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At least once or twice a month, when I deliver the bad news that service on an offshore defendant will cost several thousand dollars and take several months– if not a couple of years— a prospective client will decide that the better way to go is to seek an order for alternative service, usually electronic service, under Rule 4(f)(3) or its state analogs. This is a flat-out bad idea, and I’m going on record with it now so it doesn’t seem like a brand new thing I just made up to keep the fees rolling in. Truly, if there’s a way to get the job done without having to hire my firm* and hit your client for a four- or five-figure bill, I will tell you— that’s just the way we roll around here at Viking Advocates.

But there’s a whole bunch of horrible, terrible, no-good case law out there that says “nah, don’t sweat it– electronic service is fine. You needn’t worry about the Hague Service Convention.”

Do not rely on this case law. Seriously. It’s going to get smacked down in the very near future, and I don’t want my people to be on the receiving end of the smackdown. Some savvy, belligerent, and very deep-pocketed defendant is going to take this issue up on appeal, and they’re going to win.

The only way that service by e-mail (or social media or text message or… pick an electronic medium that involves a fiber optic line and a bunch of ones and zeros) can possibly fit into a Hague context is if it’s deemed a “postal channel”, and I don’t know of a single Hague authority on the planet that has deemed it so. (Aside/update, July 2024: Prof. Maggie Gardner takes a deeper philosophical dive in the issue at the Transnational Litigation Blog, and consensus is emerging among Hague signatories’ diplomatic legations that email is indeed a postal channel. For more, see Ted Folkman’s excellent two-part treatment of the Conclusions and Recommendations of the Special Commission convened in The Hague earlier this month. Part 1 can be found here and Part 2 here. Taking the C&R as guidance, the conflict can be resolved.)

But even assuming, arguendo, it is a postal channel, it is nonetheless invalid if the destination country objects to Article 10. That encompasses most of the countries where e-service would be handy anyway. Most notably: China, Russia, Mexico, India, Pakistan, Vietnam, Venezuela.

How does the bad case law arise? Simple– courts view the service methods listed in Rule 4(f) as co-equal. That is, federal courts do not view the list as a hierarchy, in which option 1 must be attempted before option 2 is available and so on.** That’s a sensible view of 4(f)’s structure.

And from a due process perspective, electronic service is perfectly acceptable. It’s a means reasonably calculated, in many circumstances, to give a defendant notice of the claim against him/her/it and an opportunity to be heard. For crying out loud, we’re a quarter of the way into the 21st century… email is the way we communicate, and it stands to reason that e-service is so calculated.

But what makes the case law so bad? Well, in order to see electronic service in a Hague context as valid, courts must consciously disregard the word of a very nice lady from Arizona:

Source: National Archives.

You might have heard of one Sandra Day O’Connor, author of the Court’s opinion Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988). She passed away in December after a life that every lawyer in America sees as rock-star level success.

The Schlunk decision contained two pertinent holdings:

Yet that horrible, terrible, no-good case law I mentioned above relies on the idea that the Hague Service Convention doesn’t expressly prohibit email service, so that makes it okay.

Well, it doesn’t expressly prohibit service by carrier pigeon or message-in-a-bottle– technologies which actually existed at the time of the Convention’s adoption in 1965. That doesn’t validate them as service options.

Saying that a method is valid just because the Hague Service Convention doesn’t expressly prohibit that method gets the question backward. Justice O’Connor was clear: a method is valid only if it is expressly authorized or permitted by the Convention.

Litigators avoid Hague strictures at their peril.

* Notably, if you can convince the court to deem U.S. counsel as a foreign defendant’s agent for service. To be sure, this happens under Rule 4(h)(B)(1), and not 4(f)(3).

** Contrast this with 28 U.S.C. §1608, the service section of the Foreign Sovereign Immunities Act, which is specifically a hierarchy.

Author’s Note: this is not to say that electronic service isn’t constitutionally valid from a due process perspective. It clearly is— I mean, come on. It’s the 21st century, for crying out loud. This is how we communicate. This is to say that it’s constitutionally invalid from a Supremacy Clause perspective. The phrase “and all treaties made” should ring a bell.

O’Connor, J.

Sisters in Law, by Linda Hirshman, has been on my shelf for a couple of years, constantly pestering me to sit down on a snowy weekend and read of legends. My own sister, a professional musician, recommended it when she was toying with idea of turning it into a rock opera, along the lines of what Lin-Manuel Miranda did with Chernow’s Hamilton. (You think the first Treasury Secretary is a ripe story for the Broadway stage? Imagine the tale of two absolute judicial rock stars, one from the right and the other from the left. I would pony up a fair chunk of change to see that.)

My phone buzzed during a mediation this morning, with news that Sandra Day O’Connor had passed at 93. A heck of a life– a life well lived, by any metric– come to an end along with a bunch of other other 90+ contemporaries lately, including Henry Kissinger and the amazing Rosalynn Carter.

This isn’t much of an obit. If you seek that, check out the Times, the Post, the other Times, the other Post, the other other Times… they’re far more qualified to provide retrospectives. I’m simply another lawyer who is continually awed by her career, her kindness, her skill, and even though I come from the other side of the aisle and the Federalist Society guest list, her sense of reason. Yes, she was a Reagan appointee and a Republican, but she came from a generation of politically astute lawyers who recognized the dangers of politics on the bench.

With the possible exception of Robert H. Jackson (author of Mullane, just a couple of years after his stint as Nuremberg war crimes chief prosecutor), Justice O’Connor has had more impact on my practice than any other jurist at any level. Her opinion in Volkswagenwerk AG v. Schlunk is seminal in my practice, and it provides the foundation of Hague Service Convention work like Gideon and Miranda underpin criminal defense. No exaggeration there. Pertinent:

“The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” (…) This language is mandatory (…)

Additionally:

Those who eschew its procedures risk discovering that the forum’s internal law required transmittal of documents for service abroad, and that the Convention therefore provided the exclusive means of valid service.

I give you the bedrock on which my practice rests.

Thanks, Madam Justice.

PAY ATTENTION TO WHAT THIS WOMAN SAYS.

Yet another one popped up on the old radar (Google news alerts) yesterday… a National Law Review article highlighted Victaulic Company v. Allied Rubber & Gasket Co., Inc. in S.D. Cal., but the author’s conclusion was far too optimistic for plaintiffs seeking a way around the Hague Service Convention.  The court there held that service by electronic means on a Chinese defendant was perfectly acceptable under Rule 4(f)(3) because electronic service isn’t prohibited by international agreement.  My (internal scream) response to that:  WRONG.

Wrong wrong wrong wrong wrong.

(You should sense a rant coming.)

Continue Reading NO, 4(f)(3) is NOT co-equal to Hague channels!

O’Connor, J.  Favorite daughter of Arizona and distinguished author of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

The question mark in that headline only applies to half of the headline.

The result might be correct, depending on facts not articulated in the order, but the logic behind N.D. Ohio’s grant of leave to serve by alternative means in China is (to put it delicately) fatally flawed– an illustration of how “kinda-sorta-bad” law can evolve someday into extraordinarily-unquestionably-bad law.  In NOCO Company v. Shenzhen Lianfa Tong Technology Co., Ltd. et al. (1:19-cv-01855), the court issued the latest in a nationwide string of wrong decisions because, apparently, none of the lawyers in the room consider Sandra Day O’Connor an authority.

I’m serious.  Continue Reading Wrong reasoning, right result?

Bills go in the bottom door. As do, apparently, mailed summonses from the United States. (Image credit: GabrielleMerk, via Wikimedia Commons.)

Query from a colleague last week: hey, Aaron, settle a bet for me.  Does Switzerland object to Article 10(a) of the Hague Service Convention?

“Emphatically,” I responded.  And went on to tell him that if he tried serving his Swiss defendant by mail, the time it would take to quash it could be clocked with an egg timer.  Continue Reading Hague Service Convention Article 10 methods: make sure they’re valid!

Fidel Castro arrives MATS Terminal, Washington, D.C., April 15, 1959. Public Domain, via Wikimedia Commons.

The Trump Administration has fully implemented Title III of the Helms-Burton Act, which allows suits to proceed in U.S. courts against companies that do business in Cuba and profit from the use of property expropriated after the 1959 Communist Revolution.  Earlier this year, I posted the following illustration of how such a suit plays out:

Continue Reading HELMS-BURTON TITLE III EFFECTIVE

Ministry of the Interior, Havana. Evaronalotti, via Wikimedia Commons.

[UPDATE, May 3, 2019…  The tsunami now begins.  Title III of the Helms-Burton Act has been implemented.]

With all the fanfare this month over the government shutdown and the Kansas City Chiefs’ coin-toss defeat in the AFC Championship, a little-noticed story out of the Trump Administration could prompt a tsunami of litigation (yeah, I’ve wanted to use that expression for a while now) against offshore companies doing business with Cuba.  I withhold comment here about the broader ramifications of such suits,* but an important element of the puzzle lies squarely within my wheelhouse, and it bears discussion.

Title III of the Helms-Burton Act (HBA) allows U.S. litigants whose Cuban property was expropriated following the 1959 Revolution– for the most part native Cubans who’ve emigrated north– to sue entities who have profited from that expropriated property.  An example: let’s say “Autohersteller GmbH“, a fictional German carmaker, wants to develop a parts plant outside Havana, and the Cuban state grants a 99-year lease to the land on which they build it.  Prior to 1959, the plot of land was owned by a group of citizens loyal to President Fulgencio Batista; after his overthrow, the Castro government seized the land and title thereto.

Sixty years later, those citizens and their kids now live in Fort Lauderdale, and if the Trump Administration reverses a quarter-century of waivers, they’ll be marching into the United States District Court for the Southern District of Florida and filing suit.  Not against the Cuban government– there’s no realistic mechanism for that.**

Instead, they’ll be suing Autohersteller GmbH for damages under Helms-Burton.  Again, set aside any discussion of the practical impacts of the statute; but recognize that the only proper way to serve that company in Germany is by filing a Hague Service Request.  HBA establishes a cause of action (and, necessarily, jurisdiction) but does not override the procedural rules applicable to serving overseas defendants.  It does not supersede the mandatory and exclusive nature of the Hague Service Convention.  And it does not dispense with the defendants’ due process right to proper notice.

Plaintiffs, do it the right way, and remove at least one obstacle to an eventual verdict.

* Just Google “Helms-Burton III” to see much debate on the issue.  It’s a doozy.

** Cuba is not party to the Hague Service Convention, and it’s highly doubtful that Cuban courts would entertain Letters Rogatory in such a case anyway.  Service can still be effected by diplomatic note under the Foreign Sovereign Immunities Act, but the Cuban government may have a pretty compelling argument against jurisdiction under customary international law.  Regardless, they would have to be served in order for that discussion to ripen.

The very boots. This image is tastefully cropped & zoomed so as to not appeal to prurient interests.

[Author’s Note:  In a bit of sad irony, my initial draft of this post was written just as news of Kate Spade’s suicide broke on June 5th.  Honestly, I knew very little about her except that she (1) designed handbags and (2) is a local icon here in Kansas City.  She grew up here, and attended high school a mere two miles from my house.  As I’ve come to find out, she brought some Midwestern sensibility to the fashion game, and thus made a pretty big impact on a pretty big industry.]

I’ve attended a lot of CLE lectures over the years, but the best one I ever saw was overseas.*  All of the best ones are connected to some sort of long flight, because if you’re in Rome or Paris or Istanbul or Oxford, how bad can the lecture possibly be?  Just the setting alone makes them interesting.

Until a few years ago, I had no idea that “Fashion Law” was even a thing.  I doubted highly that designer clothes mattered even a bit in the great grand scheme of the universe.  Then I heard my friend Layne Randolph‘s lecture on trademarks and trade dress, and I was astounded to discover that, not only was this really “a thing,” but the thing matters– immensely.  I simply hadn’t ever contemplated the economic value of high-fashion brands.  I’d always viewed Ralph Lauren and Kate Spade and Vera Wang and Manolo Blahnik as a just bunch of fussy/snooty people that were waaaaay too proud of themselves and their work-product.  It didn’t help that I’m a big guy, and fashion houses aren’t exactly beating my door down, begging me to buy their stuff.  It also didn’t help that many years ago, an ex-girlfriend routinely forced me at emotional gunpoint to watch Sex & The City with her.  I hated every excruciating moment of it, and I hated fashion designers by association.

But Layne’s presentation was awfully compelling.  As a newly minted J.D., I found the just-filed Christian Louboutin suit against Yves Saint-Laurent an excuse to pay attention to her query: whether Louboutin’s iconic red soles were protected as a mark or dress.  It was a pretty compelling legal question.

You learn something new every day, right?

Well, a few weeks later, I plunked down nine dollars to see the third and final installment of the Men in Black series.  In the opening scene, a rather curvy alien woman walks down a hallway in a super-duper-maximum-security prison on the moon (hey, I didn’t write it) to spring her boyfriend/boss, one of the guys from Flight of the Conchords (I said I didn’t write it).

Of course, movies these days are all about prurient interests, so the very first action shot is of the bright red soles on the woman’s thigh-high boots as she walks away from the camera while it slowly rises to a very high-cut leather mini-skirt and…  well, you get the idea.  Just what every twelve year-old boy wants to see at the movies.

Being a twelve year-old boy myself (our bodies age, but our brains’ development arrests in the 7th grade), one would think I’d follow the camera and enjoy the highly inappropriate objectification of a woman’s body.  Nope.  I was fixated on those crimson soles and the legal issues surrounding them.  I wondered how many lawyers were involved in the licensing agreement that Columbia Pictures needed Christian Louboutin’s people to sign, just for that one shot, and w0w, what a waste, because the product placement value of this particular trade dress in a scene targeted to twelve year-old boys is…

This one would be a tough one to go after. Serving in India is a bear.

Dammit.  I’m an adult.  And a lawyer to boot.  (See what I did there?)

Now that I handle service abroad nearly full time, I still can’t watch that movie and not ponder the procedural implications.  What if a Dutch company decides to make a cheap knockoff of the same boot?  What are the procedural hurdles?

Well, watch the latest Louboutin kerfluffle unfold and you’ll find out.

In short, y’all, the world has reached globalized status, and all the ire the Tea Party can muster is not enough to put the Genie back in the bottle.  Litigation crosses borders more now than ever, and although we lawyers like to think the law has streamlined itself since the dawn of the internet age… nope.  Not as much as you might think.  In much of the world, service of process is still effected in the same manner it was in 1965, when the Hague Service Convention first came about.  The treaty is still mandatory, and it’s still exclusive doctrine, so trademark and trade infringement suits must still be properly served.  Pay attention to detail.  It matters.

* Shameless plug:  UMKC Law hosts a couple of CLE Abroad programs every year, and I have the privilege of speaking on many of them.  The trips are a whole bunch of fun… and potentially deductible.**

** You bet your sweet bippy there’s a disclaimer on this one.  I’m not a tax lawyer and, if you’re reading this, neither are you.  So seek specific professional advice on whether you can deduct an overseas CLE trip (or how much of it you can).

[Author’s note: this is the latest in a continuing series of commentary on practice-area-specific applications of the Hague Service Convention and other doctrines of international law governing service abroad– not only service of process, but other notices and orders as well.]

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.  The conversation usually goes something like this:

Sorry, Aaron.  I’m a patent lawyer– I don’t do immigration.  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 Ned Stark into your slide deck!

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

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.*)

Second of all (setting my incredulity aside), let’s say you do handle patents exclusively, no visa applications ever.  What if some offshore bad guy (let’s call him “OBG” for short) decides that “all your base are belong to us” and starts making your client’s widgets with his own name on them?  Your client, who sacrificed an incredible amount of blood, sweat, and tears** to invent– or an incredible amount of money to buy the rights to– the widget, wants to sue.  Now.

Well, don’t you think you might have to serve the offshore bad guy?  (Yes.) And just how are you going to go about doing that?  (Hmmmm.  I never thought about that.)

Well, for most of the world, start off by looking up the Hague Service Convention.  It’s mandatory doctrine if you need to serve OBG in his homeland.

In all likelihood, you’ll have to set up a translation of the documents– and that’s a big deal with patent cases, so here’s a handy guide on how to keep those costs down.

Then, you’ll have to determine what alternative methods are available.

Then, if you go the Article 5 route, ask the appropriate foreign Central Authority for help.

Last, pray that you’ve filled out your USM-94 correctly.  That’s a big one.  Very important, the USM-94.

If you don’t get him served…

This is Ned Stark.

You’ll have a tough time making the patent-holder whole.

* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

** Apologies to a certain Mr. C of Blenheim, Oxfordshire.  The original quote included “blood, tears, toil, and sweat” but a 1970s fusion band morphed it a bit for brevity.