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1. Schedule A模式的法律操作与争议

①法律操作：

· 程序特点：SAD案件通常由原告在单一诉讼中列入大量被告（有时多达数百人），并声称这些被告以某种方式“协同作业”。诉讼通常秘密进行，直到原告获得法院批准的临时禁令（TRO），冻结被告的资金账户或关闭其在线店铺。

· 原告策略：原告利用联邦民事诉讼规则（特别是关于合并诉讼的规则），将众多被告归入一案，以节约成本和简化程序。同时，他们利用临时禁令的强制性效力，让被告在未充分参与法律程序的情况下被迫和解。

②法律争议：

· 程序滥用：这种模式是否符合联邦民事诉讼规则？法官普遍对程序规则的误用表示担忧。例如，SAD案件的核心问题在于：被告是否“共同参与”了侵权行为，或只是独立的竞争者。

· 被告权益受损：多数被告由于无通知程序，往往在冻结账户后才得知被起诉。这种诉讼策略可能侵害被告的正当程序权利，并诱导不对等的和解。

2. 芝加哥法官的反击与司法趋势

①近期案例判决：

· John Blakey案（2023年11月4日）：法官驳回了原告将无关联被告合并诉讼的请求，强调诉讼必须符合程序规则，特别是被告的行为间需要有协同性。

· Jeremy Daniel案（2023年11月13日）：法官明确指出，“竞争者”并非“共谋者”。例如，在丰田的案件中，被告各自销售假冒商品，行为并未呈现任何协同特征。

②法官立场转变：

· 法官倾向限制这种“大规模合并诉讼”，要求原告提供更充分的证据证明被告之间存在相关性或协作关系。

· 对于单一被告提起独立诉讼的呼声增高。这意味着原告可能面临更高的诉讼成本，从而抑制此类案件的泛滥。

③司法趋势：

· 近年来对SAD案件的反击标志着法庭在知识产权保护与程序正义之间寻求平衡。法官强调，知识产权保护虽重要，但不能以牺牲程序规则和被告的正当权益为代价。

3. 学术与实践视角分析

①学术评论：

· 滥用程序：Santa Clara大学法学教授Eric Goldman和芝加哥-Kent法学院教授Sarah Burstein均指出，SAD案件依赖于对假冒侵权的广泛厌恶，以程序不透明性为手段强迫被告达成和解。

· 知识产权法的边界问题：Burstein认为，这些案件未必能真正遏制假冒商品的流通，反而可能被原告用作经济工具，伤害无辜的外国企业。

②实践影响：

· 律师事务所的角色：如Greer, Burns & Crain律师事务所，通过SAD案件为客户争取知识产权保护。然而，这种模式也引发了对律师操守和职业道德的质疑。

· 跨境电商的影响：多数被告为跨境电商企业，尤其是亚马逊和eBay上的外国卖家。这种诉讼模式可能加剧他们的法律风险，提高其运营成本。

4. 展望与建议

· 诉讼规则改革：联邦程序规则可能需要进一步明确，防止滥用合并诉讼的行为。例如，要求原告在起诉前提供更详细的协同行为证据。

· 企业防范建议：跨境电商企业应加强合规管理，特别是在知识产权保护领域，与专业律师团队合作，应对潜在的SAD诉讼风险。

总结

芝加哥联邦法院的SAD模式诉讼虽然对打击假冒侵权起到一定作用，但其程序的不透明性和对被告权益的潜在侵害引发了广泛争议。法官的最新裁决标志着司法对知识产权滥用行为的逐步抵制，这一趋势可能对未来知识产权诉讼的规则产生深远影响。

路透社文章原文

Chicago judges are starting to push back against 'SAD' scheme in IP cases

By Alison Frankel

Nov 19 (Reuters) - For the last decade, Chicago federal court has been the hub of a peculiar brand of intellectual property litigation that one prominent law professor has dubbed, opens new tab an “abusive” scheme to exploit procedural rules and capitalize on judicial deference to IP owners.

The strategy, as described by both Santa Clara University law professor Eric Goldman and Chicago-Kent College of Law professor Sarah Burstein, is for a lone plaintiff to join dozens or even hundreds of alleged infringers or counterfeiters in a single lawsuit alleging that all of the defendants are operating in concert and must be immediately enjoined from operating internet storefronts.

A key feature of the cases, according to the law professors, is secrecy: The lawsuits typically list defendants — usually foreign companies operating online storefronts on Amazon, eBay, Etsy and other U.S. platforms — in a separate schedule filed under seal. (That’s why Goldman calls these cases “Schedule A defendant,” or SAD, lawsuits.)

Most of the defendants, Burstein told me, do not even know they have been sued until judges have granted temporary restraining orders that freeze their U.S. bank accounts and shutter their internet storefronts. By then, Burstein said, defendants have little choice but agree to (undisclosed) settlements.

Hundreds of Schedule A cases are filed every year in Chicago federal court, in what U.S. District Judge Steven Seeger described as “a torrent” in a ruling, opens new tab last December denying Zorro Production’s request to litigate its motion for a restraining order against 310 defendants in secret. Seeger said the Chicago federal courthouse had become “an assembly line” for Schedule A cases requesting ex parte restraining orders against defendants that have no idea they've been named in lawsuits.

Burstein, who has written a forthcoming Harvard Law Review article, opens new tab discussing how trademark plaintiffs in Schedule A lawsuits take advantage of judges' disdain for counterfeiters, said these cases are “the most important phenomenon in IP litigation that no one is paying attention to.”

But Chicago judges recently seem to have begun to push back against Schedule A cases.

Just look at the last few weeks. On Nov. 4, U.S. District Judge John Blakey dismissed, opens new tab a copyright infringement case against 18 defendants that, by his reading of the plaintiff's allegations, were not related to each other. On Nov. 12, U.S. District Judge Sunil Harjani denied, opens new tab a different copyright owner's motion for a temporary restraining order against 59 defendants, holding that the plaintiff failed to allege a relationship among the defendants that would justify their joinder in a single lawsuit.

Then on Monday, U.S. District Judge Jeremy Daniel tossed Toyota Motor Sales' Schedule A trademark infringement case against 103 defendants that he found to have been misjoined in a single lawsuit.

The Daniel decision is especially notable because the judge gave plaintiffs lawyers at Greer, Burns & Crain a chance to brief the joinder question. Daniel requested the supplemental brief in an Oct. 18 order, registering his concern that Toyota, like other Schedule A plaintiffs in cases before him, had failed to allege any concerted action by defendants. (Earlier this month, as Santa Clara law professor Goldman has reported, opens new tab, Daniel issued a similar order in a different Schedule A case. The plaintiff in that case voluntarily dismissed its suit without submitting the requested supplemental brief justifying joinder.)

None of the four Greer Burns lawyers who signed Toyota's Oct. 25 brief addressing Daniel’s joinder concerns responded to my email query. But their brief argued that the defendants were all part of a “swarm” of “offshore internet-based counterfeiters who exploit the anonymity and mass reach afforded by the internet."

Requiring Toyota to file individual lawsuits against each alleged infringer, the brief said, would defy the impact of these sprawling attacks on the company’s intellectual property rights. Moreover, Greer Burns pointed out, federal judges in Chicago and several other venues (including federal courts in Manhattan and Miami) have, over the last decade, allowed hundreds of plaintiffs to proceed with lawsuits joining multiple anonymous internet storefronts linked only by their alleged infringement.

Toyota’s swarm argument relied heavily on a 2020 decision, opens new tab by U.S. District Judge Thomas Durkin of Chicago in a Schedule A counterfeiting case filed by Bose Corp. Durkin ruled that Bose, which, like Toyota, was represented by Greer Burns, adequately alleged that 17 Chinese defendants were linked by the mass harm they caused the company. "It is the injuries in the aggregate — the swarm — that is harmful and from which Bose seeks shelter,” Durkin concluded.

Daniel rejected that rationale in Monday’s Toyota decision, comparing the alleged infringers in Toyota's Schedule A to vendors hawking unauthorized merch outside of concert venues. Though vendors might be selling similar wares at similar prices, Daniel said, they are not acting in coordination with each other. They are competitors, he said, not conspirators — and federal procedural rules do not permit competitors acting on their own to be joined in a single lawsuit.

The recent rulings by Blakey, Harjani and Daniel are not the first to deny joinder in Schedule A cases in Chicago. As I mentioned, Seeger was fairly scathing about these lawsuits in his December 2023 Zorro decision. And last May, U.S. District Judge Joan Gottschall of Chicago declined, opens new tab to follow Bose when she ruled that plaintiffs in four different infringement lawsuits had improperly joined defendants linked only by their purported infringement. Gottschall, in turn, cited two other Chicago trial judges who had previously cast a skeptical eye on Schedule A joinder.

But Chicago-Kent law professor Burstein said the recent rulings seem to signal mounting resistance, at least among Chicago federal judges, to Schedule A cases.

Because these cases were often litigated in secret and settled outside of court, Schedule A lawsuits “were operating in the shadows,” Burstein said. “Finally some judges started speaking up [and] now we are starting to see pushback.”

原文链接:

https://www.reuters.com/legal/litigation/column-chicago-judges-are-starting-push-back-against-sad-scheme-ip-cases-2024-11-19/

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