Friday, the Arizona State Bar filed a disciplinary complaint accusing two lawyers of filing libel lawsuits against fake defendants. Why would anyone do such thing, you might ask? How can you get real money (or real compliance with an injunction) from a fake defendant?

Well, say you think some people are libeling you online. You try to get them to take down the libelous material, but you can't find them, or they refuse. You try to get the hosting site to delete the material, but it refuses. (Under the federal 47 U.S.C. § 230 statute, such intermediaries can refuse without fear of liability.)

So you e-mail Google, and ask it to remove the page from Google's indexes, so that Google users won't see it. "We don't know whether it's actually libelous," Google responds, "and we aren't equipped to figure that out. But tell you what: You get a court order against the author that concludes the material is libelous, and then maybe we'll consider deindexing it."

Now you, or the reputation management company you hired, can get a lawyer and bring that lawsuit. Many people do—but it's time-consuming and very expensive. And maybe you'll lose: Maybe the defendant will defend, and will point out that the statement is just nonactionable opinion, or is factually accurate, or (what often happens) was written long enough ago that the statute of limitations runs. So you might be out the money, and without a remedy.

That's where the fake-defendant lawsuits come in. Someone—the plaintiff, the reputation management company, or the lawyer—decides to file suit against a nonexistent defendant. The complaint is filed in court together with a stipulation from the "defendant" (actually filed by whoever is engineering this on the plaintiff's behalf) agreeing that the statement was false and defamatory, and agreeing to the entry of an injunction ordering the "defendant" to remove the statement. The court sees what appears to be agreement between the parties, and issues the injunction.

In one such case, I saw the injunction issued a blazingly fast four days after the filing. Lovely! The only problem, of course, is that it's a fraud on the court.

Back in Fall 2016, Paul Alan Levy and I wrote about one such scheme that we had uncovered (thanks to a tip from one of the scheme's targets, Matthew Chan). The operation was run by one Richart Ruddie, of a company that had various names, including Profile Defenders.

Ruddie apparently arranged the filing of some such fake-defendant lawsuits; we linked him to several, though I found a total of about 25 lawsuits in various courts that had very similar boilerplate, and 15 of them gave addresses for the defendants—addresses that didn't seem to correspond to any such defendant, at least based on the public record searches that we ran (with the invaluable help of Giles Miller, a private investigator at Lynx Insights & Investigations). But all these lawsuits were ostensibly filed by the plaintiffs without a lawyer. (I say "ostensibly" because it's possible that the reputation management company filed some of the lawsuits without telling the plaintiffs, and the plaintiffs weren't even aware that the lawsuits were going to be filed—much less that they were fraudulent—but were relying on the seemingly reputable reputation management company to just "do something" behind the scenes.)

The Arizona lawsuits, though, were filed by lawyers Aaron Kelly and Daniel Warner of Kelly / Warner Law, a prominent Internet libel law firm (though some were also linked to Richart Ruddie, Profile Defenders, and a company connected to Profile Defenders). One example was Chinnock v. Ivanski, filed by Warner; here's what the Arizona Bar alleges about it, with the most interesting details emphasized (for more, see this March 2017 post on this blog about Chinnock; many thanks to the Lumen Database project at Harvard's Berkman Klein Center for its invaluable help with that research):

[30.] In 2016, Respondent Warner was hired by Joseph Chinnock to remove allegedly defamatory posts about Chinnock from the internet. At that time, Respondent Warner was already aware that Chinnock was accused in Florida of fraud and using a fake identity [because Kelly/Warner Law had earlier gotten the court file in the Florida Kogan v. Chinnock case, in which Chinnock was accused of fraud and impersonation]. [31.] The allegedly defamatory posts were purported to originate from a woman named Krista Ivanski. [32.] Prior to filing the complaint on behalf of Chinnock, Respondent Warner and others in his firm communicated with an individual identifying herself as defendant Krista Ivanski. All communication was conducted through email. No one from the firm spoke with Ivanski on the phone or in person. [33.] The email addresses for Ivanski were provided to the law firm by Chinnock. The email addresses were sandrabond249@gmail.com and sarawood7 66@gmail.com. [34.] In June 2016, Respondent Warner filed a complaint on behalf of Joseph Chinnock …. Prior to filing the complaint, Respondent Warner was aware that Chinnock was accused in Florida of fraud and using a fake identity. [35.] The complaint in Chinnock v. Ivanski alleges defendant Krista Ivanski defamed Plaintiff Joseph Chinnock by posting 38 false statements about Chinnock on the internet…. [37.] Respondent Warner took no action to determine if the statements were true or false before filing the lawsuit. [38.] The first URL listed in the complaint (https://bitcointalk.org/index.php?topic=669614.0) routes to a page wherein individuals complain about a scam run by Joseph Chinnock. The page claims Chinnock uses the aliases of Sara Wood, Sara Ward, and Patrick McDowell to run scams. [39.] Sarawood766@gmail.com was one of the email addresses for Ivanski provided to the firm by Chinnock. [40.] The complaint states Ivanski resides in Turkey and Chinnock resides in Colorado. The complaint states, "[t]he parties purposefully availed themselves of the benefits of Arizona law," but does not explain how the state courts in Arizona have jurisdiction to hear the matter…. [42.] Respondent Warner knew that Krista Ivanski is not a real person. Krista Ivanski was fabricated to serve as defendant in the matter. [43.] Respondent Warner knew that Krista Ivanski did not post the 38 allegedly defamatory statements. [44.] Respondent Warner knew that the 38 allegedly defamatory statements were not posted by the same person. [45.] Respondent Warner knew that legal action regarding many of the allegedly defamatory statements was barred by the [Arizona one-year] statute of limitations …. [46.] Alternatively, if Respondent Warner did not know the information in paragraphs 42-45, Respondent Warner failed to investigate the matter prior to filing the complaint. [47.] In June 2016, Respondent Warner filed a document entitled "Stipulation For Permanent Injunction and Dismissal Without Prejudice," ostensibly signed by Krista Ivanski. Warner knew that Ivanski's signature was forged or failed to investigate the matter prior to filing the document…. [50.] The proposed order is signed by Ivanski and notarized by Amanda Sparks, a notary from Fulton County, Georgia. The Plaintiff's Verification attached to the original complaint and signed by Chinnock was also notarized in Fulton County, Georgia. According to the complaint, neither Ivanski nor Chinnock reside in Georgia. [51.] There is no notary in Fulton County named Amanda Sparks. A search performed via the Georgia Superior Court Clerk's Cooperative Authority notary search shows no notary in Fulton County named Amanda Sparks. The notarization by Amanda Sparks is a forgery. [52.] Respondent Warner knew that the notarization by "Amanda Sparks" from Fulton County, Georgia, was a forgery or failed to investigate the matter prior to filing the document. [53.] In August 2016, Respondent Warner filed a document entitled "Stipulation For Amended Order For Permanent Injunction," ostensibly signed by Krista Ivanski. The address used for Ivanski in the Stipulation For Amended Order For Permanent Injunction differs from the addresses used for Ivanski in earlier pleadings. [54.] The proposed Amended Order For Permanent Injunction is signed by Ivanski and notarized by "Samantha Pierce," a notary from Colorado. According to the complaint, Chinnock resides in Colorado while Ivanski resides in Turkey. [55.] There is no notary in Colorado named Samantha Pierce. A notary search performed via the Colorado Secretary of State's website returns "no records found" for notary Samantha Pierce. The notarization by Samantha Pierce is a forgery. [56.] The notary ID used by Samantha Pierce is 20121234567. The sample notary seal displayed on the Colorado Secretary of State's general notary information page uses notary ID 20121234567. [57.] Respondent Warner knew that the notarization by Samantha Pierce was a forgery or failed to investigate the matter prior to filing the document. [58.] The request for an amended order for permanent injunction was granted by the Court. [59.] Chinnock v. Ivanski was a fraudulent lawsuit designed to achieve client Chinnock's goal of removing online criticism without having to prove the elements of defamation.

[The complaint also alleges that Aaron Kelly's Lynd v. Hood case involved a forged notarization and fake defendants: "[The ostensible defendants] Connie Hood and Jesse Wood are not real. Connie Hood and Jesse Wood were fabricated in order to obtain a stipulated order of permanent injunction removing criticism of Adam Lynd from the internet. Respondent Kelly knew that Connie Hood and Jesse Wood were fabricated defendants or failed to investigate the matter prior to filing the complaint…. Lynd v. Hood was a fraudulent lawsuit designed to achieve client Lynd's goal of removing online criticism without having to prove the elements of defamation."

It alleges much the same about Kelly's Gottuso v. Marks case: "Howard Marks is not real. Howard Marks was fabricated in order to obtain a stipulated permanent injunction. Respondent Kelly knew that Howard Marks was a fabricated defendant or failed to investigate the matter prior to filing the compliant."

And about Kelly's Cohen v. Smith case: "Robert Smith is not real. Robert Smith was fabricated in order to obtain a stipulated permanent injunction. Respondent Kelly knew that Robert Smith was a fabricated defendant or failed to investigate the matter prior to filing the complaint."

And about Kelly's Varden v. Lentz case: "Damon Lentz is not real. Damon Lentz was fabricated in order to obtain a stipulated permanent injunction. Respondent Kelly knew that Damon Lentz was a fabricated defendant or failed to investigate the matter prior to filing the complaint." (These are just excerpts—you can read the Complaint for more details on the allegations, including on the Ruddie connection.)

And it alleges a somewhat different pattern for Ruddie v. Kirschner, a Maryland case filed by Richart Ruddie in order to get some material critical of Dan Warner himself de-indexed (note that it's not clear whether the allegation is that Kirschner just doesn't exist, or does exist but is not the author of the allegedly libelous post):

Kelly/Warner Law has a business relationship with Ruddie. The firm and Ruddie have referred cases/clients to each other for many years. Ruddie and his company Profile Defenders have been clients of Kelly/Warner Law since 2012, and, in mid-2015, the firm employed Ruddie as an expert in a case in the U.S. District Court for the Eastern District of Pennsylvania (Case No. 2:14-cv-05980-GAM [Monarch v. Gorman]). In June 2015, Respondent Warner initiated a copyright action alleging unauthorized use of Warner's photograph in a post on Ripoffreport.com. The goal of the action was to de-index or remove a consumer complaint hosted at the following URL: http://www.ripoffreport.com/r/DANIEL-WARNER-KELLY­WARNER-LAW/DANIEL-WARNER-KELLY-WARNER-LAW-Daniel-R-Warner-Daniel-Warner-Lawyer-FROM-Kelly-Warner-Law-1231611. [EV adds: I think this refers to a Digital Millennium Copyright Act takedown demand sent to RipOffReport, Google, or both, rather than to a federal copyright lawsuit.] The action did not result in removal of the content. In November 2015, Richart Ruddie filed a pro per lawsuit in Ruddie v. Kirschner 24-C-15-005620 (Maryland), alleging that Jake Kirschner "posted false and defamatory statements" at: http://www.ripoffreport.com/r/DANIEL-WARNER-KELLY-WARNER-LAW/DANIEL-WARNER-KELLY-WARNER-LAW­Daniel-R-Warner-Daniel-Warner-Lawyer-FROM-Kelly-Warner-Law-1231611. The allegedly defamatory statements that were the subject of the complaint in Ruddie v. Kirschner were the same statements Respondent Warner attempted to remove by filing the copyright action. The lawsuit filed by Ruddie was fraudulent. Jake Kirschner did not post the allegedly defamatory statements. At least one of the statements was posted by an individual named Charles Roderick. The allegedly defamatory statements are about Respondent Warner, not about Ruddie as alleged in the complaint. Ruddie filed a fraudulent lawsuit to remove online criticism of his business associate Respondent Daniel Warner. Respondent Warner knew that Ruddie filed the fraudulent lawsuit to achieve Respondent Warner's goal of removing the online criticism without having to prove the elements of defamation.

All this conduct, the complaint alleges, violated various Arizona Rules of Professional Conduct, including 1.2(d) ("A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent"), 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a good faith basis in law and fact for doing so that is not frivolous"), 3.3 (requiring candor towards the court), and 8.4(c)-(d) (barring "conduct involving dishonesty, fraud, deceit or misrepresentation" and "conduct that is prejudicial to the administration of justice").

The complaint also alleges a different kind of misconduct involving another Kelly/Warner lawyer, which I'll blog about later—but for now, I wanted to explain the alleged fake-defendant takedown scheme.

Keep in mind, of course, that the complaint just sets forth the Arizona Bar's allegations; the ultimate decision will be made by the Presiding Disciplinary Judge together with a two-member hearing panel, and could then be appealed to the Arizona Supreme Court. I expect that a major question will be whether Kelly and Warner knew about the alleged shenanigans, and, if they didn't know, how culpable they were in not properly investigating the facts.

Finally, the possibility of such shenanigans (among others) bears on the Hassell v. Bird litigation that is now before the California Supreme Court: The issue there is whether libel takedown injunctions can actually be made legally binding on Internet platforms (such as Google, Yelp, and the like)—even though the platforms aren't parties to the lawsuits—rather than just being something that platforms choose whether to follow. The questionable nature of many such injunctions is reason to further insist that the platforms not be legally bound by the results of litigation in which they never participated, and the accuracy of which they never had a chance to probe.

Here is an excerpt from the Kelly / Warner statementresponding to the complaint:

For reasons that remain uncertain, the State Bar of Arizona has decided to continue its investigation by filing a formal bar complaint against Aaron Kelly, Daniel Warner and Raees Mohamed. Some might say….WOW…and jump to conclusions. However, Kelly / Warner is pleased to have an opportunity to demonstrate publicly that no one at the firm has engaged in any wrongdoing. Internet defamation attorneys cannot and will not be held to a higher standard of care than normal attorneys. After a quick reading of the ethical rules, the comments thereto, and a case filed by the Texas Attorney General against a reputation management company, it should be evident to any reasonable person that the old saying, "where there is smoke, there is fire" is not necessarily true in the digital age today. "An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer." ER 3.3 cmt 3 (emphasis added). "The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. [And] [a] lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact." See ER 3.3 cmt 8. "[A] lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client . . . ." Id. Although the firm practices far within and from "the line," the comments to the ethical rules indicate that "the line" extends rather far. The Texas Attorney General filed a lawsuit against the Solvera Group, Inc., a reputation management company, for engaging in a scheme to fraudulently remove information from the internet. In the complaint, the Texas Attorney General identified both the consumers and the attorneysasbeing victims who were misled by the reputation management company. See Complaint, ¶ 17. We, at Kelly / Warner, intend to vigorously defend against all allegations of wrongdoing. And to all of our loyal clients, we thank you for your support and encouragement; please know that we will never stop fighting for you and defamation victims like you.

UPDATE: Paul Alan Levy has more.