A-lister antics and Schedule A shenanigans

27:29Like, when I was doing research for this show, I learned that Kiki Palmer had decided not to run an interview she did with Jonathan Majors. In her, like, public statement about why they decided not to run it, she was like, I'm a journalist and people should be able to trust that, like, I'm coming from a neutral place. I give people a platform to, like, say what they do and I don't judge. And I was like, that's crazy. Yeah. You're not a journalist. I love Kiki Palmer, but you're not a journalist. No, not at all. And it's interesting to me that like the thing about the vulture mic, you don't have a quick are these people sitting or standing thing.

28:07Like you might ask a real thing. We're working on it, but yeah. Yeah, but you might ask a real thing, right? Yeah, absolutely. And sometimes like when I've done red carpets, you know, publicists will often come down the line first to be like so-and-so's coming. You have two questions, blah, blah, blah. And sometimes they'll specify we're not doing silly questions. Oh, wow. Don't do silly questions or don't do anything adjacent to the movie. Sometimes we have like New York-based questions, New York Magazine. And they're like, don't do it, movie only. And one time it was also told like, this person is funny, my client is funny, but you don't need to prompt them.

28:45Let them be funny on their own terms and don't set them up with a silly question. They don't want to do that. And it was like, okay, I won't do that. And lo and behold, like a serious question got a funny answer from this person. But I think the teams with these people keep them really protected from anything that they don't want to be doing. Does the existence of the new media circuit change how you work as a journalist? I think it puts a lot of pressure to come up with questions that have relatively short answers that are not yes or no, but are also not too long-winded or heady. I think people are not really caring about the answers to those questions, which is a shame because it's questions like that that make me want to be a journalist and probe and question like why things are the way they are.

29:35Red carpets are really stressful because there's so little time. Everyone is like jockeying over each other that it's not always the environment for something serious. But I think that's also why like Javier Bardem talking about Gaza on the red carpet is like he only really has like 90 seconds with some of these people and he's using that to do that, which I think is great. Yeah. There's also the I feel like maybe something we touched on a little but didn't say directly is that like when people go on these shows, a lot of what is discussed is very controlled. There are you you show up to the you know, the person comes on set and I'm assuming a lot of these people are told do not ask about this thing.

30:12Right? Like, these are not organic in the way that maybe we would hope. Or maybe, you know, it's just more scripted, almost. Yeah, completely. I think many of these things are set in stone, prearranged. Me and Kareem, who does Subway Takes, recently told the story of how Kamala Harris was supposed to be on. They had a pre-approved take that she was going to do. And then at the last minute, they switched it up and it all went sideways and it never ran. Yeah. And so it's also that these properties and these teams are not equipped to improvise. Yeah. And that often is bad for everyone. Yeah. They also it feels like these teams of, you know, the people who run these shows or do these shows, often they're small, young, scrappy, and they're not equipped to push back either for the most part.

31:02Like, this is a structure, you know, we talk a lot about, like, access journalism and the way that that can skew coverage. But this is, like, the final boss of that, where, like, your guests, the reason you make the show, the thing you produce depends on you having access to these people. And if you go off script or if you break some sort of, like, agreement or if you insist on maybe holding their feet to the fire in a way they don't like, like, that ends that, right? Yeah. Yeah. Our version now of holding someone's feet to the fire is making them feel uncomfortable in a very uncontrolled way.

31:36Whether that's eating very spicy chicken or a kind of stilted awkwardness that comes with some of these, like, more modern new media figures like Harry Daniels. That's holding feet to fire. But it's not in actual sort of content of what we learn from these people. Does all of this go away if, like, a platform implodes? Like, what is the future of Chicken Shop Date or Hot Ones if, like, YouTube changes in some significant way? I think we're seeing it a little bit with Chicken Shop Date where we're seeing Amelia de Moldenburg get brought on as, like, an official red carpet spokesperson for the Oscars and other awards shows.

32:16It's been interesting that they've been kind of pivoting her, like, pushing her into, like, an entertainment tonight space or like a talk show kind of space. And I think that's a great fit for her, honestly. I really like what she does, and I think that show has a very clear ethos, and I think she has a really combative ethos that, like, obviously it's not David Letterman, but it calls to mind sort of the combative nature going on Letterman. Yeah, it's fun to watch. Yeah, absolutely. I think YouTube is only getting bigger and bigger. I don't know at this point what could happen to YouTube that would change the metrics of some of these shows.

32:51You and I were at the YouTube upfronts and they were saying people are watching YouTube on their TVs. It's not just a phone thing. So I think we're going to get longer and longer YouTube things. I mean, I semi-recently watched a five-hour YouTube video over many days. Like, that has become a very regular way to consume media. Yeah. So to close this, let's say you are a guest host of a popular tech podcast who is filling in for your co-worker who is out on parental leave. What would you suggest? Maybe it's like a fresh-faced wannabe A-lister. What shows should they go on, hypothetically? Well, I think you need to go and call her daddy.

33:33Yeah. I think you need to be playing up maybe sort of a woman in STEM angle to be like, yeah, you know about tech and you know about computers. But like, hey, like you also love clothes. I'm relatable. Yeah, completely. And maybe you want to do like a perfectly imperfect list and newsletter to pull in like a younger audience, but also show that you're sort of out there perusing, have kind of taste. I think for fresh-faced people, a lot of what they need to do is be a kind of cultural tastemaker or prove to some degree that they're both kind of approachable but also a real head about their field.

34:12So maybe you could go in the Criterion closet, too. I was going to say, should I go in the closet? Why not? Yeah. I would love to go into the Criterion closet. I wanted to ask you, but I kind of forgot about that, too. Like, the way that brands or existing companies, like, manufacture a moment like that. like Criterion definitely got its shit together and figured out a way to make the closet a thing. Letterboxd too. They did a great job of it. And I think what they've done is kind of create a non-gamified interview form that lets the person in question be as smart as they are or want to be. And there's no wrong answers.

34:51They're doing something where they can say absolutely anything. It'll look good. It'll look cool. there's that great clip of Malcolm Washington and John David Washington in the Criterion closet, and Malcolm Washington is, like, talking about, I think, like, Romare or some French director and, like, really going long. And then John David Washington just goes, like, Jackie Chan boxhead, know what I'm saying? And it's like, yeah, that's, those are both right. Those are two correct ways to be doing that kind of thing. And I think those are what I'm most impressed by when I watch, because it's both letting the subject have a ton of control, but I do think a lot of the time they say really interesting things.

35:28Yeah, and there's also, I think, in those cases, the audience receives it well, no matter what you do, really. It's like a structure that, because there are no wrong answers, viewers will be like, so true, Queen. Yeah, yeah, yeah. Like, you took Pride and Prejudice, starring Keira Knightley. Or they'll be like, oh, eight and a half. Like, you know what's up. Oh, they're serious. They're serious. Yeah, yeah, yeah. Is there any one of these shows you would want to be on where you're like, ooh, that would be fun for me? I was thinking about this prepping for this because I find I don't think I could do a podcast.

36:03It's just simply way too long. Like with you, this is fun to talk. But like I don't want to be in like snuggled up in a chair with Alex Cooper. I feel like Timothee Chalamet did the thing where he just like went and bought records with Nardwar. Yeah. Right? Yeah. I would do that. Yeah. That would be really fun. I would do the Criterion Closet. I'm not eating chicken on camera, simply not doing that. So I think I like these things where there's like an activity that you go and do. What about you? What would you be on? I want to go on Maren so bad. And now it's ending. It's kind of the worst news for me.

36:36But I really love him. And I think he was kind of a pioneer in the space, a la Howard Stern. But I think Maren kind of pioneered what like the Dax Shepard guys being dudes thing is now, which is like confessional and sensitive while also being kind of masculine. And I just think unlike many people doing what he does now, he's a really great interviewer. Yeah, yeah, I know. He will push back. A lot of people are bad at interviewing. He will push back and he will make people uncomfortable. And the best episodes of that show are when both of them are so uncomfortable. Yeah, I guess I would also like to be on Dua Lipa's book club podcast or whatever.

37:14Oh, yeah. She actually seems like, obviously, again, these are controlled and she's definitely getting a list of things not to ask about. But I would talk books with Dua Lipa, I think. And you heard it here first. We're available for bookings if anyone wants us. Who wants me? Who want me? Thank you, Fran. This is so fun. We have to take a break now, but when we're back, we're going to talk with Sarah Fackrell about a questionable legal tactic that is all the rage in Chicago for some reason. We'll be right back.

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40:22All right, we're back. So what do a woman selling cat pattern t-shirts on Redbubble, a fan of the country music star Luke Combs, and a random Amazon seller called the Accents all have in common? They've all been accused of allegedly infringing on someone else's trademark or design patent. But these lawsuits aren't just your run-of-the-mill intellectual property law cases. They're just a handful of examples of a unique type of lawsuit that have become something of a trend in the last few years. The woman who is selling t-shirts online was sued by the owner of the Grumpy Cat trademark. I don't know if you remember this.

41:00It was the kind of sad-looking cat that spawned a million memes and a movie. She earned one single dollar from selling a t-shirt and later found out that she was being ordered to pay$100 ,000. In the Luke Combs case that went viral a few years ago, a Florida-based fan who was selling homemade drink tumblers on Amazon with Combs likeness on them was ordered to pay$250 ,000, and she didn't even know she was being sued. In the case of the Amazon seller Accents, the China-based company had$50 ,000 in earnings frozen in their Amazon seller account over products that a judge later ruled likely didn't infringe on a design patent at all.

41:41So how exactly does this legal tactic work, and who benefits, and who's at a disadvantage? Welcome to the weird and ruthless world of Schedule A cases. And to help me explain what's going on here, I have Sarah Fackrell, a professor at Chicago-Kent College of Law at Illinois Tech. Let's get into it. Okay, Sarah, so why are these cases called Schedule A lawsuits? Where does this name come from? Well, that's a name that just sort of bubbled up from the way that the main players started naming their cases. Stepping back a little bit, this is a relatively new form of mass defendant IP litigation. And the original cases started, there was something like Big Brand versus Doe's 1 through 100 or something, right?

42:27Like a John Doe lawsuit you might have heard of. And then eventually they started saying, well, it's Big Brand versus the defendants that are listed on Schedule A, which is just a separate document that was filed separately apart from the complaint, at least in some courts. And so what they were doing was instead of saying, this is Apple versus Samsung, and that's right there on the face of the complaint, they were saying, here's Apple versus a bunch of people and we're not going to tell you who their names are, at least not publicly, at least not at first. And so a lot of people, myself included, started calling these Schedule A cases because it was just an easy way to refer to them.

43:04And this model, even though in practice, the case names can differ, that separate document can have a different name. For example, some of them call it Exhibit A or whatever. It can have a different name. But the major players started captioning these cases Schedule A. And so that's the name that seems to have stuck, at least with practitioners and judges here in Chicago. Mm-hmm. And on the Schedule A form, it's not just like a couple storefronts or defendants named, right? It's like dozens, sometimes even hundreds. What have you seen there? Yeah. So I will say I have not been able to exhaustively, empirically study all of these cases yet.

43:44It's a fire hose. It's literally impossible to keep track of everything. But what I've seen from my imprecise, imperfect efforts to pay attention to what's going on is I've seen anywhere from a couple dozen on the low end, maybe even fewer, sometimes even maybe three or four, but usually the dozens is the low end to over a thousand. And they don't sue the defendants using their legal names. This is another big difference between a Schedule A case and a normal case. So in a normal case, if you want to sue someone, you have to figure out what their actual legal name is. And if it's an individual, what's their actual name, which can be hard if you're suing like a celebrity or something.

44:23And if it's a company, right, is it Starbucks Corp or Starbucks Inc or whatever? You're supposed to figure that out and sue them under their proper name. In these cases, though, the plaintiffs say, well, we don't know what the real names of these sellers are, so please let us use their online storefront name or some other similar signifier as an alias. So they're suing people under aliases. That's where these names come from that you'll see when the defendants are able to show up. It's usually their storefront name. and then eventually we may or may not actually learn their real name. What does putting all of these storefronts onto one copyright or design patent suit do?

45:02Like what is the benefit that plaintiffs get by throwing them all onto one form, whether it's called Schedule A or Exhibit A or whatever it is? The reason why you want to sue a thousand people together instead of filing a thousand different lawsuits is because it saves you money. Classic. Classic. It saves you money and perhaps time and effort, right? But money is the big one. You're supposed to pay a fee of about$400 for a federal lawsuit. So if I file one lawsuit against 100 defendants, that's a lot cheaper than filing 100 defendants at 400 bucks pop, right? So they want to save money is the big thing.

45:40And I think that's why bundling these cases is so important to this business model. They could literally sue everyone separately, but not if they want to make money. I want to back up a second and just be like, I think we should say that people can agree that the internet does have a lot of cheap junk. There are products for sale that infringe on someone else's rights. We've seen, you know, designers or businesses complain about this constantly with valid reasons to be upset. And, you know, the knockoffs or the dupes or the infringing products are everywhere. but Schedule A suits work differently than maybe a traditional trademark case might.

46:18So what are the different moving parts here that actually make these suits so effective for plaintiffs? Absolutely. And this larger question of how do we police our IP rights on the internet has lasted as long as there's been an internet, right? This is not a new question. This is just a new evolution. As Professor Eric Goldman has written about, who studied sort of the evolution on the trademark side, we've also seen on the copyright side some people who used to file mass copyright lawsuits are now filing Schedule A cases. So you're right that this is an old problem, but this is a new solution, and it's actually pretty clever and sophisticated when it's done right.

46:53So the heart and soul of a Schedule A case is the asset freeze. The lawyers who perfected this litigation model figured out a way to convince judges that they should not only allow them to sue hundreds of people altogether. Not only let them sue them without knowing their real legal names, not only let them sue them in the form of their choice, which is often but not always Chicago, but also to let them freeze the accounts of these defendants before they even know they've been sued. In legal language, we call this an ex parte TRO or a temporary restraining order, and they come in and say, hey, judge, look, these defendants, we have reason to believe that they are all bad and nefarious Chinese counterfeiters or at least foreign counterfeiters, but they often call them Chinese, which is a separate issue in these cases, right?

47:42They say, we have reason to believe that these are all nefarious foreign counterfeiters and judge, unless you freeze their Amazon seller account right now, unless you freeze their eBay account right now, unless you freeze their PayPal account right now, they are going to abscond with their ill-gotten gains and just disappear into, you know, the far reaches of the internet. And for a variety of reasons, they've been able to convince judges that this is correct, even when the defendants don't actually fit those profiles. And so this key that they go in, they find a bunch of sellers on, you know, name your platform, eBay, Etsy, whatever you have.

48:17And they say, judge, we think they infringe our rights. Here's a little proof and please freeze all their accounts so we can figure this out. And most of the time that's working, right? Most of the time the judges are like, sure. yeah we're still i i'm actually working with a co-author trying to get some good empirical data on this but just anecdotally it seems like a rubber stamp a lot not all judges some judges become skeptical but a lot of judges for quite a while now seem to have accepted these cookie cutter boilerplate complaints and said oh here's another one and we're gonna freeze that and freeze that and you can imagine it's a really really really powerful remedy if you're in a lawsuit you have their money and they often usually freeze the whole account, not just whatever you sold.

49:06So let's say that I sold one accused product for$4.99, but I happen to have$350 ,000 in my account. That's what gets frozen. And it's sort of just luck based on the disbursement schedule. And so you could imagine if you were a defendant and you've got your money tied up, right? Varying degrees. Maybe it's, you know, nothing because you just got a disbursement. Maybe it's a thousand bucks. Maybe it's a hundred thousand bucks. That's not normally how we start litigation. Normally you find out that someone sued you and we have these little steps we take, but these defendants often, I'm told, find out they have been sued when they notice their account's frozen.

49:44Yeah. And then the platform's like, hey, go talk to the plaintiff lawyers. Yeah. They might not have even seen the complaint or the papers or have had any notice at all. And that's extraordinary. Yeah, I wanted to pick up on one of the cases that I mentioned earlier, this Amazon seller Accents, which I should clarify for listeners that it's spelled not like Accents. It's spelled A-C-C, capital E-N-C-Y-C. And I had to go to like the attorney that represents Accents to be like, can you please tell me how you pronounce this name? But it's called Accents. It is a China-based Amazon seller. They sell like really random things that you might need around the house, you know, hooks or like sticky, like suction cup things for, you know, hanging something or whatever.

50:28And what you were describing, this TRO, this temporary restraining order, happened exactly to them. They were selling one hook that was like you put it on in your closet and you can hang a handbag from the hook. It's like a double-sided hook. They were selling those hooks and they got an email saying, hey, there's an issue with this listing. We've taken it down. And also your seller account is frozen. The money ended up growing to like$50 ,000 because they were still making sales on their other products, which were not affected. They just couldn't get their money out. And like you said, they had no idea that they were being named in a Schedule A suit until it was kind of too late for them, right?

51:06Already their business is being thrown in disarray. It's around the holidays. They can't get their earnings. So I wanted to ask just like, is this something that should be happening? Is this normal? I guess for, like you said, for Schedule A, it kind of has become extraordinary. But a temporary restraining order like this, like you said, is only supposed to happen for very, very specific reasons and very rarely applied. Yeah, in theory, a temporary restraining order is supposed to maintain the status quo so we can figure out what's going on, right? So to take like a real property example, if a company was going to demolish a building where I painted a mural and I thought I had a right to have them not demolish my mural, if I wait until they demolished the whole building, it's too late.

51:53So I might go to the court and ask for a temporary restraining order and be like, hey, don't let them bulldoze the building until we can figure out the art law issue. That's sort of a classic example of a TRO. This is different because, again, normally defendants are allowed to use their money while litigation is going on. And sometimes these tarot are written incredibly broadly. Like sometimes they're just like, okay, you can't use your Amazon account. But I've seen some recently that are more like, you can't spend any money in any bank account. How do you live? That's the thing, right? How do you buy food?

52:23How do you hire a lawyer, more importantly, right? So what happened with accents is not unusual on its facts, but what's unusual about it is they were able to get a lawyer. Yeah. That doesn't always happen for a variety of reasons. Yeah, that's something I wanted to talk about, too, is just, you know, it feels like there's a real power imbalance in a lot of these cases because there are sometimes they're big companies, but sometimes they're not that big who are actually going after all of these sellers. But by and large, from what I understand, the people being named as defendants are like individuals selling something they're making or foreign companies who maybe like don't speak the language, don't know any lawyers in Chicago that they can hire to defend them.

53:04And Accent's attorney told me that, you know, most of the time you go to court and there can be hundreds of defendants named and there's not a single person right in the courtroom there to represent these people. It's just the plaintiffs kind of pushing things along. Yeah, we don't actually have a lot of good information about who the defendants are, actually, because they're named using aliases and because of all the secrecy. A lot of these records remain under seal for quite a long time, if not forever. And so we can't really know systematically who's being sued. But like you said, as far as we can tell, it's a variety of companies.

53:38Sometimes it's just an individual. Sometimes it's a little company. Sometimes they're in America. Sometimes they're not. We don't really know as outsiders, right? I mean, maybe some of the plaintiff's lawyers have some insights that we don't. so the asymmetry in these cases is really really striking and even when there's a hearing it's often pretty quick i've seen judges say okay plaintiffs you can have your tro we're going to have a preliminary injunction hearing which is what you're supposed to do if you want a longer initial freeze and sometimes they only have a matter of days and so imagine that you are who the plaintiffs always say these defendants are right you are someone in another country who is selling products online and you find out in the middle of the night that there's going to be a hearing in two days in some city you've never even heard of in the middle of North America, right?

54:30Like, how do you even start to defend yourself? I mean, I wouldn't know what I would do if I was in the other shoes, right? If someone sued me in China and I'm a lawyer, I'm a law professor, I have connections. I don't know what you do if you are just a normal person. And so these cases move so quickly because they're motivated by this narrative of, you know, bad, nasty, nefarious people need to be, you know, clamped down on or it'll just be whack-a-mole on the internet forever. But what happens when that's not the case? Parties can't always fight every bad claim, even the ones that lack merit.

55:04Sometimes it's just not worth it, right? Hey, that hook wasn't making us money anyway. Let's just quit selling it, right? Or that t-shirt, no one bought it anyway. We don't care. We'll just cancel. We'll quit. So there's a certain threshold of how much even has to be frozen before rationally, economically, if you're in a position where you can make those sorts of judgments, even make sense to call a lawyer. Something that struck me in all three of the cases, the Grumpy Cat, Luke Combs, and then Accent's case, is that the actual earnings that these defendants, at least who are responding to the suit, are reporting are so small.

55:38The Grumpy Cat t-shirt seller made literally$1. She sold one shirt. And it didn't have, like, the photo of the grumpy cat on it. It was just, like, a cat that looked kind of sad. An illustration of a cat that looked kind of sad. The Luke Combs fan, which that story also kind of blew up because he, I think, tried to make it right afterwards. But the Luke Combs fan sold, like,$380 of homemade merch. And then Accents sold less than$500 of these handbag hooks. It's not, like, their main seller. I don't think care if they sell these handbag hooks. But the plaintiffs are seeking sort of enormous default judgments.

56:17So, you know,$100 ,000,$250 ,000,$900 ,000, I think was the Accent's case for, you know, 500 bucks of hooks that a judge later found likely weren't infringing in the first place. So, like, how do plaintiffs justify this? That's a great question. And it's actually another really big concern with those freezes that I talked about before. So what the plaintiffs do is they say, hey, we're entitled to this freeze because we could get this kind of remedy that qualifies, at least theoretically under their theory of Supreme Court precedent, which hasn't really been strongly tested yet. Certainly not in court appeals that I know, but we are eligible for potentially this type of damages.

56:59So you should let us freeze their assets is the argument. But then they turn around at the end and ask for a totally different kind of damages, ones that would not justify that initial asset freeze. And a number of judges, well, at least a couple of judges, have started to really bristle at that, right? You're coming in and saying you want this, but then you're asking me for that. And so there's this sort of mismatch and perhaps a feeling that there is perhaps some kind of bait and switch going on or something like that, in addition to just the extraordinarily large numbers. Because these big numbers are statutory damages.

57:42But the problem is, is there's a really big mismatch between actual harm being done and the damages being awarded. Which is bad on a couple of levels, right? First, it just seems really unfair. And that's a problem beyond just for the parties involved, because I think it makes our courts look bad, right? Our judiciary and our legal system depends at least in part on being trusted and respected. And when you go around saying that someone's got to pay half a million dollars because they sold one$5 widget, that isn't a great look for the court system, let alone for just larger, more pure ideas of justice.

58:22And so I think that's why cases like the Luke Combs case, why the Curtis case, the Grumpy Cat, catch a lot of people's attention, because it just seems and is fundamentally unfair. I guess we could talk about like the status of the Grumpy Cat case. Yeah, the Grumpy Cat case, actually, I just checked. So one thing when we're talking Grumpy Cat and Schedule A is you have to clarify which Grumpy Cat Schedule A case. They're very litigious, right, the owners? I did a docket search and I found over 60 cases. Wow. Schedule A in the Northern District, which is a lot. And, you know, in that one, a couple of the defendants had fought back, including pro se, right, without a lawyer.

59:05And the judge actually did end up granting those three defendants' motions to dismiss. So really great news for those three defendants. Yeah. Not so great news for all of the other defendants who were faced with identical allegations that the judge said, that's not good enough to be sued in my court. But because they didn't fight back, I assume there's going to be default judgments entered against them if there aren't already. Yeah. And that's just kind of extraordinary to me. I don't think that once the judges decided that insufficient is a matter of law, I don't think he has to accept it. And that's added on top of the fact that, like you alluded to before, the merits in that case were not particularly the strongest.

59:49So in that exact one, the Curtis one that you mentioned, you know, they have this word mark. They've registered the word grumpy cat or the phrase grumpy cat for use and connection of various products. and if you look at their filings, they say that exactly what she did wrong was call it a grumpy cat pattern in the description of the product. So I've got this fabric or shirt that looks like a cat who is grumpy. That's not the kind of thing that trademark laws will stop you from doing, right? You're allowed to call a grumpy cat a grumpy cat as long as you're not doing it in a way that makes people think that that was made sponsored or approved by the grumpy cat company, which I'm always surprised was a real thing.

1:00:29Yeah. Also, I should say that the real grumpy cat, his name, his, I'm not sure if it was a here or she, Tartar Sauce, died several years ago. Like, RIP Tartar Sauce, but grumpy cat is, you know, for all intents and purposes, not really a thing anymore. Yeah, so you had this meme that became monetized by a company, and now, like you said, the cat is passed on and the trademark remains. So, I mean, lots of questions there. But again, only the three defendants who showed up got relief. And that's unfortunate. Most people probably aren't familiar with Schedule A cases, and certainly a lot of the people who are actually being sued aren't.

1:01:07But there's one group of people that is very familiar with Schedule A cases, people practicing in the Northern District of Illinois. I have a couple numbers from Eric Goldman at the Santa Clara University School of Law. So he counted 7 ,700 cases, 40 % of which were filed after January 1, 2024, naming 1.5 million defendants. And by his count, 88 % were filed in the Northern District of Illinois. And it's kind of become an epicenter of these kinds of cases. What is going on in the Northern District of Illinois? What's happening in Chicago? Oh, I mean, that's the billion-dollar question, right? And I don't think anyone really has one single answer.

1:01:50I think we're seeing a lot of cases here because the judges let them happen here. So what do I mean by that? The Schedule A model depends on convincing judges to exercise their discretion at various key parts of a case in very specific ways. You have to be able to convince the judges to exercise their discretion to, for example, let you freeze the assets. You have to convince them to use their discretion to let you serve the defendants by email, which is another key part of this. You have to convince them to use their discretion, to join a whole bunch of defendants together, to sue a whole bunch of people together.

1:02:29And at various other points, it's all about convincing judges to use their discretion. And so as a very practical matter, they're filing cases here because the cases work here. And why exactly do the cases work here is the harder question. Yeah. If one piece of that breaks, does Schedule A kind of fall apart or can they try to figure out ways around that? Well, that's a great question. And we're starting to see some natural experiments to some degree on that. So it's hard, right? So the Northam district is actually a pretty big federal bench. There's a lot of judges compared to certain districts.

1:03:07So even if you've got two or three or five who are skeptical, there's still like 20 who are totally okay with this, right? The question is then how do you respond? And we've seen defendants respond in different ways. Sometimes we've seen them dismiss their cases and refile and hope to get a new judge in the same district. And we know this because other judges have noticed and called them out for that. Judge Tharp has done this quite a bit here in the Northern District. We have seen cases where they go and they file in a completely different district, right? Fine, you don't like my joiner judge, I'm going to go file in Pittsburgh.

1:03:46and this is interesting because the idea of forum shopping to a certain degree is totally tolerated and okay under the law right if i have a case that under the relevant rules could equally be filed in chicago and pittsburgh normally i as the plaintiff get to choose there's not anything inherently wrong with that where it starts to get messy is like this case we recently saw where plaintiffs file their case in Chicago, get a judge they don't like, dismiss the case and refile against the same defendants and maybe other people somewhere else. I've seen a fair number in Atlanta recently. Nike, for some reason, likes to file in Atlanta.

1:04:26As far as I can tell, we've seen a number in Pittsburgh. I just saw one in Kansas. Huh. That was the first one I saw. It's about salt and pepper shakers. And the judge just granted the TRO. Yeah, one thing that really drew me to Schedule A cases and really fascinated me was that it kind of flips the script a little bit. And we think of infringement and counterfeiting, obviously, as problems that exist online. We understand that rights holders want to protect what they've created. And even alleged infringers, alleged counterfeiters, they do deserve due process, right? They should have their day in court.

1:05:05They should have the opportunity to respond to allegations because sometimes they didn't really infringe at all. So what is the danger of sort of allowing Schedule A suits to proceed at the current clip to proceed sort of how they're they're working right now? There are a lot of reasons to be concerned. As a really practical matter, right, we've talked about how individual defendants can be wrongfully caught up in these drag nets. Now, I'm not totally sure how different plaintiffs' firms come up with these cases or who's vetting their claims. And we can't know for sure what percentage of these infringement claims have merit and which ones don't.

1:05:45But we do know for sure that an alarming number of them completely lack merit. And that's not something I say lightly. I think as someone who is a due process absolutist, a proceduralist, I would be concerned even if these were all perfect infringement, right? They actually had merits and you're actually an infringer. I would still have concerns about this litigation model just from a due process procedure perspective. But when you add in the fact that a lot of these defendants are very, very clearly not infringers, let alone counterfeiters. And again, I can't quantify that as a percentage because of just the volume plus the secrecy plus all these other problems we've talked about.

1:06:20But I've seen enough to be very, very, very disturbed. And again, this is a problem not only for the individual defendants, but also for the integrity of the system, right? What does this say about design patents in particular, right? You know, that's my thing. In design patents, it's maybe particularly concerning because you can get a design patent really easily and really quickly for not a lot of money in the scheme of things. And so we've seen allegations of people saying that this plaintiff went and got a design patent on something that already existed on Amazon that they didn't create, and then they sued all of us in a scheduled case.

1:06:57and if that's true that's incredibly disturbing right and the part that is additionally disturbing to me is that it's plausible design patent examiners at the pto are really hard-working people everyone i've met is really dedicated and smart and doing the best they can but they only get a couple of hours you can't search all of amazon in a couple of hours let alone do all the other work you need to do on your file and so we have a system where in theory even if you design patent, if the applicants are not being scrupulous, there is room for additional exploitation, which again puts the entire system in disrepute, not to mention being enormously unfair to all the people who are being targeting.

1:07:38And then there's the public, right? Let's say that I wanted to buy a purse hook, but the best one out there was taken off the market because they got threatened by a Schedule A plaintiff, even though they didn't infringe. There's a harm to competition in consumers. Because while online infringement is a problem, online choice is a good, right? And so I think there's a lot of people who get hurt here in a very practical way, in addition to all these sort of more maybe abstract sounding concerns about due process or procedure or, you know, law. Is there any indication that judges are beginning to question this tactic.

1:08:18I know there was an order coming down from a judge in the Northern District of Illinois. Walk me through what he said. So Judge Ness, so it looks like starting in about March, Judge Ness started issuing these orders in all his Schedule A cases where he said, look, I've become concerned about this litigation model and especially these certain parts where I'm being asked to use my discretion in these certain ways. So I'm going to hold all these cases in abeyance for now while I figure it out, which is completely my, I've never heard of a judge doing anything like this. Like this is wild. Just saying we got to shut this all down so we can figure out what's going on, right?

1:08:58Judicial version. And this is pretty extraordinary. And that's added to a rising number of cases where we've seen other judges on issues like Joinder say, hey, look, I know that other judges have accepted this, but I don't hear why. There was a case filed by Toyota where Judge Daniel issued his decision. It's become very persuasive. I see that cited by other judges. Even judges will say, hey, look, I used to do this, but this has changed my mind. We've seen judges with those asset freezes. There's a case Judge Seeger issued involving the character Zorro. I love these sites. They're all the most amazing.

1:09:37So in the Zorro case, he kind of identified that sort of turnabout game that plaintiffs were playing with the asset freezes where they say, I'm asking for this, but then I'm going to get that at the end of the case. And he said, I'm not freezing it. I'm not doing it. I don't believe you anymore. Which again, is pretty extraordinary for a federal judge to just be like, I don't believe you anymore. And we have seen at least one judge start citing that Zorro case more frequently. I believe that the plaintiff's lawyers have been fighting back. I'm not sure exactly how successful they've been. So it does seem like there, again, and this is just in the Northern District, that there has been some pushback from newer judges, from judges who've been seeing a lot of these, and maybe are rethinking it.

1:10:14But that's not all of them. Again, this is a big bench. If I allocate here, you have a perfectly good chance of finding a friendly judge. Yeah. Or they could go to Kansas or whatever. We've got to take one more break, and then I'll have Vian to help me answer a question about AI translators. See you on the other side.

1:10:56Thank you. story is defined by moments when the founders make bold decisions. These are high-stakes moments that risk the business, but can lead to greatness. I'm Rolof Boota, managing partner of Sequoia Capital and the host of Crucible Moments. We're returning for a brand new season. Join us as leaders from Stripe, Zipline, Palo Alto Networks, Klarna, Supercell, and more. Share what it's actually like to navigate the make-or-break decisions. Crucible Moments is back on October 23rd. Until then, catch up on Seasons 1 and 2 wherever you find your podcasts.

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1:12:19Hey, y 'all, we're back. Let's get to the hotline. As always, the number is 866-VERGE11, and the email is vergecast at theverge.com. We love all your questions, and we try to answer at least one on the show every week, so keep them coming. And today, I have Victoria Song to help me answer a fun one about AI translator apps. Hey, y 'all. Long-time listener, first-time caller. My name's TJ. I'm an American currently living between Mexico and Colombia because of my relationship. Shout out to love and immigration law. So here's my question slash rant slash cry for help. I am a huge user and fan of AI, both in my personal life and professionally, but I still don't have a good real-time, natural-feeling translation tool.

1:13:08My partner's mom and I spend a lot of time together, and she doesn't speak English, so I've been relying on ChatGPT voice mode, which is genuinely amazing, but Google Translate and Apple Translate still feel like robot interns, and advanced voice mode is pretty limited for like everyday use. So I want something that can do live back and forth translation reliably, like subtitle a real conversation. Let us actually talk. I've been searching everywhere and I'm almost ready to drop$500 on MetaRavens just for the translation feature. But like, do I trust Lama to handle emotional nuance with this Colombian mom?

1:13:45I do not. So my question is, is there anything out there I'm missing? Are there tools worth trying? Or are we still in the almost but not quite territory for live AI translation. I would love your take, honestly. Thanks all. Love your pod. Okay, I was thinking about this, V, and I think we both speak Japanese, so maybe we should just do it in Japanese and have everyone AI translate. Oh my God. Just kidding. Yabaiyo, yabaiyo, sore. Nihongo de yatchau ka? Yatchau ka? Anyway, so this is a good duo to tackle this. I personally think, I mean, I just have a hard time with any translator things because language is so dynamic that it changes day to day, week to week, month to month.

1:14:32And like, I have used translator tools for my entire life for various reasons. And like, it has never gotten to the point where it can keep up with the way that people speak casually. Naturally, yeah. Yeah. Slang, like, just forget about it. Yeah, and I have used a lot of translation tech just because, like, I, like, my Japanese, pretty decent. My Korean, not great. Even though those two languages are quite similar, like, almost grammatically, not almost, they are grammatically identical, and a lot of the vocabulary is the same. It's just, I'm not great at speaking it, understanding it. I'm Korean Chewbacca in my family.

1:15:10Just because I speak English, they speak Korean, and we understand each other just fine. So to that point, there are times where I have wanted these kinds of tools. And so I've tested a bunch of them with my family. And I regret to tell you, listener, TJ, they're not—you are coming up against what all of them struggle with. Like, they just can't handle slang. Yeah. And if Colombian mothers or anything like Korean mothers and auntie figures, they do be talking at the speed of light. Yeah, and like the precision is so important when you're talking across languages and across cultures. And like one thing that I've always found very difficult is, so like I grew up in Japan and I haven't been like living full time in Japan in a really long time.

1:16:03And so a lot of like my vocabulary in Japanese is almost like stuck in time with the slang or the way that people spoke at the time I last lived there. And that is something that I think no translator app, AI or not, could ever help me with. Like you need to be actively speaking and engaging with people in this moment to really pick up on the nuance like TJ was asking about. Yeah, there's like so many examples of that. Like, my family immigrated from Korea to the U.S. a long-ass time, like, over 50 years ago at this point. And one thing that I learned growing up was the word for bathroom. We called it 변서, which is apparently, like, ancient colonial times, still living under Japan levels for the word bathroom.

1:16:48And I was just like, oh, I didn't know that. And that explains why when I went back to visit family and I was like, oh, 변서 어디 있어요? They were like, do you mean 화장실? Which is the actual word for it. So, you know, is a translator going to be able to handle skippity toilet? That's my example that I use all the time. That's a litmus test. That's a litmus test because those are the things. And I remember when I was in high school and taking Japanese, my Japanese teacher was losing her mind because of the slang that the Japanese kids were using, which was makkuru. Because she's like, that means to turn.

1:17:24and apparently no it meant teens were saying we're going to mcdonald's yeah that's so interesting it's it's like these things where it's really hard but i do think tj that you maybe are in the perfect situation in real life to get over some of these uh shortcomings with like the tech option like in my opinion when you are trying to speak with you know your partner's family like that's That's a great time to ask about the nuance. I assume that you probably have some language capabilities, but, you know, maybe you use that opportunity to be like, you said this word and I'm not quite following. Like, can you help me understand what it means?

1:18:08I actually had a great time doing this with some friends from Japan who were visiting the last couple years. Like, they would teach me all of the new things that the kids were saying, like, even younger than we are. And they're like, I don't really know where it comes from, but this is what the kids are saying. The tech is never going to keep up with that. But if you have people around you who can explain that context and explain the meaning, that's golden. That's a great opportunity. Also, if you are living between Mexico and Colombia, that's a great chance to be immersed in that. And you can use the tech to kind of help you learn certain things while you're getting up to speed.

1:18:43I think at the level where the tech is now, it's very friendly for people who are tourists. It's not really useful in family situations. It's not necessarily useful in any situation other than, I don't know how to read a menu. But you kind of can't just scan it to read a menu and then not learn what the words are. Because, you know, I've used the translation feature for Spanish, actually, on the Meta Ray-Bans. And it couldn't handle slang. One, it couldn't handle slang. And then if we were, I was speaking with someone who was fluent in Spanish and English. And if we were switching back because it was just easier for them to explain something in English, I had John Cena's voice.

1:19:24Because you can make the meta AI sound like John Cena, and why not? Life is short. That seems distracting. You do hear them in your ear at the same time, and you're having that problem. So I think it's okay in a pinch if you're going around town and you just really need help for, I don't know how much this costs. Can you tell me how much this costs? Like, those things the translation can handle. Every day, like bonding and getting to know someone, these things can't really do it. And if you use it as a crutch, I think you're arguably missing out on connecting with your partner's mother. So I think a lot of people who are speaking with a non-native speaker actually love explaining words.

1:20:05Another thing I was just thinking about here is like there is a lot in Japan and Japanese that is very reference heavy. like if you watch Japanese television like late night shows or whatever there are so many references that like I don't even if I had a subtitle machine I don't even think it would be helpful yeah it's I almost you know in college I had a I had a two-second dream that I was going to be a translator and then same I think that's just like just yeah canonical a thing weird idea that we have for whatever reason I was like yeah I'm going to be a translator and then I was like oh my god But I don't, because when you have the subtitles, you actually have a character limit as to what you're going to say.

1:20:43So you are going to lose out on all the context and the nuance there. And, you know, Japanese and Korean are both, I think, high context languages. So to your point, everything's referential and it's about what's not being said. And there's no AI that's going to be able to, like, you know, if someone goes,

1:21:02they're saying no, like, there's some like, you know what I mean? It's like, it's not what it means. It's not what that means. Or it's just like, I think my favorite video about how weird Japanese can be is like all the things that daijoubu can mean. So true. It's just like, oh, daijoubu. Daijoubu. Daijoubu. Yeah. Right. Daijoubu. It's like it all means different things. Yeah. So like Spanish is not the same and each language has its nuances. But yeah, if you were going to try something, there is something called time kettle there. I know all of this, and I keep going, well, maybe this one will be different.

1:21:39So I got a pair of time kettle earbuds. I'll try it. We'll see. But don't rob yourself the chance of fumbling through all the funny things that will happen due to mistranslation with your Colombian mom-in-law. Once you make some of these mistakes, you'll never forget it. You know what I mean? You'll never forget what's right. Oh, God, there's so many things in language learning. I will never forget Tsutsumotase in Japanese. Because it was an example that my very enthusiastic Japanese teacher was like, how would you read this kanji to this advanced group of Japanese readers in college? And we were like, beautiful person in office?

1:22:21No, it's a badger game. And she's like, It's Tsutsumotase. It's not read in any way that makes sense. It's so weird. And it's a badger game. Such a weird language. It's, yeah. Don't rob yourself of finding all the weird crap. Yeah. Yeah. Agree. Yeah. Thanks so much for your question, TJ. And thanks, V, for helping me answer this one. Okay, that's it for The Vergecast today. Thanks to everyone on the show today. And thank you for listening. There is a whole lot more stuff from this conversation at TheVerge.com. We'll put some links in the show notes, but also read TheVerge.com. Maybe even subscribe.

1:22:55You can find our bylines, how you find everything online. As always, if you have thoughts, questions, feelings, you can always email us at vergecast at the verge.com or keep calling the hotline 866-VERGE-11. We love hearing from you. Send us all your thoughts and questions and ideas for what we should do on the show. We do a hotline question every week, so keep them coming. Call in. This show is produced by Eric Gomez, Brandon Kiefer, Travis Larchuk, and Andrew Marino. The Verge Cast is a Verge production and part of the Vox Media Podcast Network. Jake will be back on Friday to discuss all the news from the week.

1:23:30Goodbye. See you next time.

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