20-2304 Liebowitz v. Bandshell Artist Management

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2020

(Argued: April 7, 2021 Decided: July 23, 2021)

No. 20-2304-cv

––––––––––––––––––––––––––––––––––––

RICHARD P. LIEBOWITZ, LIEBOWITZ LAW FIRM, PLLC,

Appellants,

ARTHUR USHERSON,

Plaintiff,

-v.-

BANDSHELL ARTIST MANAGEMENT,

Defendant-Appellee. 1

––––––––––––––––––––––––––––––––––––

Before: LIVINGSTON, Chief Judge, WESLEY and CARNEY, Circuit Judges.

1 The Clerk of Court is respectfully directed to amend the caption as set forth above.

1 Richard Liebowitz and his firm, the Liebowitz Law Firm, PLLC, appeal from an Opinion and Order of the district court sanctioning them for their conduct during their representation of Arthur Usherson in his copyright case against Bandshell Artist Management. The district court specifically found that Liebowitz repeatedly violated court orders, lied under oath to the district court, and brought and maintained this case in bad faith. Citing its authority under

, Federal Rule of Civil Procedure 16, and its inherent power, the district court imposed monetary sanctions of $83,517.49 in attorney’s fees, $20,000 in additional monetary sanctions, and nonmonetary sanctions that, inter alia, imposed nationwide requirements on cases filed by Liebowitz or LLF. We hold that the district court did not abuse its discretion in doing so. The district judge’s factual findings – including the findings of bad faith – were adequately supported by the evidence in the record and by the district court’s judgments of witness credibility. Given these findings, the sanctions imposed by the district court, while strict, were not an abuse of discretion. Accordingly, the order of the district court is affirmed.

FOR APPELLANTS: BRIAN A. JACOBS (Robert J. Anello, Kevin Grossinger, A. Dennis Dillon, on the brief), Morvillo Abramowitz Grand Iason & Anello P.C., New York, NY.

FOR DEFENDANT-APPELLEE: BRAD R. NEWBERG, McGuireWoods LLP, Tysons Corner, VA.

DEBRA ANN LIVINGSTON, Chief Judge:

Richard P. Liebowitz (“Liebowitz”) has been a member of the bar for a short

time. In that time, he has compiled an ignominious record of reprimands and

sanctions from judges across the country. This appeal concerns one such sanctions

order.

2 The United States District Court for the Southern District of New York

(Furman, J.) determined that Liebowitz brought and maintained a copyright

infringement action in bad faith; that he violated multiple court orders along the

way; and that, when questioned about his conduct, Liebowitz repeatedly lied to

the court, including under oath. Citing Federal Rule of Civil Procedure 16,

, and its inherent powers, the district court imposed sanctions of

$83,517.49 in attorney’s fees and $20,000 in additional monetary sanctions. Judge

Furman also imposed nonmonetary sanctions which required Liebowitz and his

firm, the Liebowitz Law Firm, PLLC (“LLF”): (1) to serve a copy of the district

court’s Opinion and Order (the “Order”) on every one of the firm’s clients

(including the plaintiff in the underlying suit here, Arthur Usherson

(“Usherson”)); (2) to file a copy of the Order on the docket of any pending cases in

which Liebowitz or his firm are involved; (3) to file a copy of the Order on the

docket of any case brought by Liebowitz or LLF for one year after the Order; and

(4) in any copyright infringement action brought by Liebowitz or LLF during this

same time period, to file a copy of the deposit files maintained by the U.S.

Copyright Office reflecting the plaintiff’s registration. 2

2 The district court later modified this final sanction to allow for an alternative

3 Liebowitz and LLF (together, “Appellants”) argue that the district court

based its Order on erroneous factual conclusions and further that its factual

findings, even if correct, do not support the monetary and nonmonetary sanctions

imposed. We disagree. We discern no clear error in the district court’s factual

findings and conclude that the district court acted well within the scope of its

discretion in imposing the sanctions given Liebowitz’s misconduct in this case.

Accordingly, we affirm.

BACKGROUND

I. Factual Background 3

A. The Underlying Copyright Action

This appeal arises out of an action filed by Appellants on behalf of Usherson

on July 10, 2019. The complaint alleges that Bandshell Artist Management

(“Bandshell”) infringed on Usherson’s copyright for a photograph of musician

Leon Redbone (the “Photograph”) and that at the time the complaint was filed the

Photograph was registered with the U.S. Copyright Office under Copyright

Registration Number VAu 1-080-046 (the “046 Registration”). In reality, the

where compliance would cause a client to run afoul of the statute of limitations. 3 The factual background presented here is derived from the district court’s findings of fact, which we review for clear error.

4 Photograph was not registered. Moreover, Usherson had provided LLF with a CD-

ROM containing the photographs registered pursuant to the 046 Registration

before the complaint was filed and this CD-ROM did not contain the Photograph.

Sometime after July 10, 2019 – the date the complaint was filed – Usherson sent

LLF another CD-ROM containing photographs that he had not yet registered. This

collection included the Photograph. The firm proceeded to register the

photographs on the second CD-ROM on August 22, 2019. 4

B. The Efforts at Mediation

Unaware that the Photograph had not yet been registered, the district court

issued two orders on July 15, 2019, soon after the complaint was filed. The first set

the initial pretrial conference for October 10, 2019. The second referred the case to

the court-annexed Mediation Program and required the parties to conduct a

mediation pursuant to the Program’s procedures by September 26, 2019, two

weeks before the initial pretrial conference. Additionally, the order required LLF

to file proof of service of the summons and complaint within three days of service

4 Notably, as to LLF’s post-filing registration of the Photograph, Judge Furman had already held in another case that a suit filed pre-registration is fatally flawed and cannot be cured by a subsequent registration and amendment of the complaint. See Malibu Media, LLC v. Doe, No. 18-CV-10956 (JMF),

, at *1 (S.D.N.Y. Apr. 2, 2019).

5 being effected and to produce limited discovery related to the licensing of the

Photograph.

Liebowitz and LLF complied with none of these orders. The filing of proof

of service was untimely; Appellants failed to produce the required discovery; and

they failed to participate in the mediation by the required date. Instead, one week

after the deadline for mediation had passed, Liebowitz filed a letter suggesting the

mediation had not taken place because of the Mediation Office’s failure to assign

a mediator. He requested leave to hold a telephonic mediation.

In an order dated October 7, 2019, the district court criticized Liebowitz for

his attempt to blame the Mediation Office for his failure to meet the mediation

deadline, but concluded that mediation was still potentially valuable. The district

court therefore adjourned the pretrial conference that was scheduled to take place

on October 10 until November 14 and ordered, pointedly, that “[t]he parties shall

conduct the in-person mediation no later than October 31, 2019.” J. App’x at 4

(emphasis added). That same day, Bandshell’s counsel, Brad R. Newberg

(“Newberg”), inquired by email of Liebowitz “if any of October 11, 16, 28 or 31”

would work for both Liebowitz and his client and Liebowitz emailed back that

“October 31st at 12pm works.” J. App’x at 88.

6 The parties agreed to a mediation to be held on that date and time, and to

be facilitated by a member of the Southern District mediation panel recruited by

Liebowitz (“the Mediator”). On October 31, however, neither Liebowitz nor his

client, Usherson, appeared. Instead, two associates from LLF, neither of whom had

entered an appearance in the case, were sent in Liebowitz’s place. The lead

associate, James Freeman (“Freeman”), later informed the district court in a sworn

declaration that Liebowitz had apprised him of the existence of the matter only the

night before the mediation. 5 The second associate was Liebowitz’s sister, a newly

admitted lawyer attending only to “shadow” Freeman and to learn about the

process. Sp. App’x at 5. No agreement was reached at the mediation, a result that

the Mediator later attributed in part to the failure of Liebowitz and Usherson to

attend.

Bandshell moved for sanctions six days later, on November 6, about one

week before the initial pretrial conference was to take place. Bandshell charged

Liebowitz and Usherson with violating the court’s orders regarding mediation,

5 Rule 9(c) of the Mediation Program’s procedures explicitly provides that “[e]ach represented party must be accompanied at mediation by the lawyer who will be primarily responsible for handling the trial of the matter.” Rule 9(f) permits a party residing more than 100 miles from the courthouse to participate by telephone, but only with the advance approval of the mediator.

7 pre-mediation discovery, and proof of service and sought monetary sanctions and

dismissal of the case.

C. The Pretrial Conference and Sanctions Inquiry

Liebowitz first addressed the mediation controversy in a joint letter filed by

the parties before the initial pretrial conference. In this letter, Liebowitz claimed

that he and Usherson had received permission from the Mediator not to appear in

person. But in the same letter, Newberg indicated on behalf of Bandshell that

“virtually everything in Plaintiff’s statement is false” and that Newberg had

“warned Plaintiff against filing a false statement regarding the scheduled

mediation with the Court.” Sp. App’x at 6 (emphasis in original).

Liebowitz nevertheless repeated the claim, in a letter “response” to the

sanctions motion, that his client had received permission from the Mediator for

Usherson’s telephonic appearance and, in addition, that the Mediator was aware

that Liebowitz, too, would not appear. 6 Specifically, the letter represented that his

client had “obtained permission from the assigned mediator . . . to appear . . . by

telephone provided that counsel was present in person,” and that Liebowitz had

6This three-page letter response was itself in violation of a local rule requiring, as relevant here, that opposition to a motion be in the form of a memorandum of law. S.D.N.Y. R. 7.1.

8 informed the Mediator that an LLF associate “with knowledge of the facts of the

case would appear in-person, and [the Mediator] consented.” Sp. App’x at 7.

At the November 14 pretrial conference, Liebowitz, appearing as principal

trial counsel, stuck by this story, stating that the Mediator had given permission

for Usherson to appear by telephone. The district court, aware of proceedings

before another Southern District judge in which Liebowitz’s candor to the court

had that very week been seriously called into question, specifically warned

Liebowitz that he should be “very careful about the representations you make to

me.” 7 Sp. App’x at 8. The court then inquired when Liebowitz had informed the

Mediator that Usherson would not appear in person. Liebowitz answered, “I don’t

know the exact date, but it was before the mediation, and he said yes.” J. App’x at

204. On further inquiry from the court, Liebowitz also made clear that he had

personally advised the Mediator, by telephone, that Usherson would not appear

7 The pretrial conference before Judge Furman took place one day after Liebowitz had been chastised by Judge Cathy Seibel for falsely and repeatedly representing that he had failed to appear at a pretrial conference due to his grandfather’s death. Judge Seibel had already held Liebowitz in contempt for these misrepresentations, as well as for Liebowitz’s repeated refusal to provide documentation of his grandfather’s passing. See Berger v. Imagina Consulting, Inc., No. 18-CV-8956 (CS),

, at *3 (S.D.N.Y. Nov. 1, 2019). Liebowitz’s continued dishonesty led Judge Siebel at the November 13 proceeding to question his fitness to practice law and to refer him to the Southern District’s Grievance Committee.

9 in person, and that the Mediator “said that was okay.” J. App’x at 204. Freeman,

who was also present, stated that he had learned about the case only the night

before the scheduled mediation, and that he had no knowledge as to whether any

approvals had been secured for telephonic appearance.

At the same pretrial conference, Newberg also inquired whether the

Photograph had been registered before the lawsuit was filed, as the complaint

alleged. Bandshell had learned that Usherson had filed a copyright registration,

apparently for the Photograph, after the complaint was filed, suggesting that the

Photograph had not been registered before. If the Photograph in fact was not

registered when the complaint was filed (particularly in light of Judge Furman’s

decision in Malibu Media, LLC v. Doe, No. 18-CV-10956 (JMF),

(S.D.N.Y. Apr. 2, 2019)) this could have required dismissal of the action. See

(a) (“[N]o civil action” for copyright infringement “shall be instituted

until . . . registration of the copyright claim has been made.”). Bandshell requested

discovery on the potentially dispositive issue of whether the 046 Registration

referenced in the complaint actually covered the Photograph.

In response, Liebowitz obfuscated, replying “I don’t know what defense

counsel means about other registrations or other photographs. I will have to see

10 what my office did, but this is the correct registration.” J. App’x at 252–53. He

argued against limited discovery on the registration issue, urging the court to let

proceedings continue in the normal course, in the hope of “get[ting] to a settlement

number.” Sp. App’x at 10.

After the conference, Liebowitz was ordered to file a formal opposition to

the sanctions motion. This order included an instruction for both sides to address

whether an evidentiary hearing should be held and, if so, what form it should take.

Liebowitz’s formal opposition disregarded this instruction, but it once again

repeated the claim that Liebowitz had received permission for Usherson to appear

by telephone from the Mediator and that the Mediator had consented to

Liebowitz’s plan to have an associate appear in Liebowitz’s place. Liebowitz

submitted a sworn declaration affirming that he “sought and received approval

from . . . the assigned mediator[] for Mr. Usherson to attend the mediation via

telephone and for my associate James Freeman to appear who had full knowledge

of the case. I obtained [the Mediator’s] consent via telephone.” J. App’x at 132.

In response, Newberg submitted a declaration citing to emails from the

night before the mediation that suggested that both Bandshell and the Mediator

were under the impression that Usherson and Liebowitz would be appearing in

11 person the next day. 8 Further, Newberg attested that he called the Mediator on

November 19, a few days after the pretrial conference. The Mediator informed him

that on previous occasions he had allowed Liebowitz’s clients to appear by

telephone, but maintained that he had not given approval for telephonic

appearance in this case. According to Newberg, the Mediator told him that

Liebowitz had called on the night of October 30 and informed him, without asking

for approval, that Liebowitz was out of town and that his associate would be

attending the mediation. Usherson’s attendance was not discussed.

The district court ordered the Mediator to file a declaration, which he did.

In his declaration, the Mediator stated that he had spoken to Liebowitz by

telephone on October 30. During this call, Liebowitz did not inform him that an

8 Specifically, Newberg emailed the Mediator on the night before the scheduled mediation, sending along a proposed agreement and affirming that Usherson could accept the agreement or “we will see Mr. Liebowitz and Mr. Usherson tomorrow and we can continue discussing the possibility of settlement at the mediation.” J. App’x at 216. Later that same evening, the Mediator replied, affirming that he had spoken to Liebowitz who said he would review the agreement and get back to them in the morning. The Mediator further stated, “Hopefully we can settle this before [the] need to go to in person mediation.” Sp. App’x at 16. Newberg responded that he would be catching an early train to attend the mediation and assumed Liebowitz, who had been in California, was already in New York or would catch a very early plane. The Mediator responded, “I understand.” Sp. App’x at 16. In addition, Liebowitz himself was in email communication with Newberg early in the morning on October 31, but at no time notified Newberg that neither he nor Usherson would be attending the mediation in person.

12 associate, rather than Liebowitz himself, would appear the next day. The Mediator

denied that he had given permission for Usherson to appear by telephone. The

Mediator did note, however, that Liebowitz had sent an associate in his stead on

at least one other occasion and that his clients had appeared by telephone in other

mediations conducted by the Mediator without incident. Liebowitz thereafter filed

a letter on December 16, 2019 asserting that he contested statements made by the

Mediator in his declaration and that Liebowitz had “notified the Mediator that Mr.

Usherson would be appearing telephonically and that such request was granted.”

Sp. App’x at 13.

The district court concluded that an evidentiary hearing was necessary. On

December 17, 2019, the court issued an order scheduling the hearing. Two days

later, Liebowitz filed a stipulation of voluntary dismissal signed by both parties.

The parties agreed that the case should be dismissed with prejudice and that each

side would bear its costs and attorney’s fees. In a letter filed that same day,

Newberg affirmed that Bandshell had stipulated to Usherson’s withdrawal of the

case with prejudice, but that neither Newberg nor his client would have done so,

except for the fact that his firm was representing Bandshell pro bono. The district

13 court so-ordered the dismissal but retained jurisdiction in order to adjudicate the

motion for sanctions and related matters.

D. The Sanctions Hearing

The evidentiary hearing was held on January 8, 2020. The district court

treated the witnesses’ declarations as their direct testimony. Additionally, it

approved Liebowitz’s application to expand the record to include a new argument

(first suggested in the letter to the court of December 16, 2019) that the Mediator’s

“custom and practice” of allowing Liebowitz’s clients to appear telephonically

caused Liebowitz to harbor a good faith belief that he had the requisite permission

and could have caused the Mediator to forget whether, in fact, he granted

permission in this case. Sp. App’x at 13–14. Liebowitz was permitted to testify

about five previous cases in which he claimed the Mediator had given him oral

permission to have his clients appear by telephone. 9 But Liebowitz also admitted

on cross that in one of these very cases, he himself had objected to another party

appearing telephonically on the ground that the mediation rules require in-person

appearance – thus evidencing his understanding that permission was required.

9 He also added that in one case he had been given permission to have an associate appear in his stead.

14 Regarding the present controversy, Liebowitz testified that he had called the

Mediator around 7:30 to 8:00 p.m. the night before the scheduled mediation and

received permission both for Usherson to appear by telephone and for Freeman to

appear as counsel. He made no written record of the call. When asked how he now

remembered the date of the call when he did not at the November 14 pretrial

conference, only two weeks after the event, Liebowitz testified that the emails

attached to Newberg’s initial declaration in support of Bandshell’s sanctions

motion had reminded him. When pressed on the fact that Newberg’s declaration

and the annexed emails were actually filed before the November 14 conference,

and that Liebowitz had responded to it in writing, he declared simply that “I often

forget things.” J. App’x at 394.

Liebowitz claimed during his testimony that he had a contingency plan if

the Meditator had denied his request for Usherson to participate by phone and for

Freeman to take Liebowitz’s place. At the time of the call with the Mediator,

Liebowitz was in Los Angeles, California, hosting a networking event and

Usherson was at home in Georgia. Despite never booking flights or even checking

the flight times, Liebowitz claimed he was prepared to return to New York

immediately. He did not claim to have informed Usherson about the potential

15 need immediately to travel, but testified that he was sure he could have called

Usherson and “kn[e]w that he’s always around.” J. App’x at 385.

Liebowitz’s testimony was notably at odds with the statements made by his

own associate, Freeman, to the effect that Freeman had only learned of the

existence of the case the night before the scheduled mediation. Liebowitz claimed,

to the contrary, that the two had spoken about the case on “numerous occasions.”

Sp. App’x at 17. Liebowitz also claimed in this testimony that he had informed

Freeman about the approvals given by the Mediator, notwithstanding Freeman’s

statement at the pretrial conference to the contrary. As to this latter discrepancy,

Liebowitz sounded a similar theme, suggesting that “people forget things,” and

that Freeman had done so. J. App’x at 382. Liebowitz also asserted that Freeman

properly appeared at the mediation because he was the lead attorney in the matter

even though it was Liebowitz who appeared as principal trial counsel at the

pretrial conference and, indeed, Freeman had not entered an appearance in the

case.

Newberg and the Mediator also testified. Newberg testified that he

remembered the Mediator saying at the mediation that he had been notified that

Liebowitz would be sending an associate. Newberg also recalled the Mediator

16 stating that he expected Usherson to attend in person. For his part, the Mediator

testified that he could not then recall whether Liebowitz had informed him that

Freeman would be appearing. 10 He testified unequivocally, however, that he did

not give permission for Usherson to appear by telephone despite speaking with

Liebowitz several times on October 30, the day before the mediation. He learned

that Usherson would not be coming only “[w]hen the mediation started.” Sp.

App’x at 19.

After the testimony, the district court heard oral argument. During

argument, Bandshell revealed that it had discovered that the Photograph had

indeed not been registered prior to the filing of the complaint. In response,

Freeman (serving as Liebowitz’s lawyer) stated that it was the regular practice of

LLF to file copyright infringement cases without verifying the registration of the

works in question to avoid expense. The firm instead took clients at their word

that the works in question were properly registered. Freeman stated that in this

case, Usherson had affirmed that the Photograph was registered.

10 He did acknowledge that prior to the mediation he had learned that Liebowitz was in Los Angeles and that, as a result, it was unlikely he would attend in person.

17 The district court ordered an additional round of letter briefing on this issue.

In his letter, Liebowitz admitted that the statement in the complaint regarding the

registration of the Photograph was inaccurate. But he also noted that his firm had

registered the Photograph in August 2019 and he blamed the inaccuracy in the

complaint on an “administrative mistake[] or clerical error[] . . . in the copyright

registration process.” Sp. App’x at 20. In response, Bandshell contended that this

explanation “defie[d] belief,” as Liebowitz at the initial pretrial conference had

denied any knowledge of “other registrations or other photographs,” affirming

that the 046 Registration referenced in the complaint was correct. Sp. App’x at 20.

The district court ordered Liebowitz, Freeman, and Usherson to submit

declarations addressing the circumstances surrounding the inaccurate allegation

about the registration of the Photograph. Liebowitz admitted in his declaration

that he had conducted no investigation into the matter. This was despite

Usherson’s statement that he had sent the firm a CD-ROM prior to the filing of the

complaint which included all the photographs that had been registered pursuant

to the registration identified in the complaint. 11 Liebowitz claimed that he had

11 Usherson admitted that he had made a mistake in advising LLF that the Photograph was registered as part of the 046 Registration. As for Freeman, he explained that his representations regarding the Photograph’s registration were based on his general knowledge of LLF’s practices rather than any personal knowledge regarding this

18 relied on the firm’s internal case-tracking system and that he had no role in filing

for the Photograph’s registration in August 2019. He asserted that he did not

realize that the Photograph was not properly registered until after the sanctions

hearing in January 2020.

II. The District Court’s Order

The district court entered the Order sanctioning Liebowitz and LLF on June

26, 2020. In it, the court found that sanctions were warranted for Liebowitz’s

conduct. Specifically, the district court found that Liebowitz violated no fewer

than six of the district court’s orders. 12 Judge Furman further concluded these

violations were willful. Next, the district court found that Liebowitz repeatedly

lied to the court, including under oath, about receiving permission for Usherson

to appear by telephone at the mediation. Citing, inter alia, Liebowitz’s demeanor

at the evidentiary hearing, the conflicts between Liebowitz’s testimony and that of

case. 12Four of these orders came on July 15, 2019, when the district court directed: (1) the filing of proof of service no more than three days after service was effected; (2) the production of limited discovery regarding licensing of the Photograph; (3) the attendance of principal trial counsel at both the initial pretrial conference and the mediation session; and (4) the participation of Liebowitz and Usherson in a mediation session not later than two weeks before the pretrial conference, which was then scheduled for October 10. The fifth was the October 7 order requiring that the mediation session be held no later than October 31. The sixth was the November 15 order that Liebowitz address in his sanctions briefing whether and how an evidentiary hearing should be held.

19 Newberg and the Mediator (both of whom the court found credible), and the

documentary evidence, the district judge found by clear and convincing evidence

that Liebowitz had not only made false statements to the court but had done so in

subjective bad faith. 13 Finally, the district court concluded, by clear and

convincing evidence, that Liebowitz brought and maintained the case in bad faith

by willfully disregarding the fact that the Photograph was not properly registered

at the time the complaint was filed. Judge Furman concluded that Liebowitz knew

the Photograph was not properly registered at least as of August 22, 2019, when

his firm registered the Photograph. In any event, he should have known and had

failed to conduct a reasonable investigation of his client’s statements. 14

13The court also indicated that a preponderance of the evidence, but not clear and convincing evidence, supported a finding that Liebowitz lied about receiving permission to have Freeman appear at the mediation session in his place. 14 Judge Furman pointed to Bandshell’s statements at the initial pretrial conference about the potential defect in the complaint, Liebowitz’s evasive statements at that conference, and his and LLF’s failure to investigate the potential issue until after it was brought to a head at the hearing on January 8, 2020, and Liebowitz was ordered to file a letter and then a declaration addressing the issue. The court concluded that Liebowitz’s conduct was most consistent with attempting to evade the defect until he could extract a settlement from Bandshell, which “undoubtedly demonstrates bad faith.” Sp. App’x at 44. In so concluding, the court referred to another Southern District case in which a district court determined that Liebowitz’s “stonewall[ing] [of] discovery requests” when “faced with the prospect of the Defendants learning that the Photograph was not registered” evinced bad faith. Rock v. Enfants Riches Deprimes, LLC, No. 17-CV- 2816 (ALC),

, at *3 (S.D.N.Y. Jan. 29, 2020). The district court also noted that Liebowitz was “explicitly put on notice” at the initial pretrial conference of the fact that pursuant to the court’s own decision in Malibu Media, an untimely registration is not

20 The district court then turned to the question of sanctions. First, it

determined attorney’s fees were an appropriate measure of sanctions for

Liebowitz’s misrepresentation that the Mediator gave permission for Usherson to

appear by phone and the multiple violations of the court’s orders. Though

Bandshell, represented by pro bono counsel, had disclaimed the right to collect any

fees, Judge Furman concluded that $83,517.49 was an appropriate fee for the work

Bandshell’s lawyers performed in connection with the mediation and the sanctions

motion and that the sum would be payable to the court. Second, Judge Furman

ordered Liebowitz and LLF to pay to the court an additional sanction of $20,000

for falsely alleging in the complaint that the Photograph was registered and for

not conducting a reasonable investigation either before the lawsuit was filed or

after they were put on notice of the potential defect in their pleadings. For both

categories of monetary sanctions, the district court cited its authority under

Federal Rule of Civil Procedure 16(f),

, and the court’s inherent

authority.

curable, so that a complaint filed before registration must be dismissed. Sp. App’x at 39– 40.

21 The district court next imposed nonmonetary sanctions. The first of these

sanctions required Liebowitz to serve a copy of the Order on Usherson and every

other current client of LLF. He and LLF were further required to file the Order on

the docket of each of their pending cases and any case they brought within a year

of the Order’s entry. The second sanction required, for a period of one year, that

complaints filed by Liebowitz or LLF involving claims of copyright infringement

include a copy of the deposit files maintained by the U.S. Copyright Office

showing the registration of the relevant copyrighted work or works involved in

the case.

Finally, the district court sent a copy of the Order to the Southern District’s

Grievance Committee so it could consider whether further discipline was

appropriate. The district court included with the Order an extensive appendix of

previous cases from a number of jurisdictions in which Liebowitz was

reprimanded or sanctioned for misconduct.

Liebowitz filed a timely notice of appeal. Separately he moved for a stay of

only the nonmonetary sanctions pending appeal in the district court. Judge

22 Furman denied the stay motion. 15 This Court similarly denied Liebowitz’s motion

for a stay. We now address the merits of his appeal.

DISCUSSION

District courts have inherent, statutory, and rule-based powers to sanction

lawyers for conduct that impedes the efficient administration of justice. Indeed,

we have said that district judges have an obligation to act to protect the public,

adversaries, and judicial resources from litigants and lawyers who show

themselves to be serial abusers of the judicial system. See Lau v. Meddaugh,

(2d Cir. 2000) (per curiam). “We review the imposition of sanctions for

abuse of discretion.” Huebner v. Midland Credit Mgmt.,

(2d Cir. 2018).

To be sure, because sanctions proceedings are unique, placing the district judge in

the role of “‘accuser, fact finder and sentencing judge’ all in one,” ATSI Commc’ns,

Inc. v. Shaar Fund, Ltd.,

(2d Cir. 2009) (quoting Schlaifer Nance &

Co., Inc. v. Estate of Warhol,

(2d Cir. 1999)), our review is “more

exacting than under the ordinary abuse-of-discretion standard,”

(quoting Perez

15 The district court did, however, modify one of its sanctions to allow Liebowitz or LLF to file an affidavit in lieu of the deposit copies in any case in which they had a good faith belief that waiting for the deposit copy might cause a client’s claim to be barred. Liebowitz and the firm were still required to file the deposit copies promptly upon their receipt.

23 v. Danbury Hosp.,

, 423 (2d Cir. 2003)). Moreover, “[d]epending on [the]

circumstances, a party facing sanctions may be entitled to enhanced procedural

protections” associated with criminal procedure, “beyond notice and an

opportunity to be heard.” Wolters Kluwer Fin. Servs., Inc. v. Scivantage,

,

116–17 (2d Cir. 2009); see also Goodyear Tire & Rubber Co. v. Haeger,

(2017) (noting that “when imposed pursuant to civil procedures,” an

attorney’s fees sanction pursuant to inherent powers must be “compensatory

rather than punitive”); Mackler Prods., Inc. v. Cohen (Mackler I),

, 128

(2d Cir. 1998) (discussing need for enhanced process in context of punitive fines).

With these cautions in mind, however, we emphasize that the sanctioning

authority of district courts both accords with and is a necessary aspect of their

“responsibility to manage their dockets ‘so as to achieve the orderly and

expeditious disposition of cases.’” In re World Trade Center Disaster Site Litig.,

(2d Cir. 2013) (per curiam) (quoting Link v. Wabash R.R. Co.,

, 630–31 (1962)).

Here, we conclude that the sanctions imposed by Judge Furman on

Liebowitz and LLF were well within the scope of the district court’s discretion.

Accordingly, we affirm the order of the district court.

24 I

At the start, Liebowitz admits that he did indeed violate the district court’s

orders. But he takes issue with the district court’s factual findings that: (1) he “lied

in bad faith” about his interactions with the Mediator; and (2) he brought and

maintained this suit in bad faith. 16 As to both findings, “[w]hether a litigant was

at fault or acted willfully or in bad faith are questions of fact” and thus are

reviewed for clear error. 17 Agiwal v. Mid Island Mortg. Corp.,

(2d

Cir. 2009); see also Yukos Capital S.A.R.L. v. Feldman,

(2d Cir. 2020)

(“[C]lear and convincing evidence of bad faith is a prerequisite to an award of

sanctions under the court's inherent power.”); United States v. Int’l Brotherhood of

Teamsters,

(2d Cir. 1991) (noting that “[b]ad faith is the

16The district court concluded that Liebowitz’s representations to the court that he received permission from the Mediator for Usherson to appear by phone were “false and made in bad faith.” Sp. App’x at 29–30. Appellants use “lied in bad faith” as shorthand for contesting this conclusion. Appellants’ Br. at 31. 17 To be sure, both inquiries involve both questions of fact about Liebowitz’s knowledge, conduct, and motivations as well as questions of law about whether the district court’s factual findings satisfy the relevant legal standard. Here, we conclude that whether Liebowitz acted in bad faith primarily involves “case-specific factual issues” and, accordingly, we review the district court’s decision with deference. U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC,

(2018); cf. Cooter & Gell v. Hartmarx Corp.,

, 401–02 (1990) (suggesting, in the Rule 11 context, that where sanctions involve issues “rooted in factual determinations,” such as whether a prefiling inquiry was reasonable, deferential review is appropriate).

25 touchstone” of sanctions under § 1927). We discern no such error in the record

here.

A

Liebowitz first assails the district court’s conclusion that he made false

statements to the court about receiving permission for Usherson to attend the

mediation in person and did so in bad faith. He contends that the district court

abused its discretion in finding, by clear and convincing evidence “based on a

careful review of the record, including an evaluation of the witnesses’ demeanor

at the January 8, 2020 hearing,” that Liebowitz repeatedly lied to the court,

including under oath, as to whether the Mediator authorized Usherson to appear

by telephone. 18 Sp. App’x at 29. This argument is unavailing.

At the start, the district court had ample reason to conclude, as it did, that

Liebowitz’s testimony that he received permission was “on its own terms . . .

unworthy of belief” because, inter alia, it lacked corroboration and required the

court to accept “patently incredible” claims such as that Liebowitz was prepared

to fly himself and Usherson from Los Angeles and Georgia, respectively, to New

Liebowitz does not dispute that such conduct, if properly found, is sanctionable 18

under Rule 16,

, and the district court’s inherent authority. His admitted violation of multiple pretrial orders is similarly sanctionable pursuant to each of these authorities and Liebowitz raises no argument to the contrary.

26 York on the morning of the mediation, and on a moment’s notice. Sp. App’x at 31.

By his own admission, Liebowitz made no notation of the oral permission he

allegedly obtained. Moreover, his testimony that he had spoken about the case on

numerous occasions with Freeman, and had informed him about receiving

permission from the Mediator for Liebowitz’s and Usherson’s absence, was

inconsistent with Freeman’s in-court statements at the initial pretrial conference.

In addition, as the district court found, Liebowitz’s claim to have received that

permission on October 30 is not reflected in any of the contemporaneous email

correspondence, which suggests no awareness on the Mediator’s part “that either

Mr. Usherson or Mr. Liebowitz would not be attending in person the next day–

much less that [the Mediator] had given them both permission not to attend that

very night . . . .” Sp. App’x at 31 (emphasis in original).

Liebowitz’s claim is most obviously contradicted by the Mediator himself,

“who testified unequivocally at the hearing that Mr. Liebowitz never mentioned

the possibility that Mr. Usherson would not attend the mediation in person.” Sp.

App’x at 30. The district court specifically credited the Mediator’s testimony and

discredited Liebowitz’s based on an assessment of the demeanor of each witness,

and the record as a whole. Appellants argue that the district court placed too much

27 weight on the emails between Newberg and the Mediator and that the Mediator,

contrary to the district court’s view, was not without any stake in the matter, but

had an interest in demonstrating compliance with the Mediation Program’s rules.

But “[w]hen, as here, credibility determinations are at issue, we give particularly

strong deference to a district court finding.” United States v. Wallace,

(2d Cir. 2019) (quoting United States v. Murphy,

(2d Cir. 2012)),

cert. denied,

, and reh’g denied,

(2020). After reviewing

the record and evaluating the demeanor of the witnesses at the evidentiary

hearing, Judge Furman determined that the Mediator’s testimony was credible

and Liebowitz’s was not. We discern no error, much less clear error, in this

determination.

B

Appellants next argue the district court erred in concluding that Liebowitz

brought and maintained this suit in bad faith. A finding of bad faith in this context

requires a district court to determine both that challenged conduct “was without

a colorable basis” and that it was pursued in bad faith, “i.e., motivated by

improper purposes such as harassment or delay.” Schlaifer Nance & Co.,

; see also Oliveri v. Thompson,

(2d Cir. 1986) (noting that

28 sanctions for bad faith conduct pursuant to inherent powers are “not restricted to

cases where the action is filed in bad faith,” but extend to the bad faith conduct of

a litigation). For a claim to be without color it must lack any legal or factual basis.19

Schlaifer Nance & Co.,

. Both “[a] finding of bad faith, and a finding

that conduct is without color or for an improper purpose, must be supported by a

high degree of specificity in the factual findings.” Wolters Kluwer,

.

At the same time, in applying both standards “more often than not, ‘the district

court is better situated than the court of appeals to marshal the pertinent facts and

apply the fact-dependent legal standard that informs its determination as to

whether sanctions are warranted.’” Huebner,

(quoting Virginia Props.,

LLC v. T-Mobile Ne. LLC,

(2d Cir. 2017)). Liebowitz argues the

district court’s Order meets neither requirement. Again, we disagree.

We start with whether the complaint lacked a factual basis and was brought

and maintained in bad faith. Judge Furman concluded that Liebowitz’s actions in

bringing and maintaining the copyright claim were unsupported because the

Photograph was not registered at the time of filing and Section 411(a) of the

19 In contrast, “a claim is colorable ‘when it has some legal and factual support, considered in light of the reasonable beliefs of the individual making the claim.’” Schlaifer Nance & Co., Inc. v. Estate of Warhol,

(2d Cir. 1999) (quoting Nemeroff v. Abelson,

(2d Cir. 1980) (per curiam)).

29 Copyright Act specifically states that “no civil action for infringement of the

copyright . . . shall be instituted until preregistration or registration of the

copyright claim has been made.”

(a). Judge Furman found that

Liebowitz, who appeared as principal trial counsel in the matter and, indeed, was

the only attorney who had noticed an appearance, knew about the untimely

registration at least as of August 22, 2019, when LLF itself registered the

Photograph. 20 The record supports this factual determination.

But even if this were not the case – even accepting as true Liebowitz’s claim

that in August 2019 he was unaware of any problem with the complaint – the

record is crystal clear that Liebowitz was put on notice of the issue by Newberg at

the November 2019 pretrial conference. Bandshell had “discovered that after this

case was filed, Mr. Usherson filed a copyright registration, which . . . seems to be

on these photographs, so now it is unclear whether the registration in the

complaint actually does cover the photograph or if it is the new copyright

registration.” J. App’x at 252. Liebowitz affirmed to the court in that very

conference that the registration identified in the complaint “[was] the correct

20 The district court also found in the alternative that the evidence clearly and convincingly demonstrated that Liebowitz should have known that the Photograph was not registered.

30 registration” and that he was aware of no others – even though his firm had filed

for a second registration in August. J. App’x at 252–53. Moreover, he resisted

limited discovery on the issue, urging that the case should proceed in the normal

course so that “hopefully during that process the parties could eventually get to a

settlement number.” Sp. App’x at 10, 43.

Liebowitz concedes he took no subsequent action to ensure that his factual

representation to the district court was accurate. Indeed, even after being put on

notice that there was an issue as to the 046 Registration and even though his firm

was in possession of material from Usherson that could easily have resolved the

question, Liebowitz finally admitted to the flaw in the complaint only in January

2020 when confronted by Bandshell with definitive evidence that the complaint’s

allegation regarding the 046 Registration was false. And as the district court found,

Appellants admitted the falsehood even then “only because the Court ordered

them to file a letter addressing the issue and, when that did not clear things up,

declarations.” Sp. App’x at 42. In sum, the district court’s finding that the claim

lacked a factual basis and was maintained in bad faith – that Liebowitz “actively

stonewalled Mr. Newberg’s request for discovery” and pressed forward,

31 “hop[ing] to settle the case before the truth came to light” – had ample factual

support. Sp. App’x at 42–43.

Liebowitz argues that even assuming the above factual finding, his actions

were not legally baseless. In particular, he contends that the defect in the complaint

caused by the untimely registration could have been cured via amendment and

that his actions thus had at least some legal basis. Liebowitz admits that Judge

Furman had held in a previous case that post-registration amendment in the

circumstances here is impermissible, but he correctly points out that even in the

opinion in question Judge Furman acknowledged that other courts have reached

the opposite conclusion. See Malibu Media, LLC,

, at *3.

But this argument misidentifies the conduct relevant to the inquiry. Even

assuming arguendo that Liebowitz might properly have moved to amend the

complaint once he discovered the untimely registration, this is not, in fact, what

Liebowitz did. Instead, the district court found that Liebowitz, despite knowing,

as of August 2019, that the Photograph was not registered – a fatal flaw for the

complaint as written – continued to defend the complaint without amendment,

resisting the discovery that would have revealed its fatal flaw. See Oliveri,

(discussing bad faith conduct of litigation as a proper basis for inherent

32 powers sanctions). Even Liebowitz must admit, moreover, that he was on notice

of the issue as of the November pretrial conference when it was explicitly raised

by Bandshell. But still Liebowitz did not promptly move to amend the complaint

or inform the district court that his representation at that conference was false.

Bandshell was thus required to expend resources defending against a complaint

that was without factual or legal basis as written, even assuming, arguendo, that an

amendment could have cured the problem.

As to whether Liebowitz was “motivated by improper purposes such as

harassment or delay,” Schlaifer Nance & Co.,

, Judge Furman found

he was, concluding that Liebowitz and LLF’s “willful disregard of the registration

requirement [was] part of their broader strategy to use the burdens of litigation to

extract settlements, even in frivolous or unmeritorious suits.” Sp. App’x at 44. This

finding is supported by Liebowitz and LLF’s “custom and practice” of failing to

investigate copyright registrations, Liebowitz’s failure to do so in this case despite

Bandshell’s questions specifically about whether the Photograph’s registration

was timely, his “active[] stonewall[ing]” of discovery on the issue, and his

suggestion, upon the registration issue being raised at the pretrial conference, that

the case be allowed to continue as normal in the hope of reaching a settlement. Sp.

33 App’x at 42–43. Liebowitz’s argument to the contrary is essentially that he made a

mistake in the course of running his law practice. But we discern no error in the

district court’s contrary conclusion.

* * *

In sum, the factual findings supporting the district court’s decision to

sanction Appellants were amply supported and in no way clearly erroneous.

Again, Liebowitz admittedly violated multiple court orders and raises no

challenge to this conclusion by the district court. As to the challenges that he does

make, the court adequately supported its findings: (1) that Liebowitz lied about

receiving permission from the Mediator for Usherson’s failure to attend the

mediation; and (2) that he acted in bad faith in pursuing Usherson’s claim based

on the 046 Registration. We turn next to Appellants’ challenges to the monetary

sanctions imposed by the district court.

II

“Depending on circumstances, a party facing sanctions may be entitled to

enhanced procedural protections beyond notice and an opportunity to be heard”

based on a line that the cases draw between civil and criminal sanctions. See

Wolters Kluwer, 564 F.3d at 116–17. This distinction attempts to ameliorate the risk

34 of unfairness or abuse that can arise in proceedings in which “the offended judge

[is] solely responsible for identifying, prosecuting, adjudicating, and sanctioning

the contumacious conduct.” Int’l Union, United Mine Workers of Am. v. Bagwell,

(1994). 21 Thus, “the imposition of a sufficiently substantial punitive

sanction” requires “procedural protections appropriate to a criminal case” (for

example, the requirement of proof beyond a reasonable doubt). Mackler I, 146 F.3d

at 130. Appellants argue that the district court’s award of an additional sanction

of $20,000 meets this threshold and that because the district court did not provide

criminal protections, that portion of the monetary sanctions must be vacated.

Appellants also raise a number of arguments against the district court’s award of

attorney’s fees, contending that it must be overturned or at least reduced. For the

reasons that follow, we disagree.

21 The Supreme Court’s decision in Bagwell addressed the distinction between criminal and civil contempt, not sanctions, but this Court has “extended [its] reasoning . . . to punitive sanctions against an attorney imposed under statutory or inherent authority.” Wolters Kluwer,

(declining to extend Bagwell further to reach reprimands against an attorney). The Supreme Court has also recognized that Bagwell’s reasoning has application to sanctions in appropriate circumstances. See Goodyear Tire & Rubber Co. v. Haeger,

(2017).

35 A

We start with the district court’s award of attorney’s fees. Judge Furman

concluded that the appropriate measure of attorney’s fees was the fees and costs

that Bandshell would have incurred in connection with the mediation and the

sanctions motion had it not been represented by pro bono counsel. These fees

totaled $83,517.49. The district court specifically stated that it was imposing these

sanctions for Liebowitz’s violations of the court’s orders and his lies related to the

mediation. Because Bandshell and its lawyers disclaimed any claim to collect

attorney’s fees, Judge Furman made the fees payable to the court.

Liebowitz raises several challenges to this sanction. He first argues that time

spent by pro bono counsel should not serve as a measure of sanctions. And even if

this is permissible, he argues that the district court erred by counting time spent

on litigating the sanctions motion as part of the fine. Finally, he argues that even

if this Court holds he is incorrect as to the above two points, the district court still

erred by counting the entire cost of litigating the sanctions motion when it found

that only one of the two issues raised in the motion was deserving of sanctions.22

We address and reject each of these arguments in turn.

22The district court found by clear and convincing evidence that Liebowitz lied about having received the Mediator’s permission for Usherson to attend the mediation

36 First, we hold that neither the pro bono nature of Bandshell’s representation

nor Bandshell’s agreement, as part of the stipulated settlement, not to accept any

fees is a barrier to a sanction of attorney’s fees pursuant to a district court’s

inherent powers. Such sanctions still serve to “vindicat[e] judicial authority” even

when the fees are not reflected on a client’s bill. See Int’l Techs. Mktg., Inc. v. Verint

Sys., Ltd.,

(2d Cir. 2021) (noting that monetary sanctions pursuant

to inherent power serve not only to compensate wronged parties but also to

vindicate the court’s authority). Even where the opposing party, as here, has

secured pro bono representation, sanctions of attorney’s fees still hold counsel liable

for unnecessarily consuming judicial and attorney resources. And while precedent

dictates that a district court awarding attorney’s fees must ensure the fee is

reasonable, this does not yoke the district court’s ability to protect the integrity of

its proceedings to the details of the billing arrangement between the opposing

party and its lawyers. 23 We therefore hold that attorney’s fees calculated based on

by phone. It indicated, however, that only a preponderance of the evidence supported a finding that Liebowitz lied about the Mediator consenting to Freeman appearing as counsel. Because a showing of bad faith by clear and convincing evidence is a prerequisite to imposing sanctions under both § 1927 and the district court’s inherent authority (although not generally Rule 16(f)), the district court found only the first category of misconduct sanctionable. 23 In its recent decision in Goodyear Tire & Rubber Co., the Supreme Court stated that for a sanction imposed pursuant to a district court’s inherent powers using civil

37 the work performed by Bandshell’s lawyers constituted an appropriate measure

of sanction under the district court’s inherent powers.

For similar reasons, we conclude that Bandshell’s pro bono representation

was no barrier to sanctions under

. 24 The subject of § 1927’s

prohibition is attorneys who engage in misconduct, and its scope is not limited by

the manner in which opposing counsel represents clients. See Oliveri,

(“[A]wards under § 1927 are made only against attorneys or other persons

procedures to be permissible it must “go no further than to redress the wronged party for losses sustained” and “may not impose an additional amount as punishment for the sanctioned party’s misbehavior.”

(internal quotation marks omitted). Our holding does not conflict with this instruction. Judge Furman based the measure of sanctions on what amount would have been sufficient to compensate Bandshell had its lawyers charged a reasonable attorney’s fee based on their ordinary hourly rates. The fact that Bandshell and its lawyers will not collect this amount from LLF does not transform this amount into a punitive sanction nor entitle Appellants to process they would not be due had Bandshell’s lawyers not chosen to waive their fees. Bandshell’s lawyers still incurred losses as a result of the misconduct in question. We decline to interpret Goodyear to permit the use of civil procedures only when such losses are ultimately included on a client’s bill. 24 The full text of this provision reads: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

. Because we conclude that the attorney’s fee sanction was properly imposed pursuant to § 1927 and the district court’s inherent authority, we need not address the court’s alternative holding awarding these fees pursuant to Rule 16.

38 authorized to practice before the courts while an award made under the court's

inherent power may be made against an attorney, a party, or both.”). To condition

liability under this Section based on the pro bono or compensated nature of the

representation of the opposing party would strip the Section of its deterrent power

in an important class of cases.

Section 1927’s reference to attorney’s fees that are “reasonably incurred”

imposes no barrier to our interpretation. We find persuasive the Tenth Circuit’s

conclusion that the use of such a phrase does not restrict fees to those actually

charged to the client. See Centennial Archeology, Inc. v. AECOM, Inc.,

,

681–82 (10th Cir. 2012) (discussing attorney-fee sanctions pursuant to Rule 37).

Accordingly, we hold that, as used in § 1927, “attorney’s fees reasonably incurred”

refers to the reasonable value of the work reasonably performed by opposing

counsel because of the sanctioned conduct, rather than the fee billed to the client.

See id. at 679 (“[A]n ‘attorney fee’ arises when a party uses an attorney, regardless

of whether the attorney charges the party a fee; and the amount of the fee is the

reasonable value of the attorney’s services.”). Thus, a § 1927 award of attorney’s

39 fees remains appropriate even when a party is being represented by counsel pro

bono. 25

Next, we reject Liebowitz’s contention that it was inappropriate to include

the attorney’s fees incurred in litigating the sanctions motion. Indeed, Liebowitz

admits that this Court has affirmed such an award in the past. See Enmon v. Prospect

Cap. Corp.,

, 148–49 (2d Cir. 2012) (upholding imposition of fees for

litigation of sanctions motion pursuant to § 1927 and inherent powers). Nor was

such a sanction outside the range of permissible decisions here. Judge Furman

found that in the course of attempting to extract a settlement from Bandshell,

Liebowitz treated mandatory court orders as mere suggestions and lied when

confronted about doing so. And this is to say nothing of Liebowitz’s long track

25 We also reject Liebowitz’s argument that the pro bono nature of Bandshell’s representation led its lawyers to run up an excessive bill. For one thing, the incentive to spend excessive hours on unpaid work is balanced by the opportunity cost of forgoing work for paying clients. Additionally, it is within the discretion of the district court to consider whether the time spent on litigating an issue by pro bono counsel is reasonable and we discern no abuse of discretion in the district court’s determination here that this criterion was satisfied as to the time spent by opposing counsel on the mediation and sanctions motion. We need not address Appellants’ argument regarding Bandshell’s counsel’s admission that they “put so much time into a pro bono matter of limited exposure to [their] client” because they “understood the importance of this issue beyond this case, to both the bar and the Court.” Appellants’ Br. at 50 (quoting J. App’x at 275). Appellants have waived this argument by failing to raise it in the first instance in the district court; the role of such an admission in a future case in the district court’s determination of the reasonableness of the hours counsel expended remains open.

40 record of similar conduct in courts across the country. See In re 60 E. 80th St.

Equities, Inc.,

(2d Cir. 2000) (noting relevance, in context of § 1927,

of “fact that [counsel]’s behavior is repetitive”).

Appellants argue that awarding the costs of litigating sanctions motions

deters creative argumentation by parties defending against sanctions and

encourages the party seeking sanctions to pursue as many claims as possible

regardless of their merit. We are not convinced. As to the first point, one opposing

sanctions remains incentivized to make creative arguments in order to convince

the district court that sanctions are not warranted or ought be limited. Similarly,

the incentive for parties seeking sanctions to focus on their strongest arguments is

the same as it always is: to maximize their chance of success. At any rate, the

district court retains discretion to consider the relative merits of the parties’

arguments when considering whether to include the costs of litigating sanctions

in an award of attorney’s fees. And we discern no abuse of discretion in Judge

Furman’s decision that attorney’s fees in connection with the sanctions litigation

were merited here.

Third and finally, we hold it was not an abuse of discretion for the district

court to hold Liebowitz liable for the cost of litigating the entire sanctions motion

41 even when this motion was successful only in part. 26 In Enmon, we approved the

district court’s imposition of the full cost of litigating the sanctions motion in such

circumstances, noting specifically that “[t]he fact that [the district court] denied

the sanctions motion in part did not prevent [it] from imposing the full cost of

litigating the motion, which, if not completely successful on all . . . grounds . . . was

nevertheless well-founded.”

. Liebowitz argues that the Supreme

Court’s decision in Goodyear compels a different result. We disagree.

In Goodyear, the Court stated that for inherent powers sanctions, the line

between civil and criminal awards of attorney’s fees is “a but-for test: The

complaining party . . . may recover ‘only the portion of his fees that he would not

have paid but for’ the misconduct.” Goodyear,

(quoting Fox v. Vice,

(2011)). 27 But the Court specified that this standard does not

Applied to this case, we note that even though the district court did not agree 26

with Bandshell on one of its arguments for sanctions, it did conclude that Bandshell would have prevailed on this point as well had the relevant standard been preponderance of the evidence. 27 Though Goodyear is a case involving the district court’s inherent powers, a footnote in the Court’s opinion affirms that fee shifting pursuant to § 1927 similarly requires courts to find a causal connection to the misconduct at issue, though the Court did not explicitly characterize the test as one of but-for causation. Goodyear, 137 S. Ct. at 1186–87 n.5. Because we conclude the district court’s award was permissible under Goodyear’s but-for test, we need not address whether the but-for test also applies to sanctions under § 1927.

42 require precise accounting. Id. Instead, “‘[t]he essential goal’ in shifting fees is ‘to

do rough justice, not to achieve auditing perfection.’” Id. (quoting Fox,

). Thus, a district court, as here, “may decide, for example, that all . . . of a

particular category of expenses . . . were incurred solely because of a litigant’s bad-

faith conduct” and should be compensated in the form of sanctions.

And such

judgments, made with the district court’s unique understanding of the litigation,

“are entitled to substantial deference on appeal.”

We understand Goodyear to have reinforced, not abrogated our conclusion

in Enmon that in appropriate cases a district court may, as part of a sanctions order,

hold lawyers liable for the cost of litigating a sanctions motion that is only partially

successful. Accordingly, we reject Liebowitz’s contrary claim.

B

We turn next to the $20,000 sanction the district court imposed in connection

with the complaint’s false allegation that the Photograph was registered pursuant

to the 046 Registration. Appellants argue that this sanction was punitive and,

because it was imposed without affording them the protections of criminal

procedure, impermissible. For the following reasons, we disagree and conclude

43 that the $20,000 sanction was permissible under Federal Rule of Civil Procedure

16(f) without reaching the applicability of § 1927 and inherent powers.

Liebowitz’s argument that the $20,000 sanction must be set aside or at least

reduced centers on this Court’s decisions in the two Mackler cases, in which we

vacated “punitive” monetary sanctions, imposed under the district court’s

inherent powers and payable to the court, that exceeded a $45,000 “compensatory”

sanction for attorney’s fees and expenses. Both Mackler cases involved a finding by

the district court that an attorney had knowingly allowed his client to commit

perjury during a trial and had caused an additional witness to provide false

evidence. Mackler I, 146 F.3d at 130. Before the first appeal, the district judge

imposed “compensatory” sanctions of $45,000 in attorney’s fees and expenses and

“punitive” sanctions of $10,000. Id. at 128. This Court vacated the sanctions order,

noting that “the imposition of a sufficiently substantial punitive sanction” requires

the protections of criminal procedure. Id. at 130. On remand, the district judge did

not conduct any further proceedings and instead reimposed the compensatory

sanction of $45,000 and a reduced punitive sanction of $2,000. Mackler Prods., Inc.

v. Cohen (Mackler II),

, 141 (2d Cir. 2000). We again concluded on appeal

that the now reduced punitive sanction was improper absent the use of criminal

44 procedures, reasoning that the gravamen of our earlier analysis “was whether or

not the sanction at issue was criminal or civil in character,” with the size of the

sanction representing but one factor in this analysis. Id. at 142 (emphasis in

original).

Appellants seize on this reasoning (as well as the other factors considered

in both Mackler decisions to conclude that the sanctions there were punitive) to

argue that here, too, the district court’s additional sanction, beyond attorney’s fees,

is punitive and therefore impermissible without the protections of criminal

procedure. But the present case is plainly distinguishable. Both Mackler appeals

addressed a situation in which the district court imposed sanctions in excess of

attorney’s fees and expenses for a single course of conduct, explicitly denominating

the amounts to be paid over and above the “compensatory” sanction as

“punitive.” Here, Liebowitz’s bad faith in connection with the complaint

represents a course of conduct separate and apart from his multiple violations of

court orders and his misrepresentations regarding the Mediator’s supposed assent

to Usherson’s telephonic appearance. And the district court made clear that the

$20,000 sanction was in connection with this separate misconduct. Moreover, the

court in no way suggested that the $20,000 sanction was intended to be punitive,

45 but gauged its amount as “no greater than necessary to provide adequate

deterrence, to Mr. Liebowitz, to his firm, and to others similarly situated.” Sp.

App’x at 51.

We nevertheless decline to reach the question whether the $20,000 sanction

was permissible pursuant to § 1927 or to the district court’s inherent powers. We

made clear in the Mackler opinions that whether a monetary sanction should be

treated as civil or criminal in character turns on several non-exhaustive factors,

including not only the size of a monetary sanction but “whether the sanction is

intended to be compensatory or punitive; whether it is payable to the court or to

the injured party; whether it is based on past wrongful conduct or is intended to

coerce future compliance; and whether any opportunity to purge the sanction is

provided.” 225 F.3d at 142. To be sure, none of these factors is by its nature

determinative, nor can the character of a sanction be assessed based merely on the

factors’ tally. As the Supreme Court recognized in Bagwell, in the related context

of contempt fines, the line between civil and criminal monetary sanctions is

“somewhat elusive” and can be difficult to parse.

.

Here, while the district court in no way suggested that the instant sanction

was intended to be punitive, the court did not explicitly discuss the basis for

46 deeming it to be civil, not criminal, in character. The court at no point attempted

to calibrate the sanction to fees and costs incurred by Bandshell or its counsel by

virtue of Appellants’ bad faith conduct in concealing the complaint’s

misrepresentation. Nor did it estimate an amount sufficient to compensate the

court for its own time, which our sister circuits have held may properly be the basis

of compensatory sanctions. See Eisenberg v. Univ. of N.M.,

, 1136 (10th

Cir. 1991) (Rule 11 sanction may be imposed based on court costs for use of court’s

time); Magnus Elecs., Inc. v. Masco Corp. of Ind.,

(7th Cir. 1989)

(same).

To be sure, the sanction here is modest, in terms of the costs imposed on

Bandshell, its lawyers, and the court, all of which were required to spend time

sorting out Appellants’ falsehoods regarding the Photograph’s registration. And

to be clear, a monetary sanction may still constitute a coercive civil sanction, rather

than a criminal penalty, despite its non-compensatory character. See Bagwell,

. Absent more explanation from the district court, however, we hesitate

definitively to conclude that the $20,000 sanction here was a permissible exercise

of its authority pursuant to § 1927 or its inherent powers.

47 We have no such hesitation, however, with regard to the district court’s

alternative holding under Federal Rule of Civil Procedure 16(f). 28 Rule 16

prohibits, inter alia, bad faith participation in pretrial conferences and permits the

district court to issue “any just orders” in response to such conduct. Fed. R. Civ.

Pr. 16(f). District courts acting pursuant to their authority under Rule 16(f) are free

to “design the sanction to fit the violation,” 6A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1531 (3d ed.), and their focus “need not

be limited to compensation of opposing counsel,” Media Duplication Servs., Ltd. v.

HDG Software,

(1st Cir. 1991). Indeed, “[t]rial judges have

considerable discretion in the selection and imposition of sanctions” so as to “deter

28 That rule provides: (f) Sanctions. (1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate – or does not participate in good faith – in the conference; or (C) fails to obey a scheduling or other pretrial order. (2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses – including attorney’s fees – incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.

48 neglect” of pretrial obligations.

(quoting Barreto v. Citibank, N.A.,

(1st Cir. 1990)). And “[d]eterrence is a widely recognized basis for determining

the amount of a monetary sanction” under Rule 16(f). See Jones v. Winnepesaukee

Realty,

(1st Cir. 1993).

To be clear, this is not to say that sanctions pursuant to Rule 16(f) may not

sometimes require the protection of criminal procedures. But in assessing Rule

16(f) sanctions, it must be kept in mind that the Rule itself requires a district court,

absent special circumstances, to order the payment of reasonable expenses,

including attorney’s fees, incurred as a result of noncompliance. It then expressly

provides that this sanction may be “in addition to” any other. Fed. R. Civ. P.

16(f)(2). As we have said before, the Rule’s “‘explicit reference to sanctions’ reflects

the Rule’s intention to ‘encourage forceful judicial management.’” Huebner,

(quoting Fed R. Civ. P. 16(f) advisory committee’s note to 1983

amendment). And we have no hesitation on the present record in concluding that

the $20,000 sanction was not punitive in character, when considered in light of

Rule 16’s mandate that district courts assess sanctions so as compensate for

Appellants’ misconduct and to deter it from happening again.

49 We have little trouble concluding Liebowitz’s conduct at and with respect

to the November pretrial conference was in bad faith, thus violating Rule 16.

Bandshell raised the issue of the registration at that pretrial conference, giving

Liebowitz an opportunity to respond. Liebowitz, as the district court found,

instead “stonewall[ed] . . . any investigation into the registration issue,” falsely

assuring the court that the registration identified in the complaint was “the correct

registration.” 29 Sp. App’x at 10, 51. This was not good faith participation in the

pretrial conference or with respect to it.

We also conclude that when assessed in light of Rule 16(f), the record is more

than sufficient, even without additional explanation from the district court, to

conclude that the sanctions amount chosen by the district court did not require the

protections of criminal procedure. As already indicated, the district court

explained that “sanctions of $20,000 [were] no greater than necessary to provide

adequate deterrence” to Liebowitz and to LLF. Sp. App’x at 51. And Liebowitz has

29 As previously noted, Liebowitz argues that he did not know, at the time, that this was not the case. The district court’s factual finding to the contrary, however, is amply supported. And, in any event, even on Liebowitz’s account, once indisputably alerted to the issue, Liebowitz did not correct the record until months later, when confronted with definitive evidence that the complaint’s allegation was false, even though the means definitively to ascertain the truth were readily at hand and easily consulted within the records of his own firm.

50 shown that his conduct is resistant to ordinary efforts to sanction him. See Sp.

App’x at 55–61 (detailing various instances of Liebowitz’s misconduct); see, e.g.,

Chevrestt v. Barstool Sports, Inc., No. 20-CV-1949 (VEC),

, at *2, *4

(S.D.N.Y. May 8, 2020) (ordering Liebowitz to pay a sanction of $3,000 to the court

pursuant to Rule 16(f) and characterizing his “attempt to attribute his

‘administrative oversight’ to the COVID pandemic” as “disingenuous, distasteful,

unpersuasive, and likely perjurious”); Rice v. NBCUniversal Media, LLC, No. 19-

CV-447 (JMF),

, at *4–5, *7 (S.D.N.Y. July 10, 2019) (sanctioning

Liebowitz and ordering him and LLF to pay monetary sanctions of $8,745.50

pursuant to Rule 16(f) and the court’s inherent powers for willful disobedience of

orders “requiring mediation and Liebowitz's appearance” at the initial

conference). Under Rule 16(f), the sanctions amount needed to be sufficiently

substantial both to compensate and to deter. And, moreover, the sum chosen by

the district court is consistent with comparable Rule 16 sanctions imposed in

addition to attorney’s fees and expenses that our sister circuits have upheld. See

Jones,

, 5–6 (approving sanctions totaling $10,000 in addition to

attorney’s fees for “consistent failure to attend pretrial hearings and their bad faith

in conducting the litigation”).

51 Considered in light of Liebowitz’s conduct in this case, his previous similar

conduct, the need for deterrence, and similar sanctions approved by our sister

circuits, Judge Furman’s $20,000 sanction for Liebowitz’s bad faith conduct in

connection with the pretrial conference was not an abuse of discretion and did not

trigger a need for criminal procedures. Liebowitz’s argument to the contrary is

without merit.

III

Finally, we turn to the district court’s nonmonetary sanctions, which we

have already upheld in a summary order that issued on June 25, 2021. Liebowitz v.

Bandshell Artist Mgmt., ___ F. App’x ____,

(2d Cir. June 25, 2021).

As this Court has recognized, while “[p]unitive fines . . . are the common tools of

the criminal law,” nonmonetary sanctions of the sort here “are not traditional

criminal punishments” but serve “to ensure ethical conduct before the courts.” See

Wolters Kluwer,

. Accordingly, a party challenging such sanctions

cannot typically argue that they must be set aside because criminal protections

were required.

(holding as to reprimands “that attorneys need not be

given the full rights required in a criminal trial before the court may impose such

nonmonetary disciplinary sanctions for litigation misconduct”). Although

52 Appellants do not argue the non-monetary sanctions required criminal

protections, they contend that the district court abused its discretion by imposing

overbroad sanctions when it required them to file a copy of the Order on the

docket of all of their cases nationwide and to obtain and file a copy of the official

deposit files maintained by the U.S. Copyright Office in all of their copyright

infringement cases. We again disagree.

Appellants’ arguments that the non-monetary sanctions are overbroad

because of their nationwide scope fail to persuade. Appellants rely on our decision

in Enmon, where the law firm made several misrepresentations and the district

court only required the firm to file a copy of its sanctions order with future pro hac

vice applications in the Southern District of New York. See

. But

Liebowitz concedes that this Court has permitted nationwide relief in response to

abuses of the judicial process. See In re Hartford Textile Corp.,

, 897 (2d

Cir. 1982) (enjoining further litigation by a party on a nationwide basis). And

unlike the law firm’s misconduct in Enmon, Liebowitz’s misconduct in this case –

including violating multiple court orders, repeatedly lying to the court, and

pursuing a complaint with a false allegation – justifies the nationwide scope of the

court’s sanctions here. Moreover, Liebowitz’s pattern of misconduct before many

53 judges of the Southern District of New York and across the country, described at

length in the district court’s opinion, squarely defeats Appellants’ suggestions to

the contrary. See, e.g., In re Martin-Trigona,

, 1262 (2d Cir. 1984)

(affirming “restrictions placed upon [attorney’s] bringing of new actions in all

federal district courts” (emphasis added)). See generally Usherson v. Bandshell Artist

Mgmt., No. 19-CV-6368 (JMF),

(S.D.N.Y. June 26, 2020).

Finally, the district court did not abuse its discretion when it ordered

Liebowitz and LLF to obtain and file a copy of the deposit files with each copyright

infringement complaint they file for one year. Contrary to Liebowitz’s claim,

requiring Appellants to include a copy of the deposit files does not impermissibly

shift the burden of proof in copyright cases. Although the party challenging the

validity of a copyright registration bears the burden of proving invalidity, that

burden attaches only for presumptively valid copyrights; plaintiffs asserting

infringement bear the burden of establishing that presumption, and of proving

ownership. See Urbont v. Sony Music Ent.,

, 88–89 (2d Cir. 2016); see also

Carol Barnhart Inc. v. Econ. Cover Corp.,

(2d Cir. 1985). Given that

Freeman, Liebowitz’s associate, “admitted that it is the regular practice of [LLF] to

file copyright infringement cases without verifying that the works in question are

54 properly registered,” the district court’s sanction was appropriately chosen to

ensure misconduct would not recur. 30 Sp. App’x at 19–20.

* * *

Given Liebowitz’s serious and repeated misconduct, the Appellants here

merited sanctions reserved for attorneys and litigants who demonstrate via their

actions that unusual measures are required to deter future misbehavior, protect

other litigants, and maintain the integrity of the judicial system. Liebowitz’s brief

time as a member of the bar so far has been replete with actions suggesting an

unwillingness to comply with his obligations as an officer of the court. The district

court did not abuse its discretion in determining that sanctions were appropriate

and in imposing the sanctions here.

CONCLUSION

For the foregoing reasons, we AFFIRM the order of the district court.

30 Appellants’ argument that the sanction imposed a substantial burden because deposit files are expensive to obtain is also unpersuasive. As the district court noted, Liebowitz often settles cases “‘in the low thousands or tens of thousands of dollars’ . . . a far cry from the $200 to $1,200 cost of obtaining a deposit copy.” Sp. App’x at 72–73 n.7.

55