Whitfield v. Prime Agency, LLC

What is the current procedural posture?

District Judge Antonio M. Pozos denied the motion to dismiss in a separate same-day order and, acting sua sponte under Fed. R. Civ. P. 11(c)(3), ordered defense counsel Mark T. Sophocles to show cause by October 2, 2026 why his statements in the original memorandum (ECF No. 7-1), the memorandum supporting the motion to substitute a corrected filing (ECF No. 15-1), and his declaration (ECF No. 17-2) have not violated Rule 11(b) and/or Pa. R.P.C. 3.3. The court said its concern was "made especially acute because counsel has not explained how the erroneous legal authority came to be included in the relevant filings, what processes and tools (including any artificial intelligence tools, if applicable) were used to generate those filings and/or applicable drafts, or how those erroneous citations continued to appear." Plaintiff may file up to ten pages of further briefing by October 9, 2026, and a hearing was set for October 15, 2026. No sanction had been imposed as of the order.

Why does Whitfield v. Prime Agency, LLC matter for law firms using AI?

Whitfield turns on what happened after the first problem surfaced. Defense counsel’s motion-to-dismiss brief contained citations the court could not verify, and in March 2026 counsel filed a declaration accepting responsibility, attributing the problem to an inadvertently filed draft, and stating he had “implemented additional review measures to ensure accuracy in future filings.” The court then reviewed the memorandum supporting defendant’s motion to substitute a corrected filing and found that it attributed two quotations to Foman v. Davis, one “entirely absent from Foman” and the other “an altered version of the language from Foman,” while calling the Supreme Court decision a Third Circuit case.

The order singles out the possibility of recurrence as particularly concerning. The court recognized that counsel “has accepted responsibility for the errors” in the original memorandum, but found the citations and “the circumstances under which they came to be submitted” concerning, and “[t]he possibility that they are recurring despite Defense counsel’s assurances is particularly so.” It connected that concern to the absence of any explanation of the drafting process, “including any artificial intelligence tools, if applicable,” with a “cf.” citation to the Third Circuit’s recent decision in McCarthy v. DEA.

The show-cause order reaches counsel’s declaration as well as both briefs, framing the question under both Rule 11(b)(2) and Pa. R.P.C. 3.3, the rule that addresses knowing false statements to a tribunal. The matter is pending. Firms documenting compliance may wish to consider that here the court’s scrutiny extended to counsel’s own declaration explaining the error, not only to the briefs that contained it.