For the last several years—maybe ten years?—I’ve written a short piece each year on a significant development in the law of cross-border service of process for the ABA Section of International Law’s Year in Review, which is published each year in the International Lawyer. This year, I’m writing about a recent case here in Boston, Whoop, Inc. v. Shenzhen Lexqi Electronic Technology Co. (D. Mass. 2025), a case denying permission under FRCP 4(f)(3) to serve process on a Chinese defendant in an IP infringement matter by serving the defendant’s US lawyer. The case is notable because it adopts Bill Dodge’s theory that such service is impermissible under FRCP 4(f)(3) if the Service Convention applies, though it may be permissible in some states under FRCP 4(e)(1). The logic of Bill’s view rests on the structure of Rule 4 and the exclusivity of the Convention. Rule 4(e) applies when the service is made within of the United States, and Rule 4(f) applies when the service is made without. If the service is made in the United States, then FRCP 4(f)(3) is unavailable because Rule 4(f) does not apply. If the service is made outside the United States, then FRCP 4(f)(3) is unavailable because it does not permits methods of service inconsistent with international agreement.

Here is what I plan to write in the Year in Review. I haven’t completely given up on the idea of “Schrödinger service,” the idea that the service can be thought of as taking place in the United States for Convention purposes an outside the United States for purposes of deciding that FRCP 4(f) applies. But unless I come up with a cleverer argument for why that should be, you’ll see that I think the law is heading in Bill’s direction. The motive for continuing to press on this point is to avoid having to say that a lot of cases were decided wrongly and also to provide a simplified path for service that does not offend legitimate foreign state interests (which, as I conceive them, are interests in regulating judicial activities on their territory rather than, for example, protection of their nationals from lawsuits in the US).

The Hague Service Convention is exclusive. When it applies, a plaintiff must serve process by one of the methods that the Convention authorizes, or at least permits. Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988). Often this means transmitting the papers to the foreign state’s central authority for service under foreign law. Many US plaintiffs, sometimes with good reason and sometimes not, prefer almost any method of service to service via a foreign central authority. There are many cases where plaintiffs have asked courts to authorize service on a foreign defendant under Fed. R. Civ. P. 4(f)(3) by delivery to the defendant’s US lawyer, and courts have agreed. See, e.g., Compañía de Inversiones Mercantiles S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V., 970 F.3d 1269 (10th Cir. 2020).

But Professor William S. Dodge has recently argued that resort to Rule 4(f)(3) is not permissible, because Rule 4(f) applies only when service is “at a place not within any judicial district of the United States.” If service on a foreign defendant by delivery to a lawyer in the United States is service at a place within the United States, then the service is impermissible because Rule 4(f) does not apply. If the service is service at a place outside the United States, then the service is impermissible because the Service Convention is exclusive, and the service is not by a method the Convention authorizes or at least permits. See William S. Dodge, Serving Foreign Defendants’ US Counsel to Avoid the Hague Service Convention, Transnat’l Litig. Blog (Apr. 10, 2025) In a recent decision, Whoop, Inc. v. Shenzhen Lexqi Electronic Technology Co. (D. Mass. Oct. 16, 2025), the court adopted Professor Dodge’s reasoning.

In Whoop, the plaintiff brought a trade dress infringement claim against Shenzhen Lexqi, a Chinese manufacturer and seller of health monitoring devices. Whoop sought leave to serve process on the Chinese firm’s US lawyer under Rule 4(f)(3). The court was “sympathetic,” because “the administrative requirements” of service in China under the Convention are, it thought, “often exceptionally burdensome.”¹It is not clear that that is so. Nearly half of requests to the Chinese central authority for service are executed within six months. See Permanent Bureau of the Hague Conference on Private Int’l Law, Synopsis of Responses to the questionnaire of Nov. 2013 at 19-20. It reasoned that Rule 4(f) did not apply to service within the United States, and that that determination depends on “the location where service is to occur, rather than on the location of the party to be served.” And if the service were deemed to be service abroad, then it would fall afoul of the Convention, which is exclusive. The court therefore denied the motion.

Despite suggestions that it might be possible to take the location of the service to be outside the United States for purposes of deciding that Rule 4(f) applies but inside the United States for purposes of deciding that the Convention does not apply,²See Ted Folkman, Bill Dodge on Serving US Counsel, Letters BLogatory (Apr. 21, 2025); Ted Folkman, More on Schrödinger Service, Letters BLogatory (May 18, 2025). Professor Dodge’s view has a strong basis in the text and logic of Rule 4 and is likely to be followed. There is, however, another way plaintiffs—in some states, at least—may avoid the necessity of engaging with the Convention. Rule 4(e), which governs service within the United States, incorporates state law methods of service of process. If state law allows a court to authorize service on the foreign defendant’s US lawyer, as New York law, for example, does, then the plaintiff may seek and obtain leave without having to look to Rule 4(f)(3). See Zobay v. MTN Group Ltd. (E.D.N.Y. Mar. 6, 2025); see also William S. Dodge & Mehrunnisa Chaudhry, More on Serving Foreign Defendants’ US Counsel to Avoid the Hague Service Convention, Transnat’l Litig. Blog (Sept. 9, 2025).

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  It is not clear that that is so. Nearly half of requests to the Chinese central authority for service are executed within six months. See Permanent Bureau of the Hague Conference on Private Int’l Law, Synopsis of Responses to the questionnaire of Nov. 2013 at 19-20.
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  See Ted Folkman, Bill Dodge on Serving US Counsel, Letters BLogatory (Apr. 21, 2025); Ted Folkman, More on Schrödinger Service, Letters BLogatory (May 18, 2025).