Attorney Charles Jerome Ware is renowned and consistently ranked among the best attorneys and legal counsellors in the United States. [GQ Magazine, The Washington Post, The Baltimore Sun, The Columbia Flier, USA TODAY, The Howard County Sun, The Anniston Star, The New York Times, et al.]
From the Intellectual Property Law Department of the firm:
Last month (March 15, 2013), U.S. District Judge Paul Engelmay of the Southern District of New York ordered "service of process" of civil complaints on several international defendants in a computer consumerism case through the new and novel means of FACEBOOK.
The case, FTC v. PCCare247, Inc., involves a group of individuals based in India who allegedly “tricked American consumers into spending money to fix non-existent problems with their computers.” After problems with more conventional methods of international service, the court exercised its authority under the federal rules to fashion its own means of service.
As Judge Engelmayer’s order explains, Fed. R. Civ. P. 4(f)(3) allows a judge to order a means of service of process so long as it is “(1) not prohibited by international agreement; and (2) comports with constitutional notions of due process.”
In this case, service by Facebook was not specifically prohibited by relevant international agreement, including the Hague Service Convention, to which India and the United States are signatories. Further, the circumstances in which the Facebook accounts would be served ensured service was constitutionally proper.
In particular, the order ensured due process by using a two pronged approach: email as the primary method of service and service through a Facebook message (similar to email but within Facebook) only as a secondary method. The order took care to point out that service on a known email address has been held to, and would here, satisfy constitutional norms of due process. Email therefore served as a constitutional “backstop” should service by Facebook fail.
Additionally, Judge Engelmayer’s order explained, several circumstances about these particular Facebook accounts ensured service was “reasonably calculated” to afford the defendants notice. For instance, the emails under which the Facebook accounts were registered had been previously identified as addresses allegedly involved with the scam. Other relevant facts? The defendants were all friends with each other on Facebook, and two of the defendants had actually listed in their Facebook profiles job titles at the defendant companies.
While the order may at first seem unusual, Facebook messaging worked here in large part due to its strong similarity to email. Furthermore, several circumstances made these Facebook accounts particularly likely to belong to the correct defendants. On the one hand, service via Facebook may be a reflection of the law catching-up with how people communicate.
On the other hand, it perhaps opens the door to the argument that other social networks should be utilized for service on hard to reach defendants. It is an interesting thought to ponder, though we may not see sepia-toned service on Instagram or service in 140 characters on Twitter anytime soon.
Attorney and author Charles Jerome Ware, inter alia, is former legal and microeconomic counsel to the Chairman of the U.S. Federal Trade Commission, Washington, D.C.
[Federal Trade Commission (FTC) v. PCCase247, Inc., Case No. 12 CIV7189, FTC File No. 1223243 (10-3-2012); New York Law Journal, March 15, 2013/ "Federal Trade Commision's Service of India-Based Defendants by Email, Facebook Approved", www.newyorklawjournal.com/PubArticle/03-15-2013].
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