Legal Speak · 2026-07-02 · 32 min
Key moments - from our scoring
Substance score
51 / 100
Five dimensions, 20 points each
Schedule A cases represent a mass IP enforcement model targeting online sellers across multiple IP categories - trademarks, copyrights, patents - by freezing funds held on platforms like Amazon, Wish, and eBay before defendants are even notified. Chicago Kent College of Law Professor Sarah Fakrell explains how plaintiffs exploit the Schedule A mechanism (filing defendant aliases on separate documents rather than in complaints) to streamline litigation, making it lucrative through default judgments and account sweeps. The recent 7th Circuit decision in Kangal v. Schedule A addresses whether email service of defendants in China complies with the Hague Service Convention's mail-service requirement. The court concluded email does not constitute mail under the convention and sent the question of whether the convention applies back to district courts, leaving judges discretion over service methods. This ruling threatens the cost-effectiveness of Schedule A litigation, which depends on expensive Hague Convention service being impractical. Fakrell discusses implications for district court enforcement of diligence requirements, comparisons to the Lou v. Monthly precedent, and how Northern District judges are beginning to scrutinize these cases more closely following appellate attention.
Schedule A cases are mass IP enforcement lawsuits targeting online platform sellers for alleged trademark, copyright, or patent infringement. Plaintiffs use aliases filed on separate Schedule A documents, obtain preliminary asset freezes on the sellers' platform accounts, and typically win by default when defendants fail to appear, sweeping frozen funds as damages.
The Hague Service Convention permits postal mail service but was written before email existed. The 7th Circuit joined the 2nd Circuit in rejecting arguments that email satisfies the convention's mail-service requirement, holding that email and mail are not equivalent.
The ruling creates uncertainty about whether traditional Hague Convention service is now required for foreign defendants, which would be prohibitively expensive and time-consuming, potentially undermining the cost-efficiency that makes the Schedule A model lucrative.
The NBA Properties 7th Circuit case established venue rules that allowed these cases in Chicago, and the practice subsequently became routine there, though it has since spread to other districts including Miami and Pittsburgh.
Core Search is a major brand-owner services company that actively promotes and facilitates Schedule A cases, advertising that they can generate hundreds of thousands of dollars from individual lawsuits - a profit model unusual for traditional litigation.
Our reviewer’s read on each dimension, with quotes from the episode.
The episode contains real substance on the Schedule A litigation business model, the Hague Convention ruling's implications, and the judge-shopping dynamic - but large portions are throat-clearing, basic explainers for a lay audience, and mid-thought filler. The insights are genuine but narrow, and the advertising breaks further dilute density.
The heart of the business model is that running in and grabbing the cash.
Plaintiffs bar has done kind of a masterful job of, uh, convincing judges that these cases are special. Right. That they deserve to be able to do things cheaper and easier and quicker than in other cases because they're so, so, so bad.
The debunking of the 'duty to police' IP myth and the framing of Schedule A litigation as a monetization vehicle rather than legitimate IP enforcement are genuinely non-obvious takes. However, much of the episode is a factual walkthrough of a recent court ruling rather than first-principles argumentation.
to the extent there is any duty to police, it only applies to trademarks, not copyrights, not patents. So as soon as anyone starts talking about the duty to police intellectual property, like, your eyebrows should raise
this idea that you have to bring schedule A cases, and the idea that you have to judge, shop, and schedule A cases is just not supported by any type of logic or case law or anything I've read
Professor Fakrell is a credible first-mover researcher on Schedule A litigation who physically attended 7th Circuit arguments and has published academic work on the topic - genuine subject-matter expertise. She is an academic rather than a practitioner who has operated at scale, which limits the score.
I did actually go to the 7th Circuit for all these. So it was fun to go that, uh, especially the doubleheader day. There were quite a few, uh, people there.
some pesky law professors, myself included, learned about these cases and started writing about them and, and speaking about them publicly.
The episode names specific cases (Kangal, Smart Study, Lou v. Monthly, NBA Properties), specific judges (Coleman, Maldonado, Kirsch), specific platforms (Amazon, PayPal, eBay), and a named company (Core Search) - solid anchoring. However, there are almost no hard metrics, dollar figures, or filing-volume data beyond vague references like 'thousands and thousands' and 'hundreds of thousands of dollars.'
there's a company that recently got involved with this called Core Search... they brag that they can make hundreds of thousands of dollars from this lawsuit. Which is not how litigation usually works.
We had three cases argued at the seventh Circuit within, like, over the space of two weeks.
The host asks reasonable sequenced questions covering procedural background, the specific ruling, district court implications, and future research - a competent structure. There is no pushback, no challenging of claims, and no productive disagreement; the conversation stays in collaborative-explainer mode throughout.
why did the 7th Circuit like is there a reason they wouldn't go as far as to say that the hate convention does apply in this case
could this move the needle on pushing Schedule A cases out of the Northern District of Illinois or, like, what's the lay of the land there?
Computed from the transcript - who did the talking, and the words that came up most.
In this week's Legal Speak episode, Law.com reporter Alex Anteau and Chicago-Kent College of Law professor Sarah Fackrell examine a recent federal appeals court decision that could reshape how intellectual property lawsuits are served on defendants in China. The U.S. Court of Appeals for the Seventh Circuit joined the Second Circuit in holding that service by email is not permitted under the Hague Service Convention. The May 29, 2026 ruling is expected to have significant implications for the high-volume Schedule A trademark and copyright infringement cases frequently filed in the U.S. District Court for the Northern District of Illinois. As one of the earliest scholars to study Schedule A litigation, Fackrell breaks down what the decision means for IP practitioners, international service of process, and the future of cross-border enforcement actions in this episode. Hosts: Cedra Mayfield & Patrick Smith Reporter: Alex Anteau Guest: Sarah Fackrell Producer: Charles Garnar
Transcribed and scored by The B2B Podcast Index.
Speaker A: I'm, uh, Patrick Smith in New York.
Speaker B: And I'm Cedra Mayfield in Atlanta. This is Legal Speak, where we break down what's happening in the legal industry.
Speaker A: Cedra, what do you know about the Hague Service Convention?
Speaker B: Patrick, why is there always a question like, is this legal trivia?
Speaker A: Because it's easier for me to write scripts this way.
Speaker B: Okay. Well, honesty goes a long way. Not as much as you're about to tell me, I would guess.
Speaker A: Oh, you are are correct. So, the U.S. court of Appeals for the 7th Circuit recently joined the 2nd Circuit in ruling that serving defendants in China with lawsuits via email is not allowed under the Hag Service Convention. Now, while the decision concerns the way the Seventh Circuit courts interpret international law, the decision's biggest impact will likely be on how Judges in the U.S. district Court for Northern Illinois handle Schedule A IP infringement cases.
Speaker B: Well, that sounds like it could have an impact on how Judges in the U.S. district Court for the Northern District of Illinois handle schedule Schedule A IP infringement cases.
Speaker A: I see what you did there. Well done, well done. So, to help us resolve this law.com's Alex Anto had a conversation with Chicago Kent College of Law Professor Sarah Fakrell, one of the first researchers to write about Schedule A around how this decision will affect the world of IP law.
Speaker B: Sounds like a winner. Stay tuned for Alex Anto's interview with Chicago Kent College of Law Professor Sarah Fakrel.
Speaker C: All.
Speaker D: Ah, right. Well, hello, Sarah. Thank you so much for joining us, and welcome to Legal Speak.
Speaker E: Thanks for having me.
Speaker D: So, to begin, I was wondering if you could sort of, you know, give a primer for our listeners. What are Schedule A IP infringement lawsuits?
Speaker E: Schedule A cases are a, uh, new, or at least relatively new form of mass IP enforcement that's targeted, uh, at people who sell allegedly infringing products online. The people who bring these cases often say, oh, it's all about counterfeiting. But counterfeiting is only one part and maybe a small part of what this is. They're literally suing over every ip, right,
Speaker F: you can think of. There's trademarks, there's copyrights, there's patents.
Speaker E: But the thing that is common to all the defendants is they all have money held by some third party that
Speaker F: is reachable by US Courts. Right.
Speaker E: In the early days, I think it was often PayPal. Now it's Amazon or Wish or ebay or these sort of platforms. So you go after these platform sellers, you say, hey, Judge, these people are infringing my IP rights, and you need to shut their store down and Lock
Speaker F: all their money up before they even know they've been sued. And if you don't. Right. They're going to abscond with their ill gotten gains. This is the heart of the business model is that running in and grabbing the cash.
Speaker E: And then after that the defendants are given an opportunity to show up and they often don't for reasons that I'd be happy to discuss, but they usually default.
Speaker F: And then the plaintiffs say, you know,
Speaker E: usually something like, okay, well I think
Speaker F: you should give us all the money in the accounts as damages since they haven't proven it's not damages. Right.
Speaker E: And just sort of sweep the accounts. So it's a, uh, it's a business model, frankly, for IP owners that to hear at least some people describe it is not only cost effective, but lucrative.
Speaker F: Right. There's a company that recently got involved
Speaker E: with this called Core Search. With any listeners who do have done
Speaker F: any trademark work will know Core Search,
Speaker E: they're like a huge big company that provides services for brand owners and you know, they brag that they can make
Speaker F: hundreds of thousands of dollars from this lawsuit.
Speaker E: Which is not how litigation usually works.
Speaker F: Right. Litigation usually costs you money, even if you get a big award at the end.
Speaker E: And so it's become this really popular
Speaker F: way, as you might imagine, to enforce
Speaker E: your rights or to monetize your rights. And it seems to have really gotten
Speaker F: started here in the Northern District of Illinois. There's a federal court here in Chicago,
Speaker E: but it's since spread, certainly there's some little clumps, but I've seen them in a number of places. So it's an increasingly popular business model, but it's also increasingly controversial.
Speaker F: Right. A couple of years ago, a couple
Speaker E: of Northern District judges started saying, hey,
Speaker F: wait, what's going on here? Right. There was one judge, there was a transcript like basically like, are we being played? Why are so many of these cases being brought here? What's going on?
Speaker E: And then some pesky law professors, myself
Speaker F: included, learned about these cases and started
Speaker E: writing about them and, and speaking about them publicly. And so I think there's been a
Speaker F: lot more attention speaking to reporters like you. Right.
Speaker E: But I think it's really one of the most important things that's going on in IP right now, and a thing that a lot of people in IP don't yet know about.
Speaker D: Could you tell us a little bit about why it's called a Schedule A? Like procedurally, what's going on that makes this so lucrative?
Speaker E: Yeah. So normally when you bring a case in federal court, you have to put
Speaker F: your legal name on it. Right. Your name is a person or as
Speaker E: an entity or, you know, whatever the case may be. And then you have to name the
Speaker F: defendant by their legal name.
Speaker E: In these cases, they don't do that. In these cases, the plaintiffs name the defendants by aliases. Right. Usually their storefront name. If you go on Amazon sellers, right, They've got a storefront name or an ebay seller name. And they put those aliases on, not
Speaker F: on the complaint like you normally do,
Speaker E: but on a separate document which is often, though not always, called Schedule A. And so the leading firm that kind of, you know, they didn't invent this, I think, but they perfected it. They use the Schedule A language. And so I think that's really caught on. But you'll see one's called Annex A or. And then in some other districts, they
Speaker F: don't even call it anything. They put the aliases on the complaint and file the whole thing under seal,
Speaker E: like in Pittsburgh or New York or some cases elsewhere. And so they. All the cases say something like Marc Jacobs versus the individuals, business entities, corporations,
Speaker F: blah, blah, blah, blah, blah. They put in a bunch of nouns and then listed on Schedule A.
Speaker E: And so all of these cases are named in sort of the same way. Right.
Speaker F: You've got Deckers versus Schedule A. Right. Toyota versus Schedule A.
Speaker E: And so I think that's why people here in the Northern District have started calling them Schedule A cases. Certainly you hear that among the judges, and they've started issuing opinions where they call them Schedule 8 cases.
Speaker F: And now, actually, as of this year, We've got some 7th Circuit case law calling them Schedule A cases.
Speaker E: So the 7th Circuit's also starting to pay attention.
Speaker D: Yeah. Speaking of the 7th Circuit, we're here to talk about recent decision that the 7th Circuit issued on a Schedule A case. And it's my understanding that it's kind of rare for a Schedule A to make it up on appeal. Why is that?
Speaker E: Yeah, compared to the thousands and thousands
Speaker F: and thousands of these cases that we
Speaker E: see getting filed, there are very, very, very few appeals. As to why that is true, I,
Speaker F: you know, I. I don't have a magic, you know, window into the minds of the plaintiff's bar. Right.
Speaker E: But one might suspect that they are
Speaker F: doing so well in the district court
Speaker E: that why rock the boat?
Speaker F: Right.
Speaker E: If I were a savvy, sophisticated plaintiff's
Speaker F: counsel, I frankly would probably want to never, ever appeal and settle every time one of the defendants appealed against me. Right.
Speaker E: Having the 7th Circuit weigh in is, frankly, risky. Right? For any litigant in these cases. You know, there was one Schedule A
Speaker F: seven Circuit case I was aware of before. That was the NBA Properties case, which
Speaker E: dealt with basically where you could bring your lawsuit. And that's the one that kind of
Speaker F: opened the doors to Chicago for everyone.
Speaker E: I don't know that they talked about
Speaker F: Schedule A, about it, or, like, thought it was anything.
Speaker E: I think they just kind of treated
Speaker F: it like a normal trademark case, even though it really wasn't.
Speaker E: But we haven't seen a lot. And so this year, it was really surprising.
Speaker F: We had three cases argued at the seventh Circuit within, like, over the space of two weeks. We had two argued together other.
Speaker E: And then we had the Kangal decision the next week, which we're here to talk about. So that was really, really unusual. And I think part of that calculus was the Kangal case were not lawyers that I usually see. We have a lot of repeat players in this space, so they might have just kind of been treating it more like a regular case. And then I'm not entirely sure why
Speaker F: the other two went up on appeal,
Speaker E: but again, you know, strategic choices. The appellants in those cases were not lawyers I was really familiar with, except for one. And so I think that perhaps the repeat players have different incentives and thoughts
Speaker F: and strategies than maybe newer players do.
Speaker E: So I think it's just a mix of factors, but I think it's great. You know, there are some judges on the seventh, um, Circuit who have experience
Speaker F: with Schedule A cases from their time as Northern District judges, including Judge Maldonado,
Speaker E: who was on that panel that heard two of them. And Judge Kirsch, as far as I
Speaker F: know, had no prior experience, but he's now written two decisions, and he was on all three cases. So I think he and his clerks are probably as expert as anyone in the federal judiciary. Judiciary at the appellate level right now.
Speaker D: Yeah, no, that is so interesting, because I didn't recognize those names either. And I was like, oh, okay, this is new.
Speaker E: Yeah, there was one who does things,
Speaker F: but everyone else, you know, like the appellant and Louis Polson, you know, and the.
Speaker E: The Kangal lawyers. I didn't know I was.
Speaker F: I did actually go to the 7th Circuit for all these. So it was fun to go that, uh, especially the doubleheader day. There were quite a few, uh, people there.
Speaker D: Yeah. Going to that day in court. What was at, uh, issue when the Kangal case went before the 7th Circuit?
Speaker E: Yes, there were a bunch of different issues.
Speaker F: And to be totally honest, the big one is not in my area of Expertise, because the big one was international
Speaker E: law and international service under the Hague Convention. So we have this international agreement. What happens when you want to sue
Speaker F: someone who's not in the United States? It's actually kind of a complicated question, right? Because we can't just send American service process people like we would to say Canada, right? Like there are sovereignty issues, there are power issues.
Speaker E: And so we have this international agreement.
Speaker F: And my understanding, again, and I'm going to clarify as not an international law
Speaker E: expert, is that the convention allows mail service, postal mail service, but it was
Speaker F: written in the time before there was email. And so the argument goes, well, mail is allowed and this is email, so it's fine. That was reduced, rejected by the 2nd
Speaker E: Circuit a few months ago, maybe half
Speaker F: a year ago, I guess now in
Speaker E: the Smart Study case, and then it
Speaker F: was rejected also last week by the
Speaker E: 7th Circuit in the Kangal case. So it's basically a decision very dense,
Speaker F: complicated statutory interpretation, right? I was literally telling my students, like, this is a great example of how to use your tools.
Speaker E: But I don't. Again, not being an expert in this area, I have. This does appear to me to be the.
Speaker F: The conclusion that all the experts who've
Speaker E: looked at this question who've come into this, right, there's some law professors who've been engaged as experts or have written amicus briefs who are actually international law experts, and they've all come to the same conclusion. The 7th Circuit said, which is China said no to email.
Speaker F: Email is not mail.
Speaker E: And the big question is, does this convention even apply?
Speaker F: Right.
Speaker E: So what the 7th Circuit said was pretty nuanced. It said, if the convention applies, then you can't serve these people in China by email.
Speaker F: But if it doesn't apply, right, it's
Speaker E: going to be back in the judge's discretion. And so why are we talking about China? So I think that's one important thing in these cases is for a variety of reasons, the plaintiffs always, or at
Speaker F: least almost always, seem to allege that
Speaker E: the defendants are foreign and sometimes specifically that they're Chinese, right? So it's these big bad Chinese counterfeiters.
Speaker F: Judge.
Speaker E: Now, never mind, they might not be
Speaker F: Chinese or counterfeiters, but that's kind of the party line, right?
Speaker E: And this is important for a number of just procedural reasons. This is again, one reason why they can sue in Chicago. But in these cases where we're questioning email service under the Hague Convention, it's really important because on the one hand,
Speaker F: if you say it's China and China said no email service there's potential issue, right?
Speaker E: So we've seen a number of defendants pick up on this and run with this. And we've seen appeals in the second circuit, the seventh circuit, there's also a pending one in the 11th circuit, which is a really important circuit for this
Speaker F: because there's a ton of these cases brought in Miami. And so we have the appellate courts
Speaker E: that cover New York, Chicago have weighed in on one side. And then we've got this case in Miami.
Speaker F: I assume this whoever the appellant was there, whoever the anti email service party was there, was like quick, hey, court, did you see what the 7th Circuit did? Right.
Speaker E: But that was actually an issue that the seventh Circuit was interested in too, was not creating a circuit split, which I wonder if that will bear, but that. So that was the biggest issue. And there was some other little issues in relation to a recent procedural decision
Speaker F: by the Supreme Court on when you can bring these kind of challenges.
Speaker E: And there were some other things around the edges, but that international law question
Speaker F: was the really big one.
Speaker E: And the reason it really matters in these cases is because this is what
Speaker F: they do all the time, right?
Speaker E: They say the defendants are foreign, they're in China, or they're probably in China and we need to serve them by email because it's too expensive and too hard to do traditional service. Because my understanding is again, not being
Speaker F: an expert, but that international service under the Hague Convention, doing it the right way is extremely time intensive and extremely expensive.
Speaker E: And so this business model, the Schedule A litigation model, is built on economies of scale. And so one way they save money is by email service. And so I'm really curious what the district court judges are going to do with this now.
Speaker D: Yeah, ah, absolutely. And um, for the listeners out there kind of speaking to your point on using all your tools in the toolbox, our article on this is going to have commentary from the appellate, uh, attorneys about how they sort of came up with.
Speaker E: Fantastic.
Speaker D: Yes, no. So, um, I'm very excited.
Speaker C: In a busy and distracting world, we've become mindful of what we focus our time and attention to as an attorney. CLE center allows you to apply your time to enhancing your legal knowledge while earning mandatory CLE credits.
Speaker G: CLE Center, a division of ALM Media, offers online on demand accredited CLE courses across the U.S. our content is curated from some of ALM's signature events such as Legal Week and Women Influence, Power and Law. In addition to skillful thought leaders from
Speaker C: our content partnerships, our CLE accredited content ranges from legal technology, cyber breaches, corporate law, for small to large legal teams as well as CLE specialty credits in ethics, diversity, mental health, and more.
Speaker G: So whether you're a talented law firm associate, a UH driven solo practitioner, or a resourceful in house counsel multitasking in different parts of your organization, you'll need CLE credits and the CLE center can fulfill your requirements with practical knowledge you can use.
Speaker C: Please visit our website at www.clecenter or give us a call at 1-800-348-0466.
Speaker G: Use code CLE20 to receive a 20% discount off your purchase at checkout. That's clecenter.com code CLE20.
Speaker H: Hi, this is Vanessa Blum, ALM's VP of Innovation and one of the original hosts of Law.com's Legal Speak podcast. I've enlisted my buddy Charles Garner, Executive Producer of Legal Speak, to share a few of the reasons why law firms are choosing Law.com Radar for reliable real time alerting on newly filed litigation.
Speaker G: Law.com Radar has daily federal and state court coverage in thousands of courts across all 50 states, including on the ground collection, and hundreds of hard to access jurisdictions plus complaint documents are included in subscriptions so your team can act faster on important information without worrying about hefty charges.
Speaker H: Law.com radar makes new suit alerting easy and customizable with selections for court party, industry claim type, and more. You can even configure an alert around keywords in the complaint text so when litigation emerges over top of mind issues like cryptocurrency or generative AI, you'll be first to know.
Speaker G: Plus state and federal jurisdictions using standardized case types developed by industry leading Sally Alliance. Searching with Sally tags makes it easier than ever to find relevant lawsuits.
Speaker H: Law.com radar is backed by ALM, the industry's most trusted source for legal news and data, and Radar is the only tool with cutting edge trend detection technology that exposes shifts and patterns in case filings so you can discover opportunities that are hidden in a sea of data. That's how law.com Radar is reinventing litigation
Speaker G: surveillance if you're listening to Legal Speak, we know you take your practice seriously, so stop relying on legacy tools for state and federal court alerting. Email your law.com account rep or contact radarinfolm.com to set up a complimentary trial of law.com radar.
Speaker H: Be first to know and first to act with law.com radar.
Speaker D: I think you kind of already alluded to this. Why did the 7th Circuit like is there a reason they wouldn't go as far as to say that the hate convention does apply in this case. Like, why would they put that, uh, in the ball court of, um, the district court?
Speaker E: So my understanding, from reading just the 7th Circuit decision itself, I haven't gone
Speaker F: back and read the underlying record, but
Speaker E: from the 7th Circuit decision, it looks like Judge Coleman, who's a good, smart judge, had just not decided that issue because she said it doesn't matter because
Speaker F: email service is allowed.
Speaker E: So, you know, judges do this all the time. If they don't have to decide an issue, they are entitled to just decide the dispositive one. And so my understanding is just Coleman just had it decided whether it applied. And so they said, okay, you need
Speaker F: to actually decide this.
Speaker D: This now heard. Um, and do you have any predictions for how the district court might fall on this now, or is this kind of just up in the air?
Speaker E: I mean, I have more questions than answers.
Speaker F: Right. As we always do as lawyers whenever there's a new decision.
Speaker E: So my big questions are this. Right. You know, the seventh Circuit, one, uh, part that I found really interesting when
Speaker F: they bought the decision was the part
Speaker E: where they said, well, you know, the district courts require reasonable diligence in figuring
Speaker F: out whether or not the address is known or not. And I'm not sure if that's true as a practical matter, just because these
Speaker E: cases have become so routinized that I'm not sure that the judges are always scrutinizing, okay, here's 500 defendants, because there can be hundreds of defendants. You know, did you actually go and check all that? I think, you know, maybe I'm, uh, incorrect.
Speaker F: Right. And the judges and their clerks are
Speaker E: looking at this closely.
Speaker F: I wasn't sure about that. Right.
Speaker E: Like, I suspect that the judges assume that the plaintiffs are operating in good faith and being reasonably diligent and giving them the benefit of doubt. But I'm not sure if they're scrutinizing it. So I wonder if they will start scrutinizing it more. The other question is, is the 7th Circuit seem to think the issue was about diligence? And I'm not entirely sure if that's
Speaker F: right or not, partially because this isn't my key area of expertise.
Speaker E: But also this general question of is the address known or not? Seems like it could potentially implicate other issues. So I think watching what the district courts do with this is going to be very interesting. And we've got some recent precedent with the Lou versus Monthly case that was decided previously.
Speaker F: Right. We had this trilogy. Right. We had Lou versus Monthly we had
Speaker E: the Louis Paulson case and then we had Kengel. And when the monthly case came out,
Speaker F: I have to be honest, I wasn't initially sure it would have a lot of an impact, partially because it was
Speaker E: a non presidential decision, but then they
Speaker F: took it back and reissued as presidential.
Speaker E: And since then, we have seen the district judges scrutinize the facts that were at issue with that case quite seriously and quite appropriately.
Speaker D: Right.
Speaker F: Like, they were clearly all aware of
Speaker E: this case and so they've started paying more attention to those facts.
Speaker F: And so I've even seen evidence that one judge in the Northern District has told. Has like literally put an order on the record. Like, I am aware of Kangal. You don't need to brief this. Like, you know, so. So there's at least one judge watching this.
Speaker E: And so I wonder, right? You know, this is a bench that is so full of good, smart judges, right? I practiced here. I know this bench. You know, I'm honored to have met
Speaker F: some of these judges in real life.
Speaker E: And I have such respect for just the quality and work ethic and seriousness of these judges. And so I think that whatever the questions may be, whatever the issues are, I suspect, and I hope we're going to see them fleshed out a lot more, even when the defendants don't show up.
Speaker F: Which is the most interesting thing about the monthly case is that they're scrutiny
Speaker E: the evidence even when the plaintiffs are operating one sided. So I'm really excited to see what the issues are. And apparently I have to learn more
Speaker F: about international law or make friends with people who are international experts.
Speaker D: I think the most interesting thing about Schedule A is how it implicates like, all of these other areas of the law that you wouldn't think are connected. Like your judge shopping paper. Mind blowing.
Speaker F: Thank you.
Speaker D: I never thought I'd be covering like a civil rights case in Alabama and tying it to like, E commerce law.
Speaker E: Yeah, I mean, that's been really interesting too, which I think is the way that the allowance of this form of judge shopping in the Northern District and
Speaker F: now we know from Judge Kennelly that it is known to the Rules Committee and they have chosen not to act,
Speaker E: you know, for various practical reasons or they've got various concerns. But the fact that they allow this kind of judge shopping has had really interesting effects.
Speaker B: Right.
Speaker E: Like when we consider the Iker Motors decision from last summer, a lot of
Speaker F: people like, oh, it's over, it's gone.
Speaker E: Right.
Speaker F: But that's not what happens. It's just that the, the smart Schedule a plaintiff, shop away from that judge, right?
Speaker E: And so we've seen this concentration of these cases in the hands of just a few judges, which kind of frankly
Speaker F: makes the reaction to monthly even more
Speaker E: interesting to me that you've got judges
Speaker F: who in some cases were selected. Right. By the plaintiffs, or at least not selected against, and because they kind of
Speaker E: shop away from the judges. And for listeners who don't know what's going on is these plaintiffs file these cases, say there's 100 defendants, right? I file a case with 100 defendants. I get a judge who's been critical of the Schedule A model, and so I amnd down to 1, and then
Speaker F: I refile a new case against the 99 and try to draw a different judge.
Speaker E: And so we see this going on, and then they sometimes do that repeatedly until they get a judge in this certain subset. So that's been really interesting, too.
Speaker D: Thank you so much for breaking that down. And yeah, I guess my big question with the Kangle decision specifically is obviously this question's a little reductive, but with the increase in, like, potential diligence and filing costs and, like, just the cost to, like, file a case with all the extra research you have to put into it, like, could this move the needle on pushing Schedule A cases out of the Northern District of Illinois or, like, what's the lay of the land there?
Speaker E: That's a great question. And I think part of the answer, again, is going to be how successful the plaintiffs are in judge shopping, you know, because if they could find judges who won't be as demanding on the issue of diligence, right. The way that they have not been that demanding on the issue of mass joinder or other issues. So if they can find some judges
Speaker F: and if they are allowed to continue
Speaker E: to shop to them, I'm not sure we'll see a very big impact if that changes.
Speaker F: Right.
Speaker E: If you have to go to any judge. So. So part of it, I think, is going to depend on the reaction of this kind of small cadre of chosen judges and how they take it and what kind of proof they require. So, again, something interesting we saw after monthly a little bit, but one thing there was, was the seventh Circuit in that NBA cases. I don't think I called it by
Speaker F: name before, but I alluded to it before. Like this one case we had that was a Schedule A case that didn't say schedule A.
Speaker E: The 7th Circuit basically said, if you
Speaker F: do a test buy in Illinois, you can sue in Chicago, right? Like, have the product shipped to Chicago. You're good.
Speaker E: So that's a pretty low standard. But plaintiffs still weren't all doing that. They would do what I call jurisdiction
Speaker F: by shopping cart, where they would put the product into their little Amazon cart and show that it would and could ship to Chicago, but they didn't actually click buy. And so they would do this for every. And the 7th Circuit said, yeah, no, that's not enough.
Speaker E: And on remand, the district judges have been really scrutinizing that. Right. And we've seen complaints about, to go back to your question about cost. And they said, oh, it's too expensive
Speaker F: to make us test by all these things.
Speaker E: And so far, I haven't seen judges buying that. And that's, that's one thing I hope to look into a little more this summer. But I wonder if we will see
Speaker F: something similar with Kangal, right. Where they're like, uh, oh, well, you know, it's so hard to look up everybody. It's take, you know, time and effort.
Speaker E: But litigation takes time and effort, which
Speaker F: I think is a really big point here. Right? Federal litigation is expensive.
Speaker E: No one doubts that, but that's how it is.
Speaker F: Right.
Speaker E: You know, plaintiffs bar has done kind of a masterful job of, uh, convincing
Speaker F: judges that these cases are special. Right. That they deserve to be able to
Speaker E: do things cheaper and easier and quicker than in other cases because they're so, so, so bad.
Speaker F: Right. All the.
Speaker E: I think that's why the counterfeit rhetoric that I've written about before is important.
Speaker F: Right.
Speaker E: Because counterfeiting is bad and scary and awful. Right.
Speaker F: Just patent infringement, that's just not so bad. Right. But when you put, like, the scary counterfeit mantle over it, that's maybe a little bit more compelling.
Speaker E: But, you know, these are infringement cases.
Speaker F: Right.
Speaker E: Does anyone doubt that there's infringement online?
Speaker F: No. Does anyone doubt that there's a lot of infringement online? No. Does anyone doubt that it's expensive and difficult to deal with it also? No. But that doesn't mean you get to rewrite the rules of civil procedure.
Speaker E: So I sort of suspect that based on the experience we've seen recently, that the, uh, oh, it's so expensive isn't going to convince the judges. And then it's going to be a question of can the plaintiffs successfully avoid judges who are pushing them to more expensive forms of this litigation model or not.
Speaker F: And then, of course, there's the 11th circuit, right. If the 11th circuit says, hey, this is fine, maybe we'll see an influx into Miami. Right?
Speaker E: So that's sort of the wild Card, I think.
Speaker D: And speaking of things you're looking into this summer, like what sort of research are you working on right now in this area? Like, what trends do you think listeners should be keeping an eye out on if they're interested in that?
Speaker E: Yeah.
Speaker F: So it's the start of June, right? It's like officially summer writing time for academics. We've ended the liminal period of May and grading and now we're into projects. So I, I'm still kind of figuring out where I'm going to dive in the most deeply.
Speaker E: But things I'm looking at still with the judge shopping, right. We have seen since I wrote my draft for my article that'll be published next year, we have seen some changes, some evolution, frankly.
Speaker F: Some parties got sanctioned for judge shopping
Speaker E: and now they've changed their model a little bit. So I need to update that one. Interesting. That's come up in the area of judge shopping and also with some other
Speaker F: non schedule A areas.
Speaker E: Is, is this sort of mythology, like
Speaker F: mythological duty to police that lawyers are
Speaker E: using as an excuse?
Speaker F: Right.
Speaker E: So the, you know, when, when questions about judge shopping, the plaintiffs will say one, we're not breaking any rules.
Speaker F: Okay, fine. That's not the same thing, right? Like you can judge shop without breaking the rules. You know, those are overlapping categories, not purely, you know, the same thing.
Speaker E: So say, well, we're not breaking any rules and we have a duty to police. So there's a couple problems with that. Like one, to the extent there is
Speaker F: any duty to police, it only applies to trademarks, not copyrights, not patents.
Speaker E: So as soon as anyone starts talking
Speaker F: about the duty to police intellectual property, like, your eyebrows should raise and you should be asking some questions, right?
Speaker E: But the duty to police that actually exist in the Lanham act is like this.
Speaker F: It's like for franchises, right? If I have a Dairy Queen franchise and someone is running a Dairy Queen
Speaker E: where they make cold hamburgers and warm ice cream, right? Then I have a duty as the brand owner to get them up to shape. Because otherwise consumers walking into a Dairy
Speaker F: Queen should know that they're going to get good, safe, healthy food. And no shade on Dairy Queen. That's actually based on a real case where they did have to enforce against a franchisee, just for the record.
Speaker E: But that idea, or if I stop manufacturing in house and I contract that out, I need to make sure that the person who's manufacturing my product makes it up to my same high standard.
Speaker F: That's very different than I have to sue everyone online.
Speaker E: As far as I can tell. You know, this idea that you have a duty to sue anyone at all
Speaker F: is not true, except to the extent that it comes into issues like latches.
Speaker B: Right?
Speaker E: Like, if I wait too long to sue you, I might have a problem
Speaker F: suing you in the future, but it's
Speaker E: not going to stop me from suing other people who infringe. And so this idea has kind of
Speaker F: morphed, it seems, over time.
Speaker E: So this is something that I've been kind of like, had like a little side quest on this idea. But, you know, this idea that you have to go and sue everyone who
Speaker F: infringes your, you know, IP online and let alone keep suing, even if you get a judge who is not going to let you do the most profitable form of your litigation.
Speaker E: I mean, there is no basis for
Speaker F: that that I can find anywhere. And it's certainly not the old franchise case that these plaintiffs keep citing.
Speaker E: And so that's really interesting because, again, something that I saw recently.
Speaker F: I don't know if you saw the Patagonia dust up.
Speaker D: Yes, yes, yes.
Speaker F: Okay. So if anyone. So Patagonia, the store, right, sued a drag queen they named Patagonia.
Speaker E: And part of their sort of PR for this was, well, we had to sue.
Speaker F: You know, we have a duty to police our mark.
Speaker E: And it was shocking to me, even the commentary online among smart people, smart lawyers, and like, oh, yeah, they gotta sue or they'll lose their mark. Like, this myth has just spread so broadly. And so part of what I'm interested in is just sort of what the
Speaker F: core is, because there is something, right? Like, go back to my Dairy Queen case. Like, Dairy Queen did have to sue the bad franchisee. Like they, they did if they wanted
Speaker E: to protect their mark.
Speaker F: But that's not the same as you gotta, like, I, I think that, you
Speaker E: know, this idea that you have to literally sue everyone now, maybe you need
Speaker F: to do online takedowns, right? I need to use Amazon's takedown system
Speaker E: or I need to send cease and desist letters. Like, you could do something. But this idea that you have to
Speaker F: bring schedule A cases, and the idea that you have to judge, shop, and schedule A cases is just not supported by any type of logic or case law or anything I've read. So that seems to keep popping up.
Speaker E: And so maybe I might have to
Speaker F: go follow that side quest for a while.
Speaker D: All right, all right. Well, I'm excited to see what you dig up. And yeah, for listeners out there, Sarah does such a good job of highlighting, like, all things schedule A in terms of like precedential decisions, non precedential decisions, trends, all of the things for folks out there. Like where is the best place for them to find your work?
Speaker E: So for my academic work you can go if you just search my name online.
Speaker F: Chicago Kent, Sarah Fakrell, Chicago Kent. You can find my bio and that
Speaker E: will link to my scholarly work which is all available for free online.
Speaker F: I'm also on BlueSky, uh, DesignLaw. I post occasionally on LinkedIn, but not super frequently.
Speaker E: But you know, that's Blue sky is probably where I do most of my posting these days since I left Twitter.
Speaker D: Well, thank you so much, Sarah. I really appreciate your time today and I'm excited for our listeners to hear this.
Speaker F: Thanks for having me. Always fun to chat with.
Speaker B: That's our program for today. Thanks for listening. Please send your comments, questions and ideas for future episodes to legalspeakalm.com legal speak
Speaker A: is produced by Charles Garner. We'll be back next week with another episode. Until then, you can keep up with the latest legal news online@law.com Happy Holidays.
Capital Calls: Inside the Debate Over Outside Investment in Law FirmsFrom Billboard Lawyer to Billion-Dollar Brand: John Morgan ReflectsFamily Court's Alternative Route: The Growing Appeal of Private JudgingHinshaw & Culberson Insurance Partner Scott Seaman on his New Book, AI and ESG Under Trump 2.0Swipe, Scroll, Sue: Inside the Landmark Social Media Addiction Verdict