International Law

FTC can serve foreign defendants via Facebook, federal judge rules

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The Hague Service Convention doesn’t expressly authorize service on foreign defendants by email or social media accounts.

But, saying that a U.S. court has the power under the treaty and the Federal Rules of Civil Procedure to approve supplemental means of service, a federal judge in Manhattan has OK’d a plan for the Federal Trade Commission to serve to serve defendants in India with duplicate sets of documents both by email and via Facebook, according to Reuters.

The federal courts need to keep an open mind about new technology, wrote U.S. District Judge Paul Engelmayer in his opinion (PDF) last week, to which the S.D.N.Y. Blog provides a link.

The judge determined that Facebook service was authorized by Fed. Rule Civ. Pro. 4(f)(3), which provides that “a Court may fashion means of service on an individual in a foreign country, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.”

He cited a 1980 decision in which a federal court in New York authorized service by Telex, as well as a recent opinion by the San Francisco-based 9th U.S. Circuit Court of Appeals approving service by email.

“The court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means,” wrote Engelmayer. “But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And history teaches that, 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.”

The unusual ruling apparently is one of the first of its kind in the United States. A 2009 article in the Federal Courts Law Review says courts in Australia and New Zealand have also OK’d service by Facebook, Reuters notes, and in 2009 the British High Court allowed service to be made via Twitter. This year, the High Court also authorized service by Facebook.

The Manhattan case involves PCCare247 Inc. and other individual and business defendants accused by the FTC of tricking Americans into paying to fix nonexistent computer problems.

Related coverage:

ABA Journal (2011): “Our Pleasure to Serve You: More Lawyers Look to Social Networking Sites to Notify Defendants” (2009): “In Seeming First, Aussie Court Says Default Judgment Can Be Served on Facebook”

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