Imagine being one of the hundreds of small businesses and merchants selling closet hooks, along with many other products, online. One day, you discover that your marketplace merchant account with tens of thousands of dollars in assets in it is frozen and you have no idea what happened. Amazon told you that you were sued, yet you can’t find any details about the claims against you because the plaintiff’s filings were made under seal, their contents kept secret from the public and the defendants—allegedly to thwart nefarious counterfeiters (of which you are not one, despite being sensationally described that way in the complaint) from dissipating their assets before they can face justice. 

Once you finally do get service of process and the complaint has been unsealed, you scramble to find an attorney, who figures out that the claims that you infringed the plaintiff’s design patents are not legally justified. But by then your account and money have been wrongly frozen for nearly two months and you are unable to operate your business.

A core premise of our adversarial legal system is that vigorously contested proceedings between the parties can best uncover the truth of a dispute. Yet over the last decade or so, trademark, copyright, and patent rightsholders have increasingly relied on an abusive and legally flawed kind of lawsuit to avoid those contested proceedings. The so-called “Schedule A” lawsuit allows plaintiffs to join together dozens or even hundreds of defendants in one (usually cookie-cutter) complaint often consisting of generic, vague, and non-particularized allegations of infringement and harm. 

Students August Gebhard-Koenigstein (’26) and Isabella Yang (’26) in the SLS Juelsgaard Intellectual Property & Innovation Clinic (JIPIC), working with Clinic Director Phil Malone and Supervising Attorney Nina Srejovic, recently drafted an amicus brief urging the Federal Circuit Court of Appeals to address the abuses of the Schedule A litigation model in patent cases and to provide guidance to district courts handling such cases. The brief was submitted in the case Jacki Easlick, LLC v. CJ Emerald on behalf of four intellectual property law professors who have studied and written about the abuses of Schedule A lawsuits. You can find some of their excellent explanations of the problems with Schedule A cases in the Columbia Law Review Forum and Harvard Law Review, and on the PATENTLY-O and Technology & Marketing Law blogs.

The Easlick case is just one of thousands of Schedule A cases brought in recent years against hundreds of thousands of online merchants. In Easlick, defendant AccEncyc, a seller of closet hooks and other products, faced an abusive Schedule A lawsuit, along with 66 other defendants, brought by the owner of a design patent for a “tote hanger.” The structure of the case, typical of the Schedule A model, stacked the cards against AccEncyc from the start.

However, AccEncyc, unlike most other Schedule A defendants, fought back. And it won. But that victory came only after AccEncyc obtained legal representation against the odds. Worse yet, much damage had already been done: as a result of a temporary restraining order (“TRO”) granted against it, AccEncyc’s online marketplace account and $40,000 in it was frozen for almost 2 months, despite AccEncyc making only $500 from the hooks that the plaintiff (incorrectly) claimed infringed its patents. And now the plaintiff is appealing AccEncyc’s victory to the Federal Circuit.

Schedule A abuses are especially dangerous because they don’t just harm defendants like AccEncyc. They also harm consumers by restraining legitimate competition in online marketplaces, which usually freeze both allegedly infringing and non-infringing products (including unchallenged products that aren’t even identified as infringing in the complaint) upon receipt of the TRO. As in Easlick, these lawsuits sometimes remove from the market challenged products that don’t infringe others’ patents or trademarks at all. And improperly joining dozens or hundreds of often-unrelated defendants together in a single lawsuit, like the plaintiffs did in Easlick, has deprived the federal government of hundreds of millions of dollars in court filing fees for suits that should have been brought separately. 

But despite the frequency of mistakes in these cases—for example, the erroneously granted TRO in Easlick—they are almost never challenged or appealed. This is because the Schedule A litigation model, and especially the asset freeze, puts defendants at such an extreme disadvantage that most defendants will be forced to settle quickly or will default—irrespective of whether or not the claims against them are legally or procedurally sound. This makes the Schedule A model a potentially lucrative one, allowing plaintiffs to extract procedurally flawed and legally deficient settlements and obtain default judgments that may far exceed any damages they actually suffered. 

The appeal in Easlick represents a rare opportunity for the Federal Circuit to address the Schedule A model’s abuses. The JIPIC amicus brief highlights the need for the Federal Circuit to take advantage of this opportunity and provide guidance to district courts.

You can read the amicus brief here.