Usherson v. Bandshell Artist Mgmt.

• Decision Date: 22 July 2020
• Docket Number: 19-CV-6368 (JMF)
• Parties: ARTHUR USHERSON, Plaintiff, v. BANDSHELL ARTIST MANAGEMENT, Defendant.
• Court: U.S. District Court — Southern District of New York

ARTHUR USHERSON, Plaintiff,
v.
BANDSHELL ARTIST MANAGEMENT, Defendant.

19-CV-6368 (JMF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 22, 2020

OPINION AND ORDER

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 the oft-sanctioned 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). The sanctions were based on three sets of detailed findings: first, that Mr. Liebowitz had violated "at least six of the Court's Orders"; second, that he repeatedly lied to the Court, including under oath at a hearing, about whether he had been granted permission by a mediator (the "Mediator") for his client to participate in a mediation session by telephone; and third, that he had failed to reasonably investigate whether the photograph at issue (the "Photograph") had been registered with the Copyright Office (it hadn't), both prior to filing suit and when put on notice about the issue during the litigation. See id. at *1, *11-18. The Court found that the sanctions, several of which involve notifying other clients and courts about the Court's Opinion and Order, were reasonably necessary to deter repetition of the misconduct

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given Mr. Liebowitz's "long and ignominious history." Id. at *19-21. Mr. Liebowitz and his firm had thirty days to comply with several of the sanctions. See id. at *22. Two evenings ago — that is, twenty-four days after the Court's decision and only four business days before the deadline — they filed a motion (styled as an order to show cause) asking the Court to stay those sanctions pending appeal. See ECF No. 76.

In deciding whether to issue a stay pending appeal, a court must consider four factors:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Nken v. Holder, 556 U.S. 418, 434 (2009). The first two factors — the likelihood of success and irreparable harm — "are the most critical," id., and "have typically been evaluated on a sliding scale, so that a strong showing that the applicant is likely to succeed excuses a weaker showing of irreparable injury," Nat. Res. Def. Council, Inc. v. U.S. Food & Drug Admin., 884 F. Supp. 2d 108, 122 (S.D.N.Y. 2012). Nevertheless, as the Supreme Court has emphasized, "the applicant must demonstrate that both factors are satisfied, so that even if a party makes a robust showing that it is likely to succeed on appeal, it must also show that 'irreparable injury is likely.'" Id. (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). "A stay," moreover, "is not a matter of right, even if irreparable injury might otherwise result. It is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case." Nken, 556 U.S. at 433 (internal quotation marks and citations omitted). Ultimately, the party or parties seeking the stay — here, Mr. Liebowitz and his firm (together, the "Movants") — bear "the heavy burden of demonstrating that a stay is warranted." U.S. Commodity Futures Trading Comm'n v. eFloorTrade, LLC, No. 16-CV-7544 (PGG), 2020 WL

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2216660, at *2 (S.D.N.Y. May 7, 2020) (internal quotation marks omitted).

Applying these standards, the Court finds that the Movants do not come close to carrying their heavy burden. The Court is tempted to leave things there and let its Opinion and Order, with its exhaustive findings and analysis, speak for itself. (Mr. Liebowitz's shenanigans have surely consumed enough of this Court's time and resources as it is.) But a few observations are in order, if only to aid the Circuit in the event that the Movants decide to now burden that court with having to decide on short notice whether a stay pending appeal is warranted.

IRREPARABLE HARM

For starters, the Movants' claims of irreparable harm ring hollow for several reasons. First, the Movants' principal claim is that the sanctions — which require service of the Court's Opinion and Order on current and future clients and in current and future actions — will result in "severe and irreparable reputational and economic harm to their law practice." ECF No. 78 ("Mem."), at 11. But any harm to Movants' reputations resulting from the mere act of sharing the Court's Opinion and Order is caused not by the sanctions themselves, but by growing awareness of Mr. Liebowitz's own conduct and record, which are accurately recounted in the Court's Opinion and Order. Notably, the Movants attack none of the history recounted in the Court's Opinion and Order and few of the Court's factual findings, and, as discussed below, their attacks on those findings are entirely unpersuasive.

Significantly, the Court did not bar or even inhibit the Movants from filing any new action — though such sanctions have long been approved with respect to vexatious litigants. See, e.g., Grezak v. Grezak, 670 F. App'x 15, 16 (2d Cir. 2016) (summary order) (affirming imposition of a leave-to-file sanction); In re Sassower, 20 F.3d 42, 44 (2d Cir. 1994) ("[C]ourts

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have recognized that the normal opportunity to initiate lawsuits may be limited once a litigant has demonstrated a clear pattern of abusing the litigation process . . . ."). Instead, its order merely requires the Movants to share information — that is, the Opinion and Order — with their clients and any courts in which they appear for a time, on the theory that they may be deterred from further misconduct by the knowledge that their clients and courts are likely to be more vigilant.¹ Requiring a party to share truthful information — here, that this Court made certain findings and, on the basis of those findings, imposed sanctions on the Movants — does not constitute irreparable harm. Cf. Smith v. Doe, 538 U.S. 84, 98 (2003) ("Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment."); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495 (1975) ("Public records by their very nature are of interest to those concerned with the administration of government . . . .").

Second, to the extent that awareness of the Court's Opinion and Order will cause the Movants' reputational and economic harm, much of that harm has already occurred. As the old saying goes, the cat is out of the bag. The Court's Opinion and Order is a public document and, due in no small part to Mr. Liebowitz's well-deserved notoriety, it has already received fairly extensive publicity in the press and social media, particularly in the copyright world. See, e.g., Stephen Rex Brown, Manhattan Federal Court's 'Most Sanctioned Lawyer' Fined $104K by Judge, N.Y. Daily News (June 29, 2020).² Granting a stay would not undo any of that damage

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(which, needless to say, is ultimately attributable to Mr. Liebowitz's own deplorable conduct rather than to the Court's Opinion and Order itself). Put another way, the potential harm here is not irreparable; it is only marginal. See, e.g., Dexter 345 Inc. v. Cuomo, 663 F.3d 59, 63-64 (2d Cir. 2011) (finding no irreparable harm based on the reputational damage from a legislative declaration where the legislation was already enacted); Star Boxing, Inc. v. Tarver, No. 02-CV-8446 (GEL), 2002 WL 31867729, at *3 (S.D.N.Y. Dec. 20, 2002) (Lynch, J.) (rejecting irreparable harm to reputation where the embarrassing fact was "already known in boxing circles" so "whatever embarrassment could arise . . . ha[d] already occurred"); Alvarez v. City of New York, 2 F. Supp. 2d 509, 514 n.5, 514-15 (S.D.N.Y. 1998) (rejecting irreparable harm to reputation where the fact of investigation was already publicized, so "any 'damage' [wa]s already done").

Finally, a court "must consider a plaintiff's delay in seeking relief when analyzing whether the plaintiff will suffer irreparable harm in the absence of relief." New York v. U.S. Dep't of Commerce, 339 F. Supp. 3d 144, 148 (S.D.N.Y. 2018) (internal quotation marks omitted). That is because "inexcusable delay in filing" a motion to stay "severely undermines

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the . . . argument that absent a stay irreparable harm would result." Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir. 1993) (rebuking the Board of Elections for seeking a stay twenty-eight days after judgment was entered and only six days before election day). As noted, the Court gave the Movants thirty days in which to comply with the relevant sanctions or seek appropriate relief. Nevertheless, they waited until day twenty-four to seek a stay (at which point, no less, they proposed giving their adversary only three days in which to respond). Put simply, the Movants' "delay, in itself, belies [their] conclusory assertions of irreparable harm" and "is enough to defeat [their] claim." U.S. Dep't of Commerce, 339 F. Supp. 3d at 149.

LIKELIHOOD OF SUCCESS ON THE MERITS

At best, the Movants make only a weak showing that they would suffer harm in the absence of a stay. It follows that they need to make a correspondingly "strong showing" of likelihood on the merits. See U.S. Food & Drug Admin., 884 F. Supp. 2d at 122 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); cf. Winter, 555 U.S. at 22. In particular, that requires them to do more than raise "serious questions" about the Court's Opinion and Order. Mem. 13; see Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund, Ltd., 598 F.3d 30, 35 (2d Cir. 2010). Yet conspicuously they do not even attempt to do so; indeed, their boilerplate recitation of the standard aside,...