We sometimes start our posts with disclaimers about how we do not know all the details of a case, perhaps supplemented by a little digging on the internet, or that we are not experts in some substantive area. We start this post with disclaimers that we (and our respective firms) are not involved in the case we are writing about (or the related cases mentioned in it) and we are not specialists in antitrust or patent law (although others at our respective firms are). We do know misjoinder, forum shopping, and judicial smackdowns when we see them, though. We typically encounter misjoinder when a bunch of individual plaintiffs from various places are listed on a single caption because they each are pursuing individual claims over injuries allegedly caused by the same or similar products. As long as at least one plaintiff is from where they have sued and at least one plaintiff is from the defendant’s home state, they all get to stay where their lawyers chose to sue, at least if they get their way. (Set aside CAFA for now.) When confronted with a motion to sever—or another motion that implicates the issue—they argue that joinder is perfectly appropriate because all cases against the manufacturer of product(s) are really about the same set of facts—i.e., the company designed a dangerous product and marketed it without adequate warnings of its risks.
Forum shopping is the other half of litigation tourism, as we often call it—like picking the campground for the family reunion. The lawyer’s reason for picking the court is typically not revealed, just that a plaintiff gets to pick and their choice should be afforded deference. We have yet to see a lawyer say they picked the venue where they felt they had the most influence with the bench and/or juries apt to put extra zeros on the damages in a case against an out-of-state defendant. That the plaintiff lawyers, rightly or wrongly, consider where to file and how to package their clients as part of their desire to maximize the total recovery by verdict or settlement—and their fees—should not be a shock to anyone. But we might suppose that the government lawyers trying to enforce the Federal Trade Commission Act and the Clayton Act might be above such base considerations.