Lawyers for MyPillow CEO sanctioned for fake case citations; judge questions their explanation
Updated: A federal judge has imposed a sanction of $3,000 each on two lawyers representing MyPillow CEO Mike Lindell for submitting a brief citing cases that didn’t exist.
U.S. District Judge Nina Y. Wang of the District of Colorado sanctioned lawyers Christopher I. Kachouroff of Virginia and Jennifer T. DeMaster of Wisconsin in a July 7 decision.
Neither Kachouroff nor DeMaster offered explanations how defective citations appeared in drafts of the brief “absent the use of generative artificial intelligence or gross carelessness by counsel,” Wang said.
Kachouroff told the ABA Journal that he will appeal the sanction. While he disagrees with the sanction, if it remains in place, the punishment should be no greater than an admonishment, he says.
Kachouroff says the wrong document got filed because of an “inadvertent mistake” that could be made by anyone.
“There but for the grace of God go I,” he says, referring to how other lawyers might be thinking of the situation.
Wang said in an April 23 order to show cause she identified “nearly 30 defective citations” of cases, including citations to cases that don’t exist, in the lawyers’ Feb. 10 brief.
Wang said she was not persuaded by the counsel’s argument that a draft version of the brief was mistakenly filed, given “contradictory statements and the lack of corroborating evidence.” Wang had examined Microsoft Word draft documents provided to the court and an email discussing final edits in coming to her conclusion.
Wang expressed additional concerns with Kachouroff’s response to her order to show cause.
Kachouroff had said he was “taken by complete surprise” when Wang questioned him in court about the issue. He said in a declaration his co-counsel filed the draft document instead of the final version that they “had carefully cite-checked and edited.” At the time, Kachouroff said, he was on a one-week vacation to Mexico, where there were “limitations on internet service.”
Wang questioned Kachouroff’s “puzzlingly defiant tone and tenor” in response to her show-cause order and said his attempt to shift responsibility was “both troubling and not well-taken.”
And while Kachouroff said the fake cases cited were “a clear deviation” from his practice, he “quietly filed” two notices of mistakes that included nonexistent cases in briefs in a second case in the U.S. District Court for the Eastern District of Wisconsin, Wang said.
Courts across the country have recognized that Rule 11 of the Federal Rules of Civil Procedure applies to the use of AI, Wang said. Rule 11 requires parties submitting court pleadings to certify that the arguments are warranted by existing law or by a nonfrivolous argument for establishing new law.
A fake opinion is not existing law, Wang said, citing a previous opinion.
DeMaster did not immediately respond to a Journal email and voicemail seeking comment.
Kachouroff told the Journal that the mistake happened after DeMaster saved a document with an incorrect file name and mistakenly filed a draft version. DeMaster turned over handwritten edits showing that the brief was completely reworked, evidence of changes made in the correct brief that didn’t get filed, Kachouroff says.
Kachouroff didn’t have a copy of the document that should have been filed because he doesn’t keep old copies of documents, he says. Typically, he takes a filed document and begins a new pleading using that document as a template. So there is no need to keep old documents, he told the Journal.
Kachouroff says he took full responsibility for the mistake. He points to an affidavit in which he said he and his co-counsel were a team, and the team shares in mistakes, as well as victories.
Kachouroff also addressed Wang’s statement that he displayed a “defiant tone and tenor” regarding a hearing that happened before the show-cause order. Kachouroff says he wasn’t defiant at the hearing, but he was shocked because he had no advance notice about the incorrect citations.
Even during the hearing, he says, he told the judge that this must have been a draft because his citations that are checked by Westlaw don’t appear this way.
The citations were obviously cite-checked because the Westlaw report was submitted to Wang, Kachouroff says.
Kachouroff would have liked a recess during the hearing, so that he could call DeMaster to find out what happened.
Kachouroff went back through all his briefs in other cases after learning of the error in the Lindell case, and that’s when he found the mistakes in the Wisconsin case. He shouldn’t be faulted for correcting mistakes, he says.
Kachouroff says he has no idea how the incorrect citations got into the Lindell brief, but there must have been a search where AI suggested cases.
AI is “an incredibly useful tool” to assist lawyers in organization and argument, but it is not a legal research tool, Kachouroff says.
Lindell was sued for defamation by Eric Coomer, a former executive with Dominion Voting Systems. Lindell allegedly amplified false allegations that Coomer may have been involved in a rigged 2020 election and a criminal conspiracy, leading to “credible death threats” against him and banishment from the elections industry, Coomer’s second amended complaint alleges.
Jurors ruled against Lindell and his media platform on defamation claims in June and awarded more than $2.3 million in damages.
In addition to appealing the sanction, Kachouroff plans to file a motion for a judgment as a matter of law that seeks a judgment in the defense’s favor despite the jury verdict.
Publications covering the sanctions include the New York Times, Bloomberg Law and the Colorado Sun.
Updated July 10 at 12:35 p.m. to include lawyer Christopher I. Kachouroff’s comments.
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