Home/S.D. New York/Usherson v. Bandshell Artist Management

Usherson v. Bandshell Artist Management

District Court, S.D. New York·Decided October 5, 2020·No. 1:19-cv-06368·Unknown

Opinion

SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------------- X : ARTHUR USHERSON, : : Plaintiff, : 19-CV-6368 (JMF) : -v- : ORDER : BANDSHELL ARTIST MANAGEMENT, : : Defendant. : : ---------------------------------------------------------------------- X

JESSE M. FURMAN, United States District Judge:

On June 26, 2020, the Court issued a fifty-four-page Opinion and Order — familiarity with which is assumed — imposing a range of monetary and non-monetary sanctions on Plaintiff’s counsel Richard Liebowitz and his firm, the Liebowitz Law Firm, PLLC. See Usherson v. Bandshell Artist Mgmt., No. 19-CV-6368 (JMF), 2020 WL 3483661 (S.D.N.Y. June 26, 2020) (ECF No. 68). To the extent relevant here, the Opinion and Order required Mr. Liebowitz and his firm (1) no later than July 27, 2020, to serve a copy of the Opinion and Order “on every one of the firm’s current clients “and for Mr. Liebowitz to file a declaration attesting to such service on ECF; (2) no later than July 27, 2020, to file a copy of the Opinion and Order “on the docket of any currently pending case that was brought by Mr. Liebowitz or his firm” and for Mr. Liebowitz to file a declaration attesting to the same on ECF; and (3) to file a copy of the Opinion and Order on the docket in “any action that is filed within one year of the date of th[e] Opinion and Order.” Id. at *22 (emphasis omitted). On July 27, 2020, following the denial by this Court of Mr. Liebowitz’s request for stay of the Opinion and Order pending appeal, see Usherson v. Bandshell Artist Mgmt., No. 19-CV- 6368 (JMF), 2020 WL 4228754 (S.D.N.Y. July 22, 2020) (ECF No. 81), as well as the Second No. 20-2304, ECF No. 24 (2d Cir. July 27, 2020),1 Mr. Liebowitz filed a declaration attesting that he had (1) “served by email a copy of the Order on every one of LLF’s clients identified” in “an LLF internal email list — which [he] ha[d] reviewed for accuracy and to the best of [his] knowledge believe[d] to be complete”; and (2) “file[d] a copy of the Court’s Order on the docket of all currently pending cases brought by [him] or LLF.” ECF No. 82 ¶¶ 2-3. Mr. Liebowitz further attested that he identified “all currently pending cases brought by [him] or LLF” by “search[ing] on Pacer, in every federal judicial district around the country, for [his] name as counsel of record”; by “rel[ying] on [his] firm’s internal records” for the “small number of cases filed by my firm in which I am not counsel of record”; and then “double-check[ing] these filings

against [his] firm’s internal case management system.” Id. ¶ 3. Notwithstanding these representations, on September 21 and 29, 2020, Mr. Liebowitz filed declarations with the Court identifying cases brought by him or his firm in which he had “neglected to file the Order,” and only belatedly complied with its requirements. ECF No. 83 ¶ 3; see ECF No. 84. The Court has also received two letters and an email, attached here as Exhibits A through C, concerning compliance with the Court’s Opinion and Order.2 In light of these developments, no later than October 15, 2020, Mr. Liebowitz shall file a sworn declaration that:

1 The Second Circuit subsequently also denied Mr. Liebowitz’s request for stay pending appeal. See Usherson v. Bandshell Artist Mgmt., No. 20-2304, ECF No. 47 (2d Cir. Aug. 21, 2020). 2 The Court received a voicemail from an individual who expressed similar concerns about Mr. Liebowitz’s compliance, or lack thereof, with the Court’s Opinion and Order, based on communications with third persons. The caller expressed a desire not to be involved any further. Given that, and given that the caller’s information was only second-hand, the Court declines to place any weight on the caller’s information. 2 (1) explains how, notwithstanding the process described in his declaration of July 27, 2020, he overlooked the cases that he or his firm concededly brought described in his declarations of September 21, and 29, 2020, and describes what steps, if any, he has taken (and when), or what steps he will take, to identify any other such cases; (2) describes with particularity how the “LLF internal email list” Mr. Liebowitz used to identify the clients to whom he provided the Opinion and Order was compiled, who is responsible for maintaining it, and how (and how often) it is updated; explains whether it is possible that there are any clients of Mr. Liebowitz or his firm that would not be on that list; and, if so, describes what steps, if any, he has taken (and when), or what steps he will take, to identify any such clients; (3) responds to the letter addressed to the Court from Mr. Hudson dated July 28, 2020, by: a. identifying whether there are any cases in which he or his firm is acting as counsel, in any way (1.e., directly or indirectly), but has not entered a formal notice of appearance and in which he has not, as of the date of this Order, either filed the Opinion and Order or shared the Opinion and Order with the client; b. if so, showing cause why that should not be treated as a violation of the Opinion and Order; and c. either way, showing cause why the Opinion and Order should not be modified to require its filing in any case where Mr. Liebowitz or his firm is involved as counsel, whether or not he or his firm has entered a formal notice of appearance. Defense counsel may (but is not required to) respond to Mr. Liebowitz’s declaration by October 21, 2020. (If defense counsel has any information that speaks to the issues referenced above and, more broadly, to Mr. Liebowitz’s compliance with the Opinion and Order, he is encouraged to share that information with the Court.) No reply may be filed absent leave of Court.

SO ORDERED. Dated: October 2, 2020 New York, New York JESSE M“FURMAN nited States District Judge

EXHIBIT A

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a ATTORNEYS — oe ae OR AUGUSTA. AIKEN’ EVANS. □□□ □□□

-Davia.E. HUDSON og □□□□□□□□□□□□□□□□□□□□□□□□ “oLICENSEDINGEORGIA ae □□ one □□ EE □□□ oy fae . July. 28, 2020 □□

JesseM.Furman sy. Ce py SO ee □ United States District Court Judge: wes Pe PS United States Courthouse □ 40 Foley Square” pr 8 SN Teens BACB TR aes oeey Caen □□□ □□□ New York, NY 10007 I eS □□ □□□ Usherson v. Bandshell Artist Management ne Civil Action No. 19-06368. oe _. Richard Liebowitz. = = ce. OS □□ Dear aigs Furman: wormed Sorin Gem mele nih nace □□ □□□ of introduction. am counsel for the Defendant in the case of Bill Wisserv.. Morris. Communications Company, Civil Action File No. CV1 18-150, Southern District □□□ Georgia. This is a case alleging copyright infringement first filed by Mr. Liebowitz on __ behalf of Wisser in the Souther District of New York. “Case No.“f:18°CV-150-JF BKE, _ Subsequently it was transferred to the Southern’ District ‘of Georgia □□□ jufisdictional grounds, . Although Mr, Liebowitz has hot appeared in-the case pro □□□ vice, he has participated’in it ‘through settlement discussions ‘and’ signing Interrogatory □ "answers. For formal appearances in the case, he has used other attorneys to represent aM eo cicas Gus ciyeuas eh beatae Gas wy ewig Solange _. ‘Once | became aware of your sanction. order, 2020 U.S. Dist, LEXIS 112368 (June 26, 2020), | inquired ‘of Mr. Liebowitz whether. he: would: file that order □□□□□□□□ Wisser case and inform Mr. Wisser of the order. His reply to me was that -he □□□□□□

that as it may, the Wisser case is one that was “brought” by Mr. Liebowitand thete is no reason to think thathe does not still represent Mr. Wisser and havea financial interest in'the.case..: He has not,filed a°copy of the Court s’order inthe Wisser □□ PRES th ake ded le toybas ese Ut th Ed Ae chen aa ee □□□ ee a TOES ESS □□□ □ . gase here in Georgia and | have.

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