Counsel’s Practice of Voluntarily Dismissing Suits to Avoid Paying “Prevailing Party” Fees Supports Bond Imposition

After plaintiff rejected defendant’s Rule 68 offer of judgment, the court granted defendant’s request that plaintiff post a $10,000 bond as security for fees and costs. “⁠[U]nder the Copyright Act, attorneys’ fees may be included in the recoverable costs of a prevailing party. . . . Moreover, even if plaintiff is successful in proving that defendant infringed on her copyright, she will nevertheless be required to pay defendant’s post-offer-of-judgment costs if the amount that she recovers is less than defendant’s Rule 68 Offer. . . . [Plaintiff] has not provided any evidence concerning her ability to pay potential costs. Moreover, the risk presented here is not only the risk of plaintiff’s inability to pay, but [plaintiff’s counsel’s] modus operandi that is well-documented in numerous other cases in this district of voluntarily dismissing suits to avoid paying reasonable attorney’s fees to defendants who might be deemed the ‘prevailing party’ under the Copyright Act. . . . Plaintiff has not demonstrated or even claimed that she is unable to pay the $10,000.00 bond requirement. In the event she fails to pay the bond, ‘the district court may not dismiss her action without considering the plaintiff’s inability to pay.’ This procedural safeguard is sufficient to protect plaintiff’s rights under the Copyright Act and her right to access the courts.”

Leibowitz v. Galore Media, Inc., 1-18-cv-02626 (NYSD 2018-07-11, Order) (Henry B. Pitman)

2018-07-13T11:55:02+00:00July 13th, 2018|Copyright, Docket Report|