Ausherman v Bank of America Corp.
212 F. Supp. 2d 435 (2002)
Ausherman and a bunch of other
people all sued Bank of America and other banks for fair credit
Basically, the complaint was
that an unnamed employee of Bank of America (John Doe #1) and another
person (John Doe #2) fraudulently obtained credit data about the
plaintiffs and gave it to unauthorized people.
Ausherman and the rest of
the plaintiffs were represented by an attorney named Sweetman.
Bank of America was unable to
determine which of their employees was accused of stealing information.
They sought to discover the factual basis of the claim from Sweetman.
Sweetman refused to supply
the information, in violation of Federal Rules of Civil Procedure
Turns out, Ausherman and the
other plaintiffs hadn't known that their information may have been
stolen. It was Sweetman who approached them and told them the facts and
that they should sue.
Sweetman told Bank of
America that a former client of his told him that there was an identity
theft ring being run out of Bank of America, and this former client
provided the names of people whose credit reports had been stolen. While
Sweetman claimed that he did not know the name of John Doe #3 (the ringleader),
but that the former client would provide the name to him once Bank of
America agreed to settle.
The judge stepped in and
deposed Sweetman himself.
Sweetman testified that he
did not know who John Doe #3 was and did not have any method of finding
Basically he lied because
he wanted to get a big settlement.
Bank of America made a motion
to sanction Sweetman.
The Trial Court sanctioned
Sweetman for failing to provide discovery information and for violating Rule
Rule 4.1 says that attorneys cannot make false
statements of law or material fact to third parties (aka Bank of
argued that his comments about John Doe #3 were made in the scope of a
settlement negotiation and were therefore not covered by Rule 4.1. However, the Trial Court found that
settlement negotiations were within the scope of Rule 4.1.
The Trial Court referred the
matter to the Disciplinary Committee to take further action against