§ 232.4 Bar on initiating and participating in claims. ( a ) *General.* A *participant* that has been found to have engaged in *bad-faith conduct* on more than one occasion within a 12-month period shall be subject to the penalties set forth in paragraph (d) of this section.
( b ) *Allegations of multiple instances of bad-faith conduct* — ( 1 ) *On the Board's initiative.* On its own, and at any point during a proceeding, the Board may order a *participant* to show cause why certain conduct engaged in on more than one occasion within a 12-month period does not constitute a pattern of *bad-faith conduct.* Within 14 days, such *participant* shall file a response to this order, which shall follow the procedures set forth in § 220.5(a)(2) of this subchapter.
( 2 ) *On a party's initiative.* A party that in good faith believes that a *participant* has engaged in *bad-faith conduct* before the Board on more than one occasion within a 12-month period may file a request for a conference with the Board at any point after a proceeding has been initiated. Such a request shall describe the alleged instances of *bad-faith conduct,* include the CCB case numbers for any other instances of *bad-faith conduct* if known, and attach any relevant exhibits. Such a request filed by a respondent before the time to opt out of the proceeding has expired shall not operate as a waiver of that respondent's right to opt out of the proceeding. Requests for a conference concerning allegations of a pattern of *bad-faith conduct* and any responses thereto shall follow the procedures set forth in § 220.5(a)(2) of this subchapter.
( c ) *Establishing a pattern of bad-faith conduct.* After an accused *participant's* response has been filed under paragraph (b) of this section, or the time to file such a response has passed, the Board shall either make a determination that the *participant* has not engaged in *bad-faith conduct* before the Board on more than one occasion within a 12-month period, or shall schedule a conference concerning the allegations. An award of attorneys' fees or costs against an accused *participant,* pursuant to § 232.3, within the prior 12 months shall establish an instance of *bad-faith conduct* within the requisite time period. The Board may consider other evidence of *bad-faith conduct* by the accused *participant* that did not result in an award of attorneys' fees or costs pursuant to § 232.3, including but not limited to, claims that did not proceed because they were reviewed by a Copyright Claims Attorney and found to be noncompliant or where proceedings were initiated but the respondent opted out.
( d ) *Penalties.* In determining whether to bar a *participant* from initiating claims or a legal counsel or *authorized representative* from participating on a party's behalf, the Board shall consider the requests and responses submitted by the parties, any arguments on the issue, and the accused *participant's* behavior in other Board proceedings. The Board shall issue its determination in writing. If the Board determines that the accused *participant* has engaged in *bad-faith conduct* on more than one occasion within a 12-month period, such determination shall include: ( 1 ) A provision that the accused *participant* be barred from initiating a claim, or in the case of a legal counsel or *authorized representative,* barred from participating on a party's behalf, before the Board for a period of 12 months beginning on the date on which the Board makes such a finding;
( 2 ) In the case of a pattern of *bad-faith conduct* by a party, dismissal without prejudice of any proceeding commenced by that claimant or respondent or by the legal counsel or *authorized representative* on behalf of a party that is still pending before the Board at the time the finding is made, except that an *active proceeding* shall be dismissed only if the respondent to that proceeding provides written consent to the dismissal; and
( 3 ) In the case of a pattern of *bad-faith conduct* by a legal counsel or *authorized representative,* a provision that the representative be barred from representing any party before the Board for a period of 12 months beginning on the date on which the Board makes such a finding. In deciding whether the legal counsel or *authorized representative* shall be barred from representing other parties in already pending proceedings, the Board may take into account the hardship to the parties represented by the sanctioned representative. If a legal counsel or *authorized representative* is barred from further representing a party in a pending claim, the Board will consider requests from that party asking the Board to amend the scheduling order or issue a stay of the pending action to allow that party to find other representation. Whether to amend the scheduling order or issue a stay shall be at the Board's discretion.
[87 FR 30090, May 17, 2022, as amended at 87 FR 36061, June 15, 2022]