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The unabashed Schedule A Crazy Train has come to a stop in Chicago thanks to the U.S. Court of Appeals for the Seventh Circuit. The court has finally said definitively that serving a Chinese defendant by email doesn’t fly except in certain circumstances. Sorry to mix transportation metaphors there.

The Third Circuit already reached that correct conclusion in 2024,** and a comparable Second Circuit decision came down just before Christmas, 2025 (see Ted Folkman’s rundown on Smart Study here— if you now have Baby Shark stuck in your head, you’re welcome). But the Seventh is the one that matters because, in that magical Chicago fashion, the Crazy Train started at Adams and Dearborn Streets, right in the heart of The Loop. The 2d and 3d Circuit opinions have been panned all over the place by lawyers who seemingly don’t accept:

  • the power of the Supremacy Clause.
  • Or treaty text construction.
  • Or that Justice O’Connor and her colleagues hold more sway over what we do than the Advisory Committee for the Federal Rules of Civil Procedure.

Tsk. Tsk. Tsk.

This is not me gloating– this is me wondering in print how anybody who ever took ConLaw could think otherwise. I’m seriously baffled by any lawyer, especially one who wears a black robe and bangs a little wooden hammer on his or her desk, can willfully disregard the Schlunk decision and conclude that, yeah, e-service is just fine in these situations.

On Friday, the Seventh stepped in and sealed the deal. To that, I say… huzzah.

The court’s holding in Kangol v. Hangzhou Chuanyue Silk Import & Export is pretty straightforward:

“After default judgment was entered, Hangzhou eventually appeared and moved to vacate the judgment for lack of proper service. The court denied Hangzhou’s motion, reasoning that the Hague Service Convention permits service by email in China. We conclude the opposite; the Convention prohibits email service in China.”

To be sure, plaintiff’s counsel made a great point in oral argument as to the timeliness of the motion to vacate. I had more than a bit of indigestion at the thought that he might prevail on grounds other than the Hague issue, but the court disposed of that idea because Kangol hadn’t raised timeliness until the appeal. That question notwithstanding, the argument that “well, there was no email in 1965, so it must be perfectly permissible today” just doesn’t hold water. And it misses the point of Schlunk entirely. It simply doesn’t fly– and I’ll get to why in a minute.

By way of background, a bit of basic structure of the Convention serves as a primer for those unfamiliar with it:

ARTICLE 5. THIS IS THE WAY.

The primary and almost universal service method within the Convention is Article 5, pursuant to which a U.S. or Canadian plaintiff’s counsel asks the foreign country’s government– specifically its Hague “Central Authority“– to effect service according to its internal law. Very straightforward stuff in theory, although in practice, this can be maddening because it takes some Central Authorities years (<– not a typo) to produce proof. The resulting frustration provides the basis for the Crazy Train rendered invalid by Kangol.

ARTICLE 10. ALTERNATIVES TO THE WAY.

Provided the destination state doesn’t object, plaintiff’s counsel can serve offshore defendants by:

  • Postal channels, which includes mail and courier services (UPS, FedEx, DHL, etc.), but now also includes electronic mail, or…
  • Direct engagement of “competent persons” in the foreign country. This includes local counsel, private process servers, judicial officers and bailiffs, etc. Who is competent depends on the foreign jurisdiction.
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ANYTHING ELSE IS NOT THE WAY.

Seriously, that’s an exhaustive list– so sayeth O’Connor, J.– unless a plaintiff resorts to an old-fashioned Letter Rogatory, which the Hague Service Convention was specifically designed to render unnecessary.***

But let’s focus on the bold italic above: provided the destination state doesn’t object.

If the foreign country opposes Article 10 alternatives, they are off the table for that country. Period, end of discussion. And it’s not me saying that– it’s Sandra Day O’Connor. In Volkswagenwerk v. Schlunk (I call it Schlunk to differentiate this seminal precedent from all the myriad cases involving VW) she articulated clearly and forcefully that:

O’Connor’s exclusivity doctrine is completely whiffed by every lawyer who says “pffft, it wasn’t forbidden, so it must be permitted.”

And the Seventh Circuit– until last week the roundhouse of the Schedule A Crazy Train– said…

NOPE. NOPE. NOPE.

Last February, just before the Seventh heard oral arguments in Kangol, a bunch of IP lawyers criticized Smart Study. One even offered that, “(t)he Second Circuit imported a hierarchy into Rule 4(f) when there was not one.” This, along with demonstrably routine and recurring delays in China service, has been the basis for 4(f)(3) e-service orders in Schedule A cases for years. It does take forever in many cases. And it’s costly to boot. That commenter was absolutely right, because there truly is no such hierarchy in Rule 4(f).

Still, none of those contentions justify disregarding Schlunk, and they don’t support the argument that the Supremacy Clause doesn’t still reign, well, supreme. There IS a hierarchy in U.S. law generally, and it places treaties and SCOTUS opinions above the FRCP. In fact, the same critic went on to say that “Volkswagenwerk is irrelevant to the issue that was before the Second Circuit.”

I don’t even know what to say to that. But the Seventh does.

Indeed, starting with Société Nationale, the Supreme Court has consistently understood the Hague Service Convention to be exclusive. In Schlunk, 486 U.S. 694, the Court stated that compliance with the Convention “is mandatory in all cases to which it applies” and that it “provide[s] the exclusive means of valid service.” Id. at 705–06. And most recently, in Water Splash, Inc. v. Menon, 581 U.S. 271 (2017), the Court reaffirmed that “the Hague Service Convention specifies certain approved methods of service and ‘pre-empts inconsistent methods of service’ wherever it applies.” Id. at 273 (quoting Schlunk, 486 U.S. at 699). Thus, the Convention’s language and the Supreme Court’s understanding of that language make clear that—where the Convention applies—it sets out the permitted methods of service and excludes all others.

‘Nuff said. (Full opinion here.)

So how does this affect Schedule A cases going forward? Plaintiffs still have (1) to make a diligent effort to identify infringing online vendors, and (2) to make a diligent effort to find them. If they can’t accomplish both, then e-service is just fine (ie: no crazy train because the Convention doesn’t apply).

* At least, where the defendant can be properly identified and located.

** SEC v. Lahr. Okay, this one was Switzerland and didn’t entail such egregious silliness as the China cases, but the structural logic of the opinion is on all fours. Worth noting is that, just days before Lahr was handed down, the Special Commission of the Hague Conference on Private International Law upended one of that opinion’s points– that the Convention must expressly authorize e-service in order for the method to be valid. Not so. The Convention permits alternatives in countries that do not object to Article 10, and that vindicates email as a postal channel under 10(a).

*** They’re necessary for service in Russia, I’m afraid. Valid under the Convention because they’re conveyed via consular channels pursuant, which fall under Article 9.

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Aurélien Lemasson-Théobald, Unsplash

The U.S. Department of State and Global Affairs Canada each designate “Forwarding Authorities” who are legally competent to sign Requests pursuant to the Hague Service Convention. In Canada, the designation is pretty succinct, setting out a specific list, including various government officials, judicial officers, and “Members of the law societies of all provinces and territories”. Put another way… certain public servants and lawyers (including huissiers de justice in Québec).

In the U.S., things appear to be a bit more loosey-goosey:

The persons and entities within the United States competent to transmit service requests abroad pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court. 

Any court official. So the judge or clerk of court can sign these things. Got it– easy to see.

Any attorney. Plaintiffs’ counsel, defense counsel bringing in a third-party defendant, a group of attorneys in Kansas City who do nothing but Hague Service (hint, hint), or really, anybody among us crazy enough to pass a bar exam. Check.

But what of “any other person or entity authorized by the rules of the court“? There’s where we get into problems. Why? Because a whole bunch of process servers look to FRCP 4(c)(2) and somehow see an authorization to sign Hague Requests. That takes a massive leap in logic and willful disregard for the distinction between what is authorized and what is permitted.  Process servers are neither in this regard, because Rule 4 says nothing about the Hague mechanism except to say an overseas defendant may be served in accordance with the treaty. Even that drafting is incomplete, because if the Hague Service Convention applies, it’s mandatory doctrine by virtue of the Supremacy Clause. The FRCP are irrelevant to the question.

But 4(c)(2) says precisely nothing about the Convention or service abroad. Here it is verbatim:

By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

Hmmm. That’s not even authorization to serve domestically. It’s permission (may serve). And why is that permission there? Because service of federal process was once within the exclusive purview of the United States Marshals, and an Advisory Committee thought that should be opened up to folks outside federal law enforcement. It still doesn’t get to who is authorized to sign a Hague Request– 4(c)(2) just says who may serve.*

Who may serve in a foreign country is not determined by the FRCP. It’s determined by the foreign government in its municipal law, modified by its declarations to the Convention. Our rules go out the window. Looking again to the U.S. designation of Forwarding Authorities, it’s necessary to go elsewhere to find authorization. For this specific function, the FCRP are silent, but the court has inherent authority to appoint specific persons to act on its behalf.

Now, to be sure, many non-law firms (process servers) do it the right way– they ask for a commission from the forum court, and only sign Requests under that authorization. Others just cut to the chase and hire a lawyer (or lawyers) to be on staff– that’s how I got into this business in the first place. Both approaches satisfy the U.S. designation. Nobody involved in that procedure, including the lawyers, are actually authorized to serve the thing in the foreign country.

But the non-lawyers who sign them without specific authorization from the forum court? Nope. Not valid, so don’t take their word for it that “sure, it’s all good, we’ve been doing this for years.”

That’s only because no defendant has ever taken it up on appeal. I’m pretty confident you don’t want to be on the receiving end of that benchslap.

* The distinction between “authorized” and “permitted” is fleshed out in the Syllabus of Water Splash v. Menon (2017): “The fact that Article 10(a) encompasses service by mail does not mean that it affirmatively authorizes such service. Rather, service by mail is permissible if the receiving state has not objected to service by mail and if such service is authorized under otherwise-applicable law.”

A note to defense counsel: always question the validity of Hague Service Requests. So your offshore client was ostensibly served by judicial officials in its/his/her home country? Validity of service under that country’s laws is not the end of the analysis. If it’s not a valid Request to begin with, think fruit of the poisonous tree from Crim Pro.

Another statement we hear regularly from colleagues who very legitimately seek to save costs or just cover all possible bases– and others who just want to shortcut the process in a super-cheap, super-quick way without worrying about proper procedure:

We’re going to serve alternatively instead of using the Hague.

Impossible to let that one go by without some discussion. Why? Because unless service happens (1) here in the U.S. or (2) in a Hague Service Convention jurisdiction that makes Article 10 available…

THERE ARE NO ALTERNATIVES

Let me elaborate.

This isn’t one of Aaron’s off-the-cuff, smart-aleck exclamations (though there are many of those). It comes from no less an authority than a very nice lady from Arizona, the Honorable Sandra Day O’Connor. You might have heard of her. In Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor made very clear that:

  • if the Convention applies, thou shalt adhere to it (at 699), and
  • the methods outlined in the Convention constitute an exclusive menu of options (at 706), so thou shalt not get cute.

The Convention lays out a primary method of serving defendants abroad: a Request pursuant to Article 5, sent to the designated Central Authority tasked with executing such requests. Article 10 offers alternative avenues to valid service, provided the state of destination does not object. Where the destination state does object, no alternatives are available within the confines of the treaty.*

Notice the condition of the first holding, though: if the Convention applies. That’s a complex issue. Here’s the roadmap to addressing it:

  1. Threshold question: do you have to serve (term of art), or just provide notice?  The Hague Service Convention doesn’t govern mere notice—just service.  So if you only need to notify a party, don’t sweat the Convention.**
  2. Do the documents absolutely, positively have to go to the foreign country to be served?  Article 1 is pretty clear: “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.”  (Emphasis mine.) If the docs have to cross a border, you’re probably on the hook.
  3. Can you serve your offshore defendant via his/her/its agent here in the United States?  If so, you’re off the hook.***  If you can’t get it done here, keep reading.
  4. Is the destination country a Hague Service Convention signatory? If no, don’t sweat the Convention. If yes, keep reading.
  5. Do you have the defendant’s address?  If so, you’re definitely on the hook.  The Convention applies, so follow Justice O’Connor’s directive.  If not, “This Convention shall not apply where the address of the person to be served with the document is not known.”  Don’t sweat the Convention—alternatives, including electronic service, are just fine.  Just know that you can’t simply shrug and disavow any knowledge of the defendant’s whereabouts.  You still have to be diligent in trying to find the guy.
  6. Does the destination country object to Article 10 alternatives? (This gets to O’Connor’s second holding.) If not, then you’re still limited to that country’s allowable options, but those can be pretty flexible. But in what I call “5-O” countries, sorry. Your only avenue to valid service runs through that country’s Hague Central Authority.

So let’s say you’ve gone through that roadmap and determined that yes, you do have to serve in Korea or Mexico or Switzerland or Brazil or China or any other 5-O country.  You don’t have a choice in the matter.

So don’t get cute.

* Letters Rogatory are always available– and they don’t flout the Convention, which opens the door wide to service via diplomatic channels. But considering them an “alternative” is a bit off-bubble. Who would go to even more trouble than the Convention requires? (Well, turns out, there may be a place where it’s necessary.)

** Language geek note here: the English version of the treaty just addresses service. The equally applicable French version differentiates between notification and signification, but that is a civil law distinction that I argue isn’t germane to common law matters. It reflects various degrees of formality that we just don’t get into and they do.

*** This includes service via the defendant’s U.S. counsel, but pay heed: such service doesn’t happen pursuant to a 4(f)(3) order— it has to arise by agency theory.

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Brett Jordan, Unsplash

[Update, June 2026… the 2d Circuit agreed with me back in December, as covered by my friend and fellow transnational legal tour guide, Ted Folkman, and the 7th Circuit made this idea black letter law on May 29 in Kangol (see my take on that here). To be sure, the conflict only arises in what I call “5-O countries”, but even where Article 10(a) postal channels are available, e-service is still a bad idea in most cases.]

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 smoke signals 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 Convention doesn’t expressly prohibit it 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. 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