Case of the Day: Symantec v. Acronis

The case of the day is Symantec Corp. v. Acronis, Inc. (N.D. Cal. 2013). Symantec sued Acronis, Inc., Acronis International GmbH, and the curiously named OOO Acronis for infringement of its patents for backup, recovery, and security software. OOO Acronis, the developer of the allegedly infringing software, was a Russian entity with its place of business in Moscow. Symantec attempted to serve process on OOO Acronis by personal service on Alex Pinchev, Anthony Folger, Laurent Dedenis, and Ravi Jacob in the United States. According to the evidence Symntec offered, Pinchev was CEO of all of the Acronis entities and the ultimate decision-maker for them; Folger was CFO of Acronis Inc. and responsible for finance at all Acronis entities; and Dedenis was in charge of global sales for Acronis. For its part, OOO Acronis submitted an affidavit stating that the individuals were not “employees, officers or directors of OOO Acronis.”

OOO Acronis moved to dismiss for insufficient service of process. 1 Under FRCP 4(h)(1)(B), service on a corporation is permissible by delivering the papers to “an officer, a managing or general agent, or any other agent authorized by appointment or law to receive service of process.” As we saw in the Brighton Collectibles case, the test in the Ninth Circuit is not formal but functional. The question is whether the representative is “so integrated with the organization that he will know what to do with the papers.” Here Folger and Pinchev, at least, clearly met the test. Thus the judge correctly denied OOO Acronis’s motion.

Notes:

  1. Symantec also sought a declaration that its attempts at service were effective. Regular readers will know that I don’t like these motions.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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