Sanctions may be warranted against attorney Robert B. Carey, but any fine should be limited to the least amount that's required to deter him from making a similar mistake in the future, the firm said in its response to an order to show cause Thursday.
Carey didn't actually use AI and wasn't aware that AI had been used to draft the briefs. He only failed to conduct a complete cite check of the briefs prepared by contract attorney Celeste Boyd, according to the response.
"Another important consideration is that Mr. Carey immediately admitted to the court his part in the errors, moved to correct the errors, apologized and expressed regret to the court and opposing counsel, and he is taking steps to ensure that these errors do not happen again," the firm said.
Judges have fined attorneys who've made similar missteps in other cases as little as $1,000, according to the firm's response.
"Even if Mr. Carey's failure to check all the cites was reckless — it was not — there can be no showing that his decision was frivolous, done to harass any party, or done for an improper purpose," Hagens Berman added.
The court shouldn't sanction Hagens Berman or the other firm attorneys involved in the case at all since there's no evidence that those other attorneys acted in bad faith, the firm also told the court.
Those lawyers didn't draft or compile the briefing or use AI, and were unaware that it had been used. The firm already prohibits its attorneys from using generative AI for legal research or writing, and is taking steps to ensure that what happened in this case doesn't happen again, Hagens Berman said.
"Mr. Carey asked ethics counsel to review Hagens Berman's AI policy, given these issues, and to draft a revised AI policy, which he did. At the request of Mr. Carey, the Management Committee is reviewing the proposed changes to its AI policies, addressing the very issues that occurred here," the firm insisted.
Carey and the firm declined to comment beyond their filing Friday. Attorneys for OnlyFan's parent company also declined to comment.
U.S. District Judge Fred W. Slaughter plans to hold a hearing on Sept. 25 to determine whether he should issue sanctions "for the misuse of artificial intelligence" in briefs filed by the plaintiffs' attorneys in the suit against OnlyFans.
The plaintiffs sued the parent company of OnlyFans, Fenix International Ltd., in 2024 alleging that OnlyFans knowingly allows professional "chatters" to impersonate content creators on the subscription platform, duping users into thinking they're having a direct conversation with an individual they paid to connect with.
Attorneys for the OnlyFans users have admitted that a contract attorney working on the case used ChatGPT to draft some briefs, resulting in mistakes, and they've sought permission to fix earlier filings found to have errors that they say came from ChatGPT.
But Fenix has said that it should be granted permission to dismiss the claims, arguing that counsel for the five anonymous plaintiffs gave up their right to fight the dismissal by including the bogus AI-generated citations in their objection.
"Plaintiffs' counsel understands serious errors occurred in this case — both in Celeste Boyd's use of AI without verifying its accuracy and by Robert Carey and Hagens Berman in failing to fully cite check the briefs before filing them — and that some sanctions are appropriate," Hagens Berman told the court Thursday.
But those sanctions should only be issued against the attorneys who played a role in filing the AI-generated briefs. Hagens Berman, its other attorneys and the other firms representing the plaintiffs in the case shouldn't be punished given that they didn't use AI or know about its use, the firm said.
"Such sanctions should only be issued against the attorneys who have violated their Rule 11 duties, and because plaintiffs' counsel did not act in bad faith, the court should decline to award any sanctions under its own inherent authority," the firm added.
The OnlyFans users are represented by Christopher Pitoun, Robert B. Carey, Michella A. Kras and Leonard W. Aragon of Hagens Berman Sobol Shapiro LLP, by Andrea R. Gold, Annick M. Persinger and Shana H. Khader of Tycko & Zavareei LLP, by Andrew W. Knox and Keith T. Vernon of Timoney Knox LLP, and by Andrew C. Stone and Seth T. Goertz of Dorsey & Whitney LLP.
Fenix International Ltd. and Fenix Internet LLC are represented by Jason D. Russell, Hillary A. Hamilton, Or-el Vaknin, Peter B. Morrison and Raza Rasheed of Skadden Arps Slate Meagher & Flom LLP.
The case is N.Z. et al. v. Fenix International Ltd. et al., case number 8:24-cv-01655, in the U.S. District Court for the Central District of California.
–Additional reporting by Adrian Cruz and Craig Clough. Editing by Leah Bennett.
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