Schedule A litigation is under increasing scrutiny. Professor Sarah Fackrell of Chicago-Kent College of Law has published articles and convened a symposium dismantling the practice’s rhetorical and doctrinal foundations. Professor Eric Goldman of Santa Clara Law has documented what he calls the “SAD Scheme” case by case on his blog for years, and his work has become a reference for critics.
Courts are also pushing back. In August 2025, Judge Kness’s opinion in Eicher Motors concluded that the Schedule A mechanism in its present form is indefensible and invited interlocutory appeal. Similar skepticism has produced standing orders in the District of New Jersey, joinder decisions like Judge Daniel’s ruling in Toyota Motor Sales, and sanctions against plaintiffs’ counsel for judge-shopping.
The critics have a point. But much of the plaintiffs’ bar has responded by doubling down — emphasizing volume and efficiency without engaging the doctrinal criticism, funding research to rebut the critics, and resorting to tactical workarounds that have drawn sanctions. That posture is not blunting the skepticism.
It is worth being clear about where the sympathies in this debate are landing. Plaintiffs may be pushing boundaries for clients desperate for a solution, but the courts and commentators pushing back are, in practice, extending the benefit of the doubt to anonymous foreign sellers flooding the U.S. market with cheap counterfeits. The stories making the news are innocent-reseller cases, but those are a small fraction of the docket. The overwhelming majority of Schedule A defendants are illegitimate sellers trading on U.S. trademarks, patents, and copyrights, and the law should be capable of imposing procedural discipline without handing the field back to them. A workable middle ground exists — one that keeps Schedule A available against the foreign counterfeiters it was built to reach while tightening procedural mechanisms and restoring the courts’ confidence in counsel’s duty of candor.
The Enforcement Problem Is Real
Critics underappreciate the scale of the enforcement gap Schedule A exists to address. Chinese cross-border e-commerce exceeded $3.5 trillion in 2020 by some estimates, with a substantial share flowing through U.S.-facing marketplaces. On any given day, a brand might identify hundreds of storefronts selling counterfeits across Amazon, eBay, AliExpress, Temu, and Etsy. The sellers are typically anonymous, foreign, and organized to frustrate conventional enforcement.
Pursuing such sellers through traditional individual litigation — the approach Schedule A’s detractors effectively advocate — is infeasible at almost every stage. Individual actions against hundreds of sellers would generate filing fees in the tens of thousands before a single complaint is served, and courts would have little appetite for managing thousands of near-identical single-defendant cases. Drafting particularized complaints against each seller — when sellers operate anonymously, use interchangeable storefront names, and rely on common counterfeit sources — would be overwhelmingly complicated and, in most cases, unnecessary. Requiring Hague Convention service on all foreign defendants would be costly and slow, and would frequently fail outright: China regularly returns IP-related service requests unexecuted or refuses them. Most of these sellers are moving low-cost items — t-shirts, keychains, phone accessories, novelty goods — where per-defendant recovery cannot justify that overhead.
Foreign sellers have also grown sophisticated about the Schedule A model and now structure around it. Rather than leaving meaningful balances in marketplace and payment accounts, many sweep those accounts regularly and keep minimal amounts on deposit. By the time a TRO issues and an asset freeze hits, the recoverable sum is often a small fraction of actual sales. The sellers default — at little practical cost — and reopen under new storefront names. This is not the posture of innocent small sellers caught up in overzealous litigation; it is the posture of sophisticated operations that have studied the tool and adapted to it.
Schedule A emerged to address a serious problem. By joining multiple defendants, securing ex parte TROs with asset freezes through third-party platforms, and serving by alternative means under Rule 4(f)(3), plaintiffs can shut down counterfeit storefronts and recover at least a fraction of their damages. The critics’ preferred approach is not a workable enforcement regime; it is an abandonment of enforcement dressed up as procedural rigor.
Merit in the Critics’ Position
That said, the scholarly and judicial criticism of Schedule A practice has identified genuine problems. Professor Fackrell’s The Counterfeit Sham documents how plaintiffs — particularly in design patent cases — have used “counterfeiting” rhetoric to conflate ordinary infringement with genuine counterfeiting, invoking associations with unsafe drugs and aerospace parts to justify procedural measures that should be reserved for the real thing. “Counterfeiting” is a legal term of art, and its indiscriminate application to design patent or ordinary trademark disputes is strategic rather than careless.
Professor Goldman’s SAD Scheme work has catalogued the systemic procedural weaknesses: joinder of hundreds of unrelated defendants whose only connection is accused infringement of similar IP; ex parte asset freezes granted on boilerplate showings; sealed dockets that prevent outside scrutiny; email service to addresses that go to spam folders or are never monitored; and default judgments against defendants who never received meaningful notice. Whatever one thinks of Goldman’s rhetorical posture, courts reviewing the practice are adopting his underlying procedural observations.
Judge Kness’s Eicher Motors opinion is probably the most important development. The court conducted a sua sponte review of its prior Schedule A handling, stayed all Schedule A matters on its docket, and concluded that “the Schedule A mechanism works only by stretching applicable procedural rules past their breaking point.” The opinion flagged specific problems: “the 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.” Judge Kness cited Fackrell fifteen times, and the opinion is already being cited by other judges in the Northern District and beyond.
Eicher Motors is part of a broader shift. Judge Daniel in Toyota Motor Sales rejected the “swarm joinder” theory, plaintiffs’ go-to joinder theory. The District of New Jersey has adopted a standing order requiring individualized allegations and tightening ex parte relief, among other things. Judge Ranjan in the Western District of Pennsylvania has issued a standing order that essentially precludes filing Schedule A cases in his court. The Second Circuit’s rejection of email service on Chinese defendants threatens to constrain Rule 4(f)(3) practice more broadly. And sanctions for judge-shopping have reinforced the perception that the practice is built on avoiding judicial scrutiny rather than surviving it.
Where Reform Should Focus
Reform discussions tend to collapse into unhelpful modes: abolitionist proposals that would eliminate the tool without a replacement, plaintiff-side defenses that concede no ground, and the suggestion — increasingly heard from commentators who treat existing doctrines as irretrievable — that the solution lies with Congress. A middle ground is more reasonable. The doctrines at issue — joinder under Rule 20, ex parte relief under Rule 65, alternative service under Rule 4(f)(3), and Twombly/Iqbal pleading standards — are flexible enough to accommodate a disciplined enforcement model against anonymous foreign sellers. They do not require legislative retooling. What they require is practitioners who engage them honestly and courts willing to apply them carefully.
Solutions will depend on the case, client, forum, and practitioner, but the pressure points are clear. Joinder under the current rubric is no longer a reliable procedural mechanism, but requiring proof of coordination before filing would foreclose enforcement against the coordinated rings Schedule A was built to reach. Practitioners may need to amend their pleadings — boilerplate allegations that do not distinguish among defendants are under attack — but courts need to understand how little reliable information brands can uncover about online sellers at the complaint stage. Ex parte asset freeze requests under Rule 65 may need specific showings of both flight risk and proportionality, though such showings are often genuinely warranted against Schedule A defendants. Email service may not always be available, but Hague Convention practice has workable variations. And the rhetoric of counterfeiting is a pressure point plaintiffs can no longer ignore when informed judges read the term’s indiscriminate use as strategic rather than careless.
Conclusion
The question is not whether reform of Schedule A will occur — it is happening already. Practitioners who file these cases have the expertise and standing to shape the answer; the alternative is watching it be written by courts and legislators working without their input.
Schedule A was built to close a real enforcement gap for brand owners facing anonymous foreign sellers at scale. That gap has not closed on its own, and it will not close if Schedule A practice is dismantled without a replacement. Preserving the tool for the cases that genuinely need it — true counterfeiting, coordinated infringement rings, bad actors operating at volume — is the objective. The path runs through honest engagement with the critics, voluntary discipline on the practices that need it, and sustained work on the harder problems that no single case or standing order will solve.
Questions about Schedule A litigation strategy? Contact Nowak IP Group.