Case 1:22-cv-01461-PKC Document 54 Filed 06/22/23 Page 1 of 43
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`ROBERTO MATA,
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`Plaintiff,
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` 22-cv-1461 (PKC)
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`-against-
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`OPINION AND ORDER
`ON SANCTIONS
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`AVIANCA, INC.,
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`Defendant.
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`CASTEL, U.S.D.J.
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`In researching and drafting court submissions, good lawyers appropriately obtain
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`assistance from junior lawyers, law students, contract lawyers, legal encyclopedias and databases
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`such as Westlaw and LexisNexis. Technological advances are commonplace and there is
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`nothing inherently improper about using a reliable artificial intelligence tool for assistance. But
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`existing rules impose a gatekeeping role on attorneys to ensure the accuracy of their filings.
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`Rule 11, Fed. R. Civ. P. Peter LoDuca, Steven A. Schwartz and the law firm of Levidow,
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`Levidow & Oberman P.C. (the “Levidow Firm”) (collectively, “Respondents”) abandoned their
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`responsibilities when they submitted non-existent judicial opinions with fake quotes and citations
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`created by the artificial intelligence tool ChatGPT, then continued to stand by the fake opinions
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`after judicial orders called their existence into question.
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`Many harms flow from the submission of fake opinions.1 The opposing party
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`wastes time and money in exposing the deception. The Court’s time is taken from other
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`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 corrected on its own. In the initial version of the brief 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.)
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`important endeavors. The client may be deprived of arguments based on authentic judicial
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`precedents. There is potential harm to the reputation of judges and courts whose names are
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`falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with
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`fictional conduct. It promotes cynicism about the legal profession and the American judicial
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`system. And a future litigant may be tempted to defy a judicial ruling by disingenuously
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`claiming doubt about its authenticity.
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`The narrative leading to sanctions against Respondents includes the filing of the
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`March 1, 2023 submission that first cited the fake cases. But if the matter had ended with
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`Respondents coming clean about their actions shortly after they received the defendant’s March
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`15 brief questioning the existence of the cases, or after they reviewed the Court’s Orders of April
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`11 and 12 requiring production of the cases, the record now would look quite different. Instead,
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`the individual Respondents doubled down and did not begin to dribble out the truth until May 25,
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`after the Court issued an Order to Show Cause why one of the individual Respondents ought not
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`be sanctioned.
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`For reasons explained and considering the conduct of each individual Respondent
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`separately, the Court finds bad faith on the part of the individual Respondents based upon acts of
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`conscious avoidance and false and misleading statements to the Court. (See, e.g., Findings of
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`Fact ¶¶ 17, 20, 22-23, 40-41, 43, 46-47 and Conclusions of Law ¶¶ 21, 23-24.) Sanctions will
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`therefore be imposed on the individual Respondents. Rule 11(c)(1) also provides that “[a]bsent
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`exceptional circumstances, a law firm must be held jointly responsible for a violation committed
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`by its . . . associate, or employee.” Because the Court finds no exceptional circumstances,
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`sanctions will be jointly imposed on the Levidow Firm. The sanctions are “limited to what
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`Case 1:22-cv-01461-PKC Document 54 Filed 06/22/23 Page 3 of 43
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`suffices to deter repetition of the conduct or comparable conduct by others similarly situated.”
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`Rule 11(c)(4).
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`Set forth below are this Court’s Findings of Fact and Conclusions of Law
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`following the hearing of June 8, 2023.
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`FINDINGS OF FACT
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`1.
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`Roberto Mata commenced this action on or about February 2, 2022, when
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`he filed a Verified Complaint in the Supreme Court of the State of New York, New York
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`County, asserting that he was injured when a metal serving cart struck his left knee during a
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`flight from El Salvador to John F. Kennedy Airport. (ECF 1.) Avianca removed the action to
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`federal court on February 22, 2022, asserting federal question jurisdiction under the Convention
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`for the Unification of Certain Rules Relating to International Carriage by Air, Done at Montreal,
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`Canada, on 28 May 1999, reprinted in S. Treaty Doc. 106-45 (1999) (the “Montreal
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`Convention”). (ECF 1.)
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`2.
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`Steven A. Schwartz of the Levidow Firm had been the attorney listed on
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`the state court complaint. But upon removal from state court to this Court, Peter LoDuca of the
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`Levidow Firm filed a notice of appearance on behalf of Mata on March 31, 2022. (ECF 8.) Mr.
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`Schwartz is not admitted to practice in this District. Mr. LoDuca has explained that because Mr.
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`Schwartz is not admitted, Mr. LoDuca filed the notice of appearance while Mr. Schwartz
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`continued to perform all substantive legal work. (LoDuca May 25 Aff’t ¶¶ 3-4 (ECF 32);
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`Schwartz May 25 Aff’t ¶ 4 (ECF 32-1).)
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`3.
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`On January 13, 2023, Avianca filed a motion to dismiss urging that Mata’s
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`claims are time-barred under the Montreal Convention. (ECF 16.)
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`4.
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`On January 18, 2023, a letter signed by Mr. Schwartz and filed by Mr.
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`LoDuca requested a one-month extension to respond to the motion, from February 3, 2023, to
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`March 3, 2023. (ECF 19.) The letter stated that “the undersigned will be out of the office for a
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`previously planned vacation” and cited a need for “extra time to properly respond to the
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`extensive motion papers filed by the defendant.” (Id.) The Court granted the request. (ECF 20.)
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`5.
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`On March 1, 2023, Mr. LoDuca filed an “Affirmation in Opposition” to
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`the motion to dismiss (the “Affirmation in Opposition”).2 (ECF 21.) The Affirmation in
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`Opposition cited and quoted from purported judicial decisions that were said to be published in
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`the Federal Reporter, the Federal Supplement and Westlaw. (Id.) Above Mr. LoDuca’s
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`signature line, the Affirmation in Opposition states, “I declare under penalty of perjury that the
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`foregoing is true and correct.” (Id.)
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`6.
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`Although Mr. LoDuca signed the Affirmation in Opposition and filed it on
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`ECF, he was not its author. (Tr. 8-9.) It was researched and written by Mr. Schwartz. (Tr. 8.)
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`Mr. LoDuca reviewed the affirmation for style, stating, “I was basically looking for a flow, make
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`sure there was nothing untoward or no large grammatical errors.” (Tr. 9.) Before executing the
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`Affirmation, Mr. LoDuca did not review any judicial authorities cited in his affirmation. (Tr. 9.)
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`There is no claim or evidence that he made any inquiry of Mr. Schwartz as to the nature and
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`extent of his research or whether he had found contrary precedent. Mr. LoDuca simply relied on
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`a belief that work produced by Mr. Schwartz, a colleague of more than twenty-five years, would
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`be reliable. (LoDuca May 25 Aff’t ¶¶ 6-7.) There was no claim made by any Respondent in
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`response to the Court’s Orders to Show Cause that Mr. Schwartz had prior experience with the
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`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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`Case 1:22-cv-01461-PKC Document 54 Filed 06/22/23 Page 5 of 43
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`Montreal Convention or bankruptcy stays. Mr. Schwartz has stated that “my practice has always
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`been exclusively in state court . . . .” (Schwartz June 6 Decl. ¶ 6.) Respondents’ memorandum
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`of law asserts that Mr. Schwartz attempted “to research a federal bankruptcy issue with which he
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`was completely unfamiliar.” (ECF 49 at 21.)
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`7.
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`Avianca filed a five-page reply memorandum on March 15, 2023. (ECF
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`24.) It included the following statement: “Although Plaintiff ostensibly cites to a variety of cases
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`in opposition to this motion, the undersigned has been unable to locate most of the case law cited
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`in Plaintiff’s Affirmation in Opposition, and the few cases which the undersigned has been able
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`to locate do not stand for the propositions for which they are cited.” (ECF 24 at 1.) It impliedly
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`asserted that certain cases cited in the Affirmation in Opposition were non-existent: “Plaintiff
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`does not dispute that this action is governed by the Montreal Convention, and Plaintiff has not
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`cited any existing authority holding that the Bankruptcy Code tolls the two-year limitations
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`period or that New York law supplies the relevant statute of limitations.” (ECF 24 at 1;
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`emphasis added.) It then detailed by name and citation seven purported “decisions” that
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`Avianca’s counsel could not locate, and set them apart with quotation marks to distinguish a non-
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`existent case from a real one, even if cited for a proposition for which it did not stand. (ECF 24.)
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`8.
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`Despite the serious nature of Avianca’s allegations, no Respondent sought
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`to withdraw the March 1 Affirmation or provide any explanation to the Court of how it could
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`possibly be that a case purportedly in the Federal Reporter or Federal Supplement could not be
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`found.
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`9.
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`The Court conducted its own search for the cited cases but was unable to
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`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
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`Avianca’s reply submission and did not read it before he forwarded it to Mr. Schwartz. (Tr. 10.)
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`Mr. Schwartz did not alert Mr. LoDuca to the contents of the reply. (Tr. 12.)
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`11.
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`As it was later revealed, Mr. Schwartz had used ChatGPT, which
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`fabricated the cited cases. Mr. Schwartz testified at the sanctions hearing that when he reviewed
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`the reply memo, he was “operating under the false perception that this website [i.e., ChatGPT]
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`could not possibly be fabricating cases on its own.” (Tr. at 31.) He stated, “I just was not
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`thinking that the case could be fabricated, so I was not looking at it from that point of view.”
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`(Tr. at 35.) “My reaction was, ChatGPT is finding that case somewhere. Maybe it’s
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`unpublished. Maybe it was appealed. Maybe access is difficult to get. I just never thought it
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`could be made up.” (Tr. at 33.)
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`12. Mr. Schwartz also testified at the hearing that he knew that there were free
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`sites available on the internet where a known case citation to a reported decision could be entered
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`and the decision displayed. (Tr. 23-24, 28-29.) He admitted that he entered the citation to
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`“Varghese” but could not find it:
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`THE COURT: Did you say, well they gave me part of Varghese, let
`me look at the full Varghese decision?
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`MR. SCHWARTZ: I did.
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`THE COURT: And what did you find when you went to look up the
`full Varghese decision?
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`MR. SCHWARTZ: I couldn’t find it.
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`THE COURT: And yet you cited it in the brief to me.
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`MR. SCHWARTZ: I did, again, operating under the false
`assumption and disbelief that this website could produce completely
`fabricated cases. And if I knew that, I obviously never would have
`submitted these cases.
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`13.
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`On April 11, 2023, the Court issued an Order directing Mr. LoDuca to file
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`(Tr. 28.)3
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`an affidavit by April 18, 20234 that annexed copies of the following decisions cited in the
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`Affirmation in Opposition: Varghese v. China Southern Airlines Co., Ltd., 925 F.3d 1339 (11th
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`Cir. 2019); Shaboon v. Egyptair, 2013 IL App (1st) 111279-U (Ill. App. Ct. 2013); Peterson v.
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`Iran Air, 905 F. Supp. 2d 121 (D.D.C. 2012); Martinez v. Delta Airlines, Inc., 2019 WL 4639462
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`(Tex. App. Sept. 25, 2019); Estate of Durden v. KLM Royal Dutch Airlines, 2017 WL 2418825
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`(Ga. Ct. App. June 5, 2017); Ehrlich v. American Airlines, Inc., 360 N.J. Super. 360 (App. Div.
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`2003); Miller v. United Airlines, Inc., 174 F.3d 366, 371-72 (2d Cir. 1999); and In re Air Crash
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`Disaster Near New Orleans, LA, 821 F.2d 1147, 1165 (5th Cir. 1987). (ECF 25.) The Order
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`stated: “Failure to comply will result in dismissal of the action pursuant to Rule 41(b), Fed. R.
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`Civ. P.” (ECF 25.)
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`14.
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`On April 12, 2023, the Court issued an Order that directed Mr. LoDuca to
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`annex an additional decision, which was cited in the Affirmation in Opposition as Zicherman v.
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`Korean Air Lines Co., Ltd., 516 F.3d 1237, 1254 (11th Cir. 2008). (ECF 27.)
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`15. Mr. Schwartz understood the import of the Orders of April 11 and 12
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`requiring the production of the actual cases: “I thought the Court searched for the cases [and]
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`could not find them . . . .” (Tr. 36.)
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`16. Mr. LoDuca requested an extension of time to respond to April 25, 2023.
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`(ECF 26.) The letter stated: “This extension is being requested as the undersigned is currently
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`3 Mr. Schwartz’s testimony appears to acknowledge that he knew that “Varghese” could not be found before the
`March 1 Affirmation was filed citing the fake case. His answer also could refer to the April 25 Affidavit submitting
`the actual cases. Either way, he knew before making a submission to the Court that the full text of “Varghese” could
`not be found but kept silent.
`4 The Court’s Order directed the filing to be made by April 18, 2022, not 2023.
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`Case 1:22-cv-01461-PKC Document 54 Filed 06/22/23 Page 8 of 43
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`out of the office on vacation and will be returning April 18, 2023.” (Id.) Mr. LoDuca signed the
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`letter and filed it on ECF. (Id.)
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`17. Mr. LoDuca’s statement was false and he knew it to be false at the time he
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`made the statement. Under questioning by the Court at the sanctions hearing, Mr. LoDuca
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`admitted that he was not out of the office on vacation. (Tr. 13-14, 19.) Mr. LoDuca testified that
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`“[m]y intent of the letter was because Mr. Schwartz was away, but I was aware of what was in
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`the letter when I signed it. . . . I just attempted to get Mr. Schwartz the additional time he
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`needed because he was out of the office at the time.” (Tr. 44.) The Court finds that Mr. LoDuca
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`made a knowingly false statement to the Court that he was “out of the office on vacation” in a
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`successful effort to induce the Court to grant him an extension of time. (ECF 28.) The lie had
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`the intended effect of concealing Mr. Schwartz’s role in preparing the March 1 Affirmation and
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`the April 25 Affidavit and concealing Mr. LoDuca’s lack of meaningful role in confirming the
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`truth of the statements in his affidavit. This is evidence of the subjective bad faith of Mr.
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`LoDuca.
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`18. Mr. LoDuca executed and filed an affidavit on April 25, 2023 (the “April
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`25 Affidavit”) that annexed what were purported to be copies or excerpts of all but one of the
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`decisions required by the Orders of April 11 and 12. Mr. LoDuca stated “[t]hat I was unable to
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`locate the case of Zicherman v. Korean Air Lines Co., Ltd., 516 F.3d 1237 (11th Cir. 2008)
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`which was cited by the Court in Varghese.” (ECF 29.)
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`19.
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`The April 25 Affidavit stated that the purported decisions it annexed “may
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`not be inclusive of the entire opinions but only what is made available by online database.” (Id.
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`¶ 4.) It did not identify any “online database” by name. It also stated “[t]hat the opinion in
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`Shaboon v. Egyptair 2013 IL App (1st) 111279-U (Ill. App. Ct. 2013) is an unpublished
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`opinion.” (Id. ¶ 5.)
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`20.
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` In fact, Mr. LoDuca did not author the April 25 Affidavit, had no role in
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`its preparation and no knowledge of whether the statements therein were true. Mr. Schwartz was
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`the attorney who drafted the April 25 Affidavit and compiled its exhibits. (Tr. 38.)
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`21.
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`At the sanctions hearing, Mr. Schwartz testified that he prepared Mr.
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`LoDuca’s affidavit, walked it into “his office” twenty feet away, and “[h]e looked it over, and he
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`signed it.” (Tr. 41.)5 There is no evidence that Mr. LoDuca asked a single question. Mr.
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`LoDuca had not been provided with a draft of the affidavit before he signed it. Mr. LoDuca
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`knew that Mr. Schwartz did not practice in federal court and, in response to the Order to Show
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`Cause, he has never contended that Mr. Schwartz had experience with the Montreal Convention
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`or bankruptcy stays. Indeed, at the sanctions hearing, Mr. Schwartz testified that he thought a
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`citation in the form “F.3d” meant “federal district, third department.” (Tr. 33.)6
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`22.
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`Facially, the April 25 Affidavit did not comply with the Court’s Orders of
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`April 11 and 12 because it did not attach the full text of any of the “cases” that are now admitted
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`to be fake. It attached only excerpts of the “cases.” And the April 25 Affidavit recited that one
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`“case,” “Zicherman v. Korean Air Lines Co., Ltd., 516 F.3d 1237 (11th Cir. 2008)”, notably with
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`a citation to the Federal Reporter, could not be found. (ECF 29.) No explanation was offered.
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`23.
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`Regarding the Court’s Orders of April 11 and 12 requiring an affidavit
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`from Mr. LoDuca, Mr. LoDuca testified, “Me, I didn’t do anything other than turn over to Mr.
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`5 The declaration of Mr. Schwartz claimed that the April 25 Affidavit was executed in his own office, not Mr.
`LoDuca’s office. (Schwartz June 6 Dec. ¶ 27 (“Mr. LoDuca then came into my office and signed the affidavit in
`front of me . . . .”).)
`6 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. (See Tr. 34 (“THE COURT: And F.3d is the third edition
`of the Federal Reporter, correct? MR. SCHWARTZ: Right.”).)
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`Schwartz to locate the cases that [the Court] had requested.” (Tr. 13.) He testified that he read
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`the April 25 Affidavit and “saw the cases that were attached to it. Mr. Schwartz had assured me
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`that this was what he could find with respect to the cases. And I submitted it to the Court.” (Tr.
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`14.) Mr. LoDuca had observed that the “cases” annexed to his April 25 Affidavit were not being
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`submitted in their entirety, and explained that “I understood that was the best that Mr. Schwartz
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`could find at the time based on the search that he or – the database that he had available to him.”
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`(Tr. 15.) Mr. LoDuca testified that it “never crossed my mind” that the cases were bogus. (Tr.
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`16.)
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`24.
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`The Court reviewed the purported decisions annexed to the April 25
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`Affidavit, which have some traits that are superficially consistent with actual judicial decisions.
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`The Court need not describe every deficiency contained in the fake decisions annexed to the
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`April 25 Affidavit. It makes the following exemplar findings as to the three “decisions” that
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`were purported to be issued by federal courts.
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`25.
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`The “Varghese” decision is presented as being issued by a panel of judges
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`on the United States Court of Appeals for the Eleventh Circuit that consisted of Judges Adalberto
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`Jordan, Robin S. Rosenbaum and Patrick Higginbotham,7 with the decision authored by Judge
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`Jordan. (ECF 29-1.) It bears the docket number 18-13694. (Id.) “Varghese” discusses the
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`Montreal Convention’s limitations period and the purported tolling effects of the automatic
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`federal bankruptcy stay, 11 U.S.C. § 362(a). (ECF 29-1.)
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`26.
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` The Clerk of the United States Court of Appeals for the Eleventh Circuit
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`has confirmed that the decision is not an authentic ruling of the Court and that no party by the
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`name of “Vargese” or “Varghese” has been party to a proceeding in the Court since the
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`7 Judge Higginbotham is a Senior Judge of the United States Court of Appeals for the Fifth Circuit, not the Eleventh
`Circuit. Judges Jordan and Rosenbaum sit on the Eleventh Circuit.
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`institution of its electronic case filing system in 2010. A copy of the fake “Varghese” opinion is
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`attached as Appendix A.
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`27.
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`The “Varghese” decision shows stylistic and reasoning flaws that do not
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`generally appear in decisions issued by United States Courts of Appeals. Its legal analysis is
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`gibberish. It references a claim for the wrongful death of George Scaria Varghese brought by
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`Susan Varghese. (Id.) It then describes the claims of a plaintiff named Anish Varghese who,
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`due to airline overbooking, was denied boarding on a flight from Bangkok to New York that had
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`a layover in Guangzhou, China. (Id.) The summary of the case’s procedural history is difficult
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`to follow and borders on nonsensical, including an abrupt mention of arbitration and a reference
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`to plaintiff’s decision to file for Chapter 7 bankruptcy as a tactical response to the district court’s
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`dismissal of his complaint. (Id.) Without explanation, “Varghese” later references the plaintiff’s
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`Chapter 13 bankruptcy proceeding. (Id.) The “Varghese” defendant is also said to have filed for
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`bankruptcy protection in China, also triggering a stay of proceedings. (Id.) Quotation marks are
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`often unpaired. The “Varghese” decision abruptly ends without a conclusion.
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`28.
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`The “Varghese” decision bears the docket number 18-13694, which is
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`associated with the case George Cornea v. U.S. Attorney General, et al. The Federal Reporter
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`citation for “Varghese” is associated with J.D. v Azar, 925 F.3d 1291 (D.C. Cir. 2019).
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`29.
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`The “Varghese” decision includes internal citations and quotes from
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`decisions that are themselves non-existent:
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`a. It cites to “Holliday v. Atl. Capital Corp., 738 F.2d 1153 (11th Cir.
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`1984)”, which does not exist. The case appearing at that citation is Gibbs
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`v. Maxwell House, 738 F.2d 1153 (11th Cir. 1984).
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`b. It cites to “Gen. Wire Spring Co. v. O’Neal Steel, Inc., 556 F.2d 713, 716
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`(5th Cir. 1977)”, which does not exist. The case appearing at that citation
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`is United States v. Clerkley, 556 F.2d 709 (4th Cir. 1977).
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`c. It cites to “Hyatt v. N. Cent. Airlines, 92 F.3d 1074 (11th Cir. 1996)”,
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`which does not exist. There are two brief orders appearing at 92 F.3d
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`1074 issued by the Eleventh Circuit in other cases.
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`d. It cites to “Zaunbrecher v. Transocean Offshore Deepwater Drilling, Inc.,
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`772 F.3d 1278, 1283 (11th Cir. 2014)”, which does not exist. The case
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`appearing at that citation is Witt v. Metropolitan Life Ins. Co., 772 F.3d
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`1269 (11th Cir. 2014).
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`e. It cites to “Zicherman v. Korean Air Lines Co., 516 F.3d 1237, 1254 (11th
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`Cir. 2008)”, which does not exist as cited. A Supreme Court decision with
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`the same name, Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996),
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`held that the Warsaw Convention does not permit a plaintiff to recover
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`damages for loss of society resulting from the death of a relative, and did
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`not discuss the federal bankruptcy stay. The Federal Reporter citation for
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`“Zicherman” is for Miccosukee Tribe v. United States, 516 F.3d 1235
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`(11th Cir. 2008).
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`f. It cites to “In re BDC 56 LLC, 330 B.R. 466, 471 (Bankr. D.N.H. 2005)”,
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`which does not exist as cited. A Second Circuit decision with the same
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`name, In re BDC 56 LLC, 330 F.3d 111 (2d Cir. 2003), did not discuss the
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`federal bankruptcy stay. The case appearing at the Bankruptcy Reporter
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`Case 1:22-cv-01461-PKC Document 54 Filed 06/22/23 Page 13 of 43
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`citation is In re 652 West 160th LLC, 330 B.R. 455 (Bankr. S.D.N.Y.
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`2005).
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`g. Other “decisions” cited in “Varghese” have correct names and citations
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`but do not contain the language quoted or support the propositions for
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`which they are offered. In re Rimstat, Ltd., 212 F.3d 1039 (7th Cir. 2000),
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`is a decision relating to Rule 11 sanctions for attorney misconduct and
`
`does not discuss the federal bankruptcy stay. In re PPI Enterprises (U.S.),
`
`Inc., 324 F.3d 197 (3d Cir. 2003), does not discuss the federal bankruptcy
`
`stay, and is incorrectly identified as an opinion of the Second Circuit.
`
`Begier v. I.R.S., 496 U.S. 53 (1990), does not discuss the federal
`
`bankruptcy stay, and addresses whether a trustee in bankruptcy may
`
`recover certain payments made by the debtor to the Internal Revenue
`
`Service. Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593 (1968) (per
`
`curiam), does not discuss the federal bankruptcy stay, and held that a
`
`federal proceeding should have been stayed pending the outcome of New
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`Mexico state court proceedings relating to the interpretation of the state
`
`constitution. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155
`
`(1999), does not contain the quoted language discussing the purpose of the
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`Montreal Convention. In re Gandy, 299 F.3d 489 (5th Cir. 2002),
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`affirmed a bankruptcy court’s denial of a motion to compel arbitration.
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`30.
`
`The April 25 Affidavit annexes a decision identified as “Miller v. United
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`Airlines, Inc., 174 F.3d 366 (2d Cir. 1999).” (ECF 29-7.) As submitted, the “Miller” decision
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`seems to be an excerpt from a longer decision and consists only of two introductory paragraphs.
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`Case 1:22-cv-01461-PKC Document 54 Filed 06/22/23 Page 14 of 43
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`
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`(Id.) It bears the docket number 98-7926, and purports to be written by Judge Barrington D.
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`Parker of the Second Circuit, with Judges Joseph McLaughlin and Dennis Jacobs also on the
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`panel. (Id.) It abruptly ends with the phrase “Section 11 of the Bankruptcy Act of 1898”. (Id.)
`
`31.
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`“Miller” purports to apply the Warsaw Convention to a claim arising out
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`of the real and tragic 1991 crash of United Airlines Flight 585, which was a domestic flight from
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`Denver to Colorado Springs.8 “Miller” references a Chapter 11 bankruptcy petition filed by
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`United Airlines on December 4, 1992. (Id.) There is no public record of any United Airlines
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`bankruptcy proceeding in or around that time.9 (Id.) “Miller” identifies Alberto R. Gonzales,
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`purportedly from the law firm of Curtis, Mallet-Prevost, Colt & Mosle LLP, as one of the
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`attorneys for the defendant. (Id.) Alberto R. Gonzales is the name of the former United States
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`Attorney General, who served from 2005 to 2007.10
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`32.
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`The “Miller” decision does not exist. Second Circuit docket number 98-
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`7926 is associated with the case Vitale v. First Fidelity, which was assigned to a panel consisting
`
`of Judges Richard Cardamone, Amalya Kearse and Chester Straub. The Federal Reporter
`
`citation for “Miller” is to Greenleaf v. Garlock, Inc., 174 F.3d 352 (3d Cir. 1999).
`
`33.
`
`The April 25 Affidavit also annexes a decision identified as “Petersen v.
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`Iran Air, 905 F. Supp. 2d 121 (D.D.C. 2012)”, which bears an additional citation to 2012 U.S.
`
`Dist. LEXIS 17409. (ECF 29-3.) It is identified as a decision by Judge Reggie B. Walton and
`
`has the docket number 10-0542. (Id.) “Petersen” appears to confuse the District of Columbia
`
`
`8 See National Transportation Safety Board, “Aircraft Accident Report: Uncontrolled Descent and Collision With
`Terrain, United Airlines Flight 585,” https://www.ntsb.gov/investigations/AccidentReports/Reports/AAR0101.pdf
`(last accessed June 21, 2023).
`9 It appears that United Airlines filed for Chapter 11 bankruptcy protection in 2002. See Edward Wong, “Airline
`Shock Waves: The Overview; Bankruptcy Case Is Filed by United,” N.Y. Times, Dec. 10, 2002, Sec. A p. 1,
`https://www.nytimes.com/2002/12/10/business/airline-shock-waves-the-overview-bankruptcy-case-is-filed-by-
`united.html (last accessed June 21, 2023).
`10 See, e.g., https://georgewbush-whitehouse.archives.gov/government/gonzales-bio html (last accessed June 21,
`2023).
`
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`Case 1:22-cv-01461-PKC Document 54 Filed 06/22/23 Page 15 of 43
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`
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`with the state of Washington. (Id. (“Therefore, Petersen’s argument that the state courts of
`
`Washington have concurrent jurisdiction is unavailing.”).) As support for its legal conclusion,
`
`“Petersen” cites itself as precedent: “‘Therefore, the Court has concurrent jurisdiction with any
`
`other court that may have jurisdiction under applicable law, including any foreign court.’
`
`(Petersen v. Iran Air, 905 F. Supp. 2d 121, 126 (D.D.C. 2012))”. (ECF 29-3.)
`
`34.
`
`The “Petersen” decision does not exist. Docket number 10-cv-542
`
`(D.D.C.) is associated with the case Cummins-Allison Corp. v. Kappos, which was before Judge
`
`Ellen S. Huvelle. The Federal Supplement citation is to United States v. ISS Marine Services,
`
`905 F. Supp. 2d 121 (D.D.C. 2012), a decision by Judge Beryl A. Howell. The Lexis citation is
`
`to United States v. Baker, 2012 U.S. Dist. LEXIS 17409 (W.D. Mich. Feb. 13, 2012), in which
`
`Judge Janet T. Neff adopted the Report and Recommendation of a Magistrate Judge.
`
`35.
`
`The “Shaboon”, “Martinez” and “Durden” decisions contain similar
`
`deficiencies.
`
`36.
`
`Respondents have now acknowledged that the “Varghese”, “Miller”,
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`“Petersen”, “Shaboon”, “Martinez” and “Durden” decisions were generated by ChatGPT and do
`
`not exist. (See, e.g., ECF 32, 32-1.)
`
`37. Mr. Schwartz has endeavored to explain why he turned to ChatGPT for
`
`legal research. The Levidow Firm primarily practices in New York state courts. (Schwartz June
`
`6 Decl. ¶ 10; Tr. 45.) It uses a legal research service called Fastcase and does not maintain
`
`Westlaw or LexisNexis accounts. (Tr. 22-23.) When Mr. Schwartz began to research the
`
`Montreal Convention, the firm’s Fastcase account had limited access to federal cases. (Schwartz
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`June 6 Decl. ¶ 12; Tr. 24.) “And it had occurred to me that I heard about this new site which I
`
`assumed -- I falsely assumed was like a super search engine called ChatGPT, and that’s what I
`
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`Case 1:22-cv-01461-PKC Document 54 Filed 06/22/23 Page 16 of 43
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`
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`used.” (Tr. 24; see also Schwartz June 6 Decl. ¶ 15.) Mr. Schwartz had not previously used
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`ChatGPT and became aware of it through press reports and conversations with family members.
`
`(Schwartz June 6 Decl. ¶ 14.)
`
`38. Mr. Schwartz testified that he began by querying ChatGPT for broad legal
`
`guidance and then narrowed his questions to cases that supported the argument that the federal
`
`bankruptcy stay tolled the limitations period for a claim under the Montreal Convention. (Tr. 25-
`
`27.) ChatGPT generated summaries or excerpts but not full “opinions.” (Tr. 27 & ECF 46-1;
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`Schwartz June 6 Decl. ¶ 19.)
`
`39.
`
`The June 6 Schwartz Declaration annexes the history of Mr. Schwartz’s
`
`prompts to ChatGPT and the chatbot’s responses. (ECF 46-1.) His first prompt stated, “argue
`
`that the statute of limitations is tolled by bankruptcy of defendant pursuant to montreal
`
`convention”. (Id. at 2.) ChatGPT responded with broad descriptions of the Montreal
`
`Convention, statutes of limitations and the federal bankruptcy stay, advised that “[t]he answer to
`
`this question depends on the laws of the country in which the lawsuit is filed”11 and then stated
`
`that the statute of limitations under the Montreal Convention is tolled by a bankruptcy filing. (Id.
`
`at 2-3.) ChatGPT did not cite case law to support these statements. Mr. Schwartz then entered
`
`various prompts that caused ChatGPT to generate descriptions of fake cases, including “provide
`
`case law in support that statute of limitations is tolled by bankruptcy of defendant under montreal
`
`convention”, “show me specific holdings in federal cases where the statute of limitations was
`
`tolled due to bankruptcy of the airline”, “show me more cases” and “give me some cases where
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`te [sic] montreal convention allowed tolling of the statute of limitations due