Thirty years ago today, the Nine Wise Souls heard oral arguments in the seminal case, the kingpin-opinion, the granddaddy precedent, in what I do. Volkswagenwerk Aktiengesellschaft v. Schlunk, (opinion issued that June, and available at 486 U.S. 694) involved a wrongful death suit against the German automaker and its U.S. subsidiary. The plaintiff, whose parents were killed in a highway collision, served the German parent company via the subsidiary, which happened to have been headquartered in Chicago at the time.
Now, ordinarily, I argue that you can’t just serve a subsidiary. The very idea of it tends to disregard the corporate veil. But Illinois happens to have a statute that allows precisely that– if a foreign* parent has an Illinois subsidiary, then that sub is designated by law as an agent for service on the parent. On the surface, it might seem that this conflicts with the Mullane doctrine (service must be effected by a means reasonably calculated… to put the defendant on notice, and afford him an opportunity to defend), but it stands to reason that if the sub knows, they’re going to tell the parent.
But the issue in Schlunk was only related to Mullane analysis in part. Accepting the validity of the statute, Justice O’Connor disposed of the matter pretty quickly…
Where service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications. (…) (C)ontrary to VWAG’s assertion, the Due Process Clause does not require an official transmittal of documents abroad every time there is service on a foreign national.
However, if you can’t get the job done here, and you have to serve the foreign national in his/her/its home country (assuming it’s a treaty member), then you have to follow the treaty. Period.
It’s as good as holy writ today. In 1988, it wasn’t so certain.**
(If you have an hour, you can listen to the orals here.)
* Foreign is a term of art, and it doesn’t just mean “outside the United States.” It means “outside this particular jurisdiction.”
** I was a junior in high school at the time. I was certain about everything.