Northern District of Illinois Judge Critiques 'Schedule A' Litigation in Cross-Border IP Enforcement Case

In a comprehensive opinion issued on August 8, 2025, Judge Kness of the U.S. District Court for the Northern District of Illinois delivered a thorough critique of the "Schedule A" litigation mechanism in the intellectual property enforcement context. The case, Eicher Motors Limited v. The Partnerships and Unincorporated Associations Identified on Schedule "A" (No. 25-cv-02937), involved Eicher Motors suing fifty defendants for allegedly selling counterfeit ROYAL ENFIELD motorcycle products through online platforms such as Aliexpress and Alipay.

Schedule A litigation typically involves brand owners filing lawsuits against dozens or even hundreds of foreign defendants whose identities are not disclosed in the complaint but instead listed in a sealed attachment known as "Schedule A." This approach allows plaintiffs to seek ex parte temporary restraining orders (TROs) and prejudgment asset freezes against defendants’ online marketplace accounts before notifying them of the suit. Defendants often only become aware of the litigation after their accounts and funds have been frozen, leading to a high default rate. As noted in the opinion, these cases "almost exclusively get resolved after the entry of a preliminary injunction, dismissal of some defendants, settlements with others, and a default judgment against the remainder."

Judge Kness imposed a comprehensive stay on all Schedule A cases pending further review, concluding that the mechanism violates multiple procedural requirements, including fundamental due process principles. The opinion represents the most detailed judicial examination to date of whether this mass litigation device aligns with civil procedure norms and constitutional safeguards.

Beyond the procedural critique, the ruling highlights a broader structural problem in intellectual property enforcement against the backdrop of modern cross-border e-commerce. The proliferation of Schedule A cases reflects the absence of effective enforcement tools when rights holders confront hundreds of small foreign sellers whose individual economic impact does not justify traditional single-defendant federal litigation or International Trade Commission (ITC) Section 337 investigations.

In effect, Schedule A litigation has evolved into a "337-Lite" mechanism—a rapid, low-cost alternative to ITC exclusion orders that targets imported infringing goods through marketplace compliance rather than Customs enforcement. While Judge Kness’s ruling exposes serious constitutional and procedural deficiencies in current Schedule A practices, it also underscores an enforcement gap that may require congressional intervention rather than judicial fixes.

The thousands of Schedule A cases filed annually demonstrate a genuine demand for intermediate enforcement remedies capable of addressing fast-moving offshore infringement that neither individual civil suits nor comprehensive ITC investigations can adequately manage.

The decision also raises concerns about the adversarial system’s breakdown in default scenarios where defendants are not notified or do not appear. Federal litigation relies on active participation by both parties to ensure reasoned decision-making. When defendants default or remain unaware, judges must act as gatekeepers to prevent procedural manipulation or legal overreach. The Schedule A phenomenon suggests that some courts, particularly in the Northern District of Illinois, have been too willing to grant extraordinary ex parte relief based on boilerplate allegations, effectively short-circuiting the adversarial process without the heightened scrutiny such departures require.

Judge Kness’s ruling marks a pivotal moment in the judicial approach to mass foreign defendant IP enforcement cases. It calls for a reevaluation of current practices and signals the need for legislative solutions to bridge the enforcement gap in cross-border online infringement.