.
Judge Kaplan said in his Nov. 26 order that he didn’t call Liebowitz a troll, but merely noted that another judge in the U.S. Southern District of New York used the term. But he also said some evidence exists that points to Liebowitz filing suits based not on their merit but only to get settlement payments, including his actions “in this very case.”
Liebowitz represents photographer Steven Sands in a copyright infringement case filed against Bauer Media Group USA LLC for allegedly using one of his pictures without permission. Liebowitz is known for filing a high volume of copyright infringement cases on behalf of photographers.
Liebowitz requested Kaplan recuse himself from the case, arguing he can’t be impartial because Kaplan called him a “copyright troll” and accused him of filing “strike suits, designed to extort settlements” in a September ruling.
“In fact, the September 18, 2019 ruling did not do either,” Kaplan said. The ruling “simply observed” that another Manhattan federal judge called Liebowitz a troll and that there “might be justification” for claims that he sues to extort settlements.
“In fact, as events have developed in this case, there perhaps is even more justification,” the court said. Liebowitz “in this very case—in filing the very motion for recusal underlying this order—stated under penalty of perjury” that he never made a settlement demand in this case.
“These statements are false,” the court said. The court said an associate of Liebowitz made a $25,000 settlement demand at the initial conference, and Liebowitz himself emailed the defendant proposing a $25,000 settlement “at the outset of the case.” Liebowitz’s argument that he “overlooked” these demands in his motion was “unpersuasive.”
The court also said it was “more than passingly odd” that Liebowitz’s motion followed “the Court’s denial of his adversary’s motion to dismiss this action for Mr. Liebowitz’s discovery misconduct” and imposition of lesser sanctions instead.
“Nothing in this record supports any claim of favoritism or antagonism, let alone favoritism or antagonism to a degree making fair judgment impossible,” the court said.
Miller Korzenik Sommers Rayman LLP represents Bauer.
The case is Sands v. Bauer Media Group USA LLC, S.D.N.Y., No. 1:17-cv-09215, 11/26/19.