Forum shopping
Encyclopedia
Forum shopping is the informal name
given to the practice adopted by some litigants to get their legal case
heard in the court
thought most likely to provide a favorable judgment. Some states have, for example, become notorious as plaintiff-friendly jurisdictions and so have become litigation magnets even though there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated.
Examples include the attraction of foreign litigants to the United States
due to its expansive acceptance of personal jurisdiction and favorable litigation climate, and Great Britain
for its stricter defamation laws
.
The term has become adopted in a wider context for the activity of repeatedly seeking a venue
or willing listener for a concern, complaint or action, until one is found.
, 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 will unjustly deprive the plaintiff of advantages in the first instance forum. Nevertheless, there should be a real and substantial connection between the venue and the cause(s) of action to provide some protection against defendants from being pursued in jurisdictions having 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 there was an alternative forum or reached an obviously unreasonable conclusion on the merits, an injunction
would sometimes be a reasonable response. If, on the other hand, the alternative court has reasonably concluded that there was no more convenient forum, 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 it will be obvious whether the foreign court has acted on principles similar to those applied in the second venue court and, if so, the second venue court should refuse relief.
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.
rather than a local jurisdiction
, or a local rather than federal jurisdiction, or one of several geographic localities. The defendant in a civil case can be sued in a jurisdiction where he lives, or where the cause of action occurred. In the United States, the district court for the eastern district of Texas
in Marshall, Texas
has become a popular forum for patent
lawsuits, since it found in favor of the plaintiff 78% of the time, compared to a national average of 59%.
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 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.
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 U.S. federal trials of alleged terrorists
were forum shopped.
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.
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. Under the choice of law, the law of the state which has the closest nexus to the case is applied.
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.
Colloquialism
A colloquialism is a word or phrase that is common in everyday, unconstrained conversation rather than in formal speech, academic writing, or paralinguistics. Dictionaries often display colloquial words and phrases with the abbreviation colloq. as an identifier...
given to the practice adopted by some litigants to get their legal case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
heard in the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
thought most likely to provide a favorable judgment. Some states have, for example, become notorious as plaintiff-friendly jurisdictions and so have become litigation magnets even though there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated.
Examples include the attraction of foreign litigants to the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
due to its expansive acceptance of personal jurisdiction and favorable litigation climate, and Great Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
for its stricter defamation laws
Libel tourism
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 defences for those...
.
The term has become adopted in a wider context for the activity of repeatedly seeking a venue
Venue (law)
Venue is the location where a case is heard. In the United States, the venue is either a county or a district or division . Venue deals with locality of a lawsuit--that is, in which locale a lawsuit may be filed or commenced...
or willing listener for a concern, complaint or action, until one is found.
Related notions
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 conveniensForum non conveniens
Forum non conveniens is 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...
, 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 forum is not convenient to the defendant or his witnesses. There may be problems of expense of travel, health, or visa or entry permit.
- The court, the judge, or the law is most likely to favour the plaintiff's case.
The defendant may take the following actions to seek a change of venue
Change of venue
A change of venue is the legal term for moving a trial to a new location. In high-profile matters, a change of venue may occur to move a jury trial away from a location where a fair and impartial jury may not be possible due to widespread publicity about a crime and/or its defendant to another...
:
- The defendant may petition the forum court that it should reject the jurisdiction and petition to transfer the case to an allegedly more convenient forum; or
- If a case has been filed in another jurisdiction, the defendant may seek injunctiveInjunctionAn injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
relief against the plaintiff in a second state, requiring that the plaintiff discontinue the action in the first forum and instead submit the case for hearing in this allegedly more convenient forum.
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
Comity
In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations , particularly by recognizing the validity and effect of their executive, legislative, and judicial acts...
. 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 will unjustly deprive the plaintiff of advantages in the first instance forum. Nevertheless, there should be a real and substantial connection between the venue and the cause(s) of action to provide some protection against defendants from being pursued in jurisdictions having 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 there was an alternative forum or reached an obviously unreasonable conclusion on the merits, an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
would sometimes be a reasonable response. If, on the other hand, the alternative court has reasonably concluded that there was no more convenient forum, 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 it will be obvious whether the foreign court has acted on principles similar to those applied in the second venue court and, if so, the second venue court should refuse relief.
The rules in the United States
The United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
has attracted foreign litigants wishing to take advantage of the more generous awards of damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
and alimony
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
, extensive discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
rules, and the contingent fee
Contingent fee
A contingent fee or conditional fee is any fee for services provided where the fee is only payable if there is a favourable result...
system. In addition, the Foreign Trade Antitrust Improvements Act, the Alien Tort Claims Act, and many state product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...
laws create legal rights that often do not exist in other jurisdictions.
Forum shopping by the plaintiff
A plaintiff frequently has a choice of bringing a case in one of several jurisdictions, by picking a federalFederal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
rather than a local jurisdiction
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
, or a local rather than federal jurisdiction, or one of several geographic localities. The defendant in a civil case can be sued in a jurisdiction where he lives, or where the cause of action occurred. In the United States, the district court for the eastern district of Texas
United States District Court for the Eastern District of Texas
The United States District Court for the Eastern District of Texas is the Federal district court with jurisdiction over the eastern part of Texas and is a part of the Fifth Circuit. The court's headquarters are in Tyler, Texas and has five subdivision offices in Beaumont, Lufkin, Marshall,...
in Marshall, Texas
Marshall, Texas
Marshall is a city in Harrison County in the northeastern corner of Texas. Marshall is a major cultural and educational center in East Texas and the tri-state area. As of the 2010 U.S. Census, the population of Marshall was about 23,523...
has become a popular forum for patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
lawsuits, since it found in favor of the plaintiff 78% of the time, compared to a national average of 59%.
Forum shopping by the civil defendant
A defendant can resort to various procedures or theories to have a case removed from the court where the plaintiff originally filed it. The defendant may invoke the removal jurisdictionRemoval jurisdiction
In the United States, removal jurisdiction refers to the right of a defendant to move a lawsuit filed in state court to the federal district court for the federal judicial district in which the state court sits. This is a general exception to the usual American rule giving the plaintiff the right...
of a federal court to take a claim out of the state court, request for a change of venue
Change of venue
A change of venue is the legal term for moving a trial to a new location. In high-profile matters, a change of venue may occur to move a jury trial away from a location where a fair and impartial jury may not be possible due to widespread publicity about a crime and/or its defendant to another...
because the case was brought in the improper 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.
Forum shopping in criminal cases
Forum shopping also happens, albeit less frequently, in U.S. federal criminalCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
trials, especially as certain districts
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
and circuits
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
are widely thought to favor the government in particular issues or trials. It is often claimed that the U.S. federal trials of alleged terrorists
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
were forum shopped.
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 dissuade forum shopping
Courts may object to forum shopping for several reasons. It would offend the sense of justice, if the fair resolution of a case should hinge on technical differences from one jurisdiction to the next. More practically, judges feel that their courts are overburdened and fear that having the reputation of a forum favorable to certain types of plaintiffs will increase their work load, thus delaying the timely dispensation of justice in other cases.Under the Erie doctrine
Erie doctrine
In United States law, the Erie doctrine is a fundamental legal doctrine of civil procedure mandating that a federal court in diversity jurisdiction must apply state substantive law....
, a federal court hearing a case under the diversity jurisdiction
Diversity jurisdiction
In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court has the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are...
must apply the law of the state in which the court is sitting. Under the choice of law, the law of the state which has the closest nexus to the case is applied.
Parties to a contract
Contract (conflict)
In the conflict of laws, the validity of a contract with one or more foreign law elements will be decided by reference to the so-called "proper law" of the contract.-History:...
may seek to prevent forum shopping by inserting a forum selection clause
Forum selection clause
A forum selection clause in a contract with a conflict of laws element allows the parties to agree that any litigation resulting from that contract will be initiated in a specific forum...
or a choice of law clause
Choice of law clause
A choice of law clause or proper law clause is a term of a contract in which the parties specify that any dispute arising under the contract shall be determined in accordance with the law of a particular jurisdiction.-Explanation:...
in their contract. Such clauses are now generally enforced by the courts.
In the 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. The prohibition is done 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.See also
- Asylum shoppingAsylum shoppingAsylum shopping is a practice by asylum seekers of applying for asylum in several states or seeking to apply in a particular state after transiting other states. The term is used mostly in the context of the European Union and the Schengen area, but has been used by the Federal Court of Canada...
- Jurisdiction shopping
- "Race to the courthouseRace to the courthouse"Race to the courthouse" is an informal name used to describe the rule in some jurisdictions that the first conveyance instrument, mortgage, lien or judgment to be filed with the appropriate recorder's office, will have priority and prevail over documents filed subsequently, irrespective of the...
" - Tort reform in the United States
- Libel tourismLibel tourismLibel 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 defences for those...
- International child abductionInternational child abductionThe term international child abduction is generally synonymous with international parental kidnapping, child snatching, and child stealing. However, the more precise legal usage of international child abduction originates in private international law and refers to the illegal removal of children...
External links
- Forum shopping in US Terrorism Cases and the "DC Sniper" Case
- Forum Shopping in Patent and Antitrust Cases (PDFPortable Document FormatPortable Document Format is an open standard for document exchange. This file format, created by Adobe Systems in 1993, is used for representing documents in a manner independent of application software, hardware, and operating systems....
) - Rethinking Forum Shopping in Cyberspace by Kimberly A. Moore
- Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation? by Kimberly A. Moore