Another N.D. Ill. Judge Balks at SAD Scheme Joinder–Zaful v. Schedule A Defendants

January 16, 2025 · by · in Copyright, E-Commerce

Zaful is an online retailer with a trademark that seemingly rhymes with…awful? It claims copyright in 1,800+ product shot photos and says TEMU merchants are infringing those product shots in their listings. (Longtime readers know how I feel about copyright enforcement of product shots 🙄). Zaful used the SAD Scheme to sue 13 merchants for copyright infringements of its photos.

The SAD Scheme seems particularly unnecessary here. Zaful could bring individual lawsuits against each merchant (a point the court makes), or it may be able to use the DMCA notice-and-takedown system to target those photos and avoid court altogether. But hey, why not use the SAD Scheme to save on filing fees if the court will let you get away with it?

Judge April Perry doesn’t. Sua sponte, the judge questions joinder:

“Sua sponte review of the propriety of joinder in Schedule A cases is a regular practice in this district” because almost every Schedule A complaint lacks specificity as to why each defendant should be joined. This Court is especially watchful for improper joinder, whether it be with these thirteen defendants or more extreme cases where hundreds of defendants are named…Of the first twenty newly-filed (i.e., not re-assigned) cases this Judge received upon being appointed to the bench, seven were Schedule A cases. Although inundated with cases that have no adversarial component, this Court intends to hold every plaintiff to the standards set by the Federal Rules of Civil Procedure.

Amen! And my apologies to the judge for getting welcomed to the bench with a crapload of crappy cases. Thank you for your public service.

This is another example of how a recently appointed judge to the Northern District of Illinois is demonstrating more skepticism towards the SAD Scheme than the OG judges. Judge Perry is fulfilling this meme:

Zaful responded with the typical non-fact-specific joinder boilerplate that shows up in every SAD Scheme complaint. The judge balks:

To the extent that future plaintiffs want to avoid delays of supplemental briefing and proceed immediately to a TRO, they are encouraged to include a more thorough joinder explanation in the complaint. Until that happens, this Court will continue to sua sponte raise joinder as an issue.

🙏

Zaful invoked the typical plaintiffs’ justification for misjoinder, the Bose “swarm” theory. The court balks again:

This Court declines Plaintiff’s invitation to adopt Bose Corp.’s reasoning. There are innumerable bad acts conducted using the internet that have a substantial impact in the aggregate – courts must require more than that to establish joinder…Surely no argument could be made that everyone who steals the same song or tv show could be joined together in a single cause of action. The lack of limiting principle inherent in Plaintiff’s approach flies in the face of a “consistent line of cases in this District holding that Rule 20(a)’s requirement for a common transaction or occurrence is not satisfied where multiple defendants are merely alleged to have infringed…”

Yes! The Bose swarm theory does lack a limiting principle, and it functionally overrides the explicit requirements of FRCP 20. It’s a shame so many other judges have not expressed more skepticism towards the swarm theory.

The judge says that even if she applied Bose, Zaful still loses (big time):

Plaintiff points to the following facts to establish “a coordinated attack” by the Defendants: (1) infringement of the same copyrights; (2) using the TEMU platform; (3) using the same “photographs, models, and images identical to Zaful’s copyrighted works”; (4) eight of the Defendants live in the same province, city, and area of China; (5) all Defendants “have nonsensical, potentially fabricated, corporate names on their homepages”; (6) “none of the Defendants have their own marks, logos, intellectual property, or recognizable visual indicator”; (7) one Defendant “intentionally concealed any identifiable information and did not provide a business address, while others have put their business addresses in remote, rural villages”; and (8) “all Defendants lifted wholesale from Plaintiff’s copyrighted works to use on their product pages.”

The Court begins by noting that (1), (3), and (8) are essentially the same – Defendants took photographs copyrighted by Plaintiff and put the photographs on a website. This is, quite literally, a restatement of the cause of action for infringement. Plaintiff wants the Court to use the same fact – the Defendants are copycats – as evidence of both lazy infringement and industrious coordination. Plaintiff’s argument that “Defendants have realized that they can profit by copying their competition,” highlights this tension: why should the Court conclude that Defendants are copying each other, rather than Plaintiff? And, to the extent they were copying their “competition,” how does this demonstrate “coordination” among them?

Moreover, the facts of this case do not even show that all of the Defendants did use the same photographs. The only defendants who allegedly infringed the same photographs are Defendants 2, 5, 9, and 10, who used the same photograph of a t-shirt, and Defendants 6 and 8, who used the same photograph of a bikini. Thus, even if the Court were to conclude that use of the same photograph is sufficient evidence of coordination – which it does not – Plaintiff’s arguments would at best lead to joinder of four defendants in one cause of action and two defendants in another.

Of the remaining commonalities, (5) (use of fake seller names), is the logical equivalent of (6) (not using their own names), which goes hand-in-hand with (7) (using fake addresses). All of these facts support a finding of someone willfully violating the law who does not want to be caught, but none support a finding of coordination amongst the offenders. If the Defendants had similar corporate names, email addresses, or matching fake (or real) addresses, then Plaintiff would have a point – that is not the case here.

That leaves the Court with (2) (use of TEMU) and (4) (Defendants live in the same province, city, and area of China). According to Schedule A, the Defendants are from four different provinces in China. Only one of those provinces – Guangdong – is home to more than two of the Defendants. Of the eight Defendants from Guangdong, only three claim to be from the same city, Foshan. Based upon the Court’s research, Foshan is home to approximately 9.5 million people. The fact that three infringers live in a city three times larger than Chicago is hardly persuasive evidence of coordination. This leaves the only remaining evidence of coordination being use of TEMU. As far as this Court can tell, no court has found joinder appropriate just because the defendants used the same website to infringe.

This is a skillful filleting of trash arguments. I would feel bad for the Zaful team, but they brought weak sauce before a judge who would ask very basic questions about the plaintiff’s allegations. Note that the court’s reasoning applies, nearly verbatim, with equal force to thousands of other SAD Scheme joinder allegations. In other words, the problem isn’t just with Zaful’s weak advocacy; trash arguments are a ubiquitous feature of the SAD Scheme.

The judge also trashes the bad case prep and fact corner-cutting by many SAD Scheme plaintiffs:

a note about fundamental fairness and judicial economy: In Schedule A cases, the court must conduct an ex parte review of hundreds, and sometimes thousands, of pages of screenshots comparing defendant webpages with the plaintiff’s intellectual property registrations. Because the evidence is presented ex parte and is not subject to adversarial testing, the Court must scrutinize it extremely carefully. In this Court’s experience, the exhibits in Schedule A cases are frequently disorganized and poorly labeled, and plaintiffs rarely support any of their arguments with a defendant-specific analysis. For example, in this case Plaintiff’s eleven-page brief in support of joinder does not contain a single defendant-specific citation to the record

The judge wants defendant-specific allegations? That’s how we learned it in 1L Civ Pro, but some judges have made defendant-specific allegations optional–and plaintiffs have absolutely abused that permissiveness.

Also, a reminder that the SAD Scheme is heavily dependent on saving the filing fee costs of suing multiple defendants. As a result, SAD Scheme plaintiffs pay less into the court system and yet demand the judges and their clerks work harder for them. Precisely backwards.

Great work from Judge Perry. I hope she and her colleagues keep asking the obvious questions and remain intolerant of BS answers. Now, the next step is for judges to impose meaningful sanctions for joinder abuse. If the only consequence of misjoinder is that judges reduce the number of defendants down to only those who can be joined (i.e., the result they would have achieved if they had followed the rules), then plaintiffs have every incentive to engage in misjoinder and hope that they can get away with it.

Case Citation: Zaful (Hong Kong) Ltd. v. Schedule A Defendants, 2025 WL 71797 (N.D. Ill. Jan. 10, 2025)

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Prior Blog Posts on the SAD Scheme