Author: William (Skip) Fisher
“[T]he Schedule A mechanism works only by stretching applicable procedural rules past their breaking point [and] should no longer be perpetuated in its present form.”1
This article supplements, and should be read in conjunction with, my previous article “Schedule A Litigation Targeting Foreign Sellers is Changing Online IP Enforcement but Not Without Controversy.” As noted in that article, Schedule A litigation raises serious issues of lack of due process and abuse of the judicial system, and I urged the following:
Judges need to be willing to test the plaintiffs’ allegations at the ex parte TRO stage before issuing a TRO and should comply with the requirements of Fed. R. Civ. P. 65(b). Judges need to sua sponte address the issue of misjoinder. And Chinese defendants need to stand up for themselves and fight when the circumstances call for it.
Consistent with that article’s sober assessment of Schedule A practice and my call for action by judges and defendants, courts are more strictly scrutinizing plaintiffs’ Schedule A filings while defendants are more frequently challenging the practice. This article sheds light on these developments.
Courts are Scrutinizing Joinder and Rejecting Conclusory Allegations
Schedule A cases typically involve tens or hundreds of defendants. They also frequently fail to comply with the procedural rule that multiple defendants may be joined in a lawsuit only if the claims asserted against them arise out of “the same transaction, occurrence, or series of transactions or occurrences.”4 In other words, in many Schedule A cases, unrelated defendants are improperly joined in the case.
While the Northern District of Illinois continues to be a hotbed of Schedule A litigation, the judges of that district, recognizing the serious misjoinder issue and building on prior decisions such as Estée Lauder,5 are increasingly requiring plaintiffs show defendant-specific “overlapping facts” and a “logical relationship” between the claims against defendants in order to satisfy Fed. R. Civ. P. 20(a)(2)’s requirement that defendants be joined in an action only if the claims against them arise out of the same transaction or occurrence. In Viking Arm, the court sua sponte questioned joinder of 181 defendants and found the plaintiff’s conclusory allegations that the defendants were “an interrelated group of counterfeiters working in active concert” insufficient to support joinder. 6 Similarly, in Zaful, the court sua sponte raised the joinder issue, found the defendants were improperly joined because the plaintiff failed to show a “logical relationship” between the defendants, and denied the plaintiff’s motion for a temporary restraining order (TRO).7 The court cautioned future would-be Schedule A plaintiffs: “[L]anguage alleging in a conclusory manner that ‘upon information and belief’ each defendant is interconnected with the others is an inadequate explanation for joinder. [If] future plaintiffs want to avoid delays of supplemental briefing and proceed immediately to a TRO, they are encouraged to include a more thorough joinder explanation in the complaint. Until that happens, this Court will continue to sua sponte raise joinder as an issue.”
A related development is worth flagging. Some judges have issued standing orders codifying heightened joinder scrutiny in Schedule A cases. For example, in the Northern District of Illinois, Judge Gottschall issued a standing order for Schedule A cases in July 2025, which directs counsel to be prepared to show cause why joinder is proper under Rule 20(a)(2).8 In the District of New Jersey, Chief Judge Bumb issued a standing order for Schedule A cases in September 2025 requiring “each complaint [to] consist of a single defendant or a group of defendants acting under the same operator” in order to satisfy Rule 20(a)(2). 9
These rulings and orders reflect a broader, and arguably welcome, trend – Schedule A plaintiffs are no longer receiving the benefit of the doubt on joinder, and their requests for a TRO are vulnerable on the joinder issue alone.
Plaintiffs are Facing a Higher Bar to Obtain Ex Parte TROs and Asset Freezes
Schedule A cases rely on courts’ willingness to issue sealed ex parte TROs and broad prejudgment asset freezes, which, combined, exert enormous pressure on online seller defendants to settle. Such orders are issued routinely, often without examination of plaintiff’s defendant-specific allegations or compliance with the rules governing such orders. However, defendants are increasingly challenging the propriety of ex parte TROs and indiscriminate asset freezes, and recent developments reflect the judicial trend of holding Schedule A plaintiffs to the standard required by applicable rules for obtaining ex parte TROs and asset freezes.
Two recent examples illustrate this trend. First, in a lengthy order denying the plaintiff’s motion for a TRO, Judge Kness, a district court judge in the Northern District of Illinois, examined the history and propriety of Schedule A litigation and found as follows:
- “[T]he 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.”
- Schedule A cases’ reliance on complaints with general allegations alleging defendants’ “en masse” infringement is incompatible with Fed. R. Civ. P. 65(b)’s requirement that ex parte TROs be issued only if “specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damages will result [absent issuance of the TRO].”
- Because Schedule A plaintiffs typically receive a legal remedy in the form of statutory damages, rather than an equitable remedy, it would be inequitable to grant an asset freeze that “strangles” defendants and forces them to settle involuntarily, and thus the court will “exercise its discretion to deny requests for a prejudgment, ex parte asset freeze in this and other Schedule A cases.”10
Second, Judge Bumb, chief judge in the District of New Jersey, felt compelled to issue a standing order this September establishing procedural guidelines for all Schedule A cases due to the increased filing of these cases in the district and the court’s concern regarding compliance with its procedural rules. In the standing order, Judge Bumb warned potential Schedule A plaintiffs that the court would not grant ex parte TROs (1) based on general, conclusory allegations; (2) without a sound basis for personal jurisdiction over each defendant; or (3) involving an asset freeze absent evidence “the defendant has transferred or is transferring assets to avoid judgment in the specific case.”11
Collectively, these orders and other judicial actions demonstrate that judges are starting to scrutinize Schedule A cases and, going forward, plaintiffs should expect to be held to a higher bar and stricter compliance with Rule 65(b) than before when requesting an ex parte TRO and asset freeze.
Plaintiffs Must Justify Alternative Service of Process by Email
Schedule A plaintiffs typically ask the court to allow them to serve defendants by email based on blanket claims that such alternative service is necessary because they cannot locate a mailing address for the defendants or default service under the Hague Convention is too time consuming and costly. Courts generally have been accommodating in allowing alternative service by email, especially in cases involving Chinese and other foreign online seller defendants, without seriously examining plaintiffs’ claims, and arguably in violation of Fed. R. Civ. P. 4(f)(3) and the Hague Convention. However, a shift appears to be underway. Courts are increasingly requiring plaintiffs to make a particularized showing for each defendant before allowing alternative service by email. Judge Gottschall’s standing order, echoing the earlier Luxottica decision,12 requires plaintiffs to exercise reasonable diligence to identify mailing addresses, such as by obtaining discovery from the defendant’s service providers, and show that any mailing address is likely invalid before the court will consider authorizing email service.13 The order warns plaintiffs that requests for alternative service at the TRO stage will be denied unless the plaintiff shows reasonable diligence. Judge Bumb’s standing order, applicable to all Schedule A cases filed in the District of New Jersey, is even more specific as to what is required of plaintiffs requesting alternative service:
The Court will not, as a matter of course, allow a plaintiff to dispense with ordinary service requirements, including foreign service requirements under the Hague Convention. There needs to be a particularized showing—which will likely be case specific and defendant specific—before alternate service is authorized. Any motions for alternate service should explain what efforts have been made to discover each defendant’s domicile and to effectuate service by usual means (including what efforts were undertaken to determine the address of each defendant and the validity of the address) and whether the form of alternate service requested is permitted by the Hague Convention given each defendant’s domicile (and the factual basis for this).14
Schedule A plaintiffs should take note that blanket authorization of alternative service by email on large groups of disparate defendants may be shifting from being the norm to the exception. Schedule A defendants should take note that, even if service by email was authorized by the court, they may challenge the method of service if the plaintiff failed to exercise reasonable diligence.
Defendants may be Compensated for Plaintiff’s Overreach
Fed. R. Civ. P. 65(c) provides that “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” In Schedule A cases, courts have typically required only nominal bonds as security for wrongfully issued TROs. Such nominal bonds, in the range of $1,000-$5,000, are often insufficient to compensate possibly hundreds of defendants for the harm caused by a wrongfully issued TRO, especially since monetary assets totaling hundreds of thousands or millions of dollars may be frozen during the litigation. Recognizing this imbalance, some courts have begun to put teeth into Rule 65(c)’s security requirement by requiring plaintiffs to post a bond of at least $1,000 per defendant or justify its proposed bond amount with an explanation of why the amount is proper based on the costs and damages that may be sustained by a wrongfully enjoined defendant.
Courts also appear to be more receptive to defendants’ motions seeking compensation for being wrongfully joined in a case or wrongfully enjoined by a TRO. In Roblox Corp. v. BigFinz, the court not only granted BigFinz’s motion to dismiss for lack of personal jurisdiction but also granted its request for attorneys’ fees as a sanction against Roblox for pursuing the litigation in bad faith.15 More recently, in Opulent Treasures, the court awarded nearly $100,000 in attorneys’ fees and costs to a defendant whose affiliates were improperly named in the suit and restrained under the TRO, even though the plaintiff dismissed the affiliates from the case upon learning of their affiliation with the defendant.16
Thus, Schedule A plaintiffs should proceed at their own risk. Recent developments caution plaintiffs that in the future they may be required to post security bonds significantly higher than anticipated and compensate defendants if the TRO or their litigation conduct is found wrongful.
Conclusion
The judicial mood has shifted from accommodation to accountability. Courts are requiring plaintiffs to comply with applicable procedural rules and due process and are imposing consequences for non-compliance, while defendants are standing up for themselves and pushing back on overreaching TROs and asset freezes. It seems both courts and defendants are heeding my call for action. As for the future of Schedule A cases, the jury is still out, but it is unlikely Schedule A litigation will continue in its current form much longer given the obvious trend in the opposite direction.
Skip Fisher is a partner with PLG and a member of the firm’s Intellectual Property, Litigation, IP Transactions, and International practices. His practice focuses on strategic counselling, high-stakes litigation, and complex licensing in all areas of intellectual property, and he has a niche practice in Chinese intellectual property law, practice, and procedure. Skip has been recognized for his IP expertise by leading legal directories, including Chambers, The Legal 500, Acritas Stars, MIP IP Stars, and IAM Patent 1000. Any opinions stated in this paper are the author’s alone and do not necessarily reflect the opinions of his firm or the clients of his firm.
1 Eicher Motors Limited v. Schedule A Defs., Case No. 25-cv-02937, Dkt. No. 22 (N.D. Ill. Aug. 8, 2025).
4 Fed. R. Civ. P. 20(a)(2).
5 Estée Lauder Cosmetics Ltd. v. Schedule A Defs., 334 F.R.D. 182 (N.D. Ill. 2020); see also Bailie v. Schedule A Defs., Case No. 24-cv-02150, 2024 WL 2209698 (N.D. Ill. May 15, 2024).
6 Viking Arm AS v. Schedule A Defs., Case No. 24-cv-01566, Dkt. No. 18 (N.D. Ill. June 6, 2024).
7 Zaful (Hong Kong) Limited v. Schedule A Defs., Case No. 24-cv-11111, Dkt. No. 12 (N.D. Ill. Jan. 10, 2025).
8 https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_judges/Gottschall/Standing%20Schedule%20A%20Order%20July,%202025.pdf; see also Judge Coleman’s standing order for Schedule A cases wherein she orders: “Plaintiffs in Schedule A cases should be prepared to show why joinder of numerous and/or unconnected defendants, particularly those selling multiple different types of infringing products on multiple e-commerce websites, comports with Rule 20(a)(2). The Court will not entertain speculative allegations unsupported by statements based in fact.” (https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_judges/Coleman/Standing%20Order%20Re%20Schedule%20A%20Counterfeit%20Product%20Cases.pdf).
9 https://www.njd.uscourts.gov/sites/njd/files/StandingOrderreScheduleACases.pdf.
10 Eicher Motors Limited v. Schedule A Defs., Case No. 25-cv-02937, Dkt. No. 22 (N.D. Ill. Aug. 8, 2025).
11 https://www.njd.uscourts.gov/sites/njd/files/StandingOrderreScheduleACases.pdf.
12 Luxottica Group S.p.A. v. Schedule A Defs., 391 F. Supp.3d 816, 820-21 (N.D. Ill. 2019) (Schedule A plaintiffs must demonstrate it exercised reasonable diligence to identify a defendant’s mailing address before alternative service by email may be authorized under Fed. R. Civ. P. 4(f)(3)).
13 https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_judges/Gottschall/Standing%20Schedule%20A%20Order%20July,%202025.pdf.
14 https://www.njd.uscourts.gov/sites/njd/files/StandingOrderreScheduleACases.pdf.
15 Roblox Corp. v. BigFinz, Case No. 23-cv-05346, Dkt. No. 85 (N.D. Ill. Nov. 29, 2023).
16 Opulent Treasures, Inc. v. Schedule A Defs., Case No. 23-cv-14142, Dkt. No. 94 (N.D. Ill. Apr. 8, 2024).
