Over the last five or more years, the Northern District has become the epicenter of intellectual property cases filed against an anonymous list of alleged infringers – often referred to as Doe defendants or Schedule A defendants – typically targeting online sellers of allegedly knock-off products. In fact, 83% of the Schedule A cases filed have been filed in Chicago since 2020. Those cases have made Chicago the busiest copyright district court for years running, and significantly increased the Northern District’s patent and trademark case filings as well. The cases started out as a trickle, until it became clear that the Northern District judges were largely allowing them. But more recently, Judge Kness has stayed proceedings in over 50 Schedule A cases. While it is just one judge on a large Northern District bench, it is enough to chill filings because plaintiffs know their complaints will be randomly assigned to a judge and, therefore, have an equal chance of being assigned to Judge Kness. A similar thing happened more than a decade ago when then Seventh Circuit Judge Posner was regularly sitting by designation in about one Northern District patent case per year and issued a few decisions requiring tying damages expert analysis to causation analysis that was arguably more than required by the Federal Circuit. After Judge Posner issued a few of those decisions, patent cases fell off substantially in Chicago.

What Are Schedule A Cases?

Schedule A litigation has been a primary weapon for intellectual property owners fighting online counterfeiting for more than 15 years. These cases typically involve a single plaintiff filing suit against numerous (often dozens or hundreds) of online sellers simultaneously. The defendants are not identified in public pleadings but rather in sealed “Schedule A” attachments, purportedly to prevent alleged infringers from disappearing with ill-gotten gains.

A hallmark of these cases is an ex parte temporary restraining order and / or preliminary injunction that freezes defendants’ online accounts—often without their knowledge or opportunity to respond. While this approach has been embraced by brands seeking efficient enforcement mechanisms, it has increasingly raised due process concerns among judges.

Stay Order from Judge Kness

Judge Kness’s stay order, implemented since at least late March, explicitly states his intention “to reassess [the court’s] previous approach in Schedule A litigation involving Lanham Act, Copyright Act, and Patent Act claims typically brought on an ex parte basis.” This pause potentially impacts dozens of cases where plaintiffs have moved for temporary restraining orders. In my experience it is exceptionally rare to have a judge stay all of a category of cases before him.

Judge Kness is reassessing several fundamental aspects of Schedule A litigation, including:

  • Whether ex parte proceedings are appropriate;
  • If granting TROs without defendant participation is a sound exercise of the Court’s discretion;
  • The propriety of mass joinder of numerous defendants in single cases; and
  • What portion of the cases, if any, should be sealed.

And Judge Kness is not the only Northern District judge that has voiced some level of doubt about the Schedule A cases. In January 2025, Judge Durkin publicly welcomed guidance from the Seventh Circuit on handling Schedule A cases. In November 2024, Judge Daniel rejected a plaintiff’s attempt to join 103 defendants in a single suit.

On the other hand, Chief Judge Kendall recently reversed her own decision denying a preliminary injunction in a Schedule A case, finding that refusing to join multiple defendants would result in “a series of multiplying cases” and create an undue burden on the court’s docket.

The Migration Begins

With Judge Kness’s stay order explicitly noting that plaintiffs were free to pursue their cases elsewhere, many brand owners are already refiling their complaints outside Chicago. Nike and Universal Studios voluntarily dismissed their lawsuits from Judge Kness’s docket within days of his stay orders.

What’s Next?

The fundamental tension in Schedule A litigation remains unresolved: intellectual property owners seek efficient mechanisms to combat widespread online counterfeiting, while courts must ensure due process and proper application of procedural rules.

As Judge Kness completes his reassessment, the resulting guidance may significantly reshape how, or at least where, brand owners pursue online counterfeiters. Whether his approach becomes a model for other Northern District judges will likely determine if Chicago maintains its status as the primary venue for Schedule A litigation or if those cases migrate to other jurisdictions.