In March, we reported that the Texas legislature may permit Texas state courts to authorize service of process via social media. Since then, a U.S. district court has ordered that the plaintiff may serve documents, other than the summons and complaint, on defendants located abroad via email and social media. FTC v. PCCare247 Inc., No. 12-CIV-7189 (PAE) (S.D.N.Y. Mar. 7, 2013).
This appears to be the first time that a U.S. district court has authorized service via social media (albeit as a backup to email service). As an increasing number of U.S. lawsuits, especially those involving intellectual property rights, involve foreign litigants, this is an important development. This is especially true as service under international treaties can be slow and costly.
The FTC filed the case on September 24, 2012 in the U.S. District Court for the Southern District of New York. The FTC alleges that several U.S.- and India-based individuals and companies have been tricking U.S. consumers into paying the defendants “to fix non-existent problems” with the consumers’ computers.
The district court granted the FTC a temporary restraining order (“TRO”) and preliminary injunction enjoining the defendants from “directly or indirectly misrepresenting, expressly or by implication, that . . . security or performance issues have been detected on a computer, including but not limited to claims that a computer contains viruses, spyware, or system errors.”
The FTC was able to effect service of the summons, complaint, TRO, and preliminary injunction on the U.S.-based defendants via traditional service methods (e.g., service of the summons and complaint by personal service under Federal Rule of Civil Procedure 4(e)(2)(A) and service of the other documents by mail under Federal Rule of Civil Procedure 5(b)(2)(C)).
The FTC initiated service of the summons and complaint on the India-based defendants via the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (commonly referred to as the “Hague Service Convention”). Almost five months after initiating service under the Hague Service Convention, the FTC still had not received confirmation of service from the Indian government or even any response to the FTC’s status requests.
The India-based defendants retained counsel, who represented them at the preliminary injunction hearing. After issuance of the preliminary injunction, the district court granted defendants’ counsel motion to withdraw for nonpayment of attorney fees. Based on this prior representation, it appears that the India-based defendants had actual notice of the lawsuit, as well as the key terms of the preliminary injunction (which were identical to those of the TRO that issued when the case was filed, several months prior to counsel’s withdrawal).
Because of the “tremendous delay” likely to result from service under the Hague Service Convention and the defendants’ failure to comply with the terms of the preliminary injunction, the FTC asked the district court to authorize service of non-case initiating documents (i.e., everything but the summons and complaint) on the India-based defendants by email and Facebook. The FTC made the request pursuant to Federal Rule of Civil Procedure 4(f)(3), which authorizes a district court to permit service “by other means not prohibited by international agreement.” In support, the FTC stated that it verified that the email addresses associated with the India-based defendants’ Facebook accounts actually belonged to the India-based defendants.
The district court granted the FTC’s request finding that:
- India’s governing body over judicial matters has not objected to service by email or Facebook and no international treaty prohibits such service;
- service by email and Facebook comports with due process because the defendants used the email addresses to carry out the alleged scheme; and
- the delay caused by service of every document through the Hague Service Convention “is not tolerable.”
The district court questioned whether service via Facebook only, without service by email too, would comport with due process because “‘anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm’ whether the Facebook page belongs to the defendant to be served.” FTC v. PCCare247 Inc. at p. 9 (quoting Fortunato v. Chase Bank USA, No. 11 Civ. 6608 (JFK) (S.D.N.Y. June 7, 2012) (we previously reported on the Fortunato decision here). The district court dismissed this concern, however, because there was “ample reason for confidence that the Facebook accounts identified are actually operated by defendants.”
Recognizing 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,” the district court noted that “service by Facebook is not intended as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address.”
It is easy to see why service by social media was permitted in this case:
- the aim of the lawsuit was to protect the public interest rather than to vindicate private rights;
- the parties to be served by social media were previously represented by counsel and had notice of the proceedings;
- the plaintiff verified that the social media accounts belong to the defendants; and
- the service was only a backup to service via known email accounts.
While the facts in this case were unique, this case and the proposed Texas legislation may signal a U.S. trend toward considering, in appropriate circumstances, the use of social media to reach foreign litigants.