The American Bar Association has brought to Chicago federal court a legal dispute over an article run in an ABA journal, which a forensic document examiners certifying agency said was intended to drive them from the market.
The Board of Forensic Document Examiners had sued the ABA in federal court in Tennessee in a complaint filed Aug. 5. On Feb. 13, a federal judge granted the ABA’s request to transfer the case to Chicago.
The FDE Board was joined as plaintiffs in the action by certified document examiners M. Patricia Fisher, of California; Lynda Hartwick, of Missouri; Andrew Sulner, of New York; J. Michael Weldon, of Texas; Emily J. Will, of North Carolina; Vickie L. Willard, of Ohio; and Robin D. Williams, of Wisconsin. Representing the group in the matter are attorneys from Cobb & Waites, PLLC, of Madison, Tenn.
The complaint alleged libel, invasion of privacy and face, and deceptive advertising under both the federal Lanham Act and the Tennessee Consumer Protection Act.
The lawsuit focuses on an article authored by Thomas Vastrick, who is also named as a defendant in the case, which was published in the The Judges’ Journal, Vol. 54, Issue 3.
The Journal, also a named defendant, is an ABA Judicial Division quarterly publication based at the ABA’s Chicago headquarters.
Vastrick also is a forensic document examiner who has two principal offices in Apopka, Fla., and Memphis, Tenn. However, he is not certified by the Board of Forensic Document Examiners, but rather by the American Board of Forensic Document Examiners, of which he also is a current board member and past president.
The complaint details the history of forensic document evaluation — which involves professional analysis of handwriting, signatures and printing processes to establish authorship, authenticity and origin — notably the establishment in 2000 of the Forensic Specialties Accreditation Board, a project of the U.S. Department of Justice. The FSAB accredits 17 forensic specialty certification boards, but only two certify individual experts: the BFDE, first accredited in 2006, and the ABDFE, first accredited in 2007.
According to the complaint, there are only 14 experts certified through BFDE, most of whom trained and work in the private sector, and roughly 150 with ABFDE certification, primarily with public sector experience. When public sector examiners retire, the complaint said, “they usually start a private sector practice, often in competition with one or more already established FDEs who received their training in the private sector.” Some full-time government examiners also moonlight with private sector cases.
Vastrick’s article, per the complaint, implied two-year, full-time, on-the-job training, which is typically how public sector examiners are trained, “is the only acceptable means of training individuals for entry into the field.” The complaint said there are no “valid, independent research studies to substantiate” that assessment, and further that “Courts have uniformly recognized and qualified both BFDE and ABFDE” experts.
The complaint said the article constitutes “an aggressive marketing strategy directed at existing and potential customers” to drive both the BFDE and its certified examiners from the marketplace.
In addition to a jury trial, the complaint seeks compensatory damages of at least $100,000 per plaintiff, as well as punitive damages, related to the libel claim. For the false advertising claim, another $100,000 per plaintiff is sought as well as punitive and statutory damages and legal fees.
Sulner, who accused Vastrick and the ABA of attacking him directly, also brought individual libel and false advertising claims, seeking the same compensation as in the group claims. The allegations under Tennessee law also were brought by Sulner, individually, and the group asking the court to award compensatory damages of at least $100,000, on top of punitive damages, treble damages, statutory damages and penalties, plus legal fees.
The ABA is represented in the action by attorneys with the firms of Adams and Reese LLP, of Memphis, Tenn., and Miller Korzenik Sommers, of New York.