Forum shopping is the concept that some plaintiffs will skip their local court in favor of another jurisdiction that has a track record of ruling favorably in similar cases. In Leong v. Agence France-Presse et al., a plaintiff based in Portugal found reason to bring his suit in New York even though there were perfectly good courts in his neck of the woods.
The plaintiff, Leong Francisco Paulo (“Leong”), cited an alleged deficiency in the Portuguese court system that made it unable to adjudicate claims he had relating to 7,000 US registrations of photographs.
He had no problem using a court in Lisbon to settle a dispute with the same defendants previously. The case in Portugal was for wrongful termination (against his former employer, a media company), something Leong was able to settle while preserving claims for copyright infringement (for photographs he created in the course of his working for the defendant) to pursue at a later date. For those claims, Leong instead went to the Southern District of New York.
The case was assigned to a magistrate judge, whose report and recommendation (R&R) went through all the arguments. A chief concern of the court was whether the plaintiff was bringing his case in New York as a means of finding a better court to hear his case. “Better” can mean a lot of things, but I suspect in this case it meant the statutory damages and attorney’s fees that could be collected for each of the 7,000 registered images under US law.
Determining whether a party is forum shopping naturally points to an analysis of jurisdiction, and there were several insurmountable facts that worked against the plaintiff:
- The plaintiff didn’t call New York home.
- None of the defendants were based in New York.
- None of the pictures were taken in the United States.
- Leong must have, at some point, been previously subject to Portuguese law if he used it for his claim of wrongful termination (as he was previously employed as a photographer by the defendant news agency).
It seems to me that the plaintiff saw the writing on the wall for his infringement claims in Portugal and shifted tactics. US law offered an opportunity to collect a lot more money. My guess is someone told him that he could bootstrap the employment termination into a much more lucrative lawsuit, if he could enforce the registrations under US law. Unfortunately for Leong, the federal court in New York could not ignore that he had already commenced a suit on his own home turf.
The defendants put the icing on the cake by agreeing in the U.S. lawsuit that they would submit to the jurisdiction of the Portuguese court. Everyone, especially Leong, must have felt that he was unlikely to succeed there. But that’s exactly what forum shopping is — and what the court guarded against in this case.
At the same time, it seems like the court laid out a “Catch-22” when it came to using the Portuguese courts. According to this ruling, pursuing this case outside of the US demonstrated that Leong had confidence in the courts in Lisbon. Faith in foreign courts may very well be appropriate in this case, but it seems unfair that an attempt to make due elsewhere (and for employment law rather than intellectual property law) should be counted against a litigant.
