In a brief on Wednesday, U.S. District Judge Michael H. Simon said he was satisfied with a response submitted to his as to why he shouldn't impose sanctions on Buchalter and co-counsel Snell & Wilmer LLP, who are representing Green Building Initiative Inc. in the trademark litigation.
"The court is satisfied with the remedial actions already taken and those proposed to be taken by plaintiff's counsel and thus will not be imposing any formal sanctions," the order said.
Last month, Judge Simon ordered Green Building Initiative, an Oregon-based environmental nonprofit, and its counsel to show why it shouldn't be sanctioned for "fake case citations" that appeared "to be hallmarks of a generative artificial intelligence tool, such as ChatGPT."
The fake case citations were included in a filing Green Building Initiative submitted in support of its bid for roughly $29,000 in attorney fees in the case after successfully getting two counterclaims struck, last month's order said.
One of the case citations GBI submitted was "totally fake" and is a "'hallucinated' case," the judge said. The other "is almost real," as there is a case with the title cited "that discusses" an Oregon anti-SLAPP statute mentioned in connection with the fee bid, "but it is not a federal case from the District of Oregon." Thus, it could not be used to support Green Building Initiative's fee bid, the judge said.
In addition to directing the nonprofit to show why it and its counsel shouldn't be sanctioned "for the use of fake citations," the judge asked it "to disclose what it believes to be an appropriate sanction."
"GBI's proposed sanctions should reflect the nature and seriousness of its use of fake citations and appropriate steps to ensure that this type of violation will not occur again," the order said.
A filed Monday said Buchalter attorney David Bernstein is solely to blame for the fake citations.
"Mr. Bernstein admits that he alone, and not GBI or GBI's other attorneys, is responsible for the two hallucinated citations contained in the fee reply," the filing said. "Unlike other cases in which attorneys were sanctioned for misusing generative artificial intelligence, Mr. Bernstein did not intend to use the application, Microsoft Copilot, to research case law for the fee reply. Instead, Mr. Bernstein intended to use it for 'wordsmithing' purposes only."
The attorney "was not aware" that the AI tool "had inserted any cases during the editing process," according to the filing.
Bernstein "fully acknowledges that he failed to carefully review the fee reply" and "is beyond remorseful for using Microsoft Copilot for editing purposes without a better understanding of its potential for hallucination and for not conducting a full review of the final product" before it was filed to the court, the filing said.
The attorney "is deeply apologetic to the court for wasting its time, as well as to GBI and its other attorneys for the negative and public consequences of his actions," the filing said.
Co-counsel Tom Speiss and his firm, Snell & Wilmer LLP, should not be sanctioned, the filing argued, as "they were completely unaware of Mr. Bernstein's use of AI in this matter."
In a declaration to the court, also filed Monday, Bernstein said that Green Building Initiative was also not aware of his use of generative AI in the filing at issue.
"This has been a deeply humbling and publicly humiliating experience," he told the court. "While I did not intend to use Copilot for research or drafting purposes, I certainly understand this court's grave concerns given the recent rise in the number of lawyers misusing AI."
In Monday's response, Buchalter and Bernstein also said, that even if not ordered to do so by court as sanctions, they "fully intend" to take certain actions. Those include: educating attorneys and staff on the misuse of generative AI, having Bernstein complete additional continuing legal education about the use of AI, and donating $5,000 to the legal aid organization Campaign for Equal Justice.
They also said they would reimburse Green Building Initiative for certain fees in the case.
Green Building Initiative filed its trademark infringement suit last year against United Kingdom-based sustainability company Green Globe Limited, its managing director Steven R. Peacock, and others.
The suit seeks damages for what Green Building Initiative contends is infringing use of trademarks it owns dealing with evaluating the environmental sustainability of buildings.
Counsel for the parties didn't immediately respond to requests for comment.
Green Building Initiative is represented by Daniel P. Larsen and David A. Bernstein of Buchalter PC and Thomas J. Speiss of Snell & Wilmer LLP.
Peacock and Green Globe Ltd. are represented by Julie Engbloom and Vera Warren of Tadjedin Thomas & Engbloom Law Group LLP.
The case is Green Building Initiative Inc. v. Peacock et al., case number 3:24-cv-00298, in the U.S. District Court for the District of Oregon.
--Editing by Haylee Pearl.
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