OPINION AND ORDER
ON SANCTIONS
In researching and drafting court submissions, good lawyers appropriately obtain
assistance from junior lawyers, law students, contract lawyers, legal encyclopedias and databases
such as Westlaw and LexisNexis. Technological advances are commonplace and there is
nothing inherently improper about using a reliable artificial intelligence tool for assistance. But
existing rules impose a gatekeeping role on attorneys to ensure the accuracy of their filings.
Rule 11, Fed. R. Civ. P. Peter LoDuca, Steven A. Schwartz and the law firm of Levidow,
Levidow & Oberman P.C. (the “Levidow Firm”) (collectively, “Respondents”) abandoned their
esponsibilities when they submitted non-existent judicial opinions with fake quotes and citations
created by the artificial intelligence tool ChatGPT, then continued to stand by the fake opinions
after judicial orders called their existence into question.
Many harms flow from the submission of fake opinions.1 The opposing party
wastes time and money in exposing the deception. The Court’s time is taken from other
1 The potential mischief is demonstrated by an innocent mistake made by counsel for Mr. Schwartz and the Levidow
Firm, which counsel promptly caught and co
ected on its own. In the initial version of the
ief in response to the
Orders to Show Cause submitted to the Court, it included three of the fake cases in its Table of Authorities. (ECF
45.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------- XXXXXXXXXXx
ROBERTO MATA,
Plaintiff, XXXXXXXXXXcv-1461 (PKC)
-against-
AVIANCA, INC.,
Defendant.
--------------------------------------- XXXXXXXXXXx
CASTEL, U.S.D.J.
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important endeavors. The client may be deprived of arguments based on authentic judicial
precedents. 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.
The na
ative leading to sanctions against Respondents includes the filing of the
March 1, 2023 submission that first cited the fake cases. But if the matter had ended with
Respondents coming clean about their actions shortly after they received the defendant’s March
15
ief questioning the existence of the cases, or after they reviewed the Court’s Orders of April
11 and 12 requiring production of the cases, the record now would look quite different. Instead,
the individual Respondents doubled down and did not begin to dri
le out the truth until May 25,
after the Court issued an Order to Show Cause why one of the individual Respondents ought not
e sanctioned.
For reasons explained and considering the conduct of each individual Respondent
separately, the Court finds bad faith on the part of the individual Respondents based upon acts of
conscious avoidance and false and misleading statements to the Court. (See, e.g., Findings of
Fact ¶¶ 17, 20, 22-23, 40-41, 43, 46-47 and Conclusions of Law ¶¶ 21, XXXXXXXXXXSanctions will
therefore be imposed on the individual Respondents. Rule 11(c)(1) also provides that “[a]bsent
exceptional circumstances, a law firm must be held jointly responsible for a violation committed
y its . . . associate, or employee.” Because the Court finds no exceptional circumstances,
sanctions will be jointly imposed on the Levidow Firm. The sanctions are “limited to what
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suffices to deter repetition of the conduct or comparable conduct by others similarly situated.”
Rule 11(c)(4).
Set forth below are this Court’s Findings of Fact and Conclusions of Law
following the hearing of June 8, 2023.
FINDINGS OF FACT
1. Roberto Mata commenced this action on or about Fe
uary 2, 2022, when
he filed a Verified Complaint in the Supreme Court of the State of New York, New York
County, asserting that he was injured when a metal serving cart struck his left knee during a
flight from El Salvador to John F. Kennedy Airport. (ECF 1.) Avianca removed the action to
federal court on Fe
uary 22, 2022, asserting federal question jurisdiction under the Convention
for the Unification of Certain Rules Relating to International Ca
iage by Air, Done at Montreal,
Canada, on 28 May 1999, reprinted in S. Treaty Doc XXXXXXXXXXthe “Montreal
Convention”). (ECF 1.)
2. Steven A. Schwartz of the Levidow Firm had been the attorney listed on
the state court complaint. But upon removal from state court to this Court, Peter LoDuca of the
Levidow Firm filed a notice of appearance on behalf of Mata on March 31, XXXXXXXXXXECF 8.) Mr.
Schwartz is not admitted to practice in this District. Mr. LoDuca has explained that because Mr.
Schwartz is not admitted, Mr. LoDuca filed the notice of appearance while Mr. Schwartz
continued to perform all substantive legal work. (LoDuca May 25 Aff’t ¶¶ 3-4 (ECF 32);
Schwartz May 25 Aff’t ¶ 4 (ECF 32-1).)
3. On January 13, 2023, Avianca filed a motion to dismiss urging that Mata’s
claims are time-ba
ed under the Montreal Convention. (ECF 16.)
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4. On January 18, 2023, a letter signed by Mr. Schwartz and filed by Mr.
LoDuca requested a one-month extension to respond to the motion, from Fe
uary 3, 2023, to
March 3, XXXXXXXXXXECF 19.) The letter stated that “the undersigned will be out of the office for a
previously planned vacation” and cited a need for “extra time to properly respond to the
extensive motion papers filed by the defendant.” (Id.) The Court granted the request. (ECF 20.)
5. On March 1, 2023, Mr. LoDuca filed an “Affirmation in Opposition” to
the motion to dismiss (the “Affirmation in Opposition”).2 (ECF 21.) The Affirmation in
Opposition cited and quoted from purported judicial decisions that were said to be published in
the Federal Reporter, the Federal Supplement and Westlaw. (Id.) Above Mr. LoDuca’s
signature line, the Affirmation in Opposition states, “I declare under penalty of perjury that the
foregoing is true and co
ect.” (Id.)
6. Although Mr. LoDuca signed the Affirmation in Opposition and filed it on
ECF, he was not its author. (Tr XXXXXXXXXXIt was researched and written by Mr. Schwartz. (Tr. 8.)
Mr. LoDuca reviewed the affirmation for style, stating, “I was basically looking for a flow, make
sure there was nothing untoward or no large grammatical e
ors.” (Tr. 9.) Before executing the
Affirmation, Mr. LoDuca did not review any judicial authorities cited in his affirmation. (Tr. 9.)
There is no claim or evidence that he made any inquiry of Mr. Schwartz as to the nature and
extent of his research or whether he had found contrary precedent. Mr. LoDuca simply relied on
a belief that work produced by Mr. Schwartz, a colleague of more than twenty-five years, would
e reliable. (LoDuca May 25 Aff’t ¶¶ XXXXXXXXXXThere was no claim made by any Respondent in
esponse to the Court’s Orders to Show Cause that Mr. Schwartz had prior experience with the
2 Plaintiff’s opposition was submitted as an “affirmation” and not a memorandum of law. The Local Civil Rules of
this District require that “the cases and other authorities relied upon” in opposition to a motion be set forth in a
memorandum of law. Local Civil Rule 7.1(a)(2), 7.1(b). An affirmation is a creature of New York state practice
that is akin to a declaration under penalty of perjury. Compare N.Y. C.P.L.R. 2106 with 28 U.S.C. § 1746.
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Montreal Convention or bankruptcy stays. Mr. Schwartz has stated that “my practice has always
een exclusively in state court . . . .” (Schwartz June 6 Decl. ¶ 6.) Respondents’ memorandum
of law asserts that Mr. Schwartz attempted “to research a federal bankruptcy issue with which he
was completely unfamiliar.” (ECF 49 at 21.)
7. Avianca filed a five-page reply memorandum on March 15, XXXXXXXXXXECF
24.) It included the following statement: “Although Plaintiff ostensibly cites to a variety of cases
in opposition to this motion, the undersigned has been unable to locate most of the case law cited
in Plaintiff’s Affirmation in Opposition, and the few cases which the undersigned has been able
to locate do not stand for the propositions for which they are cited.” (ECF 24 at 1.) It impliedly
asserted that certain cases cited in the Affirmation in Opposition were non-existent: “Plaintiff
does not dispute that this action is governed by the Montreal Convention, and Plaintiff has not
cited any existing authority holding that the Bankruptcy Code tolls the two-year limitations
period or that New York law supplies the relevant statute of limitations.” (ECF 24 at 1;
emphasis added.) It then detailed by name and citation seven purported “decisions” that
Avianca’s counsel could not locate, and set them apart with quotation marks to distinguish a non-
existent case from a real one, even if cited for a proposition for which it did not stand. (ECF 24.)
8. Despite the serious nature of Avianca’s allegations, no Respondent sought
to withdraw the March 1 Affirmation or provide any explanation to the Court of how it could
possibly be that a case purportedly in the Federal Reporter or Federal Supplement could not be
found.
9. The Court conducted its own search for the cited cases but was unable to
locate multiple authorities cited in the Affirmation in Opposition.
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10. Mr. LoDuca testified at the June 8 sanctions hearing that he received
Avianca’s reply submission and did not read it before he forwarded it to Mr. Schwartz. (Tr. 10.)
Mr. Schwartz did not alert Mr. LoDuca to the contents of the reply. (Tr. 12.)
11. As it was later revealed, Mr. Schwartz had used ChatGPT, which
fa
icated the cited cases. Mr. Schwartz testified at the sanctions hearing that when he reviewed
the reply memo, he was “operating under the false perception that this website [i.e., ChatGPT]
could not possibly be fa
icating cases on its own.” (Tr. at 31.) He stated, “I just was not
thinking that the case could be fa
icated, so I was not looking at it from that point of view.”
(Tr. at 35.) “My reaction was, ChatGPT is finding that case somewhere. Maybe it’s
unpublished. Maybe it was appealed. Maybe access is difficult to get. I just never thought it
could be made up.” (Tr. at 33.)
12. Mr. Schwartz also testified at the hearing that he knew that there were free
sites available on the internet where a known case citation to a reported decision could be entered
and the decision displayed. (Tr. 23-24, XXXXXXXXXXHe admitted that he entered the citation to
“Varghese” but could not find it:
THE COURT: Did you say, well they gave me part of Varghese, let
me look at the full Varghese decision?
MR. SCHWARTZ: I did.
THE COURT: And what did you find when you went to look up the
full Varghese decision?
MR. SCHWARTZ: I couldn’t find it.
THE COURT: And yet you cited it in the
ief to me.
MR. SCHWARTZ: I did, again, operating under the false
assumption and disbelief that this website could produce completely
fa
icated cases. And if I knew that, I obviously never would have
submitted these cases