Man Who Had Pleaded Guilty to Felony Forgery of Court Orders Sues Over Being Called “Convicted Felon”

An excerpt from Arnstein v. Stein Saks, PLLC, decided last week by New York County trial court judge Judy Kim (currently being appealed) (you can also read plaintiff’s Complaint and legal argument opposing the motion to dismiss):

Plaintiff alleges that defendants defamed him in their motion to dismiss an action filed against them …, Mark Goldberg v. Mark Rozenberg Esq. et al… (the “Bronx Action”). The plaintiff in the Bronx Action, Mark Goldberg, sued defendants for defamation based on statements made in yet another lawsuit, … entitled The Natural Sapphire Company v Marz Rozenberg et al.

Plaintiff contends that, as part of defendants’ motion to dismiss the Bronx Action, they “gratuitously referred to [p]laintiff by name and included salacious statements regarding his past conviction—accusing him of forgery and labeling him a ‘convicted felon’—without any connection to the issues or parties in that case.” Plaintiff asserts claims for defamation and abuse of process ….

“[A] statement made in the course of legal proceedings is absolutely privileged if it is at all pertinent to the litigation.” … Here, defendants’ statements about plaintiff in the Bronx Action were pertinent to the motion to dismiss that action. While plaintiff was not a party in the Bronx Action, defendant asserted that he was the principal of the Natural Sapphire Company and, in that capacity, employed Goldberg, and was part of a coordinated campaign of meritless actions filed against defendants after defendants filed in Federal Court against The Natural Sapphire Company asserting violations of the Americans with Disabilities Act. This information is pertinent to, inter alia, defendants’ request for sanctions in the Bronx Action. Accordingly, they fall within the absolute litigation privilege, precluding the defamation claims asserted here.

Even setting this aside, plaintiff does not dispute the truthfulness of defendants’ statements about his criminal conviction. As such, no defamation claim based on this statement lies…. “[T]ruth is an absolute defense to a defamation action” ….

Neither has plaintiff stated an abuse of process claim. [Details omitted. -EV] Finally, defendants’ request for sanctions is granted to the extent that plaintiff is enjoined from commencing any new litigation in the New York State courts against any defendant herein without obtaining prior approval from the court. The record reflects that such relief is necessary “to prevent use of the judicial system as a vehicle for harassment, ill will and spite.”

Here’s a post on the original forgery case; for more on the broader pattern of attempts to vanish online material using (among other things) forged or fraudulent orders, see my Shenanigans (Internet Takedown Edition):

9 Months in Prison for Forging Court Orders Aimed at Vanishing Online Material

“Arnstein … submitted the counterfeit orders, which appeared to be valid on their face, to Google and requested that Google de-index the websites containing the purportedly defamatory information.”

From a Justice Department press release put out last Friday, about a case you may have seen discussed here and here:

Michael Arnstein was sentenced today to nine months in prison for conspiring to forge a federal judge’s signature on counterfeit court orders that Arnstein submitted to Google to get negative reviews about his business removed from Google search results. Arnstein pled guilty on September 15, 2017, before U.S. District Court Judge Andrew L. Carter Jr., who imposed today’s sentence.

Manhattan U.S. Attorney Geoffrey S. Berman said: “Michael Arnstein’s blatant criminal scheme to exploit the authority of the federal judiciary for his company’s benefit was outrageous. As Arnstein has learned, his attempts to remove negative reviews about his business from Google search results by forging a U.S. District Court judge’s signature may have worked in the short term, but it also earned him nine months in a federal prison.”

According to the allegations contained in the Complaint, the felony Information to which Arnstein pled guilty, and statements made during court proceedings:

Between February 2014 and February 2017, Arnstein engaged in a scheme to submit counterfeit federal court orders to Google, Inc. (“Google”) in an effort to get websites containing unfavorable postings about Arnstein’s business de-indexed from Google’s internet search results. In furtherance of this scheme, Arnstein and others forged the signature of a United States District Judge for the Southern District of New York on more than 10 counterfeit court orders. These counterfeit orders listed the websites containing purportedly defamatory information about Arnstein’s business and ordered the removal of such information from the websites. Arnstein then submitted the counterfeit orders, which appeared to be valid on their face, to Google and requested that Google de-index the websites containing the purportedly defamatory information.

* * *In addition to the prison term, Arnstein, 41, of Yonkers, New York, was sentenced to three years of supervised release, the first five months of which Arnstein must serve in home detention. Arnstein was also ordered to pay a fine of $20,000 and to perform 200 hours of community service during his term of supervised release.

Mr. Berman praised the outstanding investigative work of the Federal Bureau of Investigation and the United States Marshals Service. He also thanked Google for its helpful assistance in this investigation.

The prosecution of this case is being overseen by the Office’s Complex Frauds and Cybercrime Unit. Assistant U.S. Attorneys Sheb Swett and Daniel S. Noble are in charge of the prosecution.

Here’s an excerpt from an e-mail from Arnstein mentioned in the criminal complaint:

[N]o bullshit: if I could do it all over again I would have found another court order injunction for removal of links (probably something that can be found online pretty easily) made changes in photoshop to show the links that I wanted removed and then sent to ‘removals@google.com’ as a pdf – showing the court order docket number, the judges [sic] signature – but with the new links put in. google isn’t checking this stuff; that’s the bottom line b/c I spent $30,000 fuckin thousand dollars and nearly 2 fuckin years to do what legit could have been done for about 6 hours of searching and photoshop by a guy for $200., all in ONE DAY ….

I should note that the Lumen Database was also instrumental in the prosecution.