(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]