The case of the day is SEC v. Lahr (3d Cir. 2024). The SEC sought to serve Thomas Megas with process at his home in Switzerland in a civil securities fraud case. It sent a request for service to the Swiss central authority, which confirmed that the SEC had the right address for Megas but said that it was unable to serve him there. It may seem odd to American lawyers that Swiss law apparently does not allow for service by leaving the summons at the defendant’s home, but there it is. The SEC sought leave to serve process by email, which the court granted. The evidence showed that the email had been delivered but not opened. The SEC moved for a default judgment, and the court entered judgment. Megas then moved to vacate the judgment on the grounds that the service was improper and the judgment was therefore void. The district court denied the motion, and Megas appealed. This is a pretty rare occurrence, and the case was in a really good posture for appellate review.

And the Third Circuit got it right! It held that the Convention applied. Sure, service at Megas’s home turned out to be a challenge, but you can’t just say that a defendant’s address is unknown because you are having trouble serving him at his address. Then the Court held that the Convention is exclusive, which means that you have to use the methods that it authorizes or at least permits. Third, it noted that the Convention does not provide for service by email, and that to the extent you think that email is within the postal channels (Article 10(a) permits service by postal channels when the law of the forum allows it), Switzerland has objected to service under Article 10(a).

All of this is correct. It is, I think, the first appellate opinion that has really looked at the issue, so I am relieved the court got it right. The only problem with the decision is that it is “unpublished” and therefore non-precedential. That means that district courts in the Third Circuit are not bound by it, nor is the Third Circuit itself bound by it. But both the Third Circuit and other appellate courts can follow it to the extent they find it persuasive, and it is very persuasive.