I’ve got an interesting case for you today!
The case of the day is FTC v. PCCare 247 Inc. (S.D.N.Y. 2013). The FTC alleged that the defendants, Vikas Agrawal, Anuj Agrawal, Parmeshwar Agrawal, PCCare247 Solutions Pvt. Ltd., and Connexxions IT Services Pvt. Ltd., all located in India, “operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers.” On the FTC’s motion, the judge entered a temporary restraining order enjoining the defendants’ business practices and freezing assets. Two days later, the FTC transmitted the summons and complaint to the Indian central authority for service under Article 5 of the Hague Service Convention. The FTC also delivered the summons and complaint to the defendants by email; by FedEx; and by personal service via a process server. Vikas Agrawal was later personally served while he was in the United States. The Indian central authority never proceeded to serve the defendants under the Convention.
At the hearing on the FTC’s motion for a preliminary injunction (which the judge granted), which followed the service of process, the defendants were represented by US counsel. However, US counsel later withdrew, after the defendants failed to pay them. Now that the Indian defendants were unrepresented, the FTC faced the question of how to serve them with additional documents in the action. It sought leave, under FRCP 4(f)(3), to serve the subsequent documents by alternate means, namely by email and via Facebook. Since we are talking about documents other than the summons and complaint, the case does raise the question whether the Hague Service Convention applies at all to such documents. I’ve often expressed the view that the Convention does apply to documents other than the summons and complaint. The judge assumed that the Convention applied but held that service by email or Facebook was not inconsistent with the Convention in any event:
Service by email and Facebook are not among the means listed in Article 10, and India has not specifically objected to them. Numerous courts have held that service by email does not violate any international agreement where the objections of the recipient nation are limited to those means enumerated in Article 10.
The judge cited Gurung v. Malhotra—a case I’ve criticized as wrongly decided—in support of his conclusion. I happen to agree with the judge that commercial email is not within the definition of “postal channels” in Article 10. So India’s Article 10 objection does not bear on the permissibility of service by email. But the Convention is exclusive; a plaintiff must use one of the methods of service authorized or at least permitted by the Convention, if the Convention applies. So which provision of the Convention authorizes service by email, or by Facebook? I think the answer is that no provision of the Convention authorizes service by email, let alone by Facebook.
Facebook provides an additional complication. The analogy between e-mail and old-fashioned mail is very strong, and it seems difficult to argue that when I send an email to someone in another country, I am not transmitting the email into that country. Since the Convention applies only when there is occasion to transmit judicial documents to another state, it seems that the Convention applies to cases of service by email. But Facebook could present a closer question. Suppose the FTC simply put a notice on its Facebook “wall”: “Hey, Anuj Agrawal, you’ve been sued! Click this link to read the summons and complaint.” This would, it seems to me, be most analogous to service by publication, and I think it’s common ground that if the FTC had obtained approval to serve process by publishing a legal notice in the New York Times, the method of service would not involve transmission of the documents to India and thus the Convention would not apply. But it seems that that wasn’t the FTC’s plan. According to its papers, the FTC planned to send “Facebook messages” to the defendants, which the defendants will receive when they log on to Facebook. This method of transmission seems much more analogous to an email than to publication on the Internet, and I therefore would apply the same analysis to service by Facebook as to service by email.
So I think the judge was right to say that, since the documents had to be served in India rather than on US counsel, the Convention applied, but wrong to say that the Convention does not forbid service by email or Facebook in the circumstances. In short:
- The Convention is exclusive. A party must use one of the methods permitted or authorized by the Convention if it applies.
- The only provisions of the Convention that seem even arguably to permit either methods are Article 10(a), which permits service via the postal channel, in the absence of an objection, and Article 19, which permits service under the law of the receiving state but which was not in play in this case.
- So if email is within the scope of the term “postal channels,” then the service by email was improper under Article 10 in light of India’s objection; and if email is not within the scope of the term “postal channels,” then the service by email was improper because it is not authorized by any other provision of the Convention. The service by Facebook seems improper in either case.
- There are plenty of cases approving service by email, but with exceptions such as Gurung, they are mostly cases where the defendant’s address was unknown and the Convention did not apply, or where the defendant was in a non-Convention country.