For those recovery and subrogation professionals facing the challenge of serving foreign defendants with legal papers for actions filed in the U.S. courts, the process “serving” those foreign defendants can be a long and costly path through the Central Authority or courts of a foreign country under The Hague Convention (on the Service Abroad of Judicial and Extrajudicial Documents), letters rogatory or another international treaty. The process can vary from country to country and sometimes the requests for service go unanswered for several months, leaving litigants to wonder whether they will ever be able to pursue their case. While these requirements have not changed and still should be followed, there is a glimmer of hope that, perhaps sometime in the next few years, subrogation and recovery professionals may be able to use a more cost effective social media website and/or application like Facebook to serve foreign defendants.
Recently, the U.S. District Court for the Southern District of New York allowed service of legal papers other than the complaint and summons on foreign defendants located in India through their email addresses and Facebook accounts. FTC v. PCCare247, Inc., Case No. 12 Civ 7189 (PAE) (S.D.N.Y. March 7, 2013). This is the first apparent decision from a federal court in the United States allowing service of legal papers like motions and post-complaint documents on foreign defendants through their email addresses and Facebook accounts. In FTC v. PCCare247, the FTC encountered difficulties serving a motion on the foreign defendants in India and sought leave under Federal Rule of Civil Procedure 4(f)(3), which allows service on an individual in a foreign country by alternative means so long as it is not prohibited by an international treaty and comports with due process, to serve the defendants by email and Facebook. One of the cited reasons for the FTC’s request was the costs of alternative service by traditional written publications where there was a confirmed Facebook account for the defendants. Because the court found that service through Facebook was not prohibited by The Hague Convention or another international treaty and due process was met in the case, it allowed service by email and Facebook. It is important to point out that the court did question whether service by Facebook alone would meet due process requirements, because it noted that the Facebook account must be verified for the defendant sought to be served. However, the court found that the accounts were sufficiently verified in this case, because the FTC established that the defendants regularly operated the Facebook accounts and that the same email addresses used by the defendants were linked to the Facebook accounts.
Under the service allowed by the court in FTC v. PCCare247, the FTC would essentially send a Facebook message, which is similar to an email, to the Facebook account of the defendants and attach the relevant legal documents to the message. The defendants would then receive them – or be served – when they log into their Facebook account and retrieve their messages or received an alert from Facebook with the message.
This is likely to be a developing area of law in the next few years. As Judge Engelmayer noted in FTC v. PCCare247, “as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.” Since foreign companies and business continue to use social media more and more to advertise and conduct their businesses, the reasonableness of using their chosen forum of international communication to serve them with legal papers makes for a compelling argument. If this concept of service gains momentum in the U.S. courts over the next few years, the ability to pursue recoveries from foreign defendants could become less costly and a much easier endeavor for recovery professionals.