Litigation – Page 2 – Attorney Evan Brown

March 25, 2024 Artificial Intelligence, Litigation

Lawyer gets called out a second time for using ChatGPT in court brief

You may recall the case of Park v. Kim, wherein the Second Circuit excoriated an attorney for using ChatGPT to generate a brief that contained a bunch of fake cases. Well, the same lawyer responsible for that debacle has been found out again, this time in a case where she is the pro se litigant.

Plaintiff sued Delta Airlines for racial discrimination. She filed a motion for leave to amend her complaint, which the court denied. In discussing the denial, the court observed the following:

[T]he Court maintains serious concern that at least one of Plaintiff’s cited cases is non-existent and may have been a hallucinated product of generative artificial intelligence, particularly given Plaintiff’s recent history of similar conduct before the Second Circuit. See Park v. Kim, 91 F.4th 610, 612 (2d Cir. 2024) (“We separately address the conduct of Park’s counsel, Attorney Jae S. Lee. Lee’s reply brief in this case includes a citation to a non-existent case, which she admits she generated using the artificial intelligence tool ChatGPT.”).

In Park v. Kim, the court referred plaintiff for potential disciplinary action. The court in this case was more lenient, by just denying her motion for leave to amend, and eventually dismissing the case on summary judgment.

Jae Lee v. Delta Air Lines, Inc., 2024 WL 1230263 (E.D.N.Y. March 22, 2024)

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February 29, 2024 Contracts, Litigation

Nvidia forces consumer lawsuit into arbitration

arbitration provisoin

Plaintiffs filed a class action suit against Nvidia alleging that Nvidia falsely advertised a game streaming feature for its Shield line of devices which was later disabled, thus depriving consumers of a paid feature and devaluing their devices. The suit included claims of trespass to chattels, breach of implied warranty, and violations of various consumer protection laws.

Nvidia filed a motion to compel arbitration, citing an agreement that users ostensibly accepted during the device setup process. This agreement provided that disputes would be resolved through binding arbitration in accordance with Delaware laws and that any arbitration would be conducted by an arbitrator in California.

The court looked to the Federal Arbitration Act, which upholds arbitration agreements unless general contract defenses like fraud or unconscionability apply. Nvidia emphasized the initial setup process for Shield devices, during which users were required to agree to certain terms of use that included the arbitration provision. In light of Nvidia’s claim that this constituted clear consent to arbitrate disputes, the court examined whether this agreement was conscionable and whether it indeed covered the plaintiffs’ claims.

The court found the arbitration agreement enforceable, rejecting plaintiffs’ claims of both procedural and substantive unconscionability. The court concluded that the setup process provided sufficient notice to users about the arbitration agreement, and the terms of the agreement were not so one-sided as to be deemed unconscionable. Furthermore, the court determined that plaintiffs’ claims fell within the scope of the arbitration agreement, leading to a decision to stay the action pending arbitration in accordance with the agreement’s terms.

Davenport v. Nvidia Corporation, — F.Supp.3d —, 2024 WL 832387 (N.D. Cal. Feb 28, 2024)

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February 23, 2024 Artificial Intelligence, Litigation

ChatGPT was “utterly and unusually unpersuasive” in case involving recovery of attorney’s fees

chatgpt billing

In a recent federal case in New York under the Individuals with Disabilities Act, plaintiff prevailed on her claims and sought an award of attorney’s fees under the statute. Though the court ended up awarding plaintiff’s attorneys some of their requested fees, the court lambasted counsel in the process for using information obtained from ChatGPT to support the claim of the attorneys’ hourly rates.

Plaintiff’s firm used ChatGPT-4 as a “cross-check” against other sources in confirming what should be a reasonably hourly rate for the attorneys on the case. The court found this reliance on ChatGPT-4 to be “utterly and unusually unpersuasive” for determining reasonable billing rates for legal services. The court criticized the firm’s use of ChatGPT-4 for not adequately considering the complexity and specificity required in legal billing, especially given the tool’s inability to discern between real and fictitious legal citations, as demonstrated in recent past cases within the Second Circuit.

In Mata v. Avianca, Inc., 2023 WL 4114965 (S.D.N.Y. June 22, 2023) the district court judge sanctioned lawyers for submitting fictitious judicial opinions generated by ChatGPT, and in Park v. Kim, — F.4th —, 2024 WL 332478 (2d Cir. January 30, 2024) an attorney was referred to the Circuit’s Grievance Panel for citing non-existent authority from ChatGPT in a brief. These examples highlighted the tool’s limitations in legal contexts, particularly its inability to differentiate between real and fabricated legal citations, raising concerns about its reliability and appropriateness for legal tasks.

J.G. v. New York City Dept. of Education, 2024 WL 728626 (February 22, 2024)

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February 14, 2024 Artificial Intelligence, Ethics, Litigation

Using AI generated fake cases in court brief gets pro se litigant fined $10K

fake ai cases

Plaintiff sued defendant and won on summary judgment. Defendant sought review with the Missouri Court of Appeals. On appeal, the court dismissed the appeal and awarded damages to plaintiff/respondent because of the frivolousness of the appeal.

“Due to numerous fatal briefing deficiencies under the Rules of Appellate Procedure that prevent us from engaging in meaningful review, including the submission of fictitious cases generated by [AI], we dismiss the appeal.” With this, the court began its roast of the pro se appellant’s conduct.

The court detailed appellant’s numerous violations of the applicable Rules of Appellate Procedures. The appellate brief was unsigned, it had no required appendix, and had an inadequate statement of facts. It failed to provide points relied on, and a detailed table of cases, statutes and other authorities.

But the court made the biggest deal about how “the overwhelming majority of the [brief’s] citations are not only inaccurate but entirely fictitious.” Only two out of the twenty-four case citations in the brief were genuine.

Though appellant apologized for the fake cases in his reply brief, the court was not moved, because “the deed had been done.” It characterized the conduct as “a flagrant violation of the duties of candor” appellant owed to the court, and an “abuse of the judicial system.”

Because appellant “substantially failed to comply with court rules,” the court dismissed the appeal and ordered appellant to pay $10,000 in damages for filing a frivolous appeal.

Kruse v. Karlen, — S.W.3d —, 2024 WL 559497 (Mo. Ct. App. February 13, 2024)

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February 12, 2024 Copyright, DMCA, Litigation

DMCA subpoena to “mere conduit” ISP was improper

DMCA defamatory

Because ISP acted as a conduit for the transmission of material that allegedly infringed copyright, it fell under the DMCA safe harbor in 17 U.S.C. § 512(a), and therefore § 512(h) did not authorize the subpoena issued in the case.

Some copyright owners needed to find out who was anonymously infringing their works, so they issued a subpoena to the users’ internet service provider (Cox Communications) under the Digital Millennium Copyright Act’s (“DMCA”) at 17 U.S.C. § 512(h). After the ISP notified one of the anonymous users – referred to as John Doe in the case – of the subpoena, Doe filed a motion to quash. The magistrate judge recommended the subpoena be quashed, and the district judge accepted such recommendation.

Contours of the Safe Harbor

The court explained how the DMCA enables copyright owners to send subpoenas for the identification of alleged infringers, contingent upon providing a notification that meets specific criteria outlined in the DMCA. However, the DMCA also establishes safe harbors for Internet Service Providers (ISPs), notably exempting those acting as “mere conduits” of information, like in peer-to-peer (P2P) filesharing, from liability and thus from the obligations of the notice and takedown provisions found in other parts of the DMCA. This distinction has led courts, including the Eighth and D.C. Circuits, to conclude that subpoenas under § 512(h) cannot be used to compel ISPs, which do not store or directly handle the infringing material but merely transmit it, to reveal the identities of P2P infringers.

Who is in?

The copyright owners raised a number of objections to quashing the subpoena. Their primary concerns were with the court’s interpretation of the ISP’s role as merely a “conduit” in the alleged infringement, arguing that the ISP’s assignment of IP addresses constituted a form of linking to infringing material, thus meeting the DMCA’s notice requirements. They also disputed the court’s conclusion that the material in question could not be removed or access disabled by the ISP due to its nature of transmission, and they took issue with certain factual conclusions drawn without input from the parties involved. Additionally, the petitioners objected to the directive to return or destroy any information obtained through the subpoena, requesting that such measures apply only to the information related to the specific subscriber John Doe.

Conduits are.

Notwithstanding these various arguments, the court upheld the magistrate judge’s recommendation, agreeing that the subpoena issued to the ISP was invalid due to non-compliance with the notice provisions required by 17 U.S.C. § 512(c)(3)(A). The petitioners’ arguments, suggesting that the ISP’s assignment of IP addresses to users constituted a form of linking to infringing material under § 512(d), were rejected. The court clarified that in the context of P2P file sharing, IP addresses do not serve as “information location tools” as defined under § 512(d) and that the ISP’s role was limited to providing internet connectivity, aligning with the “mere conduit” provision under § 512(a). The court also dismissed the petitioners’ suggestion that the ISP could disable access to infringing material by null routing, emphasizing the distinction between disabling access to material and terminating a subscriber’s account, with the latter being a more severe action than what the DMCA authorizes. The court suggested that the petitioners could pursue the infringer’s identity through other legal avenues, such as a John Doe lawsuit, despite potential challenges highlighted by the petitioners.

In re: Subpoena of Internet Subscribers of Cox Communications, LLC and Coxcom LLC, 2024 WL 341069 (D. Hawaii, January 30, 2024)

January 30, 2024 Artificial Intelligence, Litigation

ChatGPT providing fake case citations again – this time at the Second Circuit

Plaintiff sued defendant in federal court but the court eventually dismissed the case because plaintiff continued to fail to properly respond to defendant’s discovery requests. So plaintiff sought review with the Second Circuit Court of Appeals. On appeal, the court affirmed the dismissal, finding that plaintiff’s noncompliance in the lower court amounted to “sustained and willful intransigence in the face of repeated and explicit warnings from the court that the refusal to comply with court orders … would result in the dismissal of [the] action.”

But that was not the most intriguing or provocative part of the court’s opinion. The court also addressed the conduct of plaintiff’s lawyer, who admitted to using ChatGPT to help her write a brief before the appellate court. The AI assistance betrayed itself when the court noticed that the brief contained a non-existent case. Here’s the mythical citation: Matter of Bourguignon v. Coordinated Behavioral Health Servs., Inc., 114 A.D.3d 947 (3d Dep’t 2014).

When the court called her out on the legal hallucination, plaintiff’s attorney admitted to using ChatGPT, to which she was a “suscribed and paying member” but emphasized that she “did not cite any specific reasoning or decision from [the Bourguignon] case.” Unfortunately, counsel’s assertions did not blunt the court’s wrath.

“All counsel that appear before this Court are bound to exercise professional judgment and responsibility, and to comply with the Federal Rules of Civil Procedure,” read the court’s opinion as it began its rebuke. It reminded counsel that the rules of procedure impose a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are legally tenable. “At the very least,” the court continued, attorneys must “read, and thereby confirm the existence and validity of, the legal authorities on which they rely.” Citing to a recent case involving a similar controversy, the court observed that “[a] fake opinion is not ‘existing law’ and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law, or for establishing new law. An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.”

The court considered the matter so severe that it referred the attorney to the court’s Grievance Panel, for that panel to consider whether to refer the situation to the court’s Committee on Admissions and Grievances, which would have the power to revoke the attorney’s admission to practice before that court.

Park v. Kim, — F.4th —, 2024 WL 332478 (2d Cir. January 30, 2024)

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January 26, 2024 Contracts, Litigation

Click to Agree: Online clickwrap agreements steered bank lawsuit to arbitration

online terms and conditions

Plaintiffs sued their bank alleging various claims under state law. The bank moved to compel arbitration based on various online clickwrap agreements plaintiffs had entered into.

One of the clickwrap agreements required plaintiffs to scroll through the entire agreement and then click an “Acknowledge” button before continuing to the next step. Citing to the case of Meyer v. Uber, 868 F.3d 66 (2d Cir. 2017), the court observed that “[c]ourts routinely uphold clickwrap agreements for the principal reason that the user has affirmatively assented to the terms of agreement by clicking ‘I agree.'”

Similarly, for the other relevant agreements, plaintiffs were required to click a box acknowledging that they agreed to those agreements before they could obtain access to digital products. Again, citing to the Meyer case: “A reasonable user would know that by clicking the registration button, he was agreeing to the terms and conditions accessible via the hyperlink, whether he clicked on the hyperlink or not.” By affirmatively clicking the acknowledgement, plaintiffs manifested their assent to the terms of the these agreements.

Curtis v. JPMorgan Chase Bank, N.A., 2024 WL 283474 (S.D.N.Y., January 25, 2024)

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January 17, 2024 Litigation, Section 230

Section 230 protected Meta from claims of discrimination for taking down Palestinian content

meta section 230

Pro se plaintiff sued Meta seeking to hold it liable for allegedly removing certain “Muslim and/or Palestinian content” while preserving “unspecified Jewish and/or Israeli content” and for allegedly banning certain Muslim users, while allowing unspecified Jewish users to continue using Meta’s services. He brought a civil rights claim for unlawful discrimination on the basis of religion in violation of Title II of the Civil Rights Act of 1964.

Meta moved to dismiss, arguing, among other things, that plaintiff lacked standing. The lower court granted the motion. Plaintiff sought review with the Third Circuit. On appeal, the court affirmed the dismissal.

No “informational injury”

The court observed that plaintiff had not alleged that he owned, created, controlled or had any personal involvement with the removed content other than having previously viewed it. Nor had he alleged any personal involvement with the banned users. Likewise, he had not argued that he was denied the same level of service that Meta offered to all its users. Instead, he had argued that he was entitled to relief as a Muslim being discriminated against by having Muslim-related news removed while Jewish content remained.

The court examined whether plaintiff could establish standing under the “information injury” doctrine. To establish standing under the informational injury doctrine, plaintiff “need[ed] only allege that [he] was denied information to which [he] was legally entitled, and that the denial caused some adverse consequence related to the purpose of the statute.” It went on to note that an entitlement to information allegedly withheld is the “sine qua non” of the informational injury doctrine.

It held that plaintiff had failed to establish standing under this doctrine because he did not show that he was legally entitled to the publication of the requested content or the removal of other content. Title II does not create a right to information. And the statute could not be understood as granting him a right to relief because he did not allege that he was personally denied the full and equal enjoyment of Meta’s services. Moreover, plaintiff was without relief under Title II because the statute is limited to physical structures of accommodations, and Meta, for purposes of the statute was not a “place of public accommodation.”

Section 230 Classics

And in any event, 47 U.S.C. § 230 precluded the court from entertaining these claims, which would have sought to hold Meta liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone, or alter content. On this point, the court looked to the classic Section 230 holdings in Green v. America Online (AOL), 318 F.3d 465,(3d Cir. 2003) and Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997).

Elansari v. Meta, Inc., 2024 WL 163080 (3d. Cir. January 16, 2024) (Not selected for official publication)

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January 9, 2024 Blockchain, Litigation, Service of Process

Court says lawsuit can be served via blockchain

Plaintiff sued multiple defendants, including parties located in foreign countries, for claims related to trade secrets misappropriation, unfair competition and other business torts. Plaintiff sought court permission to serve the summons and complaint on these overseas defendants through alternative means, marking a significant adaptation of legal procedures to modern communication technologies.

The court, considering the Federal Rules of Civil Procedure and international agreements, allowed plaintiff to use unconventional methods for serving legal documents. These methods included email, social media direct messaging, messaging via Telegram and Signal, text messaging, online publication, delivery to the foreign defendants’ attorneys, and a particularly innovative approach — service via NFT.

The court’s decision was based on several key considerations:

International Agreements and Due Process: Defendants were located in the United Arab Emirates, Singapore, and Cyprus. The UAE and Singapore, not being signatories to the Hague Convention, had no international agreement prohibiting such alternative service methods. Cyprus, a signatory, had not objected to alternative service forms like email under Article 10 of the treaty. The court also ensured that these methods complied with constitutional notions of due process.

Efficiency and Practicality of Modern Communication: The court acknowledged the practicality and growing acceptance of digital communication methods in legal proceedings. It found email to be a viable option, especially given that defendants were associated with a website that discussed the litigation. Signal, Telegram, and text messaging were also considered effective, given the defendants’ active presence and communication on these platforms.

Service Through U.S.-Based Counsel and Online Publication: The court also approved service to defendants’ U.S.-based legal counsel and publication in online media outlets in Singapore, Cyprus, and the UAE. It saw these methods as traditionally acceptable and likely to inform the defendants of the legal action.

Innovative Use of Blockchain Technology: Notably, the court permitted service via blockchain technology, where a non-fungible token (NFT) containing a link to the legal documents would be dropped to the defendants’ digital wallets. This method was considered particularly appropriate due to defendants’ involvement in blockchain technology and their familiarity with its use.

This decision illustrates the legal system’s evolving approach to international service of process, adapting to the realities of global communication and digital technology. It highlights the judiciary’s willingness to embrace new methods that align with both legal standards and the practicalities of communicating across borders in the digital age.

CipherBlade, LLC v. CipherBlade, LLC, 2024 WL 69164 (D. Alaska, January 5, 2024)

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January 2, 2024 Litigation, Privacy

Microsoft Edge privacy case dismissed for lack of standing

standing

A legal dispute involving Microsoft recently concluded with the dismissal of a class-action lawsuit. Plaintiffs had accused Microsoft of unauthorized data collection through its Edge browser, alleging violation of privacy laws. The court, however, ruled in favor of Microsoft, citing the plaintiffs’ lack of standing under Article III of the Constitution.

The Allegations Against Microsoft

The lawsuit centered on the claim that Microsoft Edge intercepted and sent private user data, including activities in “private” browsing mode, to Microsoft-controlled servers. This data, linked to unique user identifiers, allegedly allowed Microsoft to track users’ internet habits. Plaintiffs argued this was done without consent, breaching the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, and various state laws, and claimed economic injury due to these practices.

Microsoft’s Challenge and the Court’s Decision

Microsoft moved to dismiss the lawsuit, arguing plaintiffs lacked the necessary standing under Article III of the U.S. Constitution. The court agreed, determining the plaintiffs did not meet the required standing criteria.

The core issue was whether the plaintiffs had standing, a fundamental requirement for a case to be heard in a federal court. The constitution requires an actual “case or controversy” for federal courts’ involvement. The court examined whether plaintiffs demonstrated (1) an injury in fact, (2) a direct causation, and (3) a potential remedy through court action.

The 2021 Supreme Court ruling in TransUnion LLC v. Ramirez was key to the outcome in this case. This ruling stressed that not every violation of a statutory right leads to a concrete harm that warrants a federal lawsuit. This court, agreeing with Microsoft, found that the data identified in the complaint was not traditionally considered private. It determined that the collection of browsing data did not closely relate to a harm traditionally actionable in court. The court pointed out that data like browsing history and keystrokes do not carry a reasonable expectation of privacy.

Final Outcome

So the court found that the plaintiffs failed to allege a concrete privacy injury that would fulfill the requirements for Article III standing. The dismissal of this lawsuit highlights the complex challenges in digital privacy litigation and the difficulty plaintiffs face in proving standing in privacy-related legal actions.

Saeedy v. Microsoft Corporation, 2023 WL 8828852 (W.D. Washington, December 21, 2023)