Freedom Watch, Inc. v. Organization of the Petroleum Exporting Countries, No. 13-7019 (D.C. Cir. Sept. 12, 2014) [click for opinion]

Freedom Watch filed suit against the Organization of Petroleum Exporting Countries (“OPEC”) under U.S. antitrust laws for fixing the price of gasoline.  Freedom Watch attempted to serve process first by hand delivering the summons and complaint to OPEC’s Vienna headquarters and, when that failed, by mailing the documents to the headquarters.  The district court dismissed the case for lack of service, but the D.C. Circuit remanded for the district court to consider whether service on OPEC’s U.S. counsel would be an appropriate alternative method of service.

Under Rule 4(f)(3) of the Federal Rule of Civil Procedure, a foreign association, like OPEC, may be served by any means approved by the court and not prohibited by international agreement.  Freedom Watch, relying on Rule 4(f)(3), proposed to serve OPEC through its U.S. counsel. 

The D.C. Circuit noted that the decision whether to allow alternative methods of service under Rule 4(f)(3) is committed to the sound discretion of the district court, and that a number of courts have sanctioned service on U.S. counsel without requiring any specific authorization by the defendant for the recipient to accept service on its behalf. 

The court acknowledged that this method of service might contravene Austrian law, but Rule 4(f)(3) contemplates such a scenario, as reflected in the advisory notes to the rule, which state that “an earnest effort should be made to devise a method of communication that is consistent with due process and minimizes offense to foreign law.”  The word “minimize” implies that some offense to foreign law may in some circumstances be acceptable.

The D.C. Circuit thus remanded the case for the district court to consider whether to exercise its discretion under Rule 4(f)(3) to authorize some method of serving process on OPEC.

Brandon Graves of the Washington, DC office contributed to this summary.