The case of the day is Puris v. TikTok Inc. (S.D.N.Y. 2024). Puris sued TikTok, Inc., a US company, and ByteDance Ltd., a Chinese company with a registered address in the Cayman Islands, for employment discrimination and related claims. TikTok waived service of process, and Puris served process on ByteDance Ltd. in the Cayman Islands.

Her lawyer told TikTok’s lawyer that he planned to amend the complaint to add ByteDance Inc., a US company owned by ByteDance Ltd., Douyin Co., “a Chinese company that controlled aspects of Puris’s employment,” and Lidong Zhang, who “exercised control over TikTok, Inc.” TikTok’s lawyer, acting on instructions from his client, told Puris’s lawyer that he was “in the process of representing all of the defendants in this action,” including the new defendants. TikTok’s lawyer thought his client had authorized him to accept service on behalf of all defendants in return for a ninety-day extension of time to answer the complaint, and so he made that offer in writing to Puris’s lawyer, who agreed. The lawyers later exchanged emails in which TikTok’s counsel “formalize[d]” that he had “accepted service on behalf of all defendants, and that defendants are waiving any arguments as to insufficient or improper service,” in return for a commitment not to seek to enter ByteDance Ltd.’s default. The next day, TikTok’s lawyers filed notices of appearances on behalf of all lawyers. TikTok’s lawyer asked the court to approve the negotiated extension of time to answer, representing that he was acting for all five defendants, and the court agreed.

Unfortunately, TikTok’s lawyer had not actually communicated directly with Douyin or Zhang. After further back-and-forth behind the scenes, the lawyers sought and received leave to withdraw their appearances for Douyin and Zhang. Those defendants moved to dismiss for failure to serve process.

I am highly sympathetic to the plaintiff’s lawyers and a little bit sympathetic to TikTok’s lawyer. The fact is that all the defendants are affiliates, and the issues that this case turns on—actual authority and apparent authority—are a little bit artificial in the circumstances. I mean, come on. But I think the judge was right to say that the lawyers had no authority from the two Chinese defendants and thus could not agree to accept service on their behalf. Apparent authority, remember, comes from something that the principal says or does that makes you think that the agent has authority, not from something the agent says or does. The plaintiff will have to try again.

I am surprised that the judge decided to grant a motion to dismiss the case rather than to quash the service. I think this may have be a procedural slip, since the order says that the dismissal is “without prejudice to Puris’s claims against” the Chinese defendants “and her diligent efforts to serve them.”

Image credit: Solen Feyissa (CC BY-SA)