Judge Kness: the SAD Scheme “Should No Longer Be Perpetuated in Its Present Form”–Eicher Motors v. Schedule A Defendants

August 11, 2025 · by · in E-Commerce, Trademark

When I first encountered the SAD Scheme, I felt like Alice entering Wonderland. The scheme was so obviously whacked that I felt like I had tumbled into an upside-down jurisprudential world. I was sure that the SAD Scheme’s illegitimacy was as obvious to everyone else as it was to me. And yet, somehow, judges were letting plaintiffs get away with it–and sometimes even helping them along. This judical acquiescence facilitated the development of an enforcement ecosystem that has produced 7,700+ seemingly illegitimate cases affecting 1.5+ million defendants. As the Talking Heads might say, “Well, how did we get here?”

Though the SAD Scheme never should have succeeded in the first place, I have always felt certain that gravity would pull it down eventually. As Martin Luther King Jr. famously said, “The arc of the moral universe is long, but it bends toward justice.” That arc just bent a big step towards justice on Friday.

Highlights of Judge Kness’ Opinion

In June, Judge Kness put a hold on all of the SAD Scheme cases on his docket to reconsider his role in the scheme. Having completed his meditation, his resulting opinion devastates the SAD Scheme. Judge Kness’ bottom-line assessment is simple and clear: “the Schedule A mechanism should no longer be perpetuated in its present form.” 💥💥💥

Judge Kness’ opinion thoroughly validates many of the SAD Scheme objections. I include fuller excerpts below, but here is my list of the top quotes from the opinion:

  • “the Schedule A mechanism works only by stretching applicable procedural rules past their breaking point”
  • “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”
  • the cases’ doctrinal “complexity renders the sound adjudication of the TRO request all but impossible in the absence of adversarial briefing”
  • “This Court has not encountered a Schedule A case (the present case is no exception) in which the Schedule A plaintiff provided specific facts showing that each Defendant will cause irreparable injury absent an injunction”
  • “Schedule A asks the Court to put the ex parte cart before the horse: presume that defendants will act nefariously unless shown otherwise. That gets Rule 65(b) backward”
  • “A party faced at the outset with the specter of a secretly-imposed asset restraint starts the game backed up against their own end zone. This disadvantage can distort the parties’ respective settlement positions and otherwise alter the balance of power to defendants’ detriment”
  • “Submitting a broadly-drafted complaint along with a demand for emergency ex parte relief against dozens, if not hundreds, of defendants creates an unworkable tension between efficiency and the specifics needed as to each defendant before injunctive relief can be imposed”
  • “Seeking an asset freeze at the outset thus appears to be an coercive goal”
  • “prejudgment asset restraints ought to be the rare exception, not the norm that they have become in the Northern District of Illinois”
  • “an asset freeze that strangles defendants at the outset, thus rationally prompting them to settle involuntarily, is far from equitable”
  • “Schedule A TRO motions, in this case and others, should fail at the outset because it is all but impossible for the Court to discern the likelihood of success from the one-sided evidence provided”
  • “It is nearly impossible to resolve whether defendants are engaged in counterfeiting on such a sparse record, without the actual products at issue, absent adversarial briefing, and based solely on comparing hundreds of screenshots to plaintiffs’ asserted intellectual property”
  • “without appearances from defendants in the case, courts have no reliable way to assess how the proposed injunctive relief will harm the nonmoving parties. That fact renders balancing the private interests impossible”
  • “Schedule A cases may be more likely to harm the public interest than to favor it”
  • “A single federal judicial district granting hundreds or thousands of requests per year for ex parte, ‘extraordinary’ TROs should by itself give the Judiciary serious pause on the public’s behalf”
  • “the Schedule A mechanism demands that the Federal Rules of Civil Procedure and principles of due process be unreasonably contorted for plaintiffs to receive the relief they seek. It is no answer to say that the ends justify the means”
  • “the Schedule A mechanism should no longer be perpetuated in its present form”

This is a fatal assessment of the SAD Scheme. In Judge Kness’ retelling, the scheme is deeply and structurally flawed on multiple levels, in irreparable ways. That’s why Judge Kness says, boldly and confidently, that “the Schedule A mechanism should no longer be perpetuated in its present form.” 

The scheme is not fixable or salvageable. It needs to be permanently scrapped–by Judge Kness and all other judges. They can help the moral arc bend completely towards true justice.

[Personal note: By my count, my article is cited 15 times in this opinion.]

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Extended Excerpts

I really don’t have much to add to Judge Kness’ excellent drafting, so I’ll present some portions of the opinion that stood out to me without additional commentary so you can get a better perspective of Judge Kness’ thorough rejection of the SAD Scheme. Even better, “read the whole thing.”

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“Many judges in the Northern District of Illinois have accepted the Schedule A mechanism as a well-established method of redress for IP rightsholders. But as legal scholars and judges have increasingly recognized, in part due to the deluge of Schedule A cases filed in only a small number of judicial districts, the Schedule A mechanism works only by stretching applicable procedural rules past their breaking point.”

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“this Court has taken a fresh and close look at the propriety of the Schedule A mechanism. That review has not been flattering: as explained below, 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. Although the scourge of intellectual property theft and abuse is real, persistent, and highly damaging, the remedy for that problem must be sought by other means.”

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“Schedule A complaints ordinarily are drafted at a high level of generality (bordering on boilerplate) and lack specifics as to each defendant or how the defendants relate to one another.”

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“Judges in this District have routinely granted plaintiffs’ initial requests in Schedule A cases. But as time has passed, and as Schedule A cases have inundated judges’ dockets in this District, the validity of the present approach has become less convincing. Schedule A defendants now regularly appear to contest, among other issues, jurisdiction, joinder, and the plaintiff’s entitlement to an asset restraint, often with success. The subject matter of Schedule A litigation has also grown to encompass complex IP disputes, including design and even utility patent infringement. This complexity renders the sound adjudication of the TRO request all but impossible in the absence of adversarial briefing. Schedule A plaintiffs routinely ask judges in this District to decide issues that are not properly amenable to resolution on an ex parte, emergency basis (which of course should be a rare occurrence).”

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“This Court has not encountered a Schedule A case (the present case is no exception) in which the Schedule A plaintiff provided specific facts showing that each Defendant will cause irreparable injury absent an injunction…That approach is, on its face, incompatible with Rule 65(b)’s specificity requirement. Of course, ex parte emergency relief has its place: to maintain the status quo if proceeding without the other party is absolutely necessary; if notice to the defendant would render the action fruitless (a point addressed below); or if it is impossible to locate defendants, among other extraordinary considerations. But Schedule A cases do not meet the exigencies, particularly given their now-routine nature.”

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“Schedule A asks the Court to put the ex parte cart before the horse: presume that defendants will act nefariously unless shown otherwise. That gets Rule 65(b) backward. Our system defaults to the principles of transparency and notice, and plaintiffs must justify the extraordinary departure from that rule with specifics.”

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“Make no mistake: the sine qua non is the seizure of defendants’ monetary assets (not specific infringing goods) at the beginning of the case, before even a single defendant has appeared. Schedule A plaintiffs are candid about that goal and praise its effectiveness in deterring infringement….By and large, the predominate relief sought in Schedule A cases is an award of statutory money damages; and it is plaintiffs’ belief that Schedule A defendants will spirit away their funds to unreachable places that drives the request to proceed ex parte. A damages award, however, is a form of legal remedy incompatible with Rule 65(b)’s equitable nature.”

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Rule 65(b)’s “certification requirement serves to bolster the specificity requirement; the attorney must put skin in the game and detail the efforts made to give notice or aver why he or she, personally, believes notice should not be required. But the boilerplate certifications that are endemic in Schedule A litigation raise significant questions as to whether attorneys are meeting their obligations under Rule 65 by seeking extraordinary relief without providing specifics as to why notice was not required for each defendant.”

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“A party faced at the outset with the specter of a secretly-imposed asset restraint starts the game backed up against their own end zone. This disadvantage can distort the parties’ respective settlement positions and otherwise alter the balance of power to defendants’ detriment. Schedule A plaintiffs may cite this coercive effect as a net benefit, given the ability of overseas defendants to hide assets, regroup under a different online moniker, and continue their nefarious dealings, but that is largely beside the point. Courts cannot permit a threshold presumption in favor of brand-owner plaintiffs any more than they could permit a presumption in favor of any other plaintiff. Pilfering intellectual property causes great harm, to be sure, but the remedy does not lie in stretching the civil rules past the breaking point.”

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“the approach of Schedule A plaintiffs also raises questions about whether their primary aim is to stop infringement. Secrecy makes little sense if the goal of the litigation is to protect rightsholders’ IP interests by obtaining an injunction against defendants’ sales of infringing or counterfeit goods. Such a goal requires that defendants receive an order to stop….the purported goal of seeking emergency injunctive relief to stop particular individuals or businesses from selling infringing products is incompatible with secret, one-sided proceedings.”

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“There is, as discussed above, an inherent tension between the generalized Schedule A mechanism and Rule 65(b)’s demand for specificity. Schedule A plaintiffs have sought to create a mass-action mechanism by which one complaint stating a claim for relief is used to sue a mass of defendants. But the efficiency of Schedule A depends upon the complaint applying broadly to each defendant; otherwise, the plaintiff would have to file separate cases, precisely the scenario Schedule A plaintiffs appear to seek to avoid. Submitting a broadly-drafted complaint along with a demand for emergency ex parte relief against dozens, if not hundreds, of defendants creates an unworkable tension between efficiency and the specifics needed as to each defendant before injunctive relief can be imposed. Those requirements of specificity serve to protect nonmovants, the public, and the integrity of the judiciary; they must not be callously disregarded. As to Schedule A cases in general, and this case in particular, the Court is unsatisfied that the standard for ex parte relief has been met.”

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The court “has not seen a Schedule A trademark or copyright plaintiff seek an equitable monetary remedy at the end of the case (patent cases are the occasional and rare exception, given the lack of a statutory damages remedy). On the contrary, as to remaining defendants who have not settled or otherwise been dismissed, plaintiffs seek a default judgment that awards statutory money damages. Seeking an asset freeze at the outset thus appears to be an coercive goal in and of itself because, if obtained, the freeze immediately locks down defendants’ assets”

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“prejudgment asset restraints ought to be the rare exception, not the norm that they have become in the Northern District of Illinois. Although the Court presumably could properly entertain a request for an asset freeze “for the limited purpose of allowing equitable relief down the road,” an asset freeze that strangles defendants at the outset, thus rationally prompting them to settle involuntarily, is far from equitable”

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“Schedule A TRO motions, in this case and others, should fail at the outset because it is all but impossible for the Court to discern the likelihood of success from the one-sided evidence provided. Plaintiffs in Schedule A cases regularly base their TRO requests (purportedly intended to stop defendants’ counterfeiting or infringement) on voluminous pages of screenshots from online marketplaces. It is nearly impossible to resolve whether defendants are engaged in counterfeiting on such a sparse record, without the actual products at issue, absent adversarial briefing, and based solely on comparing hundreds of screenshots to plaintiffs’ asserted intellectual property.”

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“plaintiffs in Schedule A cases do not produce the goods in question; rather, they typically attach a series of screenshots of the supposedly infringing or counterfeit goods. The ex parte production of screenshots is insufficient to obtain the benefit of this presumption; perhaps defendants will assert they have license to use the mark or marks in question, or perhaps a physical examination of the goods will reveal that they do not meet the strict definition of “counterfeit.” In any event, to decide these issues on an ex parte basis without adversarial briefing asks too much.”

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“the Court is not persuaded that the Schedule A mechanism satisfies the balance of interests inquiry—or even that the Court can properly weigh the interests at stake without Defendants’ presence in the case….it is difficult to see how this balancing can be done reliably on the sparse and one-sided record present at the beginning of a typical Schedule A case. Schedule A complaints are, to repeat, drafted at a high level of generality; it is impossible to know the irreparable harm the moving party faces vis-à-vis any particular defendant. More to the point, without appearances from defendants in the case, courts have no reliable way to assess how the proposed injunctive relief will harm the nonmoving parties. That fact renders balancing the private interests impossible.”

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“Schedule A cases may be more likely to harm the public interest than to favor it. As Professor Goldman notes in Sad Scheme, the Schedule A mechanism works to ‘create an environment in which rightsowners can nominally follow the rules and yet achieve abusive and extortive outcomes’…This landscape harms the public in several ways. To begin, it forces settlements where defendants might otherwise prefer to litigate the case but cannot do so because their assets and business are locked up by an injunction.”

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“A broader concern from the public’s standpoint ought to be the routine granting—in cookie-cutter fashion, multiple times per day, for years on end—of ex parte injunctive relief. To restate the law: a TRO is “an extraordinary and drastic remedy,” and one that “should not be granted as a matter of course.” A single federal judicial district granting hundreds or thousands of requests per year for ex parte, “extraordinary” TROs should by itself give the Judiciary serious pause on the public’s behalf. This alone may be, indeed is, an independent and sufficient reason to deny a TRO in this and other Schedule A cases.”

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“As currently entrenched, the Schedule A mechanism demands that the Federal Rules of Civil Procedure and principles of due process be unreasonably contorted for plaintiffs to receive the relief they seek. It is no answer to say that the ends justify the means—that the scourge of rampant counterfeiting justifies the present scheme. That excuse has been rejected in other areas of the law, and it should be rejected here too.”

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“the Schedule A mechanism should no longer be perpetuated in its present form.”

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What Happens Next?

Judge Kness invited the plaintiff to correct its filing, but why would they? This case is dead, as are all of the SAD Scheme cases on Judge Kness’ docket. Judge Kness further warns them that he’s going to grind the plaintiff on joinder if it tries to proceed, but that’s just the tip of the iceberg of the problems the plaintiff must overcome. Trying to revive this case would just be throwing bad money after good.

Judge Kness also invites the plaintiff to take it up on appeal:

It is this Court’s respectful view that guidance from the Court of Appeals concerning the propriety of the Schedule A mechanism would greatly aid the Judges of the Northern District of Illinois in adjudicating Schedule A cases. After all, the content of this opinion could be misguided—or just plain wrong. To that end, the Court would entertain a motion by Plaintiff to certify this decision for an interlocutory appeal.

Eicher Motors, I double-dog dare you to appeal this ruling. Judge Kness’ opinion is airtight, and it persuasively identifies layer-upon-layer of problems with the SAD Scheme. The plaintiff would need to overcome all of those objections on appeal to reverse the outcome. There’s no chance of that happening. Plus, if our small band of anti-SAD Scheme advocates ever gets a chance to bend the Seventh Circuit’s ear about the SAD Scheme, you better believe we will take full advantage of it and, I hope, strike a decisive blow against the SAD Scheme circuit-wide. So go ahead, Eicher Motors, please please please appeal. 🤞

In the interim, I will be interested to see how other SAD Scheme plaintiffs respond to Judge Kness’ opinion. I think odds are they will ignore it and continue business as usual. After all, it is only one district oucrt judge’s opinion. Plus, if the plaintiffs continue to flood the courts with enough cases, they can still draw judges who haven’t yet experienced Judge Kness’ epiphany. It’s a numbers game, so mass-filings might still be enough to run the SAD Scheme profitably even if many of the cases instantly fail.

However, I trust Judge Kness’ opinion will make the rounds in the chambers of his Northern District of Illinois colleagues, so plaintiffs are likely to immediately encounter stiffer headwinds in Chicago. As a result, it seems probable that this opinion will push the SAD Scheme plaintiffs to invest more heavily in federal districts outside of Chicago.

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For dropping dozens of truth bombs that we desperately needed, I’m awarding Judge Kness the Technology & Marketing Law Blog Judge-of-the-Day award. 🏆

Case Citation: Eicher Motors Ltd. v. Schedule A Defendants, 1:25-cv-02937 (N.D. Ill. August 8, 2025). The team of lawyers representing Eicher Motors comes from Hughes Socol Piers Resnick & Dym Ltd.–the same firm that represented Emojico in the case that first exposed me to the SAD Scheme.

Prior Blog Posts on the SAD Scheme