Case of the Day: Washington State Investment Board v. Odebrecht

The case of the day is Washington State Investment Board v. Odebrecht S.A. (S.D.N.Y. 2018). The Washington State Investment Board sued Odebrecht, a Brazilian company, for securities fraud. It sought leave to serve process on Odebrecht by service on Quinn Emmanuel, Odebrecht’s US lawyers in a related criminal case.

The case raises an issue I’ve long been interested in: when you have a foreign defendant, you’d like to avoid having to serve process abroad, so you seek leave under FRCP 4(f)(3) to serve process on the foreign party’s US counsel. But FRCP 4(f) applies only to service outside of the United States, and the whole point of the service is to serve the documents on counsel inside the United States. What gives? The court held that this wasn’t a barrier to the motion: the service “requires transmission of service papers to a foreign defendant via a domestic conduit like a law firm or agent—ultimately, the foreign individual is served and thereby provided notice outside a United States judicial district, in accordance with Rule 4’s plain language.” This reasoning doesn’t seem adequate to me, because the service is complete upon transmission to the lawyer. Even if the lawyer never transmits the papers to the client abroad, the service is valid. So I don’t see how the court can find that FRCP 4(f) is applicable by treating the lawyer as a conduit for transmission of the documents abroad.

That said, there is an awful lot of precedent supporting this mode of service, and there seem to be no due process or other constitutional objections to it, so it may be that this is a case where we simply have to bend the language of the rule so as not to do violence to the precedents.

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