“Forum Shopping:” How Much is Too Much?
March 14, 2024
Privacy Plus+
Privacy, Technology and Perspective
This week, let’s look at the federal Judicial Conference’s new Policy on Case Assignment.
The Judicial Conference’s New Policy:
Until recently, federal judicial districts containing many local divisions have generally allowed cases to proceed in the division where they are filed. This week, however, the Judicial Conference established a new policy, requiring that judges in newly filed declaratory-judgment or injunctive cases that seek to bar state or federal actions no longer be assigned according to the judge(s) who sit in the division of filing, but randomly, from across the whole judicial district.
You can read the Judicial Conference’s report here:
https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment
Background:
This is all very familiar. “Forum shopping” is nothing new; shrewd lawyers have been trying to file their cases in front of favorably disposed judges forever. But venue selection has grown steadily more determinative over the past few decades, particularly – though not only – here in Texas, in one particular field.
Venue has always been a real concern in Texas, because the state is so large. But in the 1990’s, U.S. District Judge John Ward, sitting in the east Texas city of Tyler, took a special interest in patent litigation. He persuaded his fellow Eastern District of Texas judges to adopt local rules, especially for patent cases. Patent plaintiffs’ lawyers loved these rules, and soon, the Eastern District became the epicenter of American patent litigation. See this 2006 New York Times article:
https://www.nytimes.com/2006/09/24/business/24ward.html?searchResultPosition=1
Almost in no time, Judge Rodney Gilstrap, sitting in the Marshall Division, found himself presiding over something like one-fourth of every patent case filed in the United States. Patent litigation soon transformed the entire economic picture of Marshall, Texas – a phenomenon that was not lost on other federal courts and their local chambers of commerce, as described below:
Venue and jurisdiction cases such as Volkswagen and TC Heartland tightened requirements of a real nexus to the Eastern District and various divisions, but even now, competition for town-transformative patent litigation continues apace. (Marshall still has a world of patent litigation, but Waco, in the Western District, now has even more.) See this article describing it:
Recently, under bipartisan pressure from Congress, and also from Chief Justice Roberts, the Western District has established its own rule requiring patent cases to be distributed among all the judges of the Western District, from El Paso to Austin, San Antonio, and Waco.
Recent Developments:
Now, however, policy-partisans have begun turning to federal courts to establish their policy preferences as law. Venue selection – which is to say, picking a judge who is known to have strong views (to say the least) on the policy merits – is now an acute problem – an issue that the following New York Times article highlights:
https://www.nytimes.com/2024/03/12/us/judge-selection-forum-shopping.html
Hence the Judicial Conference’s new policy.
Pushbacks:
Exactly as the rise of Marshall and Waco excited the ire of patent litigants (especially defendants) in the rest of the country, so has “micro-targeted judge-picking” excited the ire of policy-partisans. “Conservative” judges often viewed patent forum shopping as too plaintiff-friendly, and, as far as we’re aware, raised not a whisper when the Western District reined in judicial selection, but have seemed to take in stride selection of one-judge divisions for injunction cases of national sweep – provided the judges in those divisions are known to be in lockstep with their preferred policy doctrines. This new Judicial Conference policy – less than a week old – is already roiling the waters of judicial conservatives:
Our Thoughts:
We have experienced a straight line of “forum shopping,” from the days when sly lawyers would hang around the clerk’s lobby, waiting to file their petitions until just after they saw that a particularly “bad” judge had been assigned to a case; to filing in venues of marginal relevance but “good” rules and judges; to micro-targeting of single-judge divisions.
None of it has ever accrued to the reputation of the judiciary. We welcome the change, and look for the day when no judge will be known, or sought, as “liberal” or “conservative.”
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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.