The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Background: As Paul Alan Levy (Public Citizen) and I noted back in October, a "reputation management" organization seems to be responsible for many—perhaps two dozen or more—libel cases filed against fake defendants.
Why sue a fake defendant? Because then you could get a fake stipulation from the fake defendant, and use that to quickly get a real court order declaring certain real material online to be libelous. And then you can send the order to Google (as well as other search engines), asking it to "deindex" the material, so that it won't be found by people searching for a particular person or company.
Google has a policy that it will consider such deindexing when given a ccoourt order that finds certain material libelous. Because it's not legally bound to comply with such court orders against third parties, it won't always go along. But it will do so often enough to make it worth trying—and, for some, to make it worth trying even using suspicious means.
Levy has been fighting this by reopening one of these cases (Smith v. Garcia in the Rhode Island federal district court), and asking for the injunction to be vacated; he is representing Myvesta, a company that runs GetOutOfDebt.org, and the lawsuit was aimed at getting certain GetOutOfDebt.org material deindexed. The court in Smith granted the motion to vacate the injunction, based on "the evidence that the Consent Judgment was procured through fraud on the Court." Richart Ruddie, who runs SEO Profile Defender Network LLC and related reputation management companies, agreed to pay $71,000 to settle the claim.
But there's more: There were three other lawsuits filed to deindex GetOutOfDebt.org material this way, for the benefit of the same company that was criticized in the GetOutOfDebt.org posts—and those lawsuits were filed by lawyers. Part of the settlement of the Smith intervention was to get Ruddie to agree to vacate orders in those other cases, Smith v. Levin (brought in Baltimore court by lawyer Bennett J. Wills), Financial Rescue LLC v. Smith (brought in a Florida court by lawyer A. Cody Emerson), and Rescue 1 Financial LLC v. Doe (brought in another Florida court by lawyer Eric S. Orner).
The new development: Late last week, Levy filed an amicus brief in Smith v. Levin—the Baltimore case—urging that the order be vacated; and Monday, the court did vacate it. But Levy's amicus brief, among other things, also points to two other cases in Baltimore filed by Bennett Wills that seem to fit the same fake-defendant pattern (see also Levy's affidavit and exhibits):
Bennett Wills has filed two additional "fake lawsuits" in Maryland circuit courts that are comparable to this case. Visionstar, Inc. v. Perez, No. 24C15005743 (Cir. Ct. Balt. City); Cohen v. Wilkerson, No. 06C15070022 (Cir. Ct. Carroll Cy). (Copies of these two complaints are attached). The papers use very similar language, and an investigation conducted by a private detective retained by UCLA law professor Eugene Volokh to assist in his investigation of the phenomenon of fake litigation established that, as in this case, neither of the two individuals who were named as defendants and whose signatures appear on the consent orders live at the addresses shown for them. See attached Declaration of Giles Miller.
Moreover, both cases show obvious signs of being fake: the signatures of defendants "Mark Wilkerson" and "Daniel Perez" appear to have been written by the same hand; and the very carefully handwritten signature of "Mark Wilkerson" spells his name as "Wilerkson." And in the Visionstar case, the allegation in paragraph 13 about the IP address from which the supposedly defamatory reviews were posted to the Ripoff Report web site is a highly implausible. Generally speaking, a subpoena can be issued in connection with a case seeking to identify the poster of an anonymous comment, but that is something that happens after the complaint is filed, not something that can be listed in the complaint.
Undersigned counsel has contacted inside counsel for Xcentric Ventures, the company that operates Ripoff Report, and ascertained that his client has never received any subpoena to identify the anonymous author of the reports cited in the Visionstar complaint; that attorney also represented that he checked the IP addresses for the reports cited in the complaint, and that none of them was associated with the address 188.8.131.52 as the complaint alleges.
Moreover, when I called the plaintiff in Cohen v. Wilkerson to ask about the case, he stated that he didn't authorize its filing, and didn't know who the ostensible defendant (Wilkerson) was. He said he had hired Richart Ruddie to do something about some posts that he (Cohen) thought were libelous, but he had not expected or authorized this lawsuit. And I think that is plausible, though I of course can't know for sure. (I tried to reach the plaintiff in Visionstar, but haven't heard back.)
I emailed Wills's lawyer to ask if he had any comment on these cases, but have not heard back from him.
One more twist: Careful readers will recall that there were some lawsuits involving defendants that couldn't be found (and, in two instances, fake notarizations) filed in Arizona by the Kelly/Warner LLP firm, which also had some past connection with Ruddie. Well, it turns out that they had also filed a lawsuit in Arizona on behalf of the same Cohen, with regard to some other allegedly defamatory posts. This one was filed against a Robert Smith in India. (That defendant may exist; I cannot determine that, but I am mentioning this case only because of the connection to Cohen v. Wilkerson, where the American defendant could not be found.) It was likewise resolved through a stipulated judgment. And much of the language of Cohen v. Wilkerson (filed five months after Cohen v. Smith) was very similar to the language of Cohen v. Smith.
Finally, note that it is certainly possible that the lawyers were simply trusting either the client or the client's representative (such as a reputation management company) about the existence of the defendant, and were themselves shocked to learn that the defendant was apparently fake; indeed, that is what Smith's lawyers expressly said about Wills (and about Smith) in their recent Smith v. Levin filing. But it does look like some person (or perhaps some set of people) was trying to pull a fast one on the legal system, in many courthouses.