this court should reverse the district court's extraordinary order sanctioning mr liebowitz and his law firm the order fails the exacting version of the abuse of discretion standard of review that applies because it was based on multiple clearly  it imposed excessive punitive monetary sanctions without proper procedures at an imposed overbroad non monetary sanctions i'll turn st to the district courts abuse of discretion in basing sanctions on clearly erroneous factual findings the st finding was that mr liebowitz lived in bad faith about getting permission for his client mr usher hsan to appear at the mediation by telephone and the district court reached this determination by crediting the doesn't corroborate the mediator's testimony your honor the mr newburgh e mailed the mediator and wrote that the mr newburgh would have expected that mr usher son would have already been on a plane and newt to new york or would have gotten a plane early in the morning he was attending in person and the mediator responded i understand and the inference that judge firman draws from that is that the mediator did not know at that time and had not given permission for mr s or son to attend by telephone but in the mediator actual testimony the mediator couldn't recall whether he would have said more than i understand if he'd known that mr ashurst and wouldn't be attending and in fact according to mr newburgh zone declaration the mediator told him the next morning that the mediator doubt senate would be attending which was another point that the mediator in his testimony couldn't remember and forgot and this dubious evidence is really not a sufficient basis to base such a serious finding as sanctions on the i understand email is subject to multiple readings and the mediators failure of memory with was the court's reading of it on reasonable or rational i think in combination with the other reasons the court gave for finding the mr leave what's lied to the court yes it was clearly erroneous the other reasons the district court gave for this was not the only reason the district court gave the district court also said that the mediator lacked any stake in the matter even though the mediator himself in his testimony when confronted by  firman refused to stand by his sworn declaration on the other point of this year which was the question of whether the mediator had given mr liebowitz permission to appear through associates rather than himself on that point the mediator submitted a sworn declaration saying he had not given permission inconsistent with what the mediator said on the point i mentioned a moment ago with respect to the mediator telling mr newburgh that he doubted usher senate would be appearing and so while ordinarily it is true that you defer to credibility determinations  tax case which we cite in our brief is a good example of a case where this court overturned a sanctions or to reversed it despite the fact that two witnesses testified against the attorney issue there because those two witnesses this court you know had had failures of memory and were not adequately reliable for such a serious finding and that's precisely what happened here the district courts are also add in finding the mr liebowitz his testimony was not credible the at the reasons the district court gave simply don't hold up to scrutiny the district court said that mr liebowitz his testimony was not corroborated at all but it was corroborated it was corroborated by the fact that multiple prior mediations this mediator had allowed clients to appear by phone it was corroborated by the fact that the mediator himself in this very mediation had authorized the entire mediation to happen by phone with the record james no doubt about though is that mr lieberson was in los angeles  the mediation date and mr usher said was in georgia isn't that right yes your honor with respect to mr liebeler its presence in los angeles the district court did not impose sanctions based on mr liebowitz his failure to attend the mediation the district court found that the record was too muddled on that point it was only with respect to the question of whether mr liebowitz lied about getting permission from mr usher since to appear in person and it's true that mr usher seven was in georgia the day before the mediation and the district court did say it's not credible that mr liebowitz would have arranged last minute travel plans but given the record here it was incredibly unlikely or reasonable to think that it was incredibly unlikely the request would be denied where the mediator had already permitted the seriously counsel you tell me that when you when you have a client that the court might might require to be in court the next day do advise you well in the past judge leslie doesn't generally require them to be there you can stay in atlanta you don't advise them to that you know very well they may but but there's to my mind there's it's very doubtful that that that the leibowitz actually has had permission from the from the mediator and if realize you have a different view of the evidence but if we find that that was not a clearly erroneous idea doesn't it put mr liebowitz a particular position what i think the argument is your honor is that it was not a reason to discredit mr liebowitz the idea that he would have arranged last minute travel plans although it surely is the better practice to advise a client far in advance it was not not credible for mr levy was to say he would arrange last minute travel plans in the event he did not get permission i want to turn to the over breath of the monetary sanctions and in particular the twenty thousand dollars component was clearly punitive and when a punitive sanction is going to be imposed it needs to be done with the protections of the criminal procedure law this court's mackler decision is directly on point in that case the district court imposed a compensatory sanction just like here the district court imposed an eighty three thousand dollars compensatory sanction the court also imposed a ten thousand dollars sanction but this court overturned the ten thousand dollars sanction and found it was and what makes a sanction impermissibly punitive is money based on past wrongful conduct you look at whether it's payable to the court or the injured party and here is able to the court you look at whether there's an opportunity to urge and here there is none this twenty thousand punitive sanction and this would it be fair to characterize it though as a course of sanction i mean clearly intended to provide a strong incentive for mr to leave with his client to comply more meticulously with court orders in the future and the district court clearly was very frustrated what he saw as a pattern both in his courtroom and elsewhere and we have distinguish between coercive sanctions and punitive sanctions in the past this was you know within the realm of what might one might see is coercive it seems to me is that in correct your honor i think the other factors that are present here suggest that it's punitive and suggest that more strongly than that it's payable to the court there already is a compensatory side action of eighty three thousand dollars trapped firm gives no reason why an additional twenty thousand dollars will provide coersion at the eighty three thousand dollars does not and  given that there already is that compensatory sanction this sanction does appear to be punishment for past conduct past conduct that judge from recites at length and attaches an appendix of forty or some cases illustrate and  argument about the fact that the attorney was a pro bono and i don't want to go into that but do you'll do it did you in front of judge firman contest the reasonable list of the amounts of time that were listed b ultimately awarded you no more than ninety percent of the amount requested i need to check the record for the degree to which the amount was contested below and i'll go that's ok thank you very very much i thank you thank you judge is discreet and straightforward to judge from an abuse the considerable discretion united states district judges are given to impose sanctions and the answer is you did not abuse discretion opponents claim in their briefs that this is a keys a personal animus of the record is clear just records opinions both the sanctions opinion and the opinion denying a stay of sanctions are detailed and focused and its findings are certainly not unique to this case given the dozens of times mr lee which has been sanctioned by judges before and since including his suspension from the practice well in the southern district of new york a suspension of how mean effective immediately so as to protect it's clear from the lower court sanctions which it found were justified overwhelmingly supported by clear and convincing evidence and crafted appropriate sanctions within its discretion now in this case appellants can see violations of various court orders and focus on to find  appellants claimed the district court abused its discretion by one fining mr league with violating a court order by having his client not show up to a court ordered in person mediation and finding he then continuously lied about receiving permission for lack of attendance from the media and to finding mr leask which failed to investigate whether the pota graph in question was covered by the copyright registration cited in the complaint not only when he filed the complaint but also after he was put on was directly refuted in addition to the mediator by a court order not mentioned by my colleague on the other side denying his prior request to have his client a p r telephonically and by the mediation office's rules and then their clear direction to him personally in writing that his client shown person these orders and structures effectively prohibited him from even asking for the permission he says he got later from the media but his claims were also directly refused by the me iator by both his declaration and on the stand but in addition by opposing counsel by mr lee witt says only associate and through clear documentary evidence including nephew chose mediation day as a day his client reputation and future employment at stake and it particularly in the context of what seem to be somewhat muddy testimonies maybe even confuse you know consistent testimony or your i would say that st off there really effectively he was trying to cover up his own helping mr lee witt's of a court orders there was nothing of that broad when he was on the stand to be questioned he had a declaration before with  no indication that the court was upset with the mediator the court never really challenged the mediator about what he did wrong there's simply no evidence to suggest that the mediator all of a sudden said oh i'm in trouble i better this up here especially given the documentary evidence as well and this really puts of course had no evidence or documents to support his own claims and through his filings as you can see from the record both know that same case the court cited and which we have sad to say a court does not have to discount sanctions just because it doesn't find every part of the sanctions and what about your guest and what about the argument that we just heard that the twenty thousand dollars sanction argument for the twenty thousand sanctions not for the rest and you know that's been done in the past when the sanctions are equivalent to criminal penalties there's no argument as to how these penalties are somehow criminal to get those sort of  protections from criminal sanctions mr li which was represented by counsel at these hearings you know raise any additional requirements you paid the amounts immediately without asking for reconsideration on this issue and given the agreed use nature of how much he and how often you sanction before this was clearly course and with the judge realizing that prior sanctions were not are not helping this is how do we know that that their course that the penalty is course of a not a not  in nature well your honor i think what we can we can sound like from the record is that in terms of this twenty thousand compared to what he has been sanctioned many times in the past it's actually a drop in the bucket for instance  and mackler we were talking about a seventy eight year old lawyer who as the court said had an impeccable record before that one sanction here or the court was within its discretion to look at what had been done previously which had this wasn't for his st run in with a copyright registration the court was looking to make sure that he did this properly in the future and so i think when you set everything up it certainly looks more of  the court got wrong in terms of the actual findings and in their attempt they ignore all of the evidence and try to cherry pick around now the copyright registration issue i want to just  this really which was put on notice at the beginning of this piece that the copyright registration listed in the complaint was likely incorrect and the photograph it is you not registered when the claims he was warned of the hour of the case the claim when need to be dismissed as i said before these sanctions are carefully and thoughtfully tied to the issues and his history and i will also point out that in their brief they say that a tax having him a tax deposit of the work in question future cases somehow ships the burden because copyright registrations are prima facie evidence of comparability and that's a red herring to get that benefit a plaintiff must still prove this registration is the right one there's also nothing in issue with the court from the leibowitz law firm argued that the court judge firman should decline to consider the amount of mr newburgh fees incurred in prosecuting the sanctions and should instead calculate the amount by reference to crested and the circumstances in case in bad faith the record is not sufficient to support the district court's finding a bad faith you need clear evidence that the conduct was without color and motivated by an improper purpose meaning that here there needs to be clear evidence that mr liebowitz had actual knowledge that the photographic issue in the complaint was in fact not registered at the time of the complaint but the photographer himself mr usher sense of it a sworn declaration that even he believed the photograph was within the registration alleged at the time the complaint was filed and continue to not believe until seeing deposit copies in early two thousand and twenty that certainly provides an adequate or at least some basis for the claim here to defeat the finding of bad faith sleigh for decision has made clear there's a difference between a claim that fails as a matter of law and one that has no basis whatsoever here the finding of bad faith with respect to bringing the case was not supported mr newburgh also said multiple times that we cherry picked the record and then on the whole including in response to judge carney's question about the mediator being a neutral witness on the whole the record showed otherwise the we every one of judge firm and findings there is no finding mr rich's identify either here or in his brief that we did not address and so i don't understand the claim of cherry picked and i lastly want to just address pursuing their copyrights claims you know in hock in low dollar value cases it's a call him a troll and a lamb price certainly is not measured and we can ask mr newburgh saying otherwise must the panel has questions i see