Quito, Ecuador. Where Julian Assange is not. Diego Delso via Wikimedia Commons.

Last summer, service of process in a major case was effected via Twitter.  In Twitter Service Hits the Bigtime, I commented that such service was okay under FRCP 4(f)(3) because the more traditional means were foreclosed to the plaintiffs.  Wikileaks was on the hook, in the eyes of the S.D.N.Y.

Yesterday, Wikileaks’ founder, Julian Assange, was arrested in London following Ecuador’s backtrack fro granting him asylum.

So, does the DNC now have to try regular service in order to keep Wikileaks in the case?  Well, no– service was already effected in August.  But even if it hadn’t already been done, the plaintiffs still can’t identify an address for Monsieur Assange.  He’s in a jail cell in England, but that’s merely temporary, and it’s doubtful that he’s even going to remain in the UK for long.  The U.S. is actively pursuing extradition.  Sweden may follow suit, and maybe even other countries will seek to do likewise.  Hard to say at this point.

But it’s awfully clear that the Hague Service Convention isn’t in play here.  It’s not applicable if the defendant’s address is unknown.


Side note… a hat tip to Ted Folkman for some compelling thoughts in this morning’s Letters Blogatory post on Assange.  Charging Assange for publishing classified material– and having the charges stick– would put American journalists at risk of prosecution for doing their jobs.  Rather, says Ted, “I am happy that the grand jury has not charged Assange with espionage, but instead with conspiring with (Chelsea) Manning to steal secrets from the government.”  I couldn’t agree more.

Christchurch College, Oxford.

“Two things I know to be true:  there is no difference between good flan and bad flan, and there is no war in Albania.”

— William H. Macy as “CIA Agent Young” in Wag the Dog

A shameless plug there for one of my favorite movies. Not only was Macy the clueless CIA agent dressed down in Wag by Robert de Niro, but he was also clueless Oldsmobile salesman Jerry Lundegaard in another of my favorite movies, Fargo.  I have yet to see any episodes of Shameless, but any guy who can play clueless so well is… simply brilliant.  You just can’t pull off stupid unless you’re smart.  No, really.

But I was struck last month, as the big story broke about the payoffs made– and the cheating scheme embraced– by America’s well-heeled, to ensure their kids’ admission to America’s elite colleges.  As the first in a blue collar family to go to college, I had to giggle a bit because my challenge wasn’t getting accepted, it was paying for college. For thousands of college students, that’s still the worry.

As a big fan of Bill Macy, I had to wonder why, as brilliant as the father seems to be, how could his daughters’ just-as-seemingly-brilliant mother, Felicity Huffman (she of Desperate Housewives fame), think it was even necessary to pull this sort of stunt to ensure their success in life?  A head-scratcher for sure.

So charges have been filed against, among others, Huffman and the exceedingly perky Aunt Becky from Full House, Lori Loughlin.  They’ve been accused of colluding with university officials and/or buying into an SAT-cheating service, arranging big contributions in exchange for fraudulent test scores and fast-track admission to USC, Yale, Stanford… It all makes me wonder how the whole thing would play out if some of the coveted admissions slots were outside the United States.  Perhaps at Oxford or Cambridge or the Sorbonne in Paris?

Might the Foreign Corrupt Practices Act (FCPA) come into play?  Well, it depends.

An FCPA violation requires:

  1. a payment– literally anything of value,
  2. by a “proper person”– a U.S. citizen or entity, or any foreigner acting on that U.S. person’s behalf,
  3. to a foreign public official– including to candidate for public office or via an official’s agent/proxy,
  4. for a corrupt purpose– like, say, getting a kid into a college he would otherwise no hope of getting into.

If the foreign university in question is public, we might be looking at some FCPA icing on a garden-variety conspiracy cake.  Overseas, the status of a university isn’t as clear-cut as it might be here in the States.  Cal, Mizzou, and Rutgers are all public.  USC, NYU, Stanford, and the Ivies… all private.  Not so easy a distinction with Oxford or Cambridge.

But you have to wonder how many of the defendants in this case were also making payoffs to help little Timmy get into one of them.  The Justice Department may have yet another arrow in its quiver.

 


The better avenue to study opportunities in Oxford?  UMKC’s CLE Abroad program hosted over two weeks in July & August at St. Edmund Hall.

USS Cole, the ship at the heart of the suit. U.S. Navy photo.

Last fall, I posted “FSIA Service… it’s really not that difficult” following several very poorly titled articles describing the Trump Administration’s support of a foreign government’s argument in a sovereign immunity case.  Sudan had asserted that service on its Embassy in Washington was not appropriate under the Foreign Sovereign Immunities Act, and the Department of Justice weighed in on Sudan’s side.  The outrage from both left and right irked the hell out of me.  But the knee-jerk, non-lawyer reaction from the left– my own people, for crying out loud– really set my teeth on edge.  Yesterday, logic won.

Not to brag, but I picked the tally, right down to which single justice out of the nine would be on the wrong side of reason…

This is a pretty straightforward question, and one I suspect the Supremes will decide on a lopsided (8-1?) vote.***  It all boils down to this: The Sudanese Foreign Minister isn’t resident in Washington.  He’s in Khartoum.  And even when he is in Washington representing his government, the Vienna Convention on Consular Relations will thwart service on his person.

***  Thomas, J. in dissent, maybe.

Nailed it.  Yesterday, in Republic of Sudan v. Harrison, the Supremes held 8-1 (Thomas, J. dissenting!), that the Sudanese Foreign Minister isn’t resident in Washington.  He’s in Khartoum.  From the Syllabus:  “A foreign nation’s embassy in the United States is neither the residence nor the usual place of business of that nation’s foreign minister.”

Ah, bright lines.

 

 

 

Credit Suisse, one of the biggest banks in Zurich.  Which is saying something.  Dietmar Rabich / Wikimedia Commons / “Zürich (CH), Paradeplatz — 2011 — 1381” / CC BY-SA 4.0

I’ve seen a huge spike lately in the number of divorce attorneys calling about serving subpoenas on offshore banks.  The routine story: Spouse A (usually the wife, but not always) has learned that Spouse B (usually the husband, but not always) has tucked a few thousand dollars into some offshore account, usually in one of several countries that are famous for stringent banking secrecy laws.  Switzerland, the Cayman Islands, and the Channel Islands are those that come to mind, but protecting depositors’ privacy is fairly universal in the industrialized world.  As such, the calls haven’t been limited to the famous banking havens.

Whatever the venue court might call the financial declarations in a dissolution, both spouses are required to disclose assets, liabilities, income, and expenses. Everybody must lay all of their cards on the table in a divorce action, and I haven’t seen a state yet that exempts offshore assets from the disclosure requirement.  You tell what you have or you face the judge’s wrath.  Pretty simple, right?

Nope.  Amazingly, there are still a whole bunch of brilliant litigants out there who think they’re smarter than the judge– if I hide my cash in Zurich, there’s no way to prove I have it, because that’s where all the Nazis kept their cash and we still don’t know how much is squirreled away there!

Well, I hate to be the bearer of bad news, Spouse B.  The Swiss have opened up their legal code to allow for disclosure in matters of fraud.  They’ve taken great pains to return all that cash the Nazis squirreled away.  You’re not going to be able to hide your fortune away from the world and then show up in Zurich like Jason Bourne to get cash out of his numbered account.  We can find out what you’ve hidden.  The only trick… is how.

So back to the heart of the call from Spouse A’s lawyer.  How do you serve a subpoena on an offshore bank?

Short answer: you don’t.  At least, not if you actually want it to work.  Yes, theoretically, you can serve a subpoena under the Hague Service Convention– in some places.

In other places, various authorities may view your service attempt as a usurpation of judicial authority and reject your request.  More to the point, even if the thing could be served, it has no teeth, so good luck enforcing it.

Serve a U.S. subpoena on a Cayman bank, and the bank will rightly ignore your demand.  Likewise a Swiss bank or a Jersey bank or Singaporean bank.  They’re all going to giggle at you just a bit while sticking your subpoena quietly in a drawer. Why?  Well, a subpoena loses its coercive effect when it leaves its own jurisdiction– and it only gets it back if (1) a statute automatically confers it– see the Uniform Interstate Depositions and Discovery Act (UIDDA)– or (2) if a court in the foreign* state blesses it with that court’s authority– as in a garden variety domestication action.

But there is no treaty comparable to UIDDA.  And an offshore foreign** court is just not going to rubber-stamp a New York subpoena like a Missouri court would (Full Faith & Credit is not a thing overseas).

The alternative?  A Letter of Request pursuant to the Hague Evidence Convention.  That comes with some Cardinal Rules, which I outlined more thoroughly in late-2016:

  1. Take the words “any and all”, and eliminate them from your vocabulary. Seriously.  They are the hallmark of good old ‘Murican discovery, and foreign courts hate that.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel in the foreign jurisdiction.  They’ll help us/you draft the request.  And they’ll appear for you in the foreign court fielding the request.

Pertinent to the questions here is a variant of #2.  Not only can you indicate that the information sought will be used to impeach Spouse B’s Asset & Liability Statement, but also indicate that the U.S. court needs to adjudicate an allegation of fraud.  Courts around the world take a very dim view of lying to other courts– whether by commission or omission.  A properly formatted Hague Evidence Request that includes a fraud allegation… better odds of success.

So don’t just serve that thing.  Even just starting the proper procedure may prompt the opposing spouse to come clean.

 


* Foreign in the “across State Line Road” sense.  Not in the “you need a passport to go there” sense.

** Foreign in the “you need a passport to go there” sense.

1854 Grimms’ German Dictionary, via Wikimedia Commons

Here we go again.  I’ve written before in this space that, yes, counsel, you do have to translate that thing.

But resistance keeps coming up in the legal community:  “oh, come on, the defendant lived in Chicago* for twelve years– the guy speaks English!”

Perhaps, but he lives in Germany now, and you’re serving him there.  Germany requires translation into German, without regard to the defendant’s competence in English.

(Yet they continue to push.)

Look– it’s not about the fellow you’re serving, folks.  It’s about the rules.  It’s about foreign sovereignty and the right to control legal procedure within that sovereign’s borders.  It’s about Germany’s accession to the Hague Service Convention, which includes a requirement that all documents served in Germany be (1) in German, or (2) accompanied by a German translation.  Period.  There’s no “however…” in the declaration.

Why is that?  Well, remember that in civil law jurisdictions, serving process is the responsibility of the court— not of the plaintiff– which means the documents are going to cross the desks of several court employees and other government bureaucrats, each of whom has a responsibility to ensure that proper documents are served in a proper manner.  But if they can’t understand what’s in those documents, the manner doesn’t matter.  Here in the common law realm, a process server doesn’t give a fiddly fig about what’s in the documents.  Not so in the civil.

It’s a policy question– those foreign bureaucrats cannot possibly do their job properly if we American lawyers don’t do ours properly.  And even at that, think farther down the road– if enforcement in that foreign country might eventually be an issue, the judge hearing the case will surely want the originating documents in his/her own language.

Another tidbit that creeps into the conversation when I’m explaining to clients that translation is necessary– if note required:  “well, can’t I just translate the summons and complaint, but leave the exhibits in English?”

NO.

Exhibits are part of the complaint, so to keep translation costs down, keep the pleadings short.  Lawyers don’t get paid by the word… but translators do.

But translate every word, every page.  If it has to be handed to the defendant, it has to be translated.

In short, to borrow a tagline from a little shoe store in Oregon… JUST DO IT.


* Some trivia here.  What is the second largest Polish city?  Chicago, Illinois.  Or so they tell me.  It may be urban legend, but it’s fun, and although I haven’t been to Gdansk or Cracow or Warsaw, I know I can get great kielbasa in the Windy City.  One of my best friends is descended from the characters in Sinclair’s The Jungle.  She grew up following the White Sox.  All Southside, all Polish, all the time!  In Poland, though, Hague translation requirements are a bit less stringent than in Germany: you don’t have to submit a Polish translation of English documents if the defendant accepts them voluntarily.  But here’s the looming question: if that defendant is going to just accept the documents, why wouldn’t he just save everybody the trouble and simply waive?  It bears repeating– JUST DO IT.

Waterfront Dr, Road Town, Tortola. Kevin Stroup via Wikimedia Commons.

We ain’t building rockets here.  But we are building a ship of sorts, and a leaky hull means the cruise ship might not get you to that cabana sheltered rum drink you’ve been craving.  Serving process in the British Virgin Islands is subject to the strictures of the Hague Service Convention, regardless of which U.S. venue* is hearing the matter– in exactly the same way as service in England and Wales.  Still an overseas territory, the United Kingdom has extended the Convention’s coverage to the archipelago.  A critical note, though… that archipelago straddles an international boundary– between the United Kingdom and the United States.  On one side, the BVI, and on the other, the USVI.  Some confusion tends to result when someone calls me to “serve a defendant in the Virgin Islands” and I respond… which Virgin Islands?

If you’re serving in the United States territory, handle it no differently than you would in Puerto Rico or the District of Columbia.

But in the British islands… think Hague methods.

Some background is in order, if you’re so inclined, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And another absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas.  Theoretically, you can serve it, but it won’t do much good.

And the nuts & bolts aspect of our show, in case you need to serve a resort or one of the corporations that have set up a figurative (ie: legal) home in the BVI:

Article 5 Service

  • Translate the documents. But the UK’s declaration to Article 5(3) requires that documents be in English, so… game over, right?  Pack up and go home?  Not so fast, counsel… make sure your individual defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—likely several months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, but it’s a bad idea.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(c). This is absolutely criticalmake sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the UK’s position on Article 10.

The UK’s declarations and Central Authority information can be found here.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.


* For Canadian litigators, Hague channels are certainly available, but there may be a Commonwealth mechanism that makes the procedure even simpler.

Yeah, cruise ships dock there. A lot. [Prince George Wharf, Nassau Harbor. TampAGS, for AGS Media, via Wikimedia Commons.]
We ain’t building rockets here.  But we are building a ship of sorts, and a leaky hull means the cruise ship might not get you to that cabana sheltered rum drink you’ve been craving.  Serving process in the Bahamas is subject to the strictures of the Hague Service Convention, regardless of which venue is hearing the matter.  No longer an overseas territory of the United Kingdom, the Bahamas adopted an independent constitution in 1968,* and fully implemented the Service Convention thirty years later.  Not even 200 miles off south Florida, the islands get a whole bunch of tourists– and commerce– from the U.S. & Canada, and lawsuits are a natural result.

Some background is in order, if you’re so inclined, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroadYou have to send a Letter Rogatory (the Evidence Convention isn’t in effect in the Bahamas).  Dramatically different from serving a summons or notice.

Now for the nuts & bolts aspect of our show:

Article 5

  • Translation: The Bahamas make no declarations to Article 5(3) of the Hague Service Convention. As a former British Colony, English is the operating language, so game over, right?  Pack up and go home?  Not so fast, counsel… make sure your individual defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority, along with the requisite fee.
  • Sit tight. It may take a while—likely three or four months from submission to return of proof.

Article 10

  • The Bahamas do not object to service via Article 10 methods.
  • Mail service is available, but it’s a bad idea anyway.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(b)/10(c).

Central Authority information for the Bahamas and for the other countries in the treaty—can be found here.  Pretty straightforward stuff down there; not a lot of fanfare, if you’re careful and complete the right paperwork.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.


* Interestingly, the UK didn’t see it that way until five years on, with the “grant” of full independence in 1973, although Queen Elizabeth remains the islands’ sovereign.  Even more interestingly, the Queen’s uncle– who had abdicated, making her father king– was governor of the islands from 1940-45.  Not a bad gig, if you ask me.

Cannon Point, Diego Garcia. Blaine Steinert, via Wikimedia Commons.

Three years before Mauritius gained its independence from the United Kingdom (ie: 1965 and 1968), a chain of tiny islands in the Indian Ocean were separated from the island colony, and still remain under British control five decades later.  On Monday, the International Court of Justice Issued an advisory opinion holding that the UK had illegally separated the archipelago from Mauritius, raising a slew of questions as to the strategic islands’ future.

The history of the case can be found on the ICJ’s website here, with the Opinion itself here, and U.S. Judge Joan Donoghue’s dissent here.

Cold War history buffs will be most familiar with the Chagos Archipelago because of the U.S. military’s lease of the British Airbase on Diego Garcia and the expulsion of native islanders to make way for U.S. personnel in the late 1960s.  The opinion arguably sets the stage for the removal of U.S. and British presence.*

[Hat tip to my friend Tim Lynch, professor of international law at UMKC and former U.S. Navy officer who spent a bit of time on the island, for bringing the opinion to my attention before the New York Times.  Tim characterizes the place as “bliss,” and every picture I’ve seen of it support that assessment.]


* I highly doubt we’ll ever see that come to pass.  After all, the United Kingdom refused to consent to the jurisdiction of the ICJ, and the British don’t take kindly to smaller nations that attempt to kick it off remote islands while a strong-willed female Tory Prime Minister is in office.

Medallion – Signing of The Last WIll and Testament of The Springfield Presbytery @ Cane Ridge Meeting House, Paris, Kentucky. Chris Light, via Wikimedia Commons.

It happens all the time.

I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  But it’s tough to convince highly experienced professionals that something outside their wheelhouse might be a challenge in the not-too-distant future.

The conversation usually goes something like this:

Sorry, Aaron.  I’m an estate planning lawyer. I’ll never need to serve anybody in a foreign country.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of Boromir into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

Wait a sec, there, pal.  It’s likely that you’ll eventually have to serve abroad someday.  Ever represent a client who wants to contest the Last Will and Testament of an estranged relative?  (Yes.)  How about if that will that leaves the decedent’s prize collection of Elvis Presley memorabilia to his Cousin Seamus in Dublin?  Think someone might have to serve ol’ Seamus?  (Hmmmm.)  Bear with me here…

It doesn’t matter what court is handling the case– estate litigation is still litigation.  And if you need to hale into court an individual heir (or devisee or… whatever the state-specific term is for cousin Seamus) who is outside the United States, you’re going to have to know how to do it the right way.

If you have any sort of adverse party abroad– or even someone whose interest align with your client’s, but who must be served certain notice or pleadings– strict rules must be observed.

Estate litigation is still litigation.

So how do you do that?

It bears repeating.  The Hague Service Convention controls how all this gets done wherever it applies.  It’s a treaty, to which the United States is a party, and which entered into force right about the time my mom graduated from high school.  Thanks to the Supremacy Clause, its strictures trump lesser laws.  A gentle reminder:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  (Art. VI-2)

(Emphasis mine.)

Serving in Ireland is pretty straightforward.  We prep the documents for service under Article 10(b), send them to my Irish solicitor, and he takes it from there.

The Ha’Penny Bridge, across the River Liffey in Dublin. Odds are, Cousin Seamus walked across this to see Elvis back in the day.
The Peace Palace, den Haag.

Yesterday afternoon, I had the great pleasure of guest lecturing for a friend who teaches international management at the Henry W. Bloch School of Management at UMKC.  The topics we touched on ranged from general knowledge about the dispute resolution process (negotiation, mediation, arbitration, litigation…) to the Foreign Corrupt Practices Act.  A good chunk of my lecture described what I do during within a more broad description of how a lawsuit progresses:  The Hague Service Convention… I live in that treaty.

One student posed an incredibly pertinent question– preceded by the phrase “this is probably a stupid question, but…”

Well, first of all, there’s no such thing, I said.  If something doesn’t make sense, then the lesson is the problem– not your question.

“Okay.  Who is Hague?

I had to take a beat before answering, because the lesson and the assumptions underlying it were definitely the problem.  I very wrongly assumed that everybody knew what “The Hague” was.  After all, I visited there when I was six years old.  But then, very few people are lucky enough to spend part of their childhood abroad on Uncle Sam’s dime.  I really felt like a jerk.

My answer:  The Hague isn’t a ‘who’– it’s a ‘where’.  A gorgeous little city in the Netherlands, that just happens to be the primary seat of international law.

I went on to describe the International Court of Justice, the Hague Conference on International Law, and the International Criminal Tribunals for Rwanda and the former Yugoslavia.  Somehow the conversation turned to war crimes and international justice, and I was thrilled.  These students were not only highly interested and caring, but pretty knowledgeable to boot.

The feeling that I’d missed something so basic in the lesson was mercifully overcome by a worthwhile and unanticipated discussion.  If these students are any indication, a bit of optimism is in order.