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Comment by saosebastiao | Hacker News Reader

Is it normal in other areas of the law for the plaintiff to be able to choose the (extremely favorable) district and judge for the case? Cause I can't imagine this happening in any other area of law, either civil or criminal. It just doesn't seem right, especially when the bias is so clearly observable. IANAL though...

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Nearly all aesbestos class action litigation is filed in Oakland --- it is perceived to have a favorable jury pool and you can always find a dockworker in Oakland who may have had contact. Forum shopping is so popular that it has a name: "forum shopping."

New York too

Unlike what others have said, the answer is no.

Patents are governed by a specific jurisdictional statute that made this crazy.

The history is detailed well here: http://patentlyo.com/patent/2007/04/patent_jurisdic.html

THe TL;DR is:

It used to just be: Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business. 28 USC 1400

Then in 1990, Congress added: For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 28 USC 1391

This eviscerated the previous limitations.

Personal jurisdiction is a little tricky to explain in a single post, but suffice to say, for internet companies most likely the target of trolls, they will generally be found to be subject to personal jurisdiction everywhere in the US.

I'd quibble with that. In most areas of law, you are not able to freely choose the venue. However patent law is not the only case where venue choice both is possible and popular.

For example a lawyer looking to file a class action lawsuit often factors the venue that they will wind up in into their choice of a lead plaintiff.

Note that 28 USC §1400 is still in force; the Congress did not choose to remove the limits on patent case jurisdiction when it expanded other jurisdiction. It's right there in the US Code in black letters with no ambiguity.

But the notoriously corrupt patent appeals court -- the CAFC -- in its first decade of existence, abolished 28 USC §1400 by fiat.

The patent trolls went into business in East Texas soon after.

28 USC 1391 is actually very clear. As much as i don't like the CAFC, their interpretation of it is completely and totally defensible.

So is 28 USC §1400. It was not repealed and plainly sets more particular jurisdiction for patent cases. What can Congress do now to re-institute the validity of it? It's already in the USC. Pass a new clause "and we really mean it!"? CAFC judges have contempt for the canons of statutory construction when entrepreneurial judging can benefit them personally.

Oh yes - and not just plaintiffs. Next time you are presented with a contract or user agreement, browse through it looking for the section about 'choice of law', and you'll notice that often you are asked to accept that the rules of a particular jurisdiction will apply in the event of any dispute.

Yes although 9 times in 10 it's wherever the corporation is headquartered. That's usually their home turf, not yours, so it may help them, but mostly it's that they don't want to be bothered associating local counsel 100 times a year. It's rare for someone to insist on contractual choice of venue that's some arbitrary other location (like East Texas usually is).

You can file in any jurisdiction in which you have legal standing to file, which means any jurisdiction in which harm has been done to you. If you patent something, and someone infringes on it, and sells the infringing device nation-wide, this means that you can pick any jurisdiction nation-wide to sue them in.

Normally, you pick the one that you live in, so that you don't have to travel. But for patents, many people pick East Texas, since they're more likely to get the verdict they want there.

"so that you don't have to travel."

Or perhaps better actually where your attorneys are located?

Typically your main attorneys are located where you are. If you're going to be in a lawsuit somewhere else, you probably want to hire an attorney (or more) there as well.

"You can file in any jurisdiction in which you have legal standing to file, which means any jurisdiction in which harm has been done to you."

No. What you describe in the first sentence is basically what the old rule was, pre-1990 (28 USC 1400). The current rule is much worse (28 USC 1391).

Basically, you have the effect right, but the description of the pre-reqs wrong :)

A quick perusal does not lead me to see how it's now worse. Could you explain why you think that?

The old language of the law had a requirement for "regular and established place of business" before suit could be filed. The new language requires "personal jurisdiction at the time the action is commenced".

The key difference is in whether or not you must have an established place of business for a suit to be brought against you in a jurisdiction.

http://patentlyo.com/patent/2007/04/patent_jurisdic.html does a good job of explaining.

Basically, the federal circuit's view of 28 USC 1391 is very different than 28 USC 1400.

If you look at cases prior to VE Holdings, they view 28 USC 1400, and in particular, the definition of "resides", very narrowly (to principal place of business/corp hq).

If you look at VE Holdings, and their view on 28 USC 1391, you can see it greatly expands the definition of "resides" to include essentially everywhere.

It certainly can happen in certain other areas of the law. Recent example: the NFL filed in new York to prevent Tom Brady from filing in MN on the whole deflategate punishment case to try and avoid Brady getting a judge who consistently rules for the player in such cases.

No. You usually can't pick judges unless the forum is so tiny they only have one. You can't pick the forum unless it has jurisdiction over the matter.

Just speaking in general here, I can't think of any specific examples. Are there civil (not criminal) cases that have a heavy racial component where it would be favorable to file in an area with a particular demographic mix?

I remember reading of an oil company waiting until a tanker was in New York harbor to file some sort of case it thought better heard in New York.

Odd that an oil company with enough size to own a tanker wouldn't have an office in NYC.

I think you'd be surprised at how low of an overhead some shipping companies run. I've visited the US headquarters of a publicly traded Greek dry bulk shipping company with a market cap in the hundreds of millions of dollars...it was in a strip mall in Richmond CA, and it looked like a small local accounting office with a staff of maybe 10 people.

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