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Forum Shopping RevisitedAndrew L. Smith

Forum shopping is a practice adopted by litigants to get their cases heard in a specific court that may be more likely to produce a favorable result. Attorneys and litigants choose particular courts for a variety of reasons, including obtaining sympathetic juries, getting geographic advantage, and/or taking advantage of past favorable results in the chosen jurisdiction. Although forum shopping is sometimes frowned upon, it is nevertheless generally condoned and widely utilized by practitioners to try to benefit their clients.

On May 22, 2017, the United States Supreme Court in TC Heartland LLC v. Kraft Foods Group Brands LLC, No. 16-341, 2017 W L 2216934 (U.S. May 22, 2017), issued a significant ruling that could curtail forum shopping on the national level. The issue in TC Heartland specifically focused on where plaintiffs could file an intellectual property or patent infringement lawsuit, which is governed by a federal patent statute. The Court ruled, unanimously, that patent and intellectual property lawsuit plaintiffs must sue domestic companies in the jurisdiction where they are incorporated.

Before TC Heartland, plaintiffs could file suit in any jurisdiction where the corporate defendant conducted business, regardless of where that defendant was headquartered or incorporated. This specifically condoned the practice of forum shopping. Since plaintiffs, nationwide, desire to file in the Eastern District of Texas, for any of a number of possible reasons, including that that District has a “rocket docket,” the Eastern District of Texas’s caseload has seen a rise in patent litigation of over 29% in five years.

In fact, a review of the court’s active docket has revealed that one single judge in the Eastern District of Texas hears approximately 25% of the entire United States’ patent cases. See Alison Haddock Hutton and S. Neil Anderson, “Octane and Highmark: One Year Later” (September 3, 2015). See also Lex Machina 2015 End-of-Year Trends (January 7, 2016), https://lexmachina.com/lex-machina-2015-end-of-year-trends/. These statistics are not merely coincidental; rather, they evidence litigants’ attempts to forum shop.

TC Heartland will greatly reduce the number of patent infringement and intellectual property cases currently being heard in the Eastern District of Texas, which often has no connection whatsoever to any of the litigants. It is likely that Delaware, where many corporations are incorporated, will see a large portion of the caseload that the Eastern District of Texas would have formerly handled.

TC Heartland does not apply to litigated matters of types other than patent or intellectual property. However, TC Heartland could have important legal and public policy consequences going forward. At a minimum, it could evidence a desire to reduce the practice of forum shopping. We will have to wait and see if TC Heartland is expanded to forum shopping under other federal statutes, or whether its effect is limited to its own patent and intellectual property context, under the particular patent statute involved in that case.

Either way, the decision highlights the importance of litigating in the proper venue. It is vital for plaintiffs in cases of any type, whether in state or federal court, to obtain legal advice in order to ascertain where a lawsuit should be properly filed and litigated. It can make a big difference! A trial attorney, familiar with the local practices and customs of the respective courts, can amply assist you in this regard. From a defense perspective, it may be appropriate to file a motion challenging venue in order to advance the defendant’s legal rights, or to obtain the same types of tactical advantages that plaintiffs seek in selecting a forum in which to file. Once again, legal counsel is best suited to determine your legal rights and interests.