The U.S. Supreme Court is poised to hear a landmark case in mid-January that could redefine the practice of “forum shopping”—a legal tactic where businesses and interest groups strategically select courts they believe will offer the most favorable ruling, often in opposition to government regulations. This high-profile case involves RJ Reynolds Tobacco’s challenge to the FDA’s ban on flavored e-cigarettes, a case that will scrutinize how companies target certain courts to bypass regulations designed to protect consumers.
The controversy surrounding forum shopping has gained increasing attention as large industries, particularly in the financial and tobacco sectors, have used this strategy to bring challenges to federal rules in more conservative jurisdictions, typically where judges may be more sympathetic to their interests. Legal experts and advocates alike say the practice undermines public trust in the judicial system, particularly as it risks giving the impression that judges are politically motivated rather than guided by the law.
“While it is not inherently unethical for parties to seek the most favorable forum, the perception that judges are making decisions based on political or personal inclinations—not law—compromises the integrity of the judicial process,” said Paul Grimm, a Duke University law professor and former district judge. “Such practices erode the public’s faith in the impartiality of the courts and threaten the rule of law.”
Unlike many European legal systems, U.S. law allows considerable flexibility in where lawsuits can be filed, enabling plaintiffs and defendants to choose between state or federal courts, or even different court districts within each. This system has led to an ongoing tug-of-war, where plaintiffs in some cases seek out jurisdictions perceived as more favorable, and defendants do the same when challenging regulatory actions.
Historically, large businesses have been criticized for “forum shopping” to avoid federal regulation, while public interest groups have used the strategy against conservative policies. In recent years, however, major corporations—particularly those in the financial and tobacco sectors—have increasingly targeted conservative courts to challenge federal regulations. A notable example is the case of RJ Reynolds, which filed its lawsuit against the FDA’s e-cigarette ban in Texas, seeking a ruling from the Fifth Circuit Court of Appeals, a court often seen as more industry-friendly.
By filing in Texas, where conservative judges are more prevalent, RJR and its partners sought a venue where they might receive a more favorable ruling, bypassing the traditionally neutral DC Circuit. This strategy is not new. In the past, the financial industry has used similar tactics to challenge the SEC’s rules on private equity and hedge funds, targeting the Fifth Circuit for its more business-friendly stance.
The debate over forum shopping comes at a time when confidence in the U.S. judicial system is at an all-time low. According to Gallup, public trust in the courts has plummeted by 24 percentage points over the past four years, reaching a record low of just 35%. The decline spans political affiliations, with both Democrats and Republicans expressing disillusionment.
As for the vaping case, the issue of forum shopping has taken center stage. By filing the case in the Fifth Circuit, RJR, along with Texas-based vape retailers, sought to challenge the FDA’s regulations in a court known for its conservative rulings. This move has drawn sharp criticism from consumer advocates, with Christine Chen Zinner of Americans for Financial Reform calling the Fifth Circuit “a forum where industry lobbies go for favorable rulings.”
The U.S. Chamber of Commerce, typically an opponent of forum shopping, has filed an amicus brief supporting the vape sellers’ decision to file in the Fifth Circuit. Chamber attorney Jennifer Dickey argues that lawsuits against the government should be treated differently, emphasizing the minimal burden of a lawsuit to the U.S. government, compared to private parties facing litigation far from home.
The U.S. Supreme Court’s upcoming ruling will have wide-reaching implications. The Court previously addressed the issue of venue shopping in a 2017 ruling related to patent cases, where it imposed stricter rules on where patent lawsuits could be filed. Legal experts believe the justices may issue a similarly narrow ruling in this case, focusing on the specifics of the law rather than making broader changes to venue practices.
Despite efforts to curb forum shopping, the issue remains contentious. The Judicial Conference of the U.S. has issued recommendations to federal judges aimed at reducing venue shopping, but these are advisory, and many courts have opted not to follow them. This persistent issue may ult
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