Judges and online platforms are curtailing the use of SAD cases now

Third-Party Service Providers Are Objecting to the Remedies in Schedule A Cases

Courts are not alone in pushing back on these cases. As discussed above, plaintiffs generally seek an order directed to third-party domain name providers requiring they disable defendants' webpages and for e-commerce platforms to freeze defendants' assets. This is critical to plaintiffs' recovery because, without appearing, plaintiffs can never discover the identity of the defendants. Thus, plaintiffs only recovery comes from the seizure of assets frozen in connection with the TRO/PI. Though some courts express concern with asset freezes so early in a case, they have generally complied with plaintiffs' requests.

This outcome changes when third-party platforms object. In February, MD LLC brought another Schedule A case, filing the standard TRO/PI motion.[30] MD argued the TRO should cover the online marketplaces because they provide the service the defendants use to sell the counterfeit products.[31] Three nonparties, including eBay, appeared and objected, arguing the asset freeze was "overbroad."[32]

The objection worked - at least temporarily. On May 4, the court granted the TRO as to all non-objecting nonparties, but denied the injunction as to the objectors, at least temporarily, and ordered expedited discovery on the issue.[33] Discovery and briefing on the issue concluded on June 20.[34] The outcome of eBay's motion could result in a seismic shift in the incentive for parties and firms to file these suits.