When Matthew Chan learned that there was a lawsuit against him, or some fictional ghost with a similar name, by dentist Mitul Patel, for the purpose of obtaining a phony judgment to be used to get Yelp to take down an unfavorable review, it was kinda shocking.  At the time, the question was raised whether there was an epidemic of such things happening.

As it turns out, there is, as Public Citizen’s Paul Alan Levy found out.

There are about 25 court cases throughout the country that have a suspicious profile:

• All involve allegedly self-represented plaintiffs, yet they have similar snippets of legalese that suggest a common organization behind them. (A few others, having a slightly different profile, involve actual lawyers.)
• All the ostensible defendants ostensibly agreed to injunctions being issued against them, which often leads to a very quick court order (in some cases, less than a week).
• Of these 25-odd cases, 15 give the addresses of the defendants — but a private investigator (Giles Miller of Lynx Insights & Investigations) couldn’t find a single one of the ostensible defendants at the ostensible address.

The “why” this is happening is fairly obvious. 

Google and various other Internet platforms have a policy: They won’t take down material (or, in Google’s case, remove it from Google indexes) just because someone says it’s defamatory. Understandable — why would these companies want to adjudicate such factual disputes? But if they see a court order that declares that some material is defamatory, they tend to take down or deindex the material, relying on the court’s decision.

Google doesn’t give a damn whether the court order was legitimately obtained, but if you have an order in hand, even if it doesn’t order them to do anything, they will “respect” it and make that tiny patch of internet disappear. If you’re feeling sad about something someone wrote about you on the internet, you will suddenly feel much better. Not just about the disappeared content, but about the money you spent on that reputation management guy.

Yes, there are jokers who pretend to be capable of fixing your bad reputation, and then there are scum who have no problem engaging in crime to game the legal system to accomplish their goal. As schemes to game the system go, this was pretty damn impressive.

Reduced to its basics, someone sues for defamation against a person with the name of someone who posted a negative review months or years earlier in a jurisdiction far from the actual person. They use the same or very similar name at a fictitious address. The putative defendant stipulates to defamation, and the court issues an order. The order gets sent to Google or Yelp and, poof, the review is gone!

The real person who wrote the review has no clue any of this happened, unless he happens to check back months or years later to see if his negative review is still there. He has no clue that suit was filed in some foreign jurisdiction, as he was never served and, even if he was to check, wouldn’t have a clue where suit was filed so wouldn’t have a clue where to look. And even after the whole scheme was perpetrated, it’s not like there’s anyone you can ask at Google, which insulates itself from all human contact because it hates people and only loves their money.

But what about the legal system? How is it possible that this fraudulent scheme works, judges issue orders and no one is the wiser?  There is a huge, glaring hole revealed by the mechanics of this scheme in that the legal system operates under a presumption of regularity. It presumes that everybody is on the up and up, and that people would never file fictitious lawsuits in jurisdictions that have nothing to do with anything using strawmen defendants who don’t exist.

The only time the system is able to accommodate a claim that the suit is a sham is if someone tells them, raises the issue and brings it to the court’s attention.  If nobody knows any of this is happening, there’s no one to complain about it. So, the legal system becomes complicit in the sham because it trusts that whoever is doing what they’re doing is legitimate about doing it.

As schemes to defraud the court go, this one is really quite good.  It’s remarkable that Paul, Eugene and Matthew were able to unearth as much as they have about this scheme, and they’ve likely barely scratched the surface. Other than checking every court in every jurisdiction for defamation cases where the defendant either defaulted or stipulated to judgment, and then digging deeper to ascertain whether the addresses and identities are legitimate, there is no way to figure out who’s pulling this scam.

Years ago, courts learned of a sham called “sewer service,” where process servers were lying about having served complaints on parties when they tossed them into the sewer instead. But with sewer service, the defendants ultimately learned of the default in the lawsuits because the plaintiffs showed up to collect. Here, the only way to learn that any of this happened is to go back to your negative reviews and see if they’re still online, still being indexed. Who does that?

It’s not that courts can’t deal with this fraudulent scheme, but that it would require the sort of effort and interest that was needed to overcome sewer service. When the only thing at stake is a negative review, the system isn’t inclined to start demanding evidentiary hearings from stipulating defendants to prove they are who they say they are, live where they say they live and are, in fact, the same people who wrote the allegedly defamatory content in the first place.

Similarly, the actual review writers are unlikely to be willing to chase after phony judgments in distant states, particularly when they are unlikely to know the jurisdiction in which they happened, at substantial expense, just to make sure their review remains on Google.

Of course, there is an outside means of assuring at least knowledge, if not a fix, for this scheme. The ultimate objects of this scheme, Google and Yelp for example, could notify the authors (if they can locate them) of the orders before doing the takedown. But that also involves time, money, effort and interest, and will still fail despite best efforts in many instances.

But for the efforts of Paul, Eugene and Matthew, we wouldn’t even know this scheme exists. And while they have done exceptional work in unearthing this fraud upon the courts, it remains a mystery whether anything will be, or can be, done to end this scheme. Worse still, now that this gap in the legal system has been exploited, will its naivete be used by other nefarious scammers? It seems likely that this is just the start of people exploiting the presumption of regularity to game the system.