Judicial Discretion: Chicago-Kent Professor Cited by Federal Judge

“It’s really an honor to know that your work has been valuable to a judge in evaluating a timely issue of really great importance,” says Chicago-Kent College of Law Professor Sarah Fackrell. “It’s always nice to know that we’re not just sitting alone in our ivory tower, that we’re actually doing work that matters and that helps judges think through these things.”

Fackrell, who also acts as co-director of Chicago-Kent’s Intellectual Property Law program, was recently cited in a decision issued by Judge John F. Kness in the United States District Court for the Northern District of Illinois. Her paper, “The Counterfeit Sham,” proved useful to the judge in his analysis of “Schedule A” IP cases, which Fackrell has been studying for years.

“Schedule A” cases involve a plaintiff in one lawsuit alleging that dozens or even hundreds of defendants, attached to the complaint in a “Schedule A” document, committed IP infringement. As Fackrell has discovered in her research—and what Kness acknowledges in his decision—most “Schedule A” cases are accompanied by a request to freeze the assets of all defendants, which is typically granted.

“By the time any defendant appears in the case, it is most often after the defendant’s account has been frozen and its funds restricted,” Kness writes in his decision in the Eicher Motors v. Schedule A Defendants case.

“This is about judicial discretion,” says Fackrell. “Judges aren’t required to entertain or allow ‘Schedule A’ cases. The cases only happen if the judges let plaintiffs pursue them.”

Kness saw such a miscarriage of justice in the way that “Schedule A” cases are handled by the court that he took a step that Fackrell has never seen before: the judge imposed a stay of all “Schedule A” cases on his docket and reviewed his past decisions.

“That review has not been flattering: as explained below, the routine granting of preliminary injunctive relief in the absence of adversarial proceedings; the widespread sealing of judicial documents from public scrutiny; the pell-mell prejudgment freezing of defendants’ assets to ensure the practical availability of a legal remedy; and the mass joinder of multiple defendants is unjustified under the procedural rules and should not continue,” Kness writes.

Fackrell says, “I think it’s really impressive to have the intelligence and intellectual humility to say, ‘I’m not sure I’ve been doing this right.’”

In the wake of Kness’s decision, Fackrell is interested to see how things will change in the world of “Schedule A” litigation.

“I suspect this decision will make waves. It remains to be seen how big those waves will be. Is this going to be tiny ripples in a pond or is this going to be a tsunami?” Fackrell asks. “I just don’t think we know yet.”

But Fackrell is already seeing a vibe shift in the way judges in Chicago are handling “Schedule A” cases.

“Because these cases run on judicial discretion, it’s going to be very interesting to see how other judges react to and whether they follow judge Kness’s decision. I already saw one judge not citing this case but denying a temporary restraining order that would have been granted a year ago. These cases almost felt like a rubber stamp for a long time.”

Fackrell is continuing to study the phenomenon, and she doesn’t think it’s going anywhere anytime soon.

“I think the rumors of ‘Schedule A’s’ demise are greatly exaggerated,” she says. “This may change some plaintiff behavior in the short term. It might affect where they file. Maybe they’ll file more cases in Pittsburgh instead of in Chicago.”

“Schedule A” cases started being filed in the 2010s, and for more than a decade, they were filed in secret and received little scrutiny. 

Last year, the Chicago-Kent Law Review held an online symposium, titled “Unsealing Schedule A.” The symposium issue will be published online later this year.

“When I started writing about this, no one cared,” says Fackrell. “I think it’s gone from being this quiet cottage industry to all of a sudden having this bright spotlight on it, and certainly Judge Kness has aimed an even larger spotlight.”