Chicago-Kent College of Law Professor Sarah Fackrell’s research has been cited by Judge John F. Kness in the United States District Court for the Northern District of Illinois. Judge Kness referenced Fackrell’s article, “The Counterfeit Sham,” published in the Harvard Law Review, in his recent decision concerning “Schedule A” intellectual property (IP) cases.
Fackrell, who is also co-director of Chicago-Kent’s intellectual property law program, has studied Schedule A litigation for several years. These cases typically involve plaintiffs accusing numerous defendants—often listed on a separate document called “Schedule A”—of IP infringement and seeking to freeze their assets at the outset of litigation.
“It’s really an honor to know that your work has been valuable to a judge,” said Fackrell. “It’s always nice to know that we’re not just sitting alone in our ivory tower, that we’re actually doing work that matters and that helps people—including judges—as they confront new and important legal issues.”
Judge Kness expressed concern about current practices in Schedule A cases, noting the routine granting of preliminary injunctions without adversarial proceedings, sealing judicial documents from public scrutiny, freezing defendants’ assets before judgment, and joining multiple defendants into one case. In Eicher Motors v. Schedule A Defendants, he wrote: “By the time any defendant appears in the case, it is most often after the defendant’s account has been frozen and its funds restricted.” He added that these practices are “unjustified under the procedural rules and should not continue.”
Fackrell emphasized the importance of judicial discretion: “This is about judicial discretion,” she said. “Judges aren’t required to entertain or allow Schedule A cases. The cases only happen if the judges let plaintiffs pursue them.”
Judge Kness took an unusual step by staying all Schedule A cases on his docket while reconsidering his approach. According to Fackrell, this action was unprecedented: “I think it’s really impressive for any judge to be able to stop and say, ‘wait a minute here, I’m not sure I’ve been doing this right.’”
Fackrell anticipates changes following this decision but notes uncertainty about its broader impact. “I suspect this decision will make waves. It remains to be seen how big those waves will be. Is this going to be tiny ripples in a pond or is this going to be a tsunami?” she said.
She also observed early signs of change among other judges handling similar cases: “Because these cases run on judicial discretion, it’s going to be very interesting to see how other judges react to and whether they follow judge Kness’s decision. I already saw one judge denying a temporary restraining order that would have been granted a year ago. The decisions in these cases almost felt like a rubber stamp for a long time.”
Despite speculation about possible changes in plaintiff behavior or filing locations as a result of increased scrutiny—such as more filings outside Chicago—Fackrell believes Schedule A litigation will persist: “I think the rumors of Schedule As’ imminent demise are greatly exaggerated,” she said.
Chicago-Kent College of Law has taken an active role in public discussion on Schedule A litigation by hosting events such as an April panel discussion organized by its IP Law Society and an upcoming online symposium titled "Unsealing Schedule A," scheduled for September 26, 2025.
“When I started writing about this, no one seemed to be paying much attention,” said Fackrell regarding her research focus over the past decade. She noted increased attention recently: “It’s gone from being this quiet cottage industry to all of a sudden having this bright spotlight on it, and certainly Judge Kness has aimed an even larger spotlight.”