Justice for Sale? Forum Selling In Patent Litigation

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Justice for Sale? Forum Selling In Patent Litigation


A hat tip to Written Description for nicely summarizing two recent articles on “forum selling” i.e., courts consciously encouraging litigants to file cases in their district. “Forum selling” is the counterpart to “forum shopping,” the practice of plaintiffs filing suit in jurisdictions they deem more favorable to their claims.

Of particular interest is the commentary on Forum Selling, a recent article by Daniel M. Klerman and Greg Reilly, which discusses the phenomenon in the context of patent litigation. Oftentimes, defenders of perceived “plaintiff–friendly” districts like the Eastern District of Texas point to verdicts as a rebuttal to the argument that a district is biased in one fashion or the other. In other words, if the number of verdicts in plaintiffs’ favor are less than, or at least approximately equal to, the number of verdicts in the defendants’ favor—no problem, say supporters of the status quo.

That outcome–oriented approach is overly simplistic, as it ignores the (vast majority) of cases that settle or are otherwise weeded out prior to trial, often in the shadow of the procedural background. This is suggested by the authors:

Judges in that district have distorted the rules and practices relating to case assignment, joinder, discovery, transfer, stay pending re–examination, and summary judgment in order to attract patent plaintiffs to their district. Judges in the Eastern District have been motivated by prestige, a desire to help the local bar and economy, and eagerness for a more interesting caseload. As a result of their efforts, nearly a quarter of all patent infringement suits were filed in the Eastern District of Texas in 2012 and 2013. This high case load is not the result simply of speed, efficiency, or pro-plaintiff juries. Rather it reflects a judicial effort to favor patent plaintiffs through a variety of procedural mechanisms largely immune from appellate review.

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