Forum shopping

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Forum shopping is a colloquial term for the practice of litigants taking actions to have their legal case heard in the court they believe is most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and thus have attracted plaintiffs to file new cases there, even if there is little or no connection between the legal issues and the jurisdiction.

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The term became more widely used as a result of legal developments that expanded the number of available forums for litigants to bring cases, thus allowing litigants to effectively "shop" for the forum they believe will provide the best outcome. For example, in International Shoe Co. v. Washington (1945), the U.S. Supreme Court expanded the concept of personal jurisdiction to allow courts to hear disputes over defendants who had only 'minimum contacts' with its jurisdiction. [1] Foreign litigants were also attracted to file suits in the United States due to a perception that it had a more favorable litigation climate. Other examples include the United Kingdom, which offers stricter defamation laws and generous divorce settlements.

The term "forum shopping" has taken on a negative connotation amongst some who view it as gamesmanship and manipulation that undermines the legitimacy of the judicial system, in order to obtain an unfair advantage. [2] On the other side, some believe forum shopping is not inherently bad or evil, but merely the natural consequence of litigants being able to select from a number of potential forums to bring a case, and thus naturally selecting the forum they think will provide the most favorable outcome. For example, U.S. District Court Judge Sam B. Hall Jr., of the U.S. District Court for the Eastern District of Texas, stated in 1993 that "[i]in reality, every litigant who files a lawsuit engages in forum shopping when he chooses a place to file suit." [3] The term has also become adopted in a wider context for the activity of repeatedly seeking a venue for a concern, complaint, or action, until the most favorable venue is obtained.

When a case is filed before a court, the court decides whether it has personal and subject matter jurisdiction, and if so, whether it is the most appropriate forum or venue. Under the doctrine of forum non conveniens , Latin for "inappropriate forum", a judge has a discretion to transfer a case if the court selected is not the most convenient one. If the courts in two states would accept civil jurisdiction, the plaintiff must be able to show that justice requires the trial to take place in the forum suggested by the plaintiff.

The plaintiff might have selected one forum on the following grounds:

The defendant may take the following actions to seek a change of venue:

In both instances, the first step is to determine whether the first instance forum is the natural forum, or whether the forum has the closest connection with the action and the parties. The court adjudicates whether there is another forum that is more appropriate under the doctrine of comity. The current forum court must respect the right of a foreign court to assume jurisdiction. A court must balance the interests of the parties, since there is injustice not only when a plaintiff is allowed to pursue the action in a forum inconvenient to the defendant, but also when a plaintiff is not allowed a timely trial.

Generally, the court will not grant a petition to transfer or an injunction if the grant unjustly will deprive the plaintiff of advantages in the first instance forum. Nevertheless, a real and substantial connection between the venue and the cause(s) of action should exist to provide defendants some protection against being pursued in jurisdictions that have little or no connection with the transaction or the parties.

If the alternative court concludes that another court has assumed jurisdiction either without considering whether an alternative forum was available or has reached an obviously unreasonable conclusion on the merits, then an injunction would sometimes be a reasonable response. If, on the other hand, the alternative court has reasonably concluded that no more convenient forum was available, then comity requires it to respect the decision of the court that has already assumed jurisdiction and dismiss the application for an injunction and transfer. In cases where there is a sound argument to be made in favour of both courts, the court in the second venue should not arbitrarily claim a better right to decide for both jurisdictions. In most cases the adherence of the foreign court to principles resembling those applied in the second venue court will be obvious; if the foreign court has adhered, then the second venue court should refuse relief. International family lawyers work to assist their clients in that process.

Child custody

In one case, a court expressly acknowledged that the plaintiff had chosen to move to the state in order to benefit from the liberal divorce laws in that state. The court found that was perfectly appropriate and did not justify a stay or dismissal of the case.[ citation needed ]

On the other hand, forum shopping is generally seen as particularly inappropriate when it is intended to secure a more sympathetic forum in a child custody case. Indeed, courts have found that the Hague Abduction Convention was designed to deter parents from engaging in international forum shopping in custody cases. Specifically, the Hague Convention attempts to prevent situations in which a parent dissatisfied with current custodial arrangements flees with the child to another country to re-litigate the merits of custody and to obtain a more favorable custody order.

Nonetheless, it may well be in the best interests of a child to remove the child from a forum which does not apply the best interests test in child custody cases to a forum which has a "better" law and practice in such cases.

"There is often a legal vacuum that encourages one parent to take children away from the other, and to deprive the children of access to the other parent," Morley says. "It not only hurts foreign parents if the Chinese partner takes the child to China, it also hurts Chinese parents living in China because if the other parent takes their child to a foreign country from China, the courts in that foreign country are unable to order the child's return to China under the terms of the convention."

United States

The United States has attracted foreign litigants wishing to take advantage of the more generous awards of damages and alimony, extensive discovery rules, and the contingent fee system. In addition, the Foreign Trade Antitrust Improvements Act, the Alien Tort Claims Act, and many state product liability laws create legal rights that often do not exist in other jurisdictions.

By the plaintiff

A plaintiff frequently can choose to file his case in one of several jurisdictions by picking a federal rather than a local jurisdiction, a local rather than federal jurisdiction, or one of several geographic localities. A defendant in a civil case can be sued in a jurisdiction where the defendant resides, or where there are sufficient contacts between the cause of action and the jurisdiction. In the United States, the U.S. District Court for the Eastern District of Texas in Marshall, Texas, had become a popular forum for patent lawsuits, and cases filed there resolved favorably for the plaintiff 78% of the time; the national average was 59%. [4] More recently, the U.S. District Court for the Western District of Texas in Waco, Texas, became an exceedingly popular forum for patent litigation. All patent infringement cases filed in Waco, Texas, were assigned to the same judge (Alan Albright), who attracted almost 25% of all patent infringement case filings in the United States as of 2022. [5] This concentration of patent cases before a single judge and court led to rule changes in the U.S. District Court for the Western District of Texas, requiring that new patent infringement cases filed in Waco, Texas, be randomly assigned across the 12 judges in that district. [6]

By the civil defendant

A defendant can resort to various procedures or theories to have a case removed from the court wherein the plaintiff originally filed it. The defendant may invoke the removal jurisdiction of a federal court to take a claim out of the state court, request for a change of venue because the case was brought in the improper or inconvenient court within the jurisdiction, and move for forum non conveniens on the ground that the case was brought in an inappropriate forum based on the locations of the parties or evidence.

In criminal cases

Forum shopping also happens, albeit less frequently, in U.S. federal criminal trials, especially as certain districts and circuits are widely thought to favor the government in particular issues or trials. It is often claimed that the trials of domestic and foreign terrorists in the United States were forum shopped. For example, John Allen Muhammad and Lee Boyd Malvo were arrested in Maryland in 2002 for a series of spree killings that occurred in Maryland, Washington, D.C., and Virginia, [7] but U.S. Attorney General John Ashcroft chose to hand them over to Virginia for prosecutions, in part, because it was perceived Virginia was more likely impose a sentence of execution for Muhammad. [8]

Criminal defendants have much less power to change the forum in which the case against them has been brought. Generally, they can do so only where they can show that localized notoriety or publicity makes it unlikely that an impartial jury can be selected in the district in which charges were brought.

Efforts to discourage forum shopping

While the plaintiff commencing the litigation is generally considered the master of their own complaint, [9] courts may object to forum shopping for several reasons. The fair resolution of a case hinging on technical differences from one jurisdiction to the next would offend the sense of justice, and more practically, judges may fear that having the reputation of a forum favorable to certain types of plaintiffs will delay the timely dispensation of justice in other cases by increasing their workload.

Under the Erie doctrine, a federal court hearing a case under the diversity jurisdiction must apply the law of the state in which the court is sitting. When a case has connection to more than just a single state, the forum state's choice of law principles generally guide the selection of what place's law will apply.

Parties to a contract may seek to prevent forum shopping by inserting a forum selection clause or a choice of law clause in their contract. Such clauses are now generally enforced by the courts.[ original research? ]

In June 2023, Illinois governor J.B. Pritzker signed a bill intended to discourage forum shopping by requiring that any lawsuits challenging the constitutionally of a state law be filed in one of the state's two largest counties, Cook and Sangamon. [10]

In March 2024, the Judicial Conference of the United States announced a policy against "judge shopping" for cases seeking a nationwide injunction or related relief. [11] [12] "Judge shopping" in this context refers to forum shopping in which a litigant files in a local division of a district court where one or two judges are assigned nearly all cases (such as the Amarillo division of the Northern District of Texas or the Waco division of the Western District of Texas) rather than in a larger division with multiple judges. Under the new policy, the Judicial Conference said that district courts should randomly assign any civil case seeking nationwide or statewide relief to any judge within the district. But the Judicial Conference policy is merely a recommendation and is not binding; on March 29, 2024, the Northern District of Texas, home to two judges frequently sought out by conservative litigants, announced that it would not adopt the Judicial Conference's recommendations. [13]

Philippines

Forum shopping is considered a serious offense which can be made by a complainant. The law in the Philippines explicitly prohibits the filing of more than one case for the same cause of action in any forum or court of law so that the courts will not be clogged by complaints of people who may file more than one complaint in an effort to gain a favorable decision in any of the numerous cases filed.

England and Wales

In England and Welsh law, laws on libel can be considered to be more favourable to the plaintiff than in other jurisdictions, leading to a form of forum shopping sometimes called "defamation shopping" or "libel tourism". [14] [15] [16] [17]

In The Atlantic Star, [18] Lord Denning MR famously stated:

You may call this "forum shopping" if you please, but if the forum is England, it is a good place to shop in, both for the quality of the goods and the speed of service.

In international relations

In international relations (IR) theory, the term 'forum shopping' describes the situation where a state is member of two or more different international- or regional organizations which deal with the same policy area (overlapping regionalism) so the state can choose the forum (organization) for addressing a certain issue which serves its interests best. [19] This is particularly important in international trade [20] and in security issues. [21]

See also

Related Research Articles

In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons that the filing party or parties believes are sufficient to support a claim against the party or parties against whom the claim is brought that entitles the plaintiff(s) to a remedy. For example, the Federal Rules of Civil Procedure (FRCP) that govern civil litigation in United States courts provide that a civil action is commenced with the filing or service of a pleading called a complaint. Civil court rules in states that have incorporated the Federal Rules of Civil Procedure use the same term for the same pleading.

Personal jurisdiction is a court's jurisdiction over the parties, as determined by the facts in evidence, which bind the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law involved in the suit. Without personal jurisdiction over a party, a court's rulings or decrees cannot be enforced upon that party, except by comity; i.e., to the extent that the sovereign which has jurisdiction over the party allows the court to enforce them upon that party. A court that has personal jurisdiction has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit. In some cases, territorial jurisdiction may also constrain a court's reach, such as preventing hearing of a case concerning events occurring on foreign territory between two citizens of the home jurisdiction. A similar principle is that of standing or locus standi, which is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.

A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the plaintiff, and the Court may impose the legal and/or equitable remedies available against the defendant (respondent). A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdiction.

Strategic lawsuits against public participation, or strategic litigation against public participation, are lawsuits intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

<span class="mw-page-title-main">Diversity jurisdiction</span> U.S. court jurisdiction over persons of different states or nationalities

In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction that gives United States federal courts the power to hear lawsuits that do not involve a federal question. For a federal court to have diversity jurisdiction over a lawsuit, two conditions must be met. First, there must be "diversity of citizenship" between the parties, meaning the plaintiffs must be citizens of different U.S. states than the defendants. Second, the lawsuit's "amount in controversy" must be more than $75,000. If a lawsuit does not meet these two conditions, federal courts will normally lack the jurisdiction to hear it unless it involves a federal question, and the lawsuit would need to be heard in state court instead.

Forum non conveniens (FNC) is a mostly common law legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case, and transfers the case to such a forum. A change of venue might be ordered, for example, to transfer a case to a jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside.

<i>Erie</i> doctrine Doctrine in US federal civil procedure

The Erie doctrine is a fundamental legal doctrine of civil procedure in the United States which mandates that a federal court called upon to resolve a dispute not directly implicating a federal question must apply state substantive law.

The Virginia General District Court (GDC) is the lowest level of the Virginia court system, and is the court that most Virginians have contact with. The jurisdiction of the GDC is generally limited to traffic cases and other misdemeanors, civil cases involving amounts of under $25,000. There are 32 GDC districts, each having at least one judge, and each having a clerk of the court and a courthouse with courtroom facilities.

<span class="mw-page-title-main">United States District Court for the Eastern District of Texas</span> United States federal district court in Texas

The United States District Court for the Eastern District of Texas is a federal court in the Fifth Circuit.

American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257 (1916), was a United States Supreme Court case governing the scope of federal question jurisdiction.

Libel tourism is a term, first coined by Geoffrey Robertson, to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United States, which provide more extensive defenses for those accused of making derogatory statements.

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), was a case decided by the United States Supreme Court, in which the court considered the lower court's application of its power of forum non conveniens, a common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties.

Thomas John Ward is a retired United States district judge of the United States District Court for the Eastern District of Texas. He is best known for the large number of patent infringement cases brought before his court in Marshall, Texas.

Personal jurisdiction in Internet cases refers to a growing set of judicial precedents in American courts where personal jurisdiction has been asserted upon defendants based solely on their Internet activities. Personal jurisdiction in American civil procedure law is premised on the notion that a defendant should not be subject to the decisions of a foreign or out of state court, without having "purposely availed" himself of the benefits that the forum state has to offer. Generally, the doctrine is grounded on two main principles: courts should protect defendants from the undue burden of facing litigation in an unlimited number of possibly remote jurisdictions, and courts should prevent states from infringing on the sovereignty of other states by limiting the circumstances under which defendants can be "haled" into court.

<i>Funding Evil</i> 2003 book by Rachel Ehrenfeld

Funding Evil: How Terrorism is Financed and How to Stop It is a book written by counterterrorism researcher Dr. Rachel Ehrenfeld, director of the American Center for Democracy and the Economic Warfare Institute. It was published by Bonus Books of Los Angeles, California in August 2003.

<span class="mw-page-title-main">SPEECH Act</span> 2010 U.S. law limiting foreign defamation cases

The Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act is a 2010 federal statutory law in the United States that makes foreign libel judgments unenforceable in U.S. courts, unless either the foreign legislation applied offers at least as much protection as the U.S. First Amendment, or the defendant would have been found liable even if the case had been heard under U.S. law.

<i>Société Nationale Industrielle Aérospatiale v Lee Kui Jak</i>

Société Nationale Industrielle Aérospatiale v Lee Kui Jak[1987] UKPC 12, [1987] AC 871 is a judicial decision of Privy Council on appeal from Brunei which was for many years, and arguably still is, the leading authority in relation to anti-suit injunctions under the English common law.

<span class="mw-page-title-main">Alan Albright</span> American judge (born 1959)

Alan D Albright is a United States district judge of the United States District Court for the Western District of Texas. He was formerly a United States magistrate judge of the same court. Albright oversees a significant portion of patent litigation within the United States. In 2021, the United States Court of Appeals for the Federal Circuit repeatedly rebuked him in a string of opinions for failing to transfer cases to more apt jurisdictions. A quarter of all patent lawsuits in the US were once heard by Albright, who has been widely criticized for ignoring binding case law. However, following a docket-stripping order issued by Chief Judge Orlando Garcia, Albright's patent docket has declined precipitously.

TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. ___ (2017), was a United States Supreme Court case concerning the venue in patent infringement lawsuits.

References

  1. ↑ "How SCOTUS said this Shoe fits personal jurisdiction (International Shoe v. Washington)". American Bar Association. 9 December 2016.
  2. ↑ Narechania, Tejas (2024). "Forum Crowding". SSRN   4343031.
  3. ↑ "Texas Instruments v. Micron Semiconductor, 815 F. Supp. 994 (E.D. Tex. 1993)". Justia Law. Retrieved 2024-03-31.
  4. ↑ Julie Creswell (September 24, 2006). "So Small a Town, So Many Patent Suits". New York Times.
  5. ↑ Witherspoon, Tommy (2022-07-26). "Court order could diminish Waco judge's hold on patent cases". KWTX. Retrieved 2024-03-31.
  6. ↑ "The Impact of New Patent Litigation Assignments Rules in the Western District of Texas". JD Supra. Retrieved 2024-03-31.
  7. ↑ "Beltway Snipers, Famous Cases and Criminals". Federal Bureau of Investigation (FBI).
  8. ↑ Schmidt, Susan (November 7, 2002). "Sniper Suspects Handed to Va. for Trials". Washington Post.
  9. ↑ See Baddie v. Berkeley Farms, Inc., 64 F.3d 488, 491 (9th Cir. 1995).
  10. ↑ Hancock, Peter (June 7, 2023). "New State Law Limits Venue for Illinois Constitutional Lawsuits to Sangamon, Cook Counties". WTTW . Retrieved January 18, 2024.
  11. ↑ Reichmann, Kelsey (March 12, 2024). "Judicial Conference adopts rule to curb judge shopping". Courthouse News Service.
  12. ↑ Millhiser, Ian (2024-03-12). "Republicans will no longer get to handpick their judges when they sue Biden". Vox. Retrieved 2024-04-07.
  13. ↑ Raymond, Nate (March 30, 2024). "Texas federal court will not adopt policy against 'judge shopping'". Reuters.com. Retrieved March 30, 2024.
  14. ↑ Staveley-O’Carroll, Sarah (2009). "Libel tourism laws: spoiling the holiday and saving the First Amendment?" (PDF). New York University Journal of Law & Liberty. 4 (252): 255–264. Retrieved 31 May 2015.
  15. ↑ Aglionby, John (31 December 2013). "UK Defamation Act aims to end trivial claims and libel tourism". Financial Times . London. Retrieved 31 May 2015. 'It does not go as far as many reformers had hoped, but it brings increased protection in certain areas, for example for internet service providers and academic journals, and limits so-called forum shopping,' Mr Terry said.
  16. ↑ Bell, Avi (2008). Libel Tourism:International Forum Shopping for Defamation Claims (PDF). Jerusalem Center for Public Affairs. p. 4. ISBN   978-965-218-070-4 . Retrieved 31 May 2015. For several reasons, defamation shopping has become one of the most popular forms of forum shopping.
  17. ↑ Azar, Deborah. "On selecting jurisdiction in Internet defamation cases". Common Law Review. Prague, Czech Republic: 7. Archived from the original on 13 November 2014. Retrieved 30 May 2015. I will conclude that England is preferable to most US jurisdictions when considering jurisdiction for plaintiffs in cases of internet defamation.
  18. ↑ The Atlantic Star [1973] QB 364 at 381–382
  19. ↑ Alter, Karen J., and Sophie Meunier. 2006. “Nested and Overlapping Regimes in the Transatlantic Banana Trade Dispute.” Journal of European Public Policy 13 (3): 362–82. https://doi.org/10.1080/13501760600560409.; Raustiala, Kal, and David G. Victor. 2004. “The Regime Complex for Plant Genetic Resources.” International Organization 58 (02). https://doi.org/10.1017/S0020818304582036.
  20. ↑ Busch, Marc L. 2007. “Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade.” International Organization 61 (4): 735–61. https://doi.org/10.1017/S0020818307070257.
  21. ↑ Henneberg, Ingo, and Plank, Friedrich. 2019. "Overlapping Regionalism and Security Cooperation: Power-Based Explanations of Nigeria’s Forum-Shopping in the Fight against Boko Haram". International Studies Review (ISR). DOI: https://doi.org/10.1093/isr/viz027.
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