Recent Developments in “Fake Litigation”

by Paul Alan Levy

In the past few days there have been a couple of significant developments in the area of ”fake litigation” directed at consumer commentary – the use of fraudulent litigation techniques to obtain judicial relief against consumer criticisms of businesses without giving fair notice to the critic, and often using methods calculated to harm the free speech rights of third parties who are not identified as defendants or given the opportunity to oppose the relief. These techniques rose to public attention when a series of cases involving the machinations of Richart Ruddie  came to light during the summer and fall of 2016.

Kelly/Warner in Arizona

Perhaps the most significant is the filing of Arizona bar charges against Aaron Kelly and Daniel Warner, the named partners in a law firm called Kelly/Warner, as well as Raees Mohamed, the third partner in the firm.  Kelly/Warner has built its practice in the often shady realm of reputation management. My sporadic contacts with that firm in the course of my online free speech practice found them backing away from lawsuits and even from obtained court orders as soon as they learned there would be a contest. As a result, my mental image of the firm has long been that this was likely a law firm willing to help its clients skirt the ethical edges to get true statements taken offline to sanitize their reputations.

Still, the allegations in the bar charges are shocking: that each of these three lawyers knowingly filed complaints and proposed “settlements” containing factual assertions that they knew to be false, involving signed stipulations by “defendants” whom they knew to be fictitious, and even containing notarizations known to have been forged. The complaint also implicates the Kelly/Warner firm in Richart Ruddie’s criminal enterprise, suggesting the firm was one of Ruddie’s go-to law firms for fake litigation.  It remains to be seen whether a neutral adjudicator will uphold the factual allegations in the complaint (which, for the most part, are couched in the alternative allowing for the possibility that there was only a failure to investigate). However, the blustery press release issued by the firm claims that the bar charge is somehow the product of a conspiracy by the firm’s detractors (which hoodwinked the Arizona bar?) and implies that the firm’s partners have repeatedly filed papers that they really “believed to be false” but did not know for certain to be false. Even assuming that this defense lets them keep their law licenses, what sort of damage will it do to reputation among the local judiciary?  "Assume that this defamation plaintiff's lawyers believe that their submissions are false, but just aren't 100% sure of that."  (Here is Eugene Volokh's take on the charges against Kelly and Warner).

Stearns-Montgomery & Proctor in Georgia

We recently learned of a fake lawsuit filed over an unflattering Yelp review by the Georgia divorce law firm called “Mary A. Stearns, P.C. d/b/a Stearns Montgomery & Proctor."  Back in 2013, a pseudonymous former client, using the initials X.X., posted a review on Yelp  claiming that after she paid for a consultation involving a divorce situation, the reviewer could neither learn what the cost of proposed legal services would be nor get his phone calls returned; the reviewer concluded that the firm is “horrible horrible” and that others similarly situated should not consider using the firm’s services. More than four years later, the Montgomery firm filed a defamation suit against the reviewer, but the proposed order made clear that the real target of the litigation was Yelp, in that the order commanded “any third party” to “aid” the plaintiff in getting the review removed. Mary Montgomery, the head of the firm, submitted this order ex parte and got it issued (by a senior judge who was apparently serving as the duty judge) two business days later, with no pretense of notice either to the reviewer or to Yelp. Montgomery then had one of her associates send a letter to Yelp, attaching the order and claiming that the order required Yelp to remove the review.

The complaint and the motion for emergency relief were beyond frivolous: they were filed long after the expiration of the one-year statute of limitations, complaining about the opinions expressed in the review rather than the facts alleged in the review, submitted without an adequately sworn affidavit, seeking relief against Yelp despite the protections of section 230, with notice deliberately withheld from both the defendant and Yelp, and seeking injunctive relief plainly barred by the First Amendment as well as by Georgia law. I laid all this out in a letter to Montgomery and her associate.

To her credit, Montgomery promptly responded by promising to submit a revised order eliminating any reference to obligations of third parties; and unlike Kelly and his colleagues, who know very well what they are doing, I accept that, as a lawyer long-specialized in divorce litigation, Montgomery might indeed have had no inkling just how frivolous her defamation papers were. The following day, she even dismissed the lawsuit altogether. 

Common Conundrum

Both of these cases raise a common conundrum. Too many state court judges can be hoodwinked into signing orders that affect the rights of people who express their views on the Internet without paying the slightest attention to the impact of their orders on the expressive rights of third parties or even of the putative online speakers. How do we educate state court judges to be alert to these concerns?