Solo practitioner Steven A. Feldman, the lawyer for Affable Avenue LLC in an ongoing intellectual property lawsuit filed by Flycatcher Corp. Ltd., told U.S. District Judge Katherine Polk Failla, "I deeply regret this clerical error."
An attorney for co-defendant Top Experience Co., Joel G. MacMull of Mandelbaum Barrett PC, told the court on Monday, "Unfortunately, we must write the court once more in connection with attorney Steven Feldman's filings with the court based on our continued ethical obligations" under the New York Rules of Professional Conduct.
That filing flagged an erroneous citation to a D.C. federal court case, Himmelstein v. Comcast of the District LLC, in Feldman's Aug. 8 memo in support of the lawsuit's dismissal. In a letter to the court on Tuesday, Feldman said he meant to cite Himmelstein v. Matthew Bender & Co., a New York state court case.
Matthew Bender is a LexisNexis company; Law360 is owned by LexisNexis Legal & Professional, a RELX company.
The erroneous citation, Feldman said, "was regrettably introduced during a final verification of the citation string while double-checking and preparing the citations and table of authorities."
"That said, Mr. MacMull's letter brings to the fore a significant challenge I have been struggling with throughout this litigation concerning the verification of unreported citations, familiar to the courts and the bar — the pervasive use of proprietary, nonneutral reporters such as Westlaw and [LexisNexis] when an official, publicly accessible version is unavailable or when the proprietary source is simply wrong," he added.
Feldman did not immediately respond to Law360's request for comment.
The letter came as the parties prepared to appear in court again later this month. Back in June, Judge Failla ordered Feldman to explain why his brief in support of Affable's motion to toss the lawsuit shouldn't be dismissed after she suspected him of using AI to write it due to its citations of nonexistent cases.
Feldman's response again drew the suspicion of Judge Failla, who said that it contained a quote from a case in which that quote didn't appear. Rather, it was from an article about the case.
"Mr. Feldman did not attribute the quote to this article," she wrote. "That is especially concerning considering that he was responding to an order to show cause why he should not be sanctioned for his erroneous citations."
Feldman's July 11 response acknowledged that his brief's errors "resulted from sophisticated AI hallucination mechanisms rather than intentional misconduct." After writing of ancient scribes who "carried their stylus as both tool and sacred trust," he went on to say, "I pray that through comprehensive correction and unwavering diligence going forward, I may prove myself worthy to carry the stylus once more in service of justice and truth."
Affable's motion to dismiss the lawsuit remains pending. The court initially scheduled parties in a July order to appear in court on Aug. 14, but the hearing was rescheduled for Aug. 22.
"The court wants to hear directly from Mr. Feldman," Judge Failla wrote in July, "so that it can give him the opportunity to — as he puts it — 'prove [himself] worthy to carry the stylus once more in service of justice and truth.'"
Plaintiff Flycatcher Corp. Ltd. is represented by Tal S. Benschar and Efrem T. Schwalb of Koffsky Schwalb LLC.
Defendant Affable Avenue LLC is represented by Steven A. Feldman of the Law Office of Steven A. Feldman & Associates PLLC.
Top Experience Company LLC is represented by Joel Geoffrey MacMull and Brian Block of Mandelbaum Barrett PC.
The case is Flycatcher Corp. Ltd. et al. v. Affable Avenue LLC et al., case number 1:24-cv-09429, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Jack Karp. Editing by Robert Rudinger.
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