The latest round in a Chrome Hearts-filed case sheds light on the increasingly fragile legal footing of the Schedule A litigation model. In a newly-issued opinion from the Northern District of Illinois, the judge severed six defendants from a broader anti-counterfeiting action that Chrome Hearts is waging against 92 online sellers, holding that the fashion brand failed to show that the defendants were sufficiently connected to be sued together.
At first glance, the decision appears to be a purely procedural one, but in reality, it is the latest development in a broader challenge to “Schedule A” enforcement, a tool that a wide range of brands have come to rely on to confront sprawling networks of anonymous e-commerce sellers, freeze assets, and secure rapid default judgments at scale.
> Schedule A in a nutshell: The Schedule A model allows rights holders to sue dozens – or even hundreds – of online counterfeit sellers in a single action, often under seal and on an ex parte basis. The structure enables plaintiffs to secure temporary restraining orders and asset freezes before the defendants are notified.
The Mechanics of Schedule A
Schedule A proceedings have made large-scale online anti-counterfeiting enforcement cheaper and more efficient. And while the system has gained traction among brands for those reasons, it has also drawn growing judicial scrutiny. Chief Judge Virginia M. Kendall’s opinion is one of the most recent to challenge a key assumption underlying the model: that widespread online infringement automatically constitutes a unified infringement enterprise.
In the May 18 opinion and order, Judge Kendall rejected Chrome Hearts’ arguments that joinder was appropriate because defendants allegedly infringed in similar ways across online storefronts and e-commerce platforms.
> The court emphasized a critical distinction: “Mere allegations that two or more unrelated defendants stole the same product in the same way without ever interacting with one another” are insufficient to justify joinder. In other words, similar conduct is not the same thing as coordinated conduct.
This matters because once courts require plaintiffs to show actual relationships among defendants – common ownership, shared payment accounts or coordinated financial operations, coordinated operations, or demonstrable collaboration – the ability to aggregate massive numbers of sellers into single lawsuits stands to narrow considerably.
The Limits of the “Swarm”
The opinion also reflects growing skepticism in the Northern District of Illinois toward the “counterfeiting swarm” theory that has long supported expansive joinder practices. Under that theory, online counterfeit sellers inflicting simultaneous harm on a brand could be treated as part of a unified infringement “swarm,” even absent direct coordination – an approach that gained traction after the influential Bose Corp. decision from the N.D. Ill. in 2020.
But the Chrome Hearts ruling highlights a key limitation embedded in Bose: the theory largely contemplated defendants who never appeared in court. Here, the six defendants at issue appeared before the court, identified themselves as independent from the other defendant sellers, and challenged joinder directly. Judge Kendall made clear that once defendants distinguish themselves as separate commercial actors, the rationale for treating them as part of a unified “swarm” weakens substantially.
That distinction could prove meaningful given that the Schedule A system has historically depended heavily on defaults, with many sellers never appearing before the court. If defendants increasingly succeed in challenging joinder, more sellers may begin retaining counsel – potentially undermining the efficiency that has made Schedule A enforcement so attractive in the first place.
THE BIGGER PICTURE: The ruling does not mean Schedule A litigation is disappearing. Courts are not rejecting Schedule A litigation outright, particularly given the realities of anonymous, cross-border online counterfeiting. However, the decision reflects continued judicial discomfort with treating large groups of unrelated online sellers as a single litigation unit absent concrete evidence connecting them.
That shift could reshape how brands structure enforcement campaigns. Plaintiffs may need to conduct more extensive pre-suit investigations, while courts may scrutinize ex parte freezes more closely. If claims need to be broken into smaller actions, the economics of pursuing lower-volume counterfeit sellers could also become less attractive.
The case is Chrome Hearts LLC v. The Partnerships and Unincorporated Associations Identified on Schedule A, 1:26-cv-00497 (N.D. Ill.).
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