PublishedJune 27, 2024

New Case-Assignment Order Marks Next Step in Curbing Judge Shopping in Texas

Late last month, Chief U.S. District Judge for the Western District of Texas Alia Moses announced a new order to distribute patent cases randomly across the district, while raising the bar for plaintiffs seeking to try their cases in venues where they previously filed “related cases.” Building on a prior randomization order in the Western District, this new order is consistent with the goals outlined in recent guidance from the U.S. Judicial Conference, and will hopefully deter patent infringement plaintiffs from judge shopping in one of the most filed-in district courts in the country. 

As readers of Patent Progress know, plaintiffs from around the country – including frequently, patent trolls – consistently seek out Judge Alan Albright in the Waco Division of the Western District of Texas. Having explicitly encouraged patent owners to file litigation in his district, Albright’s activism resulted in one-fourth of all U.S. patent cases being filed in his Waco courtroom.

In 2022, guidance from then-Chief District Judge Orlando Garcia was meant to loosen Judge Albright’s stranglehold over the patent caseload by randomizing case assignments filed in the Waco Division among twelve judges in the Western District. However, despite the order, plaintiffs were able to appeal for automatic reassignment if Judge Albright had previously presided over “related cases” of theirs. For example, if they had filed litigation in which one patent was asserted against a party, they could ask that any future cases on that patent be assigned to Judge Albright. Albright had many former plaintiffs eager to appeal for their ongoing cases to be reassigned to his courtroom. As a result, even following the randomization order in 2023, Albright received 189 patent cases, equaling 43% of the total caseload for the division – over five times more cases than a random distribution would expect across twelve judges. 

This May’s order from Chief Judge Moses seeks to rectify this issue once and for all. Beyond updating the slate of twelve Western District judges among whom patent cases will be randomized, the order crucially mandates plaintiffs provide “sufficient legal and factual justification” to support their “related case” appeals for new jurisdiction. Now, if plaintiffs want to return their lawsuits to Judge Albright’s courtroom, the burden of proof lies with them to convince the presiding judge of a legitimate justification for leaving their docket. 

While Chief Judge Moses’s order is a welcome step in the fight against judge shopping, it remains to be seen if plaintiffs in the Western District will again find procedural loopholes to sidestep it. Moreover, as patent trolls turn to other plaintiff-friendly venues – like the Eastern District of Texas – measures should be taken to ensure case assignment randomization is practiced in every district court nationwide—or at least in those which have single-member divisions. Until then, the ideal of a fair and impartial judiciary will remain a hopeful dream for defendants subjected to bad-faith patent infringement lawsuits.

Josh Landau

Patent Counsel, CCIA

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

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