The case of the day is Chanel, Inc. v. Individuals, Business Entities and Unincorporated Associations Listed on Schedule A (S.D. Fla. 2025). This is a typical internet luxury good knockoff case. There are a lot of these cases nowadays. It’s usual for the plaintiff to sue a long list of seemingly dodgy foreign people and entities in a single lawsuit, to serve process by alternate means, and to ask for and often receive a preliminary injunction.

Today’s decision is one of the lazier of the genre. The judge authorized service by email and the web on the Schedule A defendants. I don’t really blame judges entirely for lazy decisions in these cases, because they the service issue is generally before the court on an ex parte motion. But some judges have managed to get the issues right, and more judges should look into the relevant law to make sure they are getting this right.

The first thing a judge should ask, when asked for leave to serve process by email or via the web, is: does the Hague Service Convention apply? That depends on whether the defendant’s address is known (and whether the plaintiff has used sufficient diligence to learn the defendant’s address, which is a little squishy), and for a defendant whose address is known, whether it is in a Convention state. Today’s decision is silent on those key questions. Why? Because the judge took the shortcut that many of the older cases, going back to Gurung v. Malhotra, took. She reasoned that the Convention simply doesn’t bar service by email, even in states that have objected to service under Article 10’s provisions on alternate methods of service. I’ve addressed this point many times, including in a haiku, and Bill Dodge and Maggie Gardner have done likewise. Here is the reason in summary:

1. The Convention is exclusive. If it applies, you must serve process using one of the methods of service it authorizes or at least permits.
2. The only provision of the Convention that even arguably permits service of process by email is Article 10(a), which permits service via postal channels when authorized by the law of the forum.
3. In a state that has objected to service by postal channels, the objection also covers service by email in light of point (2).

Here is the haiku:

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

The post Case of the Day: Chanel v. Individuals on Schedule A appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

The Special Commission on the practical operation of the Service, Evidence, and Access to Justice Conventions has just completed its 2024 meeting and, at last, taken on the issue of service by email under the Hague Service Convention. Its conclusions are welcome and should have a significant influence on US courts’ decisions, which in recent years have been frequent, and frequently wrong.

I have been documenting these decisions at Letters Blogatory since the blog’s beginning in 2011, starting with the grandfather of erroneous cases on service by email, Gurung v. Malhotra (SDNY 2011), and continuing with more recent decisions that have started to get the question right, for example, Smart Study Co. v. Acuteye-US (SDNY 2022). I have also attended two meetings of the Special Commission as a participating observer. In 2014, the Special Commission let the issue lie. This year, the Special Commission finally addressed it and adopted conclusions and recommendations that—if properly understood—should help American courts get the question right.

What is a Special Commission, and why should you take its conclusions and recommendations seriously? Special Commissions are working meetings of experts that prepare draft Conventions and that “study all questions of private international law which come within the purposes of the Conference,” that is, the Hague Conference on Private International Law. See Statute of the HCCH, art. 8. The members of each Special Commission are officials from the member states of the HCCH and of non-member states that are parties to the conventions being discussed. The United States delegation was made up of officials from the State Department and the Justice Department. Observers like me from accredited groups can also attend and speak, but not vote.

The 1964 Special Commission prepared the text of the modern Hague Service Convention, and Special Commissions have met several times since, beginning in 1977 and most recently in 2009 and 2014, to discuss the practical operation of the Convention. So the reports of the Special Commissions’ proceedings, including the reports or conclusions and recommendations that they issue at the end of each meeting studying the practical operations of the Convention, are a very good source for understanding what the states that agreed to the Convention, including the United States, think it means.

Here is the first part of the Special Commission’s 2024 conclusions and recommendations on service by email:

105.     The SC noted that Article 10(a) includes transmission and service by e-mail, insofar as such method is provided by the law of the State of origin and permitted under the law of the State of destination.

There is more to this C&R, but this is the heart of it. This is not a simple sentence, and it’s made more difficult by the specialized and laconic language that you get used to if you read a lot of stuff published by the HCCH. A friend who has worked at the HCCH calls it “Hague-speak.” The meaning of this one sentence will not be immediately obvious to many American judges or lawyers. Let’s dig in.

“Article 10(a) includes transmission and service by email …” This phrase is the key to understanding the C&R. The Service Convention has a main channel of transmission, in which a competent authority in the forum state transmits the summons and complaint to the central authority of the state addressed, which then arranges for service on the defendant. But it also permits, without affirmatively authorizing, service by a few alternate means. These alternate means are found in Article 10 of the convention. Article 10(a) reads:

Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.

So what are “postal channels?” Everyone agrees that the US mail is part of the postal channel. But for many years, the Special Commission and the HCCH have made it clear that postal channels are not limited to the postal service itself. When the Convention was adopted in 1965, an authoritative report submitted to the Special Commission recognized that telegrams are part of the postal channel. In 2003, the Special Commission considered that private couriers such as Fedex or UPS are part of the postal channel because of their functional similarity with the mail. And the 2006 edition of the HCCH’s Practical Handbook on the Operation of the Service Convention stated that telegrams and telexes are also part of the postal channel, though that reference was dropped in later editions, no doubt due to these technologies’ obsolescence. But the key point is that “postal channels” should be understood functionally, and not formally. Private couriers, telegrams, and so forth work like the mail, and so the Convention treats them like the mail. Email is functionally like the mail, too, and so the same conclusion should apply.

Why is it important to say that email falls within Article 10(a) and thus within the scope of the postal channel? Because many US decisions reason, wrongly, that a state’s objection to service under Article 10(a) only constitutes an objection to service by email if the objection expressly mentions email. No provision of the Convention expressly authorizes or permits service by email (hardly a surprise, given that the Convention is nearly sixty years old), and so to these courts, service by email is generally permissible. But this reasoning fails to respect the exclusive nature of the Convention. Because the Convention is exclusive, you have to find a provision of the Convention that authorizes or at least permits a method of service you want to use, and the only basis for allowing service by email when the Convention applies is likening service by email to service by postal channels. By stating expressly that email is part of the post channel, the Special Commission has made this point even clearer and has also made it clear that an objection to service by postal channels is, ipso facto, an objection to service by email.

“… insofar as such method is provided by the law of the State of origin …” This part is easy. Everyone understands that the Convention does not authorize service by postal channels. It permits it, but only if the law of the forum authorizes it. In US federal courts, that means getting leave of court under FRCP 4(f)(3) to serve by email.

“… and permitted under the law of the State of destination.” This part is hard. It is the part of the C&R that US courts are most likely to misunderstand. Unlike the United States, many foreign states object to anyone except their own officials serving process in their territories. Why? Because unlike the United States, they regard service of process as a sovereign act that only a government official can do. And so ever since the first international convention on civil procedure, adopted at the first session of the Hague Conference in 1894 and signed in 1896, states have allowed the possibility of service by postal channels, but only when the law of the state of destination permits it (“la faculté prévue n’existe, que si les lois des Êtats intéressés … l’admettent”).

The 1896 Convention didn’t explain how the court in the sending state should know whether service by postal channels is forbidden by the law of the state of destination. The member states of the Hague Conference quickly moved to solve this problem. In the 1905 Convention on Civil Procedure, they provided that service by post was permitted unless the state of destination objected to or opposed service by post (“la faculté prévue n’existe que si … l’Etat sur le territoire duquel la signification doit être faite ne s’y oppose pas”). So the burden was on the state of destination to object or oppose rather than on lawyers and judges in the forum state to figure out what the foreign law permitted.

This provision allowing for service by postal channels unless the state of destination objects to it is the progenitor of today’s Article 10(a). (The French version shows the continuity with the older, French-only conventions: “La présente Convention ne fait pas obstacle, sauf si l’Etat de destination déclare s’y opposer à la faculté d’adresser directement, par la voie de la poste, des actes judiciaires aux personnes se trouvant à l’étranger”).¹ The French, but not the English, version of the modern 1965 Convention improves on the 1905 Convention by making it clear that the state of destination must not only object but must declare its objection. And the modern Convention also explains how a state declares its objection: by informing the Ministry of Foreign Affairs of the Netherlands. These days, you can find a state’s objections to service by alternate means on the HCCH website.

So when we read that service by email must be “permitted under the law of the State of destination,” we should not conclude that US judges and lawyers need to exert themselves to figure out the law of the state of destination. Instead, considering the purpose and history of Article 10, they should simply look to the declarations the state of destination has made to see whether the state has objected to service by postal channels. Easy. Under Article 21 of the Convention, states are free to modify their declarations under Article 10 whenever they like. States that have already objected to service by postal channels and don’t want to permit email service need take no action. States that have not objected to service by postal channels but that wish to object to service by email may do so. States that have objected to service by postal channels but that wish to permit service by email, if there are any, may modify their declarations to suit their positions.

In summary, the C&R tells us that service by email is permissible under the Convention only when (1) it is authorized by the law of the forum, and (2) the state of destination has not objected to service by postal channels in the manner for objections spelled out in the Convention. When a state has objected to service by postal channels generally or to service by email specifically, and when the Convention applies, service by email is forbidden under the Convention and therefore forbidden under US law.

Because service by email has been a controversial topic in US courts for many years, I was surprised by the lack of controversy over the issue within the Special Commission. My sense was that there was a broad, or maybe universal, consensus on the basic question of email’s place within the scope of the postal channel. That is not to say that no points require further discussion. For instance: how do you deal with a person resident in State A who receives and reads an email while visiting State B? The conclusions and recommendations address that question, but I will save that discussion for a future post.

This is cross-posted at the Transnational Litigation Blog, with a few very minor changes. Thanks to Bill Dodge and Maggie Gardner for the helpful comments!

Image credit: Ted Folkman

The post The Special Commission on Service by Email, Part 1 appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

The fourth edition of the Practical Handbook on the Operation of the Service Convention was published in 2016. With a meeting of the Special Commission likely to take place next year, it’s a good time to step back and ask: what have been the major American developments in the law of service since then? I think there are three.

1. “Send” and “Serve” in Article 10. In Water Splash, Inc. v. Menon, 581 U.S. 271 (2017), The US Supreme Court resolved the split in the cases about the correct interpretation of Article 10(a) of the Service Convention, which, in the English version, states that the Convention does not interfere with the freedom to send judicial documents by postal channels (subject to the state of destination’s right to object). Because Article 10(a) uses the word “send” instead of the word “serve,” and because US domestic law distinguishes between merely sending someone a document and serving the document on him, a split of authority had arisen. Some courts had held that because Article 10(a) uses the word “send,” it does not permit service of process via postal channels. This position never made much sense even in the context of US law, since US law requires a party to serve—not send—many documents (pleadings, motions, notices, etc.) on the other parties after formal service of the summons has been made. See Fed. R. Civ. P. 5. In 2017, the US Supreme Court clarified the situation by holding that Article 10(a) does indeed permit the service of a summons via postal channels. The Court was careful to note that Article 10 does not, of its own force, authorize service by post. It is still necessary, in the United States, to find a basis in the law of the forum for serving process by postal channels. US law does indeed authorize service by post on defendants abroad in many situations. See, e.g., Fed. R. Civ. P. 4(f)(2)(C)(ii); Fed. R. Civ. P. 4(f)(3). The law of many US states also allows for service by mail in many situations. Because the US Supreme Court is the final word on the construction of the Convention, the decision governs in all US lawsuits in state and federal courts. Indeed, Water Splash arose out of a lawsuit in the Texas state courts.
2. Waivers of Article 10 Objections by Private Parties. In Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., 460 P.3d 764 (Cal.), cert. denied, 141 S. Ct. 374 (2020), the California Supreme Court held that where the parties’ contract contained a clause providing that service of process could be made on each other by postal channels (the contract called for service by FedEx, and under US law such private couriers are deemed to be within the postal channel), where the defendant was in a state that had objected to alternate methods of service under Article 10, and where the plaintiff did serve the summons on the defendant by post, the contract sufficed to waive the objection under Article 10, and the service was valid. The decision seems wrong, because the power to object under Article 10 belongs to the foreign state, not the litigant, and it is difficult to see why a litigant should have the power to waive the foreign state’s objection. But the decision was not simple. It’s well-established that a litigant can waive defects in service ex post, e.g., by failing to raise them as defenses in its answer. See Fed. R. 12(h)(1). And a litigant can sometimes waive service altogether ex ante, though the Due Process Clause of the Constitution and sometimes state statutes impose limitations of such waivers). See, e.g., Mass. Gen. Laws c. 231, § 13A (forbidding cognovit notes except in limited circumstances).  So perhaps a litigant who can waive service entirely should be able to waive limitations on the manner of service. Again, that argument seems to disregard the state’s interest in controlling the exercise of judicial sovereignty in its territory. Another argument, perhaps more practically important to the outcome of the case, was that the lawsuit for which the plaintiff sought to serve a summons on a defendant in Chinese was one for recognition and enforcement of an arbitral award. Thus many in the arbitration bar took the position that the California Supreme Court’s decision was consistent with the courts’ “pro-arbitration” policy. Although I had no role in the California case, I did write the petition for cert., which the Supreme Court denied. Several scholars submitted an excellent amicus brief in support. The Chinese government sent a letter to the Department of Justice complaining about the California decision, but it came just days before the Supreme Court denied the petition, and although I filed it, I suspect it did not reach the Court in time to bear on its decision.
3. The Tide Turns On Service by Email Under the Convention. Many first-instance decisions have held, erroneously in my view, that service by email is permissible even in states that have objected to service under Article 10, usually on the grounds that because the states’ objections did not reference email specifically, they did not forbid its use. These cases are contrary to the Convention’s exclusive character, which the US Supreme Court recognized in Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988). They presume that any methods of service that are not expressly forbidden are permitted, when in fact any methods of service that are not expressly authorized or at least expressly permitted are forbidden. Often these cases arose when a foreign state adopted a clearly unreasonable approach to service, either because the foreign central authority does not effect service in a reasonable amount of time or because the central authority refuses to effect service on questionable grounds. See, e.g., Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y. 2011); Sulzer Mixpac AG v. Medenstar Indus. Co., 312 F.R.D. 329 (S.D.N.Y. 2015). But these decisions then came to be cited in more routine cases. Recently, however, the trend has been to reconsider the view expressed in Gurung and similar cases. The newer cases tend to recognize that an objection to service under Article 10 or under Article 10(a), without any qualification, operates to bar service under Article 10 or 10(a) altogether, and that service by email is permissible only if one can identify another provision in the Convention that allows it. There is no such provision. Therefore, these cases reason, the service is impermissible. Some examples include Smart Study Co. v. Acuteye-US, 620 F. Supp. 3d 1382 (S.D.N.Y. 2022); Topstone Communications v. Chenyi Xu, 603 F. Supp. 3d 493 (S.D. Tex. 2022); Anova Applied Electrics, Inc. v. Hong King Group, Ltd., 334 F.R.D. 465 (D. Mass. 2020); Facebook, Inc. v. 9 Xiu Network (Shenzhen) Technology Co., 480 F. Supp. 3d 977 (N.D. Cal. 2020); and Luxottica Group S.p.A. v. Partnerships & Unincorporated Associations, 391 F. Supp. 3d 816 (N.D. Ill. 2019).

The Service Convention isn’t the only show in town, of course. Let me also mention a development in the law of service in the context of foreign sovereign litigation. Under 28 U.S.C. § 1608(a)(1), when a private party and a foreign state have agreed to a “special arrangement for service,” the private party not only may but must try that “special arrangement” first, before seeking to serve process in any other way. Of course there are easy cases, where the parties explicitly agree to a method of service of process. See, e.g., Lovati v. Bolivarian Republic of Venez, 2020 U.S. Dist. LEXIS 211458 (S.D.N.Y. Nov. 11, 2020) (agreement for service of process on consular officials); Architectural Ingenieria Siglo XXI, LLC v. Dominican Republic, 2013 U.S. Dist. LEXIS 199771 (S.D. Fla. Jun. 10, 2013) (agreement for service of process on diplomatic or consular officials). But what happens when the parties have agreed to a general contractual term regarding notices that does not expressly reference service of process? In the last few years, the U.S. District Court for the District of Columbia, one of the centers of foreign sovereign litigation in the United States, has developed a clear and consistent rule. When the agreement is an “all-encompassing” agreement that says something like “all notices one party wishes to send to the other shall be sent” by some particular method, then it is a special arrangement for service. But when the agreement is limited in its scope to notices under the contract or the like, then it is not a special arrangement for service. The leading cases are Berkowitz v. Republic of Costa Rica, 288 F. Supp. 3d 166 (D.D.C. 2018), Hardy Exploration & Production (India) Inc. v. Government of India, 219 F. Supp. 3d 50 (D.D.C. 2016), and Orange Middle East & Africa v. Republic of Equatorial Guinea, 2016 U.S. Dist. LEXIS 65147 (D.D.C. May 18, 2016). The DC Circuit has not yet weighed in, although in the most recent case, Chiejina v. Federal Republic of Nigeria, the judge was sufficiently unimpressed with Nigeria’s argument that a limited notice clause was a “special arrangement for service,” in light of the court’s clear precedents, that (before dismantling the argument in detail), he gave a one-word response: “Please!” The case is on appeal, so the DC Circuit may soon settle the issue.

Image Credit: Iamthestig (CC BY-SA 3.0)

The post Service of Process Since 2016: What’s New? appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

The case of the day is Nexon Korea Corp. v. Ironmace Co. Ltd. (W.D. Wash. 2023). Nexon sued Ironmace, a Korean company, alleging that it misappropriated trade secrets and infringed its copyright by developing a video game called “Dark and Darker.” Nexon also sued two of Ironmace’s employees, Ju-Hyun Choi and Terence Seungha Park. Nexon sought leave to serve process by alternate means under FRCP 4(f)(3), including email to Ironmace’s US lawyer and to the individual defendants’ email and social media accounts, arguing that Ironmace planned to release the game before Nexon could hope to effect service through the Hague Service Convention’s main channel of transmission.

According to the judge, Ninth Circuit precedent requires a showing of “facts and circumstances” that “necessitate[] the district court’s intervention” before allowing service by alternate means. The judge held that the circumstances of the case, namely, the threat that Nexon would be damaged by the imminent threat of the release of the game, justified a resort to FRCP 4(f)(3). She went on to find, correctly, that service on the US lawyer did not implicate the Service Convention, because no document would have be transmitted abroad for service.

The judge’s authorization of service on the individual defendants via their email and social media accounts was less well-founded. Indeed, the judge repeated the classic mistake: she reasoned that because Korea had objected to service by postal channels but not to service by email, the Convention did not bar service by email. As the best recent decisions show, such reasoning ignores the exclusive character of the Convention. Sure, nothing in the Convention’s text expressly forbids service by email, but what in the Convention permits it?

But on the bright side, the judge did find that service on the US lawyer for Ironmage was, by itself, sufficient to effect service on the individual defendants, because they were senior executives and were likely to be informed of the service when the lawyer received it. So we can regard the unfortunate conclusion about service by email on the executives as dicta unnecessary to the decision.

One other aspect of the case is worth noting: there are times when plaintiffs have a legitimate need for speed. Those US courts that do require some amount of justification for turning to FRCP 4(f)(3) before trying other methods should not impose too heavy a burden on plaintiffs, and a rule that plaintiffs must first try to serve process via the central authority would be poorly suited to cases where speed is important. But the best answer to such problems is really for foreign central authorities to do a better job of serving process faster. The pressures of litigation are what they are, and if central authorities don’t provide effective means for getting a case off the ground in a timely way, then US courts will face pressure to act, even when they are being asked to act in a way that is at odds with the Convention.

The post Case of the Day: Nexon Korea v. Ironmace appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

The case of the day is Safavieh International, LLC v. Chengdu Junsen Fengrui Technology Co. (SDNY 2023). Safavieh was a New York rug design company. It alleged that Chengdu Junsen Fengrui, a Chinese rug company, was selling rugs on Amazon that infringed its design copyrights. Safavieh began by serving Amazon with a “takedown notice” under the Digital Millennium Copyright Act. But Chengdu served a counter-notice under the DMCA. In the counter-notice, Chengdu arguably consented to personal jurisdiction in any jurisdiction where Amazon is found and also “agree[d] to accept service of process from the person who provided notification under subsection (c)(1)(C) [of the DMCA] or an agent of such person.” Safavieh then sued for copyright infringement and moved for leave to serve process by email sent to the address Chengdu provided in its counter-notice.

The judge did a great job with this motion. Here is how she began:

In essence, Plaintiff argues that it should be able to serve Defendants by email because it would be “extremely difficult and time-consuming” to serve them in China pursuant to the methods stated in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

Unfortunately, Plaintiff is stuck with “extremely difficult and time-consuming.”

These are words to live by. The Convention is a treaty, a bargain between nations, that does simplify the process of serving process abroad, but that also commits the United States and its courts not to allow methods of service that would violate the Convention.

For a moment, I thought the gist of the decision would be a rejection of the California rule of Rockefeller. “Chengdu could not consent to service via email unless email service were permissible under the Hague Convention. It is not.” When I read this, I hoped the judge was preparing to explain why a litigant can’t waive the requirements of the Convention. But she simply assumed that a litigant can’t consent to service that does not comply with the Convention, and she focused instead on whether service by email complied with the Convention. She agreed with the more recent cases, and incidentally with Letters Blogatory, that service by email in China does not comply with the Convention. Why? Well, the Convention is exclusive, which means that when it applies, you have to use the methods it authorizes or at least permits. Some judges have said that because the Convention doesn’t forbid service by email, it permits it. But that position fails to take seriously China’s objection to service via the postal channel, which is the only provision in the Convention that could even arguably support service by email. “It seems beyond the remit of this court, and against the principles of international comity, to decide that Chinese defendants can be served by email simply because an international treaty does not mention this post-treaty technological development—especially given China’s recent pronouncement that the method is impermissible.”

I particularly like this decision because it highlights the connection between two of Letters Blogatory’s recurring issues: service by email in countries that do not allow service by post; and waiver of the Convention’s requirements by private litigants. It’s like hitting the jackpot.

The post Case of the Day: Safavieh International v. Chengdu Junsen Fengrui Tech. Co. appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

The Second Circuit has dismissed the appeal in the Smart Study case for lack of jurisdiction. I wrote about the district court’s decision back in August 2022. The case was a trademark and copyright infringement case involving “Baby Shark.” You’re welcome. The plaintiff had obtained a preliminary injunction, but when it moved for a default judgment, the court decided, correctly, that the service was faulty because service by email on the defendants who had not appeared in the case was impermissible under the Hague Service Convention. It issued an order to show cause why the case should not be dismissed for lack of jurisdiction. But instead of responding, the plaintiff brought an interlocutory appeal on the theory that the courts had effectively denied its request for entry of a permanent injunction. (There was another pathway, interlocutory appeal by permission, which the plaintiff did not seek to follow). In today’s decision, the Second Circuit held that there was no final decision sufficient to give it jurisdiction and dismissed the appeal. I worry that it may never really be possible to get this issue up on appeal, because the stars really do have to align just so. The best procedural posture would be a defendant who is willing to take a default and who then moves for leave to set aside the judgment on the grounds that it is void. A decision on that point could be cleanly appealed. But the incentives for doing this are not great, because all the defendant gets, if he wins, is a chance to litigate the case (assuming that the lower court merely quashes the serve and does not dismiss the case altogether).

Bill Dodge and Maggie Gardner have a very good post on this at the Transnational Litigation Blog. They point to what they call the “ex parte feedback loop” (although I disagree with them that that is much of a problem in Section 1782 litigation, because those opposing the application have a full opportunity to raise their arguments after the subpoena issues). I think this is a good insight in the service of process context, since most motions for leave to serve process by alternate means are decided before the defendant makes any appearance, and many cases involve defaults. So the courts are often only getting one side of the story. Bill and Maggie took the initiative to submit an amicus brief, which was excellent but also, given the jurisdictional issue, won’t settle the problem.

But the root of the problem isn’t the ex parte feedback loop. The first case, Gurung v. Malhotra, started out ex parte, but the Indian government argued the issue in the district court as amicus curiae, so the court did have the benefit of adversary argument when it flubbed the issue. Once there is a published decision out there, those proceeding ex parte can cite it again and again, and it takes on a life of its own. A lot of the decisions simply cite Gurung or later cases without much analysis. Only recently have courts started really to engage with the arguments on the other side. I’ve devoted a lot of attention to Gurung on the theory that maybe we should try to cut off the head of the snake. But in our system of precedents and given the number of district court decisions, both published and unpublished, maybe the snake is really a hydra.

The post Capable of Repetition But Evading Review: The Second Circuit Dismisses Appeal on Email Service appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

In today’s case, the UK Supreme Court returns to the topic. Josephine Wong, a Filipina migrant worker, claimed that she was a victim of human trafficking. She brought a claim against Khalid Basfar, a Saudi diplomat, for wages and breach of her rights under employment law. Her allegations were startling:

Ms Wong alleges that, after arriving in the UK, she was confined at all times to Mr Basfar’s house except to take out the rubbish. She was held virtually incommunicado, being allowed to speak to her family only twice a year using Mr Basfar’s mobile telephone. She was made to work from 7am to around 11.30pm each day, with no days off or rest breaks, and was required to wear a door-bell at all times so that she was at the family’s beck and call 24 hours a day. She was shouted at incessantly and regularly called offensive names. When the family was at home, Ms Wong was only allowed to eat their left-over food; if they were out, she could cook something for herself.

After arriving in the UK, Ms Wong was paid nothing for seven months until Mr Basfar and his wife took her with them to Jeddah on their holiday in July 2017: during this trip she was paid 9,000 Saudi Riyals (approximately £1,800) for six months in one lump sum. This was a fraction of her contractual entitlement. After that, she was not paid again.

In the Reyes case, the UK Supreme Court had rejected the claim of immunity on the grounds that the diplomat’s posting had ended during the pendency of the case. Thereafter, the court said, the former diplomat would have immunity only for acts performed in the exercise of his diplomatic functions. But in today’s case, Basfar was still acting as a diplomat, so the case could not be decided on the same grounds.

The general rule, under the Vienna Convention on Diplomatic Relations, is that a diplomat is immune from the civil jurisdiction of the receiving state’s courts, with exceptions. The key exception in the case was the exception in “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions,” which is found in Article 31. There are many easy cases under this clause. For example, a diplomat who is also a lawyer and who practiced law on behalf of private clients could no doubt be sued for malpractice. A diplomat who opens a hardware store and negligently drops a pallet of lumber on a customer’s foot could no doubt be sued for negligence. What about employment of a domestic servant? Is that a separate commercial activity, or is it just an incident of the diplomat’s daily life? There are many US cases that take the latter view, including a leading case, Tabion v. Mufti, 73 F.3d 535 (4th Cir. 1996), and Denza’s treatise on the Vienna Convention takes the same view. The UK Supreme Court reviewed the US precedents but decided in the end that it didn’t matter whether the ordinary employment of a domestic worker is or is not commercial activity. Whatever the answer to that question, the court held that keeping a worker in conditions of “modern slavery” is “material[ly] and qualitative[ly]” different from ordinary employment.

I think the court’s point is obviously right; there is a significant difference. But does it make sense to call imprisonment and exploitation of of a modern-day slave to do work around the house a commercial activity, if hiring a worker legitimately and paying her legitimately, is not? The best argument is that when you exploit a worker by not paying her, you’re profiting, and profit is commercial. But that argument seems weak to me. I profit by shoplifting instead of paying for something for sale in a shop. But it would be odd to say that shoplifting is a commercial activity just because it is financially beneficial. The question, it seems to me, is whether domestic employment is a commercial activity. If not, then it doesn’t become commercial just because you treat your domestic employee particularly badly.

The best answer to case such as this is for the sending state to waive the diplomat’s immunity so that the lawsuit can proceed. But when the state won’t waive the immunity, we’re left with the familiar dilemma, “hard cases make bad law.”

The post Case of the Day: Basfar v. Wong appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

This reasoning is not just wrong but flagrantly wrong. The Convention is exclusive. Only the methods of service that it authorizes or at least permits are proper. Article 10(a) permits service by postal channels. So if a state objects to service by postal channels, then Article 10(a) can’t apply. The question, then, is whether the court or the plaintiff can point to any other provision in the Convention that authorizes or at least permits service by email. The answer is no. If you leave aside Article 10(a), there is no other provision of the Convention that could plausibly authorize or permit service by email.

Starting in 2019, courts began to take a fresh look. In cases such as NOCO Co. v. Chang and Luxottica Group v. Partnerships and Unincorporated Associations, courts recognized that because the Convention is exclusive, an objection to service under Article 10(a) necessarily means that service by email is improper. Today’s case is the latest in this line of cases. I could be wrong, but I like to think that Letters Blogatory has played a role in turning the tide. So I hope you will continue to retweet and share my posts on this issue, in the hope that district court law clerks will read and be persuaded by the (dare I say) sound and unimpeachable logic behind the correct position.

In today’s case, the defendants were in China, and China, as we know, has objected to service by postal channels. Here is the key language from the decision, which puts it, I think, maybe better than any district court has done to date:

Even if China’s Article 10(a) objection does not in and of itself prohibit email service, the Court holds that such service is nevertheless proscribed by the Convention because it is inconsistent with the Convention’s authorized service methods.

This is exactly right. Pointing out that China’s objection does not explicitly mention email doesn’t get you anywhere, because the next question is: “if we’re not talking about Article 10(a), what provision of the Convention are we talking about?” There has to be one, because the Convention is exclusive. And since there is none, the service is improper.

So much for the main course. For dessert, the court pointed out that the plaintiff’s attempt to serve the Chinese defendants by service on the Texas Secretary of State was also improper under the Convention, because the service is incomplete until the documents are transmitted by the Secretary to the defendants, and that transmission itself is subject to the Convention’s requirements. On that point, readers should refer to Bill Dodge’s excellent new post on substituted service at the Transnational Litigation Blog.

The post Case of the Day: Topstone Communications v. Chenyi Xu appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

What do we learn from the Boies letter? For one thing, we learn that the plaintiff has sought to serve process by several means. In addition to the service outlined in the affidavit, Boies’s firm attempted service by mail and sent a request for service to the UK central authority, which apparently has not yet been executed. Let’s start with the service by mail. Under Article 10(a), service by mail is permissible under the Convention unless the state of destination has objected, and the UK has not objected. But as I explained in the prior post, it’s no enough to say that a method of service is permissible under Article 10. It must also be authorized under the law of the forum. Service by mail is authorized under FRCP 4(f)(2)(C)(ii), but that rule requires the use of “any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.” I do not think that the plaintiff’s efforts at service by mail meet the requirements of the rule. Boies’s Schiller’s London office apparently sent the documents by mail, and there is no indication that a return receipt was requested or received (although there is a good photograph of the papers being deposited in the mailbox—do they not have an equivalent to certified mail receipts in the UK?)

What about the request to the Central Authority? There is nothing really to say, yet, except that it’s clear the Central Authority has received it and not yet executed it. Assuming the request is in the proper form, there is a route to refusal that I imagine is being discussed, namely, a refusal under Article 13, which allows a state to refuse to comply if it “deems that compliance would infringe its sovereignty or security.” You sometimes see this in cases with politically sensitive defendants, e.g., Gurung v. Malhotra or other cases in the “Indian diplomats or consular officers accused of mistreating domestic workers” genre. I discuss the question whether the request complies with the Convention below.

The Boies letter does not really answer the question I posed in the prior post about whether the plaintiff retained an English solicitor to effect the service. The reference to Boies Schiller’s UK office, though, would seem to make that more likely.

Finally, the Boies letter suggests the court may authorize service by alternate means under FRCP 4(f)(3). There has as yet been no motion, and my view is that a motion should or even must precede the attempt at service by alternate means. But service under FRCP 4(f)(3) has to comply with the Convention. Boies is suggesting that service on Prince Andrew’s lawyers would be acceptable. But if those lawyers are in the UK, how can the documents be transmitted to them? Answer: by a means authorized or at least permitted by the Convention. I’ve written a lot about this issue in the case of countries like China, which have objected to service by mail under Article 10(a). The problem is easier in the UK, which has not made such an objection. But I think Boies would still have to show that email is within the meaning of the term “postal channels” so as to bring the service within the scope of Article 10(a).

What about the Bloxsome letter? The letter does make one significant mistake. It suggests that a request for service would have to come from US judge rather than from the plaintiff’s lawyers. In fact, the question of who is competent to make a request for service is a question to be decided under the law of the forum, and under American law, for better or worse, it is clear that the plaintiff’s lawyer is competent to make the request. The letter also seems to confuse Article 5 with Article 10(b) and (c) by suggesting that Article 10 is relevant to the question of who may submit a request to the central authority. Article 10 addresses alternate methods of service when a plaintiff does not wish to use the central authority.

I will continue to follow this, as I suspect this is a case where the parties will fully litigate the service issues.

The post More on Service of Process on Prince Andrew appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

Because motions like this are almost always heard ex parte, without giving the court the benefit of the arguments against alternate service, I’ve prepared this post as a kind of informal amicus brief, which perhaps some enterprising clerk in St. Louis will find. I suppose I could seek submit an amicus brief directly, but that seems uncool to me and would, I think, put me in bad company when you consider the lawyers who seek to inject themselves into politically salient cases. Anyway, here for what it is worth is the argument that shows that Missouri’s motion must be denied.

Service by Email in China is Impermissible, When a Defendant’s Address is Known

The plaintiff seeks leave to serve three of the Chinese defendants, the Communist Party of China, the Wuhan Institute of Virology, and the Chinese Academy of Sciences, by email. There is no suggestion that their addresses are unknown.
The plaintiff acknowledges that service in this case is subject to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, 658 U.N.T.S. 163 (“the Convention”). The Convention applies “in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad,” except if “the address of the person to be served with the document is not known.” Convention, art. 1.

The Convention is mandatory. That is, it “preempts inconsistent methods of service … in all cases to which it applies.” Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988). The Supreme Court’s holding that the Convention preempts inconsistent methods of service is “undisputed” internationally. Permanent Bureau of the Hague Conference on Private International Law, Practical Handbook on the Operation of the Service Convention ¶ 50 (4th ed. 2016). The Convention therefore prohibits methods of service that it does not authorize or at least permit. Rule 4(f)(3) allows this Court to authorize methods of service, even if they violate the foreign state’s domestic law, but not if they violate the Convention. See Fed. R. Civ. P. 4(f)(3) (court may authorize service “by other means not prohibited by international agreement”).

The Convention’s main channel for transmission of documents abroad is the central authority mechanism, which the plaintiff has tried unsuccessfully in this case. The Convention also permits alternative methods of service, including service by sending “judicial documents, by postal channels, directly to persons abroad.” Convention, art. 10(a). But it provides that states opposed to these alternative methods of service can object. See Convention, art. 10; see also Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1508 (2017). China has objected to all alternate methods of service under Article 10, as the plaintiff has recognized. See Declarations of the People’s Rep. of China.

No provision of the Convention, on its face, authorizes or permits service by email. If email is a permissible method of service at all under the Convention, it is permissible because email can be analogized to postal mail, and service by postal channels is permitted under Article 10(a). But as just noted, China has objected to service by the methods in Article 10. Its objection covers the entirety of what Article 10 permits. The declaration reads: “to oppose the service of documents in the territory of the People’s Republic of China by the methods provided by Article 10 of the Convention.” See Declarations, supra. The plaintiff cannot point to any other provision in the Convention that even arguably would authorize or permit service of process by email. Since the Convention is mandatory, any methods of service that it does not authorize or permit are forbidden. And since Rule 4(f)(3) does not allow the Court to authorize methods that violate the Convention, the Court cannot authorize service of process by email here.

Gurung v. Malhotra is Wrongly DecidedThere are apparently no published federal appellate decisions on this point. Several district court decisions have erroneously authorized service of email under Rule 4(f)(3) in countries that, like China, have objected to service under Article 10. The reasoning in these cases is usually that the foreign state’s objection does not mention email, and thus that it has not objected to service by email. See, e.g., Gurung v. Malhotra, 279 F.R.D. 215 (S.D.N.Y. 2011). Many though not all of these decisions were “issued at the early stage of litigation,” and there is “no indication that plaintiffs’ counsel brought to the court’s attention the contrary legal authority.” Luxottica Group S.p.A. v. P’ships & Uninc. Ass’n Identified on Schedule “A,” 391 F. Supp. 3d 816, 827 (N.D. Ill. 2019). Recently, courts have begun to recognize the fallacy in this reasoning. See, e..g., Luxottica, 391 F. Supp. 3d at 824-827 (service by email in China inconsistent with Convention because China has objected to service under Article 10); Facebook, Inc. v. 9 Xiu Network Shenzhen Tech. Co., 2020 U.S. Dist. LEXIS 137701, at *9-19 (N.D. Cal. Jul. 28, 2020) (same). It is not enough to say that China has not objected to service by email with specificity. Courts must ask whether there is any provision of the Convention that authorizes or permits service by email. Skipping that step turns the Convention on its head. As the Supreme Court has held, methods of service not expressly permitted by the Convention are forbidden. Gurung and similar cases are wrong because they suggest that methods of service not expressly objected to by the foreign state are permitted.

There is no question that the Chinese government, justifiably or unjustifiably, has stymied service of process by refusing, as it has the right to do under Article 13 of the Convention. The Convention recognizes that difficulties may arise in the transmission of judicial documents for service, as they have in this case. But it specifies that such difficulties are to be resolved not by use of methods contrary to the Convention, but by diplomatic channels. See Convention art. 14. The Convention’s solution is diplomatic negotiations between the governments of the United States and China. There is no indication in the record that the plaintiff has sought diplomatic assistance from the State Department.

Service by Alternate Means Under Rule 4(f)(3) May Be Unavailable, As the Plaintiff Has Already Asserted That All Defendants Must Be Served Under the FSIA

The plaintiff had previously taken the position that all defendants were required to be served under the service provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1608. The plaintiff took the position that the “Notice of Process Server” form required by Local Rule 2.02(B) was not applicable in this case because it intended to serve the defendants under the FSIA. (ECF 2). Letters Blogatory lacks any expertise that bears on the question of whether the Chinese Communist Party, the Wuhan Institute of Virology, or the Chinese Academy of Sciences should be treated as part of the Chinese state or agencies or instrumentalities of the state for these purposes. If these defendants are state entities for FSIA purposes as the plaintiff has suggested, however, it is clear that the Court lacks the power to authorize service by alternate means, because 28 U.S.C. § 1608 specifies the only methods of service that are permissible in an FSIA case. See Unidyne Corp. v. Aerolineas Argentinas, 590 F. Supp. 398, 401 (E.D. Va. 1984).

The post Missouri v. China: a Letters Blogatory (Informal) Amicus appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.