A real world illustration has become fairly frequent of late… but it needs a bit of personal background.

Some years ago, my life changed dramatically– and for the better.  My doctor sent me to a lab for a sleep study, in which I spent the night in a hospital room that had been dressed up in the style of a very spartan hotel.  A nurse attached no fewer than 137 electrodes to various parts of my upper body and lower legs and then said “sleep tight” before her shift ended and she went home.  This was at 11pm, and I was nowhere near tired, so I channel surfed for an hour or so, and finally dozed off, remote in hand.

Around 7am, a different nurse shook me awake and said “go home, kid.”

But wait, I said.  Tell me about the test!

“Oh, you’ll have to talk to your doctor about that.  I can’t diagnose you.  Although… you registered twice the minimum number of episodes to be diagnosed with obstructive sleep apnea, so I suggest that you get used to looking like Luke Skywalker when you sleep.”

Three mornings later, I woke up feeling more refreshed than I had in years.  Quite literally, a little machine, no bigger than a shoe box, had forced my airway to stay open all through the night, so I could breathe… continuously.  It was a miracle called Continuous Positive Airway Pressure… CPAP for short.*

Fast forward to last month, and a recall comes out from Koninklijke Philips N.V., the Dutch electronics conglomerate that I usually have served in IP suits.  Turns out that the foam sound baffling material in Philips’ CPAP machines can disintegrate and be inhaled or– given the CPAP’s entire purpose– forced into the user’s lungs.  It’s unhealthy, to say the least, and possibly even carcinogenic.  So Philips has wisely recalled the problematic devices.

But now come the plaintiffs into court… courts worldwide.**  And they have to serve Philips… in The Netherlands, which implicates the Hague Service Convention and all of its quirks.

A huge challenge, you ask?  Not really.  Here’s the How-To guide to serving a Dutch defendant in its (or his/her) home country, complete with a couple of handy tips on keeping costs reined in.  [Hint… scroll to the bottom for our digits.]

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* Thanks to other miracles of modern medicine, I don’t need the machine anymore.  Best result?  No snoring… which pleases my wife to no end.

** See the Boston Globe’s more comprehensive coverage of the issue– and some of those suits– here.

A huge chunk of my practice arises from inquiries lawyers send through this blog– and it stands to reason.  Look over to the right  and you’ll see our contact information (scroll all the way to the bottom if you’re on a phone or tablet).  In a perfect world, we’ll get a chance to talk on the phone, bat around ideas, and collectively grumble about the utter silliness that is the Langdellian method.  Inevitably, we ask the following questions, whether by phone or email, because “hey, Aaron, what do you charge to serve a defendant overseas?” just doesn’t give me enough to go on.

Rather than give the trite lawyer answer “it depends,” I ask pretty much the same questions every time.  The answers vary, of course, and often lead to more questions and ultimately, the various conclusions that I can offer as recommended next steps.

The big questions:

How many defendants?

Seemingly a simply query, but you’d be amazed at the number of folks who think a case is a case is a case, and it would cost the same to serve a single defendant in Brazil as it would to serve two each in Mexico, Germany, and Korea.  This drives cost in a direct and profound way.

Where is he/she/it?  (Where are they?)

The single most important question in the list.  Geography drives everything, because different rules apply in Beijing than in Hong Kong.  It’s done differently in Scotland than in England & Wales.  Ontario versus Québec?  C’est différent, mon ami.  Très, très différent.

Individual or entity?

For the most part, the manner of service doesn’t change, but it some places, quirks apply, and they necessitate a different approach from one to the other.  For instance, you can’t serve an individual defendant at his workplace by substitution (though you might at his home).  It’s tougher to find an individual than an entity– for the same reasons abroad as you’d face here at home.

What kind of documents do you need to serve?

The word “process” does not appear in the Hague Service Convention.  Seriously.  Click here and do a word search.  The Convention covers so much more than just the documents that initiate the case.  Default notices, subsequent pleadings & amendments, continuance orders… if they have to be served in a country where it applies, then the Convention must be observed.

But what of subpoenas and other discovery demands?  Well, not so much.  Sure, theoretically, they might be served, but in all likelihood, they’d have no teeth, and it’s possible they might irritate the heck out of a foreign court.  In civil law jurisdictions particularly, the parties don’t demand production– that’s a function of the court, so don’t usurp it!  (The Hague Evidence Convention is often the key.)

What venue?

Whether you’re in federal or state court doesn’t matter much in terms of Hague applicability, but which procedural rules work in tandem with the Convention is a critical question, especially with regard to timing and alternative methods.  Sure, there are myriad reasons to keep the matter in state court if at all possible, but your client might be better off if you go federal at the outset.

Does your defendant speak English?

Often times, the question is irrelevant, as most non-Anglophone countries require translation as a matter of course (ie: the defendant’s comprehension of English isn’t the issue).  But in places like the Netherlands, Belgium, Finland, and Québec, huge cost savings can be realized by just serving the docs as they are.  It often isn’t necessary to translate.

Any chance you might be removed (or remanded) soon?

Take a gander at Civ Pro for 4L’s: Removal and Service of the Correct Summons.  Getting involuntarily bumped from one venue to another changes not only the list of operative documents that must be served– it also has a profound effect on timing.

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Wrapping it all up…

Of course, this is not an exhaustive list.  But it does tell you why the “how much?” question is so complex, and why the classic lawyer answer “it depends” has so much more loaded into it.  Above all, this is such a complex area of practice that it’s unwise to go it alone.  Recognize that I am not the guy to take the lead on an IP case, a divorce, a contract dispute, or a wrongful death action– against any defendant, offshore or here at home.  Those cases lie outside my expertise.  Likewise, call in some help to handle the cross-border issues that inevitably pop up in those sorts of matters.

 

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Hat tip to Dan Harris and his crew at the China Law Blog, for posting Registering China Trademarks: The Questions We Ask and International Manufacturing Agreements and the Questions We Ask, thus giving me the idea for this space.

 

 

 

An interesting quandary pops up fairly regularly, and I find myself explaining the issue so frequently that it warrants a post.  [TL;DR… in the U.S., corporations and other entities created pursuant to statute have registered agents.  Elsewhere– and I mean just about everywhere else– the same types of entities only have registered addresses.  You don’t have to worry about whether you’ve designated the right individual officer because there isn’t one.]

To the average lawyer in the U.S., defendant entities should be served by delivery to their registered agents.  In most U.S. states (or maybe it really is every state), an entity has to list a specific person or entity to act as its agent for service.  Pretty straightforward stuff… I am the registered agent for my law firm and my wife’s consulting firm (both LLCs), and act as an agent for a few Missouri trusts established by a colleague who lives on the other side of State Line Road.  Hand a summons to me, and you’ve served one or more of those entities.  If you’re suing a certain carmaker in Dearborn, Michigan (think blue oval, truck models beginning with the letter “F”, and most cop cars), you look them up through the Michigan Secretary of State and find that, hey… Ford is a Delaware corporation, with a Michigan “resident agent,” The Corporation Company, located just outside Detroit.

But let’s say your client was injured in a Land Rover.  A quick Google search tells you that the complete manufacturer’s name is actually Jaguar Land Rover Limited.  You’d go to the official Companies House site in London, where a quick search yields JLR’s registry and the knowledge that its registered office address is on Abbey Road in Coventry (no, not that Abbey Road).

You can click on the “People” tab to find out all of the company’s officers and directors, but two words you won’t see are “Registered Agent.”  The way they do it over there is to simply deliver process to the registered address, and it’s a done deal.  A receptionist, security guard… we hand the docs to whoever is in charge of the address, and Bob’s your uncle.

Just for funsies, change the defendant one more time– say the allegedly defective car is a Beemer.  It takes some digging to get to the German registry, but it shows BMW at Petuelring 130 in Munich (link has a bot-check)… and an address, but no mention of an agent.

That’s not a problem, especially in Germany, where service is actually of function of the court, rather than a duty of the plaintiff.  A judicial official usually effects service, and they verify that a request bears the right address, but you still want to get it right the first time.  Registries* are the best way to do that with entity defendants.  Just disregard the lack of a designated agent.  It’s no problem.

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* The English registrar of companies maintains a fantastic list of links to other countries’ registries.  They’re not all easy to navigate, but this is a great resource that has alleviated hundreds of headaches for my clients.  That’s how I got to BMW in Germany.

Two or three times a week, I’ll get an email or phone call from a civilian (ie: somebody wise enough to have avoided taking a bar exam) seeking help with a cross-border issue.  The majority are pro se spouses (or ex-spouses) who need help serving a divorce action or petition to modify custody or child support.  Quite often, it’s a business owner in conflict with an overseas supplier.  Occasionally, it’s an injured party seeking damages from a foreign* manufacturer or visiting driver from abroad.

In each and every case, I tell the caller, “have your attorney get in touch with me and I’ll be happy to help.”  Their responses usually come in one of four forms:

• Will do.  You should hear from her tomorrow.

Excellent.

• I don’t need a (*!@&ing) lawyer.  Go (*!@&) yourself.

[I have no problem hanging up on these guys.  Yes, they’re universally men, in my experience.]

• I can’t afford a lawyer.

[This one truly is heartbreaking, but I still can’t risk advising them, so I suggest contacting Legal Aid.]

• I’ve tried to find somebody to help me, but they don’t understand the Hague and they’re afraid to take my case.

My reaction:

It’s this fourth one that most bothers me, because there’s no good reason for it.  There are any number of highly capable specialists** who can advise lawyers of every stripe on a host of niche questions.  There are a couple of us who handle service abroad almost exclusively.

Recognizing that there might be 137 different reasons to decline a representation, an offshore defendant shouldn’t automatically be one of them.  All other factors being equal, take the case, and then avail yourself of the resources available to you.  The Hague Service Convention doesn’t have to be the daunting, 800-pound gorilla it’s reputed to be.  At the risk of sounding all sales-pitchy, you’ve got three ways to go:

1. Tap us on the shoulder for bespoke attention — or tap somebody on the shoulder for help,
2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your Hague forms, or
3. If you’re feeling froggy & are confident enough to handle it yourself with a bit of guidance, see “How to Complete a Form USM-94” for a step-by-step primer.  It lays out the framework you’ll need.

But above all, don’t decline a case merely because you don’t know everything there is to know about tagging offshore defendants.

That’s what we’re here for.

 

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* It’s a term of art.  Here, I mean foreign in the “you need a passport to go there” sense, rather than the “across State Line Road” sense.

** The word “specialist” is a minefield for Missouri attorneys.  It causes myriad headaches in our bar, and others– but the simple fact is that lawyers specialize.  Unless you’re a small-town generalist, specialization is the only way to make a go of it as a lawyer in the 21st century.  There’s certainly merit to the restriction: if a lawyer says they specialize in XYZ, and they really don’t know much about XYZ but birddog cases to refer out to somebody else for a fee, that’s bad.  But the truth is, I’m far more honest if I say I specialize in something– and accept work only in that field– than if I just put up a website that says “Lawyer!” and lead the public to think I can handle anything that comes my way.  We can call ourselves experts (just as questionable), and we can say our “practice is limited to XYZ,” but each says something different.

The single, most important piece of information in serving a defendant is his/her/its location.  Without the “where,” nothing else matters.  Domestic defendants, foreign defendants, U.S. citizens living abroad… everything boils down to location.  Now, in most places, just saying “I need to serve a defendant in Japan” is perfectly sufficient.  The Hague Service Convention applies.  There is but a single way to get the job done.  And there’s no question about whether translation is required.  Likewise Mexico, Turkey, Korea, and the like.  But there are a few places around the globe that require a bit more inquiry to determine options and requirements.  This begins a series to look at particular places that aren’t quite so simple, for better or for worse.

Southeastern China is a world unto itself.  If you imagine the American industrial heartland (think Chicago-Detroit-Cleveland-Pittsburgh) in the 1950s, multiply output by a factor of twenty and you have a pretty good idea of the Guangdong Province metroplex.  I call it that merely for brevity’s sake, because a handful of China’s largest cities– two of which are larger than New York– are clustered together around the Zhujiang River Estuary.  Guangzhou, Shenzhen, Foshan, Dongguan, Macau, Hong Kong…. those are merely the big ones.  That doesn’t take into account the dozen other cities larger than a million people, sprinkled about the region like so many raindrops.

This is China’s industrial heartland, if not due to manufacturing dominance, certainly from a litigation perspective.  Shenzhen in particular is home to more defendants in U.S. litigation than any city in China outside of Beijing,* and I’m not even sure Beijing wins that title.  Hong Kong has been a major source of manufactured goods for decades, since long before China’s rise to industrial prominence and reassumed its sovereignty over the former British colony.

Here’s where it gets tricky.  If the defendant is in Shenzhen (or elsewhere in the PRC), we’re back to “ain’t but one way to do it“ with a very specific translation requirement and an incredibly long wait.  If the defendant is in Hong Kong, just across a narrow river, the world is our oyster, and we can anticipate proof of service within days or weeks, rather than months or years.

Always remember– proper Hague Service (really, proper service under any legal regime) relies entirely on location.  It drives the threshold questions: (1) does the Hague Service Convention apply?  (2) If so, what options & hurdles does it present?

Where… is absolutely critical.

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* An admittedly unscientific statistic, but one borne of experience.  The defendants that cross my desk are more apt to be named something like “Shenzhen (insert typically sunshine-laden company image) Industry Company, Limited” than not.  For a bit on naming requirements for Chinese companies, see Dan Harris’ excellent China Law Blog post on the subject.  Even Dan uses Shenzhen as the exemplar city.

Billy Joel released The Stranger album in 1977, just as I was starting the first grade.  It wasn’t until I was in high school that this album truly became one of my favorites, and it remains so decades later.  Not least because the varied tracks on it pop up in conversation so frequently.

The best thing a potential client could ever say to me– aside from “shut up and take my money”– is “yeah, we could probably figure this out on our own, but we’d rather get it right the first time.”  Cue the soundtrack of my youth.

It’s applicable in Hague Service Convention usage because, even though you might get a second bite at the apple following a curable defect, you may not know there’s a problem until a year or two down the road.  That makes for irate clients and grumpy judges.

Of course, it sometimes can’t be helped.  Capricious foreign officials sometimes offer pretextual reasons for rejecting Hague Requests.  Discrete little details may derail an effort to serve a defendant with no notice– problems that blindside lawyers seemingly out of nowhere.

But a little diligent effort goes a long way.  Doing it yourself isn’t always a bad idea– but pretty frequently, you can be blindsided by a seemingly inconsequential detail. In short, get help.  Hire somebody to help you.

I don’t mean this to be sales-pitchy.  Really.  [The sales pitches are here and here.]

But practical reality necessitates bringing in some added expertise in many cases.  Just as a personal injury lawyer shouldn’t handle her own traffic ticket, or a tax attorney shouldn’t file his own contested divorce, plaintiffs’ counsel of all stripes should be wary of handling overseas service alone.  If you don’t hire me, consult some other attorney who does this sort of thing regularly.  Your client depends on your wisdom, and that might just mean bringing in some help with a nuanced area of practice.

 

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