The case of the day is Mattel, Inc. v. Animefunstore (SDNY 2020). Mattel sued several Chinese defendants, including Animefunstore, known in the decision as the “Wang defendants,” for selling counterfeit versions of UNO, the card game. Mattel sought and obtained an ex parte temporary restraining order, and the court authorized Mattel to serve process by alternate means including email. It justified the motion by noting that “third-party merchants on DHgate, Alibaba and AliExpress, like the Wang Defendants, have been known to use aliases, false addresses and other incomplete identifying information to shield their true identities and there were, in fact, only partial, incomplete or no physical addresses whatsoever associated with the majority of the Wang Defendants’ User Accounts.” The court granted the motion, and after service, the defendants moved to dismiss.
The court denied the motion, citing SDNY precedent allowing service by email because it is not expressly forbidden by the Hague Service Convention. This is wrong, of course, for reasons I have given many times before. the Convention is exclusive, and the question isn’t whether the Convention expressly forbids service by email, but whether any provision of the Convention authorizes or even permits service by email. The answer is no. There is one complication—there is some suggestion that the defendants’ addresses were unknown. If that were so, then of course the Convention would not bar the service, because the Convention would simply not apply. But Mattel’s account was quite carefully worded. It focuses on what is true of many parties in the defendants’ position, but that is hardly proof that the defendants themselves had no known addresses, and in fact, Mattel says only that “a majority” of the defendants had no known physical address.
Because of the complication about whether the defendants had known addresses, the case is not a perfect example of wrongness, but it is yet another lower court decision misunderstanding what it means to say, as the Supreme Court said in Volkswagen, that the Hague Service Convention is exclusive.