The End of Service via Email and the Tightening of Standards for Schedule A Injunctions
9.4.2026
This is a follow up article to one that we previously published: The Need for Reform in Schedule A E-Commerce Lawsuits – New York State Bar Association
For years, “Schedule A” cases have become increasingly prevalent, commanding a significant portion of federal dockets. Schedule A cases refer to defendants identified collectively in “Schedule A,” instead of on the cover or in the complaint. Schedule A cases cover copyright, patent and trademark issues. They have become a particular concern for foreign businesses engaged in e-commerce in the United States.
In 2025, trademark cases filed in United States district courts increased 25% from 2024 (up 848 cases, to 4,211), and many of those cases were Schedule A lawsuits.[1] Increasingly, critics argue that the Schedule A mechanism has been utilized overbroadly as a tactical tool against foreign e-commerce merchants.[2] Intellectual property owners seeking expedited relief relied heavily on a predictable, rapid-fire enforcement model: filing aggregate actions, freezing merchant assets ex parte, and serving process globally with the click of a button via electronic mail.[3] Electronic service via email rendered service of process on defendants located in China significantly faster and more cost-effective, which became an essential catalyst for the popularity of Schedule A litigation. However, two recent landmark appellate rulings have disrupted this paradigm, establishing a formidable cross-circuit consensus that fundamentally alters the procedural rules of cross-border litigation.
A Trans-Regional Judicial Realignment on Cross-Border Electronic Service
In December 2025, the U.S. Court of Appeals for the Second Circuit issued its pivotal decision in Smart Study Co. v. Shenzhenshixindajixieyouxiangongsi,[4] creating a strict binding precedent for federal courts across New York, Connecticut and Vermont. The court held that email service was improper under Federal Rule of Civil Procedure 4(f)(3) because the Hague Service Convention prohibits email service on Chinese defendants.[5] As the court noted, “[d]rafted in 1965, the Convention unsurprisingly makes no mention of email service. Nevertheless, Article 10(a) stipulates that so long as the ‘State of destination does not object, the present Convention shall not interfere with … the freedom to send judicial documents, by postal channels, directly to persons abroad.’”[6]
In prior practice, plaintiffs routinely moved for electronic service by arguing that “postal channels” could be interpreted broadly enough to encompass email. However, the Second Circuit clarified that “Article 10(a) applies only if ‘the State of destination does not object,’ and China, for its part, has objected to service ‘by the methods provided by Article 10 of the Convention.’”[7] Consequently, alternative service via email cannot be granted under the framework of the Convention. Additionally, the court held that email service could not be sustained under Federal Rule of Civil Procedure 4(f)(2), reasoning that the rule applies only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means.”[8] Because the Hague Service Convention constitutes the exclusive internationally agreed means in this context, it completely precludes the application of FRCP 4(f)(2).
Months later, on May 29, the Seventh Circuit anchored this regional development into a broader judicial trend with its ruling in Kangol LLC v. Hangzhou Chuanyue Silk Import & Export Co.,[9] governing the critical litigation hub of the Northern District of Illinois. Fully adopting the rationale articulated in Smart Study, the Seventh Circuit arrived at the same conclusion. Accordingly, final default judgments predicated solely on unauthorized electronic transmissions are void and must be vacated pursuant to Federal Rule of Civil Procedure 60(b)(4) due to insufficient service of process.[10] With this ruling, the Northern District of Illinois – long considered the primary litigation battlefield for “Schedule A” claims[11] – is systematically closing its doors to unverified electronic service, thereby raising an unprecedented procedural barrier for Schedule A plaintiffs accustomed to low-cost enforcement.
Bilateral Practical Implications for International Intellectual Property Practitioners
The emerging trans-regional consensus reshapes strategy across the entire spectrum of cross-border practice, imposing distinct, heightened requirements on plaintiff enforcement and offering robust new defenses to defense counsel.
Advanced Defense Mechanisms: Revoking Structurally Defective Defaults
Historically, foreign merchants were outpaced by the operational speed of the electronic docket. The combined weight of Smart Study and Kangol LLC provides defense counsel with an unassailable framework to challenge legacy defaults. Crucially, the courts have affirmed that participating in preliminary out-of-court settlement discussions does not constitute an implicit waiver of service objections,[12] and that motions to vacate are timely if brought within a reasonable interval after the plaintiff attempts actual execution or asset sweep.[13] Default judgments obtained through unauthorized emails are structurally void and subject to mandatory vacatur under Rule 60(b)(4).[14]
The Plaintiff’s Dilemma: Due Diligence, Address Verification and the Discovery Trap
To bypass the strictures of the Hague Service Convention and effectuate email service under Federal Rule of Civil Procedure 4(f)(3),[15] plaintiffs frequently argue that the convention does not apply because “the address of the person to be served with the document is not known.”[16] While this argument offers a viable theoretical workaround, it introduces a classic procedural paradox:
- The “Reasonably Diligent” Prerequisite: To qualify for alternative service under Rule 4(f)(3), a plaintiff can no longer rely on boiler-plate recitations regarding the ephemeral nature of internet storefronts. The moving party must build a clear record demonstrating that it exercised exhaustive, “reasonably diligent efforts” to ascertain the defendant’s physical address.[17] If the plaintiff fails to conduct an active search, the court will deny electronic service. Only when an address remains genuinely “unknown” does the Hague Convention step aside, permitting the domestic court to authorize alternative service under Rule 4(f)(3).
- The Expedited Discovery Trap: In typical enforcement operations, plaintiffs obtain emergency “expedited discovery” orders in conjunction with a temporary restraining order to compel e-commerce marketplaces to unmask merchant identities. Paradoxically, the compliance data returned by these platforms almost invariably contains the verified physical registration and tax addresses provided by the merchants. The moment a plaintiff receives this verified data, the defendant’s address becomes “known.” This instantly triggers the mandatory application of the Hague Convention, legally locks out email service, and forces the plaintiff onto the lengthy, high-cost path of international Central Authority service. Continued reliance on email after acquiring physical addresses injects a fatal jurisdictional defect that dooms the finality of any subsequent judgment.
Extended Analysis: The Systemic Tightening of Schedule A Practice
This restriction on cross-border electronic service does not sit in isolation; it represents the apex of a broader, systemic judicial effort to curb aggregate litigation excesses, particularly visible in the Northern District of Illinois:
- Rigorous Enforcement of Permissible Joinder Rules: Plaintiffs have historically aggregated hundreds of distinct digital storefronts under a single filing fee by asserting that the defendants sold look-alike goods or shared generic web layouts. Standing orders from many district judges now actively police these practices. Plaintiffs are required to file comprehensive “joinder memoranda” proving an actual transactional nexus, a shared supply chain, or interlocking corporate structures to prove the “logical relationship,”[18] rather than merely relying on similar website designs, overlapping product titles or shared stock imagery. In the absence of an explicit common conspiracy, unrelated defendants are severed sua sponte.
- Heightened Evidentiary Baseline for Specific Personal Jurisdiction: Consistent with evolving circuit standards, the mere fact that an interactive e-commerce site is viewable within the forum state is insufficient to invoke specific personal jurisdiction.[19] Plaintiffs must affirmatively document completed commercial transactions deliberately directed at residents of the forum state,[20] backed by localized transaction histories, invoices or verified shipping manifests.
- Per-Defendant Allocation of Security Bonds: To mitigate the risk of wrongful injunctions causing irreversible corporate ruin to foreign businesses, the historic practice of permitting a nominal $10,000 blanket bond for an entire multi-defendant action is being systematically dismantled. Several district judges now apply a presumptive baseline of $1,000 per individual defendant. An aggregate action naming 100 merchants now requires a brand owner to post $100,000 in secured capital at inception. This severe capital requirement compels plaintiffs to perform precise pre-filing vetting, focusing exclusively on high-value infringers rather than executing indiscriminate digital sweeps.
Strategic Recommendations for General Counsel and International Litigators
As the federal judiciary reinstates strict procedural equity, cross-border intellectual property enforcement must pivot from volume-driven default strategies toward high-precision advocacy.
- For Plaintiff-Side Brand Protection Counsel: Pre-filing protocols must be completely re-engineered around the threat of collateral jurisdictional attacks. Firms must invest heavily in pre-litigation investigative workflows to document exhaustive address verification efforts. Practitioners must budget for significant upfront capital outlays to meet escalating security bond requirements and design robust joinder justifications before entering the courthouse. Most important, when platform discovery unmasks a valid overseas physical address, counsel must immediately execute formal Hague Central Authority transmissions to protect the integrity and long-term enforceability of the ultimate judgment.
- For Defense and Corporate Counsel: International e-commerce enterprises must be advised to maintain complete transparency by prominently displaying verified, accurate corporate physical addresses across their operational storefronts, platform registration dashboards and international trademark portfolios. This deliberate disclosure serves as an automated procedural shield: It legally bars plaintiffs from utilizing swift alternative electronic service, forcing them instead into the costly, year-long international Central Authority pipelines. Furthermore, should a client face an unannounced asset freeze or default judgment via electronic means, defense counsel should swiftly execute a targeted jurisdictional challenge under Rule 60(b)(4) to dissolve the injunction and recover the restrained capital.
Conclusion
The alignment between the Second and Seventh Circuits marks a definitive close to the era of unfettered Schedule A aggregate litigation. Crucially, these new appellate boundaries do not diminish a brand owner’s substantive right to combat global counterfeiting and piracy. Rather, they elevate the rigor of cross-border practice, serving as a powerful reminder to the bar that the swift enforcement of intellectual property rights cannot bypass international treaty obligations and the fundamental guarantees of constitutional due process.
Zhiwei Hua is an associate attorney at Concord & Sage P.C. in Washington, D.C., focusing on cross-border intellectual property litigation, U.S. capital markets and corporate law. He is admitted to practice in New York, Washington, D.C., and Texas.
Endnotes:
[1] Jen Nacht, Schedule A Litigation Is a Powerful Enforcement Tool for Brand Owners Facing Widespread Online Infringement, IPWatchdog (Apr. 16, 2026), https://ipwatchdog.com/2026/04/16/schedule-litigation-strategies-best-practices-online-enforcement/.
[2] Alison Frankel, Chicago Judges Are Starting to Push Back Against ‘SAD’ Scheme in IP Cases, Reuters (Nov. 19, 2024), https://www.reuters.com/legal/litigation/column-chicagojudges-are-starting-push-back-against-sad-scheme-ip-cases-2024-11-19.
[3] Zhiwei Hua, The Need for Reform in Schedule A E-Commerce Lawsuits, N.Y. St. B. Ass’n J., Fall 2025, at 28-31.
[4] Smart Study Co. v. Shenzhenshixindajixieyouxiangongsi, 164 F.4th 164 (2d Cir. 2025).
[5] Id. at 170.
[6] Id.
[7] Id.
[8] Id. at 172.
[9] Kangol LLC v. Hangzhou Chuanyue Silk Import & Export Co., No. 25-2205, 2026 U.S. App. LEXIS 15376, at *5 (7th Cir. May 29, 2026).
[10] Id. at *5.
[11] Zhiwei Hua, The Need for Reform in Schedule A E-Commerce Lawsuits, N.Y. St. B. Ass’n J., Fall 2025, at 28-31.
[12] Kangol LLC v. Hangzhou Chuanyue Silk Import & Export Co., No. 25-2205, 2026 U.S. App. LEXIS 15376 (7th Cir., May 29, 2026).
[13] Id. at *7.
[14] Smart Study Co. v. Shenzhenshixindajixieyouxiangongsi, 164 F.4th 168 (2d Cir. 2025).
[15] Fed. R. Civ. P. 4(f)(3): “by other means not prohibited by international agreement, as the court orders.”
[16] Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters art. 1, Nov. 15, 1965, https://www.justice.gov/sites/default/files/civil/legacy/2014/08/08/Hague%20Service%20Convention%20text.pdf.
[17] NBA Props., Inc. v. P’ships & Unincorporated Ass’ns Identified in Schedule “A,” 549 F. Supp. 3d 790, 796 (N.D. Ill. 2021).
[18] Estée Lauder Cosmetics Ltd. v. P’ships & Unincorporated Assns. Identified on Schedule A, 334 F.R.D. 182 (N.D. Ill. 2020). (“Courts generally find that claims against different defendants arose out of the same transaction or occurrence only if there is a logical relationship between the separate causes of action”).
[19] Yinnv Liu v. Monthly, 170 F.4th 1090, 1093 (7th Cir.2026). (“Those records consist of screenshots of Walmart’s website showing the checkout page with the infringing product, a Chicago shipping address, and the estimated total, but not a completed purchase”).
[20] Id. at 1093.
