Bottom line: They have to pay a fine of $5,000, prepare a dossier for their client on all the ways they malpracticed against him, and send ‘fess up letters to the judges listed on their fake opinions. But Judge Kevin Castel did not, on his own motion, move to refer the attorneys for discipline, so presumably they are breathing a sigh of relief.
The court also dismissed the case against Avianca Airlines, bringing to an end a saga which landed this otherwise unremarkable tort suit on the front page of the New York Times. After Avianca moved to dismiss, defendant Roberto Mata’s lawyer Peter LoDuca, of Levidow, Levidow & Oberman P.C., filed a response which cited multiple non-existent cases. When this was pointed out to the court, Judge Castel issued the first of three show cause orders demanding that LoDuca file copies of those cases with the court.
Now a normal lawyer would know that something was amiss — either an Eleventh Circuit decision exists or it doesn’t. But instead of acknowledging the error, LoDuca first requested an extension of time, claiming to be on vacation. And then he submitted court decisions to the court which were very clearly fake.
Here’s Judge Castel’s description of the fake Eleventh Circuit ruling:
The “Varghese” decision shows stylistic and reasoning flaws that do not generally appear in decisions issued by United States Courts of Appeals. Its legal analysis is gibberish. It references a claim for the wrongful death of George Scaria Varghese brought by Susan Varghese. (Id.) It then describes the claims of a plaintiff named Anish Varghese who, due to airline overbooking, was denied boarding on a flight from Bangkok to New York that had a layover in Guangzhou, China. (Id.) The summary of the case’s procedural history is difficult to follow and borders on nonsensical, including an abrupt mention of arbitration and a reference to plaintiff’s decision to file for Chapter 7 bankruptcy as a tactical response to the district court’s dismissal of his complaint. (Id.) Without explanation, “Varghese” later references the plaintiff’s Chapter 13 bankruptcy proceeding. (Id.) The “Varghese” defendant is also said to have filed for bankruptcy protection in China, also triggering a stay of proceedings. (Id.) Quotation marks are often unpaired. The “Varghese” decision abruptly ends without a conclusion.
As it emerged, LoDuca was simply putting his name on filings drafted by his colleague Steven Schwartz, who had represented Mata in state court but was not admitted in the Southern District of New York. Schwartz had done all his research using ChatGPT, and purported to have submitted the fake decisions in good faith, despite being told by opposing counsel that no such cases existed. It seems pretty clear that the court did not credit this, noting Schwartz’s “shifting and contradictory explanations” on the witness stand, including his purported belief that “F.3d” stood for “federal district, third department.”
“The Court finds this claim from a lawyer who has practiced in the litigation arena for approximately 30 years to be not credible and was contradicted by his later testimony,” Just Castel noted dryly.
Similarly, LoDuca admitted on the witness stand that he had falsely claimed to have been on vacation, when really it was Schwartz who was out of town. The court found bad faith by LoDuca, Schwartz, and Levidow, not least because none of them moved to amend the multiple false attestations made to the court.
“At no time has any Respondent written to this Court seeking to withdraw the March 1 Affirmation in Opposition or advise the Court that it may no longer rely upon it,” Judge Castel wrote. “The failure to correct a prior statement in a pending motion is the later advocacy of that statement and is subject to sanctions.”
And so the court imposed Rule 11 sanctions, not just because of the harm to the plaintiff (whose claims were anyway time barred, because he filed in state court after the statute of limitations), but to the courts and the legal profession itself:
There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the American judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity.
Noting that “there is a salutary purpose” in fessing up directly to the people you’ve harmed, Judge Castel ordered them “to inform their client and the judges whose names were wrongfully invoked of the sanctions imposed.” He did not, however, require an apology, “because a compelled apology is not a sincere apology. Any decision to apologize is left to Respondents.”
We are guessing that Respondents are genuinely sorrier than they have ever been in their lives. But at least they walked out with their licenses to practice law intact.
Mata v. Avianca [Docket via Court Listener]