Forum Shopping Debate Ties Stakeholders in Knots

So-called forum shopping is a time-tested strategy of zealous litigators. Looking for the legal equivalent of home-field advantage, they file lawsuits in jurisdictions where they feel they will find a sympathetic ear on the bench.

The power of forum shopping was apparent in a 2022 judicial decision to strike down the FDA’s longstanding approval of the abortion drug mifepristone. Activists chose the venue of Amarillo, Texas, with the specific intent to get the case in front of Judge Matthew J. Kacsmaryk, an abortion opponent who handles almost all cases in the district.

Rightwing interest groups have latched on to forum shopping to secure wins on some of their favorite social issues. Not surprisingly, the Biden administration and Democratic politicians aren’t fans of the practice, with the Department of Justice arguing it “risks undermining confidence in the judiciary.”

Initially, the federal judiciary heeded their call. The Judicial Conference of the United States announced changes to its rules last month in an effort to randomize case assignments. Pushback from Senate Minority Leader Mitch McConnell and other Republican lawmakers, however, led to backtracking. Days after the announcement, the Judicial Conference issued guidance stating that trials courts could use their own discretion with regard to the case-assignment policy. But the issue of forum shopping is far from settled, and it is making for strange bedfellows.

Just as social activists hope to tilt the legal playing field in their favor, plaintiffs often look for friendly venues to hear their lawsuits against corporations. Companies have responded by trying to restrict where they can be sued. Boeing, for example, changed its bylaws last year to make plaintiffs file suit in the Delaware Court of Chancery, another Delaware court, or the federal districts of Delaware or Eastern Virginia. (The actual language “specif[ied] that if the Court of Chancery of the State of Delaware does not have jurisdiction, another state court located in the State of Delaware or, if no state court located in the State of Delaware has jurisdiction, the federal district court for the District of Delaware or the federal district court for the Eastern District of Virginia shall be the sole and exclusive forum for resolving certain actions that may affect the Company.”)

The bylaws of many companies, like Fox Corp., now state that lawsuits brought against them under the Securities Act of 1933 have to be filed in federal court. Can companies do that? Let’s just say it’s not clear.

The controversy over forum shopping ultimately leaves ample room for charges of hypocrisy. To wit, one of the most powerful business advocacy organizations in the country, the U.S. Chamber of Commerce, has pushed for restrictions on where lawsuits can be filed. At the same time, the Chamber and other business groups are currently suing the U.S. Consumer Financial Protection Bureau over a rule related to late fees charged by credit card companies. Although none of the parties involved have any connection to Fort Worth, Texas, that’s where the lawsuit is being heard. Wonder why.