Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`
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`LESTER LEFKOWITZ,
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`Plaintiff,
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`CASE NO. 15-cv-08875
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`Hon. Ronald A. Guzman
`Magistrate Judge Sheila M. Finnegan
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`McGRAW-HILL GLOBAL EDUCATION
`HOLDINGS, LLC, et al.,
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`v.
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`Defendants.
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`Defendants McGraw-Hill Global Education Holdings, LLC and McGraw-Hill School
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`ANSWER
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`Education Holdings, LLC (here, collectively “MHE”), through their undersigned counsel,
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`pursuant to Rule 12(a) of the Federal Rules of Civil Procedure, hereby respond to the Complaint
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`of Plaintiff Lester Lefkowitz (Dkt. No. 1, Oct. 6, 2015) with the following Answer
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`corresponding to the paragraphs set out in the Complaint:
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`Statement of Action
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`1.
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`MHE admits that this purports to be an action for copyright infringement and
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`breach of contract by Plaintiff Lester Lefkowitz (“Lefkowitz”). MHE lacks sufficient
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`information to form a belief as to the truth of the remaining allegations of Paragraph 1 of the
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`Complaint, and on that basis denies the remaining allegations.
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`2.
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`MHE admits the allegations of Paragraph 2 of the Complaint
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`Parties
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`{00905293;v1}
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`
`
`
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`LESTER LEFKOWITZ,
`
`
`Plaintiff,
`
`
`CASE NO. 15-cv-08875
`
`Hon. Ronald A. Guzman
`Magistrate Judge Sheila M. Finnegan
`
`
`
`
`
`
`McGRAW-HILL GLOBAL EDUCATION
`HOLDINGS, LLC, et al.,
`
`
`v.
`
`Defendants.
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`
`
`
`
`
`Defendants McGraw-Hill Global Education Holdings, LLC and McGraw-Hill School
`
`ANSWER
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`Education Holdings, LLC (here, collectively “MHE”), through their undersigned counsel,
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`pursuant to Rule 12(a) of the Federal Rules of Civil Procedure, hereby respond to the Complaint
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`of Plaintiff Lester Lefkowitz (Dkt. No. 1, Oct. 6, 2015) with the following Answer
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`corresponding to the paragraphs set out in the Complaint:
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`Statement of Action
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`1.
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`MHE admits that this purports to be an action for copyright infringement and
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`breach of contract by Plaintiff Lester Lefkowitz (“Lefkowitz”). MHE lacks sufficient
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`information to form a belief as to the truth of the remaining allegations of Paragraph 1 of the
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`Complaint, and on that basis denies the remaining allegations.
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`2.
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`MHE admits the allegations of Paragraph 2 of the Complaint
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`Parties
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 2 of 12
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`3.
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`MHE admits that the named defendants in this action are limited liability
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`companies organized under the laws of the State of Delaware, and that it is a publisher of
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`textbooks and other educational products, and that it sells such books and products in this
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`District, as well as elsewhere. MHE denies that any of Lefkowitz’s photographs in this suit were
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`unlawfully reproduced by MHE. MHE denies all other allegations of Paragraph 3 of the
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`Complaint.
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`Jurisdiction
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`4.
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`The allegations contained in Paragraph 4 of the Complaint are legal conclusions
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`to which no answer is required. Nevertheless, MHE agrees that this Court has subject-matter
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`jurisdiction over the claims raised in the Complaint.
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`Venue
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`5.
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`The allegations contained in Paragraph 5 of the Complaint are legal conclusions
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`to which no answer is required. Nevertheless, MHE agrees that this District is one of many
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`across the country in which venue may be properly situated under 28 U.S.C. § 1391(a). MHE
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`denies, however, that this District is the most convenient or appropriate venue for this action in
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`light of the related case previously filed by Lefkowitz against MHE in the Southern District of
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`New York, and MHE affirmatively alleges that the sole reason for Lefkowitz’s selection of this
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`District as the venue for this action is to forum-shop and thereby avoid the familiarity that the
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`Southern District of New York already has obtained concerning his claims.
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`Facts
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`6.
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`MHE is unable to respond to the allegations in Paragraph 6 of the Complaint
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`because it fails to identify which exclusive copyright right Lefkowitz purports to own in the
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`photographs cited in Exhibit 1 to the Complaint, and on that basis, MHE denies the allegations.
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 3 of 12
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`MHE further affirmatively states that Exhibit 1 is a summary exhibit for which the supporting
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`documentation has not been attached or otherwise made available to MHE, and further that it
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`was not created by Lefkowitz, but rather by his counsel, and it reflects the opinions, work-
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`product, and assumptions of his counsel. As a result, absent adequate supporting foundation
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`from Lefkowitz’s attorneys, the summary chart is inadmissible. MHE denies any inference,
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`implication, or assertion in or drawn from Exhibit 1 that is inconsistent with any document that
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`Lefkowitz may later produce to support the chart.
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`7.
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`MHE lacks sufficient information to determine the truth of the allegations of
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`Paragraph 7 of the Complaint, and on that basis the allegations are denied. MHE further
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`incorporates its response to Paragraph 6 of the Complaint. MHE affirmatively alleges that a
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`citation to a copyright registration number, as listed in Exhibit 1 to the Complaint, is insufficient
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`to identify the registration status of any specific photograph because the copyright registration
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`numbers here refer to registrations of unspecified, mass groups of photographs, and absent
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`evidence that the particular photo was submitted with the particular copyright registration, there
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`is no evidence that the particular photo has been registered.
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`8.
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`9.
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`MHE admits the allegations of Paragraph 8 of the Complaint.
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`MHE lacks sufficient information to determine the truth of the allegations of
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`Paragraph 9 of the Complaint and on that basis the allegations are denied. MHE further lacks
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`sufficient information to determine the authenticity or completeness of the documents attached as
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`Exhibits 2 and 3, and on that basis, MHE denies their admissibility.
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`10.
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`The allegations of Paragraph 10 are legal conclusions to which no answer is
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`required. Nevertheless, MHE denies Lefkowitz’s allegations to the extent they purport to assert
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 4 of 12
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`or imply that Getty Images lacked authority to enter into transactions with MHE under which
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`MHE used the Lefkowitz photos at issue in this action.
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`11. MHE admits that during the referenced period from 2004 to 2012, as well as
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`before, and after, MHE and Getty Images worked under successive agreements pursuant to
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`which Getty authorized MHE to use Getty’s photos in MHE’s books and other products, subject
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`to the terms of the various successive agreements. MHE denies that the invoice numbers
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`referenced in Exhibit 1 to the Complaint accurately identify the terms of the agreements under
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`which Getty authorized MHE’s use of the Lefkowitz photos at issue in this action. MHE denies
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`all other allegations of Paragraph 11 of the Complaint. MHE further incorporates its response to
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`Paragraph 6 with regard to the claim chart in Exhibit 1 to the Complaint.
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`12. MHE denies the allegations of Paragraph 12 of the Complaint.
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`13. MHE denies the allegations of Paragraph 13 of the Complaint.
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`14. MHE denies the allegations of Paragraph 14 of the Complaint. MHE further
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`incorporates its response to Paragraph 6 with regard to the claim chart in Exhibit 1 to the
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`Complaint.
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`15. MHE denies the allegations of Paragraph 15 of the Complaint.
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`16. MHE admits that it has conducted internal investigations concerning its use of
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`other photos, not necessarily including those referenced in the Complaint. MHE lacks sufficient
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`information to determine whether any of the photos alleged in Exhibit 1 to the Complaint are
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`among those for which Getty has already received additional payments from MHE. MHE denies
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`all other allegations of Paragraph 16 of the Complaint.
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`17. MHE denies the allegations of Paragraph 17 of the Complaint, which are in any
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`event improper under Rule 12(f).
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 5 of 12
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`18. MHE denies the allegations of Paragraph 18 of the Complaint, which are in any
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`event improper under Rule 12(f).
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`19. MHE denies that it has any practice, general or otherwise, of infringing the
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`copyrights in the photographs used in its books or other products. MHE admits that it has been
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`sued by Lefkowitz’s own counsel numerous times for copyright infringement. MHE denies any
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`other allegation in Paragraph 19 of the Complaint.
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`20. MHE admits the allegations of Paragraph 20 of the Complaint.
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`21. MHE denies the allegations of Paragraph 21 of the Complaint, which are in any
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`event improper under Rule 12(f).
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`22. MHE denies the allegations of Paragraph 22 of the Complaint.
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`23. MHE lacks information sufficient to determine the truth of the allegations of
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`Paragraph 23 of the Complaint, and on that basis the allegations are denied.
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`24. MHE admits that during certain periods of time, invoices issued to MHE by Getty
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`did identify the working title of the book or product in which Getty’s photographs were to be
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`used, as well as other information, and that such information is usually, but not always, retained
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`in MHE’s business records. MHE denies all other allegations of Paragraph 24 of the Complaint.
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`25. MHE incorporates its response to Paragraph 6 with regard to the claim chart in
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`Exhibit 1 to the Complaint. MHE denies any allegation of unauthorized use of the photographs
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`referenced in Exhibit 1, as asserted in Paragraph 25 of the Complaint. MHE denies all other
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`allegations contained therein.
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`26.
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`The allegations of Paragraph 26 of the Complaint are legal conclusions to which
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`no answer is required. Whatever agreements may have existed between Lefkowitz and Getty
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`Images for the use of the photographs at issue in this action, those documents speak for
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 6 of 12
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`themselves, and any legal conclusions to be drawn from those documents are for the Court to
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`determine. MHE affirmatively denies that Lefkowitz was an intended beneficiary of any
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`agreement between MHE and Getty Images, and MHE further denies that Lefkowitz has any
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`standing to assert any contractual claims against MHE arising from MHE’s agreements with
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`Getty Images.
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`27. MHE admits that Getty was authorized to offer the photographs in suit to MHE.
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`MHE denies that Getty was Lefkowitz’s exclusive licensing agent with regard to all of
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`Lefkowitz’s photographs. MHE denies the remaining allegations of Paragraph 27 of the
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`Complaint.
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`28. MHE denies the allegations of Paragraph 28 of the Complaint. MHE further
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`denies that the document attached to the Complaint as Exhibit 4 is a copy of any agreement
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`between MHE and Getty Images, and further asserts that Lefkowitz’s contention that this
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`document applies to MHE’s use of photos from Getty Images is knowingly false, and represents
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`an intentional failure to conduct a reasonably diligent investigation of the facts, and thus is in
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`violation of Rule 11(b)(3).
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`29. MHE admits that Lefkowitz’s counsel sent correspondence to David B. Stafford,
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`Esq., General Counsel of MHE, dated February 6, 2015, a true and correct copy of which is
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`attached here as Exhibit A. This document speaks for itself. MHE alleges that the parties
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`subsequently engaged in settlement discussions pursuant to Federal Rule of Evidence 408 that
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`included reference to the claims contained in that letter of February 6, 2015, and which are now
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`asserted in this action. The parties ultimately did not reach a settlement. MHE denies all other
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`allegations of Paragraph 29 of the Complaint.
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`30. MHE denies the allegations of Paragraph 30 of the Complaint.
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 7 of 12
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`31. MHE denies that Lefkowitz has any right or standing to assert any contractual
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`claims against MHE, and MHE denies all other allegations of Paragraph 31 of the Complaint.
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`32. MHE denies the allegations of Paragraph 32 of the Complaint.
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`33.
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`The language of Paragraph 33 attempts to quote a portion of the text of Exhibit 3
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`to the Complaint, a document whose authenticity and admissibility is undetermined. That
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`document, to the extent it is authentic and complete speaks for itself. Any conclusions to be
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`drawn from the document are questions of law for the Court. MHE denies that Lefkowitz has
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`any right or standing to assert any contractual claims against ME, and MHE denies any factual
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`allegation of Paragraph 33 of the Complaint.
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`34. MHE has seen a copy of the correspondence referenced in Paragraph 34 of the
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`Complaint, but it lacks sufficient information to determine the authenticity or completeness of
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`that correspondence, and on that basis denies the allegations of Paragraph 34 of the Complaint.
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`35. MHE admits that Getty Images has made no legal claim against MHE for breach
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`of contract or copyright infringement. MHE denies all other allegations of Paragraph 35 of the
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`Complaint.
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`36. MHE incorporates its prior responses regarding the exhibits to the Complaint.
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`COUNT I
`Copyright Infringement
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`37. MHE incorporates its prior responses to the prior paragraphs of the Complaint.
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`38. MHE denies the allegations of Paragraph 38 of the Complaint.
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`39. MHE denies the allegations of Paragraph 39 of the Complaint.
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`COUNT II
`Breach of Contract
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`40. MHE incorporates its prior responses to the prior paragraphs of the Complaint.
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 8 of 12
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`41. MHE denies the allegations of Paragraph 41 of the Complaint.
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`42. MHE admits that Getty Images entered into successive licensing agreements with
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`MHE over many years. MHE denies that the invoices referenced in Exhibit 1 to the Complaint
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`constitute those agreements. MHE alleges that its authorization to use the photos at issue in this
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`action arose from the course of MHE’s business dealings with Getty over many years and
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`included the successive licensing and pricing agreements that MHE and Getty reached during
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`that time. MHE denies all other allegations of Paragraph 42 of the Complaint.
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`43. MHE denies the allegations of Paragraph 43 of the Complaint.
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`44. MHE denies that Lefkowitz has any right or standing to assert any contractual
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`claims against MHE, and MHE denies all other allegations of Paragraph 44 of the Complaint.
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`45. MHE denies the allegations of Paragraph 45 of the Complaint.
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`46. MHE denies that Lefkowitz is entitled to any relief in this action.
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`DEFENSES
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`MHE denies any and each allegation, inference, or implication asserted anywhere in the
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`Complaint that is not specifically and explicitly admitted herein.
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`In addition, MHE further propounds the following separate and additional defenses, and
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`by doing so, MHE in no way concedes that it has the burden of proof and/or burden of
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`persuasion with respect to any of such defenses.
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`First Affirmative Defense
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`Lefkowitz’s Complaint fails to state a claim upon which relief may be granted.
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`Second Affirmative Defense
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`Lefkowitz’s claims are barred, in whole or in part, by applicable statutes of limitations.
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 9 of 12
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`Third Affirmative Defense
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`Lefkowitz’s copyright claims are barred, in whole or in part, by his lack of standing due
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`to invalid transfer, assignment, or other defects in ownership of the applicable copyright in the
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`particular works.
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`Fourth Affirmative Defense
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`Lefkowitz’s copyright claims are barred, in whole or in part, by the lack of a valid and
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`enforceable copyright registration for the works identified in Exhibit 1 to the Complaint.
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`Fifth Affirmative Defense
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`Lefkowitz’s copyright claims are barred by the defense of license and/or implied license
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`arising from the specific agreements between MHE and Getty Images as well as the prolonged
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`course of dealing between MHE and Getty Images over more than two decades.
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`Sixth Affirmative Defense
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`Lefkowitz’s contract claims are barred, in whole or in part, by the lack of any standing on
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`his part to assert contractual provisions arising from the agreements between MHE and Getty
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`Images.
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`Seventh Affirmative Defense
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`Lefkowitz’s claims are barred, in whole or in part, by acquiescence, novation,
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`satisfaction, or estoppel.
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`Eighth Affirmative Defense
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`Lefkowitz’s claims for statutory damages under the Copyright Act are limited under 17
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`U.S.C. § 412(2) solely to those works, if any, where the purported infringement by MHE began,
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`if at all, after the date of a valid and applicable copyright registration for the work at issue.
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 10 of 12
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`Ninth Affirmative Defense
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`Lefkowitz’s contract claims are barred, in whole or in part, to the extent they seek
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`damages predicated upon an unenforceable penalty.
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`Eleventh Affirmative Defense
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`Lefkowitz’s request for injunctive relief is barred by the lack of any irreparable harm
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`from the purportedly unlawful conduct, if any, by MHE. Likewise, to the extent Lefkowitz can
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`demonstrate that he has suffered damages from the purportedly unlawful conduct, if any, by
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`MHE, such damages are adequately remedied at law.
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`Twelfth Affirmative Defense
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`To the extent that Lefkowitz’s Complaint seeks any relief as to any photograph or
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`textbook title not cited in Exhibit 1 to the Complaint, such relief is not appropriately within the
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`jurisdiction of this Court, and is therefore barred.
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`Thirteenth Affirmative Defense
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`MHE hereby gives notice that, due to the lack of information as to the matters set forth in
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`the Complaint, MHE has insufficient knowledge or information from which to form a belief as to
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`whether it has additional defenses not expressly enumerated in the preceding paragraphs. MHE
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`thus hereby reserves its right to amend its Answer to assert additional defenses and to rely upon
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`those additional defenses to the extent they become available or apparent during discovery.
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`WHEEFORE, MHE requests that:
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`PRAYER FOR RELIEF
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`(a) This action should be transferred to the Southern District of New York pursuant to 28
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`U.S.C. § 1404(a);
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 11 of 12
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`(b) In the absence of such a transfer of venue, or following the same, Lefkowitz’s
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`Complaint should be dismissed with prejudice;
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`(c) Lefkowitz should take nothing; and,
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`(d) The Court award such further relief, including attorney’s fees and costs, against
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`Lefkowitz and to the benefit of MHE as the Court deems just and proper.
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`Dated: December 28, 2015
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`/s/ Christopher P. Beall
`Christopher P. Beall
`Levine Sullivan Koch & Schulz, LLP
`321 West 44th Street, Suite 1000
`New York, New York 10036
`(T): (212) 850-6100
`(F): (212) 850-6299
`cbeall@lskslaw.com
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`William McGrath
`Davis McGrath LLC
`125 South Wacker Drive
`Chicago, Illinois 60606
`(T): (312) 332-3033
`(F): (312) 332-6376
`wmcgrath@davismcgrath.com
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`Attorneys for Defendants McGraw-Hill
`Global Education Holdings LLC and
`McGraw-Hill School Education
`Holdings, LLC
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`By:
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`{00905293;v1}
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`Case 1:16-cv-01255-KPF Document 19 Filed 12/28/15 Page 12 of 12
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`CERTIFICATE OF SERVICE
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`I, Christopher P. Beall, an attorney and counsel of record for Defendant McGraw-Hill
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`Global Education Holdings, LLC and McGraw-Hill School Education Holdings, LLC, certify
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`that I caused the foregoing ANSWER to be electronically filed with the Clerk of Court using the
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`CM/ECF filing system, which will send automated notification of this filing to all counsel of
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`record on this date.
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`Dated: December 28, 2015
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`By:
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`/s/ Christopher P. Beall
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`{00905293;v1}
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`12
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