Brakes Slammed on Schedule A Litigation: A Turning Point for Defendants in the Northern District of Illinois?
Judge John Kness stayed all pending Schedule A cases on his docket, signaling a potential change in how the Northern District of Illinois handles these controversial trademark, copyright, and patent enforcement suits. For defendants facing these cases, this represents the most significant judicial pushback against Schedule A litigation to date. Until now, there were some admonishments here or there. But nothing like this.
Our firm recently had a case up for a final pre-trial hearing. And, on the eve of trial, Judge Kness explained expressed skepticism against the plaintiff’s case, for our client who was willing to take the matter all the way to trial, especially since our abuse of process counterclaim remained pending. Whether the timing was coincidental or one more straw before the camel’s back broke is unclear. It is clear, though, that things might change.
The Northern District of Illinois has long been ground zero for Schedule A litigation, suits targeting hundreds of online sellers at once under the moniker "The Partnerships and Unincorporated Associations Identified on Schedule A." With it the home of over 80% of the 4,000+ Schedule A suits, some have sarcastically called the District "The Northern District of Illinois vs. The Internet."
The Kness Stay Order: Five Questions
Judge Kness's minute entry, identical across all 14 stayed cases, reads like a judicial wake-up call. The order holds all pending motions in abeyance while the court considers whether:
Ex parte proceedings are appropriate in these types of cases
Routine sealing of parts or all of the docket is appropriate
Routine granting of TROs on an ex parte basis is sound judicial discretion
Routine granting of prejudgment asset restraints is sound judicial discretion
Mass joinder of defendants is appropriate under typical Schedule A circumstances
Each question strikes at the heart of what makes Schedule A litigation so controversial—and so effective for plaintiffs.
Why This Matters: The Schedule A Playbook Under Fire
Schedule A cases follow a predictable pattern that Judge Kness now appears to question:
Step 1: File a complaint under seal against hundreds of defendants listed only on a separate "Schedule A" document Step 2: Immediately seek ex parte emergency relief—temporary restraining orders and asset freezes—before defendants even know they're being sued Step 3: Use the TRO to freeze Amazon accounts, PayPal funds, and other assets while forcing online marketplaces to take down product listings Step 4: Collect quick settlements from panicked defendants or obtain massive default judgments
The strategy has been wildly successful for plaintiffs precisely because courts in the Northern District routinely granted these requests without meaningful scrutiny. Some judges even provided templates for TROs and default judgments in Schedule A cases.
Some express surprise about the role the Northern District of Illinois plays. To that, I say you have not been paying attention. The Northern District of Illinois has long been the home of other serial plaintiff and mass joinder suits. Our attorneys defended claims by the disgraced Prenda law and Malibu Media, where the Northern District was ground zero as well. Its notoriety is even academically noted. See, Sag, M., Copyright Trolling: An Empirical Study, 100 Iowa L. Rev. 1105 (2015) available at https://www.law.berkeley.edu/files/Matthew_Sag_Copyright_Trolls_March212014.pdf.
Part of a Broader, But Gentler, Judicial Pushback
Judge Kness isn't operating in a vacuum. Other judges in the Northern District have grown increasingly skeptical of Schedule A litigation:
In November 2024, three federal judges issued decisions siding with Schedule A defendants on improper joinder grounds, including in a case against Toyota Motor Sales
Judge Steven Seeger delivered a scathing opinion in December 2023, denying Zorro Productions' motion for a TRO against 310 Schedule A defendants, writing that plaintiffs "want to sneak up on the defendants and strike a blow to their counterfeiting operations...under the cover of darkness"
Multiple courts have questioned whether defendants selling similar products independently can be properly joined under Federal Rule of Civil Procedure 20
Academic criticism has been equally pointed. Professor Eric Goldman of Santa Clara University School of Law has described Schedule A litigation as "A SAD Scheme of Abusive Intellectual Property Litigation," noting that defendants "typically have no relationship with each other" beyond selling similar products online.
The Road Ahead
Judge Kness's reassessment could lead to several outcomes:
Scenario 1: Wholesale rejection of current Schedule A practices, requiring plaintiffs to sue defendants individually or in much smaller, properly joined groups. This could be economically devastating with $400+ filing fees for each defendant, the plaintiffs will now spend tens of thousands of dollars more just to get cases filed.
Scenario 2: Modest reforms requiring better justification for ex parte relief and mass joinder while maintaining the basic Schedule A framework. Unfortunately, we believe this is the most likely scenario. But, it will likely cause some of the less thorough firms handling these cases to drop out.
Scenario 3: A return to the status quo with minor procedural adjustments
The Bigger Picture: IP Enforcement in the Digital Age
Schedule A litigation reflects broader tensions in digital-age IP enforcement. No doubt, rightsholders face genuine challenges from high-volume online infringement, often by foreign sellers using sophisticated evasion tactics. But the solution shouldn't come at the expense of due process and proper joinder rules.
Judge Kness's reassessment represents an opportunity to find a better balance—one that allows effective IP enforcement while respecting defendants' rights. Whether other judges follow his lead remains to be seen.
What Happens Next?
Judge Kness hasn't indicated when his reassessment will conclude or whether he'll seek briefing from the parties. The stayed cases provide a natural laboratory for testing new approaches.
Meanwhile, Schedule A litigation continues in other courtrooms. But the landscape is shifting. Defendants have new ammunition for challenging these suits, and judges have a model for taking a more skeptical approach.
For defendants facing Schedule A litigation—whether in the Northern District of Illinois, Southern District of New York, or elsewhere—the message is clear: these cases can be defended successfully with the right strategy and experienced counsel. Our attorneys are licensed in both states and courts.
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Jonathan Phillips is an attorney at Phillips & Bathke, P.C., specializing in intellectual property defense. His firm has successfully defended numerous Schedule A cases in federal courts across the country. For more information about defending Schedule A litigation, contact the firm at 309-834-2296 or jlap@pb-iplaw.com.