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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
jspears on DSK121TN23PROD with PROPOSALS3

CCB.50 One commenter suggested that the regulations include a mechanism, similar to Anti-SLAPP motions,51
whereby a respondent can make an early motion to dismiss a bad-faith claim.52
The proposed rule makes both parties and party representatives subject to various bad-faith conduct provisions.
Under the proposed rule, the CCB will review, as part of its determination of an award of costs or attorneys fees, whether a party or its representative engaged in bad-faith conduct. The Office has defined bad-faith conduct consistent with the statute, and the rule clarifies that such conduct may occur at any time during a proceeding. At any point prior to determination, the CCB
may order a party or its representative to show cause why certain conduct does not constitute bad-faith conduct. The party or representative will have three days to file a response.
A party may also raise allegations of bad-faith conduct. To do so, the party must file a letter describing the alleged conduct, attaching any relevant exhibits, and seeking a conference. The accused party has seven days in which to file a response if it wishes. After reviewing the parties submissions, the CCB must either make a finding that no bad-faith conduct occurred or schedule a conference to address the request. The CCB will consider the parties letters, any arguments on the issue, and the accused partys behavior in other CCB
proceedings in the preceding twelve months in determining whether to award attorneys fees and costs. If the CCB determines that an award of attorneys fees and costs is appropriate, the award will be included in the final determination and will be in accordance with the allowable amounts set forth in the statute.
The proposed rule also provides that a party or representative who engages in bad-faith conduct on more than one occasion within a twelve-month period will be barred from initiating claims before the CCB for a period of twelve months. The CCB must dismiss any pending proceedings brought by a party who engaged in repeated bad-faith 50 Elec. Frontier Found. EFF Initial NOI
Comments at 3; John Boushka Initial NOI
Comments at 1.
51 Anti-SLAPP statutes are laws designed to deter strategic lawsuits against public participation SLAPP, that is, lawsuits that have the primary purpose of suppressing legitimate criticism or opposition. Such statutes set forth a special form of motion practice, referred to as an Anti-SLAPP
motion, that permits the early dismissal of such lawsuits. See, e.g., DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1013 9th Cir. 2013
discussing California Anti-SLAPP statute.
52 Gordon Fiermark Initial NOI Comments at 1.

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conduct within the requisite time period. In its discretion, the CCB may also bar a representative from participating further in any claims pending before the CCB, after consideration of any hardship to parties represented by that person. If a representative is barred from further representing a party in a pending claim, the CCB will consider requests from that party asking the Board to provide additional time or a stay of the pending action to allow that party to find other representation. As with the proposed rule pertaining to bad-faith conduct within a proceeding, allegations of multiple instances of bad-faith conduct may be raised either by the CCB at any point during a proceeding through an order to show cause or by a party at any point after a proceeding has been initiated. A party may raise such allegations through a letter which describes the instances of bad-faith conduct, attaches relevant exhibits, and requests a conference. A respondent will not waive the ability to opt out of the proceeding if it raises allegations of bad-faith conduct with the CCB prior to the expiration of the period to opt out.
The accused party will have an opportunity to respond, regardless of whether the allegations are raised by the CCB or another party.
After reviewing the parties submissions, the CCB will either make a finding that no bad-faith conduct occurred or hold a conference to address the allegations. The CCB will consider the parties letters, any arguments on the issue, and the accused partys behavior in other proceedings before the CCB. If an accused party has been subject to an award of attorneys fees or costs by the CCB due to bad-faith conduct at any point in the prior twelve months, then that will be considered an additional instance of bad-faith conduct for purposes of establishing the bar on initiating claims. However, the CCB may also consider other evidence of bad-faith conduct by the accused party, even if such conduct ultimately did not result in a formal finding or an award of attorneys fees or costs. For example, the CCB may consider instances in which the accused party filed claims that were found to be noncompliant, or bad-faith proceedings that were initiated by the accused party where the respondent opted out. If the CCB determines that the accused party has engaged in badfaith conduct on more than one occasion in a twelve-month period, the CCB will issue a written determination that provides that the accused party will be barred from initiating claims before the CCB for twelve months and, where
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the bad-faith actor is a party and not a representative, that any pending proceedings commenced by the party be dismissed without prejudice, with the exception that the dismissal of active proceedings requires the written consent of the respondent in those proceedings.
The proposed rule does not provide for the publication of a list of bad-faith actors who have been barred from initiating proceedings, as some commenters suggested, because the Office believes that such a list would be unduly harsh, especially for nonattorneys. The CCB will, however, make certain records and findings related to bad-faith conduct public, so that parties are able to identify patterns of bad-faith conduct and bring them to its attention.
The Copyright Claims Attorneys will be positioned to identify parties who, notwithstanding being barred from initiating proceedings, do so anyway in spite of a bar and will classify such proceedings as noncompliant. The Office welcomes any other comments concerning the proposed rules for badfaith conduct, including whether there should be publication of a list of badfaith actors.
ii. Attorney Conduct The Office also requested comments regarding the adoption of regulations pertaining to the conduct of attorneys, such as whether to prohibit attorneys who have been suspended from practicing law from participating in CCB
proceedings and whether to adopt rules addressing such issues as conduct and discipline, duties of candor, fraud prevention, and, if necessary, sanction, suspension, exclusion, or censure.53
Commenters generally agreed on the advisability of such regulations. Some commenters suggested that the CCB
should have the ability to bar or suspend attorneys who engage in badfaith conduct,54 and some suggested that the CCB should report such attorneys to their respective bar associations.55
Several commenters agreed that disbarred, suspended, or sanctioned attorneys should not be permitted to practice before CCB.56 Other suggestions were to have the CCB establish rules of professional conduct 57 as well as requirements that attorneys representing 53 86

FR 1616465.
& IA Initial NOI Comments at 7.
55 Id.; MPA, RIAA & SIIA Initial NOI Comments at 21.
56 Am. Bar Assn Intell. Prop. L. Sec. ABA
IPL Reply NOI Comments at 89; Google Initial NOI Comments at 2; Univ. of Mich. Libr. Initial NOI
Comments at 7.
57 Univ. of Mich. Libr. Initial NOI Comments at 7.
54 CCIA

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