Service of Process Abroad

One of the odd quirks about serving an offshore defendant is the very routine possibility that plaintiff’s counsel could be contacted by the defense before a foreign authority notifies anyone that service has even been effected.   A hypo, to illustrate…

Dieter from Düsseldorf signs a contract with Pete from Peoria to supply Pete’s company with machine parts.  Everybody knows that German manufacturers are incredibly efficient– while their machine parts are of outstanding quality– and Pete is thrilled to have a well-coordinated supply chain.  The parts come as scheduled for about six months, when all of a sudden, bupkiss.  Nothing.  Nichts.  Dieter doesn’t answer the phone, he ignores Pete’s frantic emails (DUDE, WHERE IN THE HELL ARE MY PARTS?!), and Pete has to furlough his entire workforce until an alternate supplier can be found.  The obvious result, given Dieter’s recalcitrance?  A lawsuit.

Pete’s lawyer, Larry, needs to serve the summons & complaint for damages on Dieter in Germany.  He hires me to assist, and we send a properly formatted Hague Request to the Central Authority for Nordrhein-Westfalen.  It arrives on the 8th of January, and the good folks at the Oberlandesgerichts Düsseldorf have service effected about a month later.  On February 14th, Pete’s lawyer gets a curious email from a colleague, indicating that she represents Dieter and would like an extension of the deadline to answer.

Sure, Larry says.  But… hang on a second.

My phone rings, and Larry asks if I can shoot him a copy of the proof of service on Dieter.

Nope, I reply.  Haven’t gotten it yet.

Larry is justifiably perplexed, and Dieter’s lawyer thinks she’s got an advantage.  [Gee, Larry, you don’t even know your defendant’s been served?]

Well, no.  He doesn’t.  He has no way of knowing because the Central Autority hasn’t told anybody.  And this is perfectly normal, especially if the defendant is in China or Mexico or India (my trifecta of “this’ll take a while” countries).

The timeline:

  • January 8– request arrives at the Central Authority
  • February 8– service is effected
  • February 14– opposing counsel contacts Larry
  • March 11– a completed Hague Certificate lands in my mailbox
  • An hour later– Larry has a PDF of the Certificate to file with the forum court

That sequence of events happens all the time, and it has no bearing on the effective date of service or the deadline by which a defendant must answer.

It also doesn’t subject the plaintiff to dismissal if the proof takes several weeks or months to come back from the Authority.*  Rule 4(l)(3) is a nice safe harbor in this regard: “Failure to prove service does not affect the validity of service.” What seems to be a delicate situation really isn’t.  Any time a plaintiff has to rely on the caprices and inefficiencies of a foreign bureaucracy, courts have to give them latitude (thus my affection for FRCP 4 and its recognition of Hague realities).

The takeaway from all this:  relax.  Proof is coming.


* I filed a request in India in September, 2017.  The papers were served in November– a mere two months on, which is surprisingly quick in India.  But the Certificate arrived over Labor Day weekend.  That’s in September, for the uninitiated.  A full ten months elapsed before the plaintiff could prove that the defendant had been served.

J. Lyman Stone, Esq. of Memphis. (“Bruiser” to his friends– and enemies.)

A few weeks back, a personal injury lawyer in Memphis* called to ask how he could serve a defendant in Switzerland.**   I told him that the Swiss have a fairly straightforward view of the Hague Service Convention, and that there was only one effective way of getting the job done: an Article 5 request to the right Cantonal Central Authority.  No muss, no fuss, you get a proof back in a matter of two or three months.

“But how do they do it?” he asked.

Well, says I, it varies by Canton (not exactly a federal state, but not exactly a county either).  It’s usually a local public prosecutor or some other judicial officer who carries it out.  Frankly, though, it doesn’t matter, because as long as you submit a properly completed Request, the proof the Authority sends back to you is like Kevlar.  Again, no muss, no fuss.

“But do they actually serve it personally on the defendant?”

If he’s home, yeah.  If he’s not, they might try him again later, but in quite a few cases, they slap a Post-It note on his door and tell him to come down to the police station or the post office to pick up a sheaf of documents.  If he doesn’t do it within a certain time frame, they drop the docs in the mail and deem him served anyway.  The philosophy is this: when a judicial officer tells a Swiss citizen to come and get an envelope, they comply.

At that, he told me that wouldn’t fly.  Tennessee rules require personal, in-hand service, so the Swiss would have to do better than that.

Ahem, huh?

He insisted that it’s a Tennessee case, so Tennessee rules control how it’s done, and they would just have to get it done right.  Or we would just have to find another way.

I gently pushed back, reminding him that Tennessee law doesn’t have extraterritorial reach.  Not only that, Sandra Day O’Connor and colleagues said the Convention is mandatory doctrine— you can’t go around it.  There simply isn’t another way; you can’t just hire a guy in Zurich to do it for you. (Yes, you can request personal, in-hand service under Article 5(b). That doesn’t mean they have to do it.)

But he insisted.  Look, I said, this is basic level, 1L ConLaw stuff… the Hague Service Convention is a treaty of the United States.  It overrides everything else except the Constitution.  The Supremacy Clause?  Remember?

And the next question made my jaw drop.

“You got any case law to back that up?”

To back up the proposition that a treaty overrides state law?

“Yeah.”

Um, no, I don’t have any case law to back that up.  I have THE CONSTITUTION OF THE UNITED STATES. 

To break it down into digestible chunks…

Article VI, Para. 2
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, 

(Hey, look!  The Hague Service Convention is a treaty, made under the authority of the United States!)

shall be the supreme law of the land;

(Any questions so far?)

and the judges in every state shall be bound thereby,

(Sorry, your honor.)

anything in the Constitution or laws of any State to the contrary notwithstanding.

(Uh oh.  Roy Moore must just be apoplectic about that one.)

So, no, Bruiser.  Tennessee law doesn’t control how a Tennessee action is served on a defendant in Switzerland.  The Hague Service Convention does.  So in turn, Swiss law does.

And for the record, you’re wrong about your own rules.  Tenn. R. Civ. P. 4A mirrors Fed. R. Civ. P. 4(f), and they both specifically defer to the Convention.  Even if they didn’t, the Convention still overrides whatever state mandates might enter the picture because the Supremacy Clause says so.

So you, counsel, have a golden opportunity to thwart this guy and his B.S. antics if he brings up such a silly argument:

Leo F. Drummond, Esq., also of Memphis.***  He represents very mean people.

The Supremacy Clause is a thing.  And it’s called that for a reason.  Bank on it.


* No, it wasn’t actually Memphis.  Names have been changed to protect identities.  To be sure, this probably isn’t an accurate analysis of Tennessee rules, but that’s beside the point here.  For the record, the image up top is Mickey Rourke as Bruiser Stone in The Rainmaker, which is an absolute goldmine for Ethics CLE programmers, and one hell of a movie in its own right.  Bruiser was Matt Damon’s boss until he had to skip town and avoid a whole mess of trouble.

** Nope.  Not really Switzerland either.  This is illustrative, folks.

*** Yep.  Angelina Jolie’s dad.

 

The Mall, London. Union Jacks galore. “Ed g2s” via Wikimedia Commons.

It’s been a while since Civ Pro class, so here’s a quick FRCP refresher.  A claim for relief– which is to say, just about any complaint filed in federal court– has to be short.  And plain.  See Rule 8.

Rule 8. General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

In other words, NOTICE PLEADING.  Now, if you are fortunate enough to practice in a Notice Pleading state, good on ye.  This stuff applies to your whole practice.  In Fact Pleading states like mine… not much you can do to avoid lengthy pleadings entirely, but still… keep it short, Counsel.  Or as short as possible.

Missing the magic words in Rule 8 is pretty costly when a defendant must be served abroad.  With only a couple of exceptions, translation of service documents is mandatory in any foreign country that (1) is party to the Hague Service Convention and (2) didn’t once have the Union Jack flying over it.  So if you have a 120-page complaint, plan on writing a very large check to the translators– five figures, easy.  If you have seven hundred pages of patents as exhibits, it could be six figures.

Remember that we don’t get paid by the word, but translators do.  There’s a very easy way to keep that translation bill down, and that’s by adhering to 8(a)(2) with a vengeance.

Repeat after me:  SHORT. PLAIN.  SHORT.  PLAIN.

SHORT.  PLAIN.  

Stop it with the War & Peace thing, Tolstoy.

[This post is a mere 253 words long– not counting the rule text.  That is intentional.]

SNL’s Kate McKinnon, as Ginsburg, J. Oh, the irony of Vitamin C!

Another hat tip to Ted Folkman for pointing out a great “Case of the Day” last summer.  Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (S. Ct. 2018) was handed down in June, and at once clarifies and muddies an important part of Hague Service doctrine.  For the authoritative statement, I give you my favorite Justice,* writing for the Unanimous Nine:

A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements.

Italics mine.  This holding is pertinent to service of process abroad, but I’m unsure just what effect it will have (read Ted’s post for a nice rundown of the facts and procedural posture).  In short, the Chinese government gave a conclusory statement that its law required price collusion among manufacturers of Vitamin C.  But China’s amicus brief failed to cite any particular code language or prior public policy statement, and was actually refuted by earlier public assertions by Beijing.

The gist of the opinion: yeah, trial courts should give a fair amount of deference to a foreign government’s statement of its own law, but that deference isn’t absolute.  A pretty reasonable rule, giving trial courts much needed latitude to reject specious statements by less-than-friendly governments or low-level officials who really don’t know what they’re talking about.

So what effect does that have on the almost bulletproof quality of Hague Certificates?  Well, maybe nothing.

And, yet, maybe quite a bit.

In Northrup King v. Compania Productora Semillas (1995), the 8th Circuit declined to “look behind” a Hague Certificate, accepting as facially conclusive a foreign Central Authority’s statement that service had been effected in accordance with that country’s own law.  This widely accepted deference gives considerable– perhaps unassailable– weight to the Certificate’s conclusions.  In short, if the foreign Authority says process has been served, for the purpose of U.S. law, it’s served.  And if a defendant wants to refute that conclusion, they must attack the Certificate in the foreign country’s court.  The Northrup King holding has long been the basis for my constant assertion that the Certificate is like a Willy Wonka Golden Ticket,** the keys to the castle, bulletproof.

I still contend that defense counsel should always question the validity of a Hague Certificate, but for different reasons— not the least of which is that not just anybody can sign a Hague request.  I’m no longer as sure about the Kevlar-like quality of even a valid Certificate.

That said, Northrup King accepted not just a conclusion of law, but of fact.  And it’s the factual conclusion that distinguishes the two cases, so the bulletproofness (yes, I made up that word) should still overcome a motion to quash.  I can’t say with certainty whether Animal Science Projects calls that into question.

Still, it’s arguable, and worth watching the interplay of these two cases.


* The Honorable Ruth Bader Ginsburg, known in the wider zeitgeist as The Notorious RBG.  I met Justice Ginsburg in April, 2017, about an hour after being admitted to the Supreme Court Bar.  I highly recommend the experience, even if you never think you’ll argue there.

** Not my original thought.  I really don’t know whose it was.

Here’s what it would have looked like in 1933.

One of the biggest challenges in serving offshore defendant companies is ensuring that they’re properly named (see Always Name Your Defendant Entity Correctly).  Closely connected to that issue is the defendant’s address– simply put, if you don’t know where they are, I can’t get them served for you.  Both of these ideas are equally applicable to cases involving U.S. defendants, so this shouldn’t be an earth-shattering thought.  I suggested some time ago that, when executing a contract with an offshore party, a few things must at least be contemplated (see Five Essential Things…).  Chief among them is my advice to DESIGNATE AN AGENT FOR SERVICE IN THE UNITED STATES.  Do that, and you never have to retain somebody like me.

It’s not difficult– you can’t throw a rock in downtown Dover, Delaware without hitting a corporate agent.  A whole bunch of outfits are happy to accept service on a company’s behalf for a low annual fee.  But if that isn’t in the cards– ie: the offshore party refuses– at the very least, make sure the foreign entity actually exists before you hand them seventeen million dollars.

Look, if you’re a mortgage officer, and a young, nice-looking couple walk into your office so they can buy that $130,000 two-bedroom starter home, in addition to pay stubs and tax returns, you’re going to insist on a copy of their driver’s licenses to make sure they are who they say they are.

But a great number of my clients need to serve breach of contract complaints on offshore companies that the plaintiff never verified.  Now, to be sure, many of those litigants never ran their contract by a lawyer before signing… they trusted the other party, and only sought counsel when the deal soured.

But some of those contracts were drafted by lawyers who simply didn’t undertake due diligence.  Above all, lawyers…

INSIST THAT OFFSHORE COMPANIES PROVE THEIR EXISTENCE.  ALWAYS.

Even if you KNOW them.

How?  The same way the mortgage officer insists on her borrowers’ ID’s.

When a foreign* company shows up to sign a contract, insist that they provide a Certificate of Incorporation or comparable document.  Essentially, you’re demanding to see the company’s birth certificate– and you’re going to use that birth certificate to go further in your verification.  Here in Missouri (and just about everywhere else), the Certificate indicates that the company was born on such & such a date and was, at one time anyway, a real thing.  It’s not that difficult to exercise due diligence and check the SoS website to verify that, yes, InBev International, Inc.  is still an active entity or that– uh oh– Anheuser-Busch Beverage Group, Inc. is not[Wait– Budweiser doesn’t exist anymore?!]

Overseas, corporate registries do pretty much the same thing.  We can easily discern that British Airways PLC is an active, registered company in England, its current incarnation incorporated in 1983.  We know that its registered address is Waterside, PO BOX 365, Harmondsworth, UB7 0GB.  Handy information to have.  And when I say to my solicitor, “hey, Nigel, could you send your process server out to tag these guys?’ he doesn’t bat an eyelash.**

But if the contract was formed in the absence of this knowledge, it could make service impossible.  In short… we’ve gotta find them first, and if we can’t, the case probably goes away.


* Foreign is a term of art.  It means “from outside the jurisdiction” in two senses: (1) in the “across the state line” sense and in the (2) “you need a passport to go there” sense.

** His name is not really Nigel.

The view from Stirling Castle. William Wallace bested the English here.

Two nights ago, my wife and I returned home from an all-too-brief visit to Scotland.  The daughter of some old friends got married in a beautiful ceremony in front of stunning seaside views, and then we traveled across the country & back again (this isn’t a big deal, as the country is barely eighty miles wide at the latitude we traveled).  Along the way, Peggy was a bit puzzled at times regarding terminology.

Okay, she said, we’re in Scotland, but also in England?  Huh?

Well, no.  We’re in Scotland, but also in Great Britain, and also in the United Kingdom (for now?) and the European Union (also for now).

I tried to explain that Scots are British, and Northern Irish are UK citizens but not British, and the Welsh will smack you for calling them English, as will the Scots and definitely the folks in the Republic of Ireland.  Scotch is term reserved only for whisky (not whiskey) and cellophane tape, and you refer to a person from Scotland as a Scot or Scottish.

Confused yet?  Well, you’re not alone.  Here’s a handy YouTube video that explains– very briefly– the difference between the geographic and political distinctions in the British Isles.  It’s the shortest of the bunch, but there are a slew of others that explain the various boundaries.

This is critical stuff when serving process.  It all falls under the Hague Service Convention, but saying “I need to serve a defendant in the UK” isn’t sufficiently specific to know what law governs.  Likewise, “I need to serve an Irish defendant” leaves out some critical details.  Once the defendant’s specific location is determined, the following guides are pertinent:

  • England & Wales (unified under the same legal regime)
  • Ireland (split into two jurisdictions)
  • Scotland (again, don’t call them English, or you’ll get hit)

Let me know if you need some guidance.  My understanding took decades to refine, and I’m still unsure at times.

 


To be sure, a good time was had by all– especially at the reception where (I’m am not making this up) I watched a couple of hundred Scotsmen sing The Proclaimers’ “500 Miles” to the bride and groom before their sendoff.  It was a stunning experience.  To the new Mr. and Mrs. Baird, I wish all possible joy and happiness.

 

The Martyrs Monument and the Royal and Ancient Golf Club, St. Andrews.

[Dateline: Pittenweem, in the Kingdom of Fife.  I’m in Scotland this week, having just attended the wedding of the daughter of some old friends.  This is, without question, my favorite country to visit, and I’ve been coming since college.  Nice people here.]

Most of us in the U.S. have a fairly cinematic image of Scotland in our heads– usually something to do with Gene Kelly waking up in a mystical village & falling in love with Cyd Charisse (and who wouldn’t?), or Mel Gibson with half a blue face, before he really went nuts.  The beach in the picture above?  Yeah… three words: Chariots of Fire.

But there’s quite a bit more to this northern half of Great Britain.  Serving process in Scotland is subject to the strictures of the Hague Service Convention, regardless of which U.S. venue is hearing the matter, but it’s a different system than in its fellow U.K. (for now, anyway) members.

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

Now, here’s how service is done in Scotland:

Article 5 Service

  • Translate the documents. The UK’s declaration to Article 5(3) requires that documents be in English.  Game over, right?  Pack up and go home?  Not so fast, counsel… make sure your 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 three or four months from submission to return of proof.
  • If your defendant is an individual, there is a significant chance that your Article 5 request will fail. The English Central Authority uses Royal Mail to carry service of process, and if the defendant doesn’t sign for the delivery… no dice.  You get a very pleasant notice from London inviting you to try again.

Article 10 alternative methods

The U.K.’s declarations and Central Authority information—as well as those of all the other countries in the treaty—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.

Wikimedia Commons

An interesting story hit the blogosphere a couple of weeks ago (see “MtGox’s US customers try to find Mark Karpeles” over at the FinanceFeeds blog).  I won’t pretend to understand the mechanics of the case discussed– the Bitcoin phenomenon and the MtGox security breach lie far outside my expertise, and frankly, the whole concept is pretty complex and I don’t have the time to give it reasonable study.  Suffice to say that this case is a classic illustration of just how complex cross-border finance and cross-border litigation have become.

A particular paragraph in the post caught my eye:

Karpeles is a French citizen believed to be living in Japan, so service upon him is governed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents. In order to effect service under the Hague Convention, a physical address is required.

Well, sort of.

Er, not exactly.

Wait… no.  That’s not right at all.

It is correct that in order to effect service under the Convention, you have to have an address.  But service on Karpelès is not “governed” by the Hague Service Convention unless and until the plaintiffs know his whereabouts.  He is merely believed to be living in Japan.  By its own terms (Article 1), the Convention doesn’t apply “where the address of the person to be served with the document is not known.”

In short, if the fellow can’t be found after a diligent search, adherence to the strictures of the Convention is unnecessary.  Frankly, adherence is impossible, because the primary bit of information necessary for a service request to a Hague Central Authority– Japanese, French, or otherwise– is where to find the guy.

So what is a litigant to do?  Well, do what the DNC did earlier this month: use Rule 4(f)(3) to serve him electronically (see my recent post “Twitter Service Hits the Bigtime“).  Or ask the court to appoint his U.S. counsel– if indeed he has counsel here**– as his agent for service, then serve him under 4(e)(2)(C).

The FinanceFeeds post went on to say that…

The Court agreed that the time for Mr Lack to file Proof of Service on Defendant Mark Karpeles should be extended to and through October 31, 2018.

That tells me that none of the lawyers in the room (including the judge) are reading the whole of Rule 4(m), the basis for the standard 90-day deadline to serve a defendant.  The last sentence of 4(m) is a beautiful little safe harbor for plaintiffs seeking to serve abroad:  “This subdivision (m) does not apply to service in a foreign country…”  [Emphasis mine.] *

Now, that doesn’t mean a plaintiff has unlimited time to get the job done– a reasonable diligence standard applies– but it does negate the need to extend anything.  The plaintiff merely has to not be dilatory (I had to look that up once) in his efforts to serve.  Yes, keep the court updated on your progress.  Yes, make sure the judge knows what you’re up against.  Don’t give up on the effort.  Just know that an ordinary extension of time isn’t necessary.

The takeaway from all this?  Not all is lost if a defendant can’t be located, and the Federal Rules of Civil Procedure account for that.

* At that, even assuming the plaintiffs do find an address, they shouldn’t expect a proof of service by the end of October.  Serving in Japan has been taking longer than normal lately– and “normal” is four months, at best.

** UPDATE (a day after posting):  Within hours of my post, up pops another FinanceFeeds article about this defendant, but in a different suit in N.D. Ill.  Apparently, yes, he does have U.S. counsel.  And the ability (not to mention, obligation) to waive.

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.  The obvious irony here is that I’m using two images of the great actor Sean Bean which, although developed in satire, are blatant rip-offs.  My hope is that I’ll be forgiven, given my ardent and emphatic recommendation that my readers go back and watch The Lord of the Rings and Game of Thrones— at least Season One.  If that’s unacceptable, I will readily cease & desist.]

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 a copyright 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 copyrights exclusively, no visa applications ever.  What if some random website hosted somewhere overseas decides that “all your base are belong to us,” rips off your client’s content, and publishes it as their own?  Your client justifiably seeks proper attribution and compensation, but the infringing party refuses to cooperate. So you sue.

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

Well, if you’re going to serve in a foreign country, odds are quite good that the Hague Service Convention applies, so you’ve got to figure out what options are available to you.

Next, you may have to set up a translation of the documents.  Never mind that the stolen copy is in English– so the bad guys must understand English– foreign translation requirements aren’t focused on the defendant’s comprehension.  They’re focused on the foreign officials handling the documents.

Then ask the appropriate Central Authority for help.  And 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 them served…

This is Ned Stark.

You’ll have a tough time getting the copy attributed to your client without that defendant.


* 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.