When conducting business abroad, most enterprises, businesspeople and investors realize they may be subject to legal action in the jurisdictions where they do business if a dispute arises out of that activity. What constitutes carrying on business in the United States or Canada could, however, surprise many people.
For example, depending on the facts, North American courts may take jurisdiction over a dispute where a foreign defendant releases goods into commerce that find their way to North America, has a website used for transacting business in the US over the Internet, or markets a technology developed in Canada by a Canadian subsidiary.
In addition, people and companies with no connection whatsoever to North America are sometimes, unfortunately, sued there.
Regardless of the circumstances, there are ten practical steps to take if you or your company receives notice that you’ve been named as a defendant in a proceeding in North America.
01 | Don’t ignore the proceeding, and don’t delay—consult lawyers immediately
You should never decide to ignore a North American lawsuit without retaining lawyers who are experienced in transnational disputes and qualified to give advice in the specific jurisdiction where you’ve been sued.
Failing to respond to the proceeding within the time allotted can lead to judgment against you by default. A default judgment could be upheld and enforced, including ultimately in your own country. Even if it is possible to have the default judgment set aside, this can be expensive.
There may be a very short period of time within which to respond to ensure against default judgment being obtained against you.
The US has a federal judicial system, and each of the 50 states has its own court system. Canada’s civil justice system is predominantly administered through the courts of the ten provinces and three territories, and it also has federal courts across the country. Procedural rules and deadlines for responding to legal proceedings can differ significantly among these jurisdictions.
Some American states allow service of suit papers for foreign defendants to be made on the forum’s secretary of state (who then forwards the documents to the defendant), and the date of that service may start the clock running.
In some Canadian provinces, a foreign defendant may not need to be served directly with the claim, and service may be dispensed with or made effective under a court order that determines the time by which the defendant has to respond to the proceeding.
In both the US and Canada, foreign defendants may have valid objections to service under The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, other treaties or conventions regarding legal assistance, or the local rules for service.
Your lawyers in North America will want enough time to consider and advise you on all the transnational legal issues, and prepare an appropriate response to the claim. Because the deadline for responding might be quite short from the date of deemed service, even if you don’t receive copies until later, there is no time for delay.
02 | Preserve everything you receive about the claim, and keep a detailed record of when and how you received it
Until you determine how you wish to respond to the claim, you ought to safeguard all documents you receive, including the envelopes or packages, in case you decide to take issue with the validity of service. You should also make a detailed record of when and how the documents were delivered, including the date, time and place of service, the name of the person, company or agency who delivered it, and the name and job title of the person who received it.
03 | Immediately suspend any destruction of documents and emails
If documents or emails are destroyed after you become aware that a claim has been commenced against you (or even after you learn that an investigation is under way), North American courts may draw an adverse inference against you, such as a finding that the missing documents or emails were damaging to your position. This can happen even when the documents or emails are discarded as part of a routine and innocent program for the scheduled destruction of business records that are no longer needed.
Some US jurisdictions recognize an independent right to sue for the intentional destruction of evidence, sometimes called spoliation.
What’s more, it can even be a crime in North America to obstruct justice by destroying evidence.
So it’s imperative you take immediate steps to suspend the destruction of all documents and emails that could have anything whatsoever to do with the dispute. Your lawyers in North America can advise you on the specific measures necessary to preserve all relevant materials.
04 | Don’t contact the plaintiff or the plaintiff’s lawyers
Any statements made to the other side or their lawyers might become evidence used against you, including in any challenge to the North American court’s jurisdiction and in any hearing on the claim’s merits. That’s why parties to lawsuits must be very careful in what they say or write to the other side, even when there is a continuing business relationship, like that between a supplier and a distributor. The safest course is not to talk to them at all, and allow any necessary communications to be made by your transnational lawyers in North America. If you must have communications, it is preferable to have them approved by your lawyers; don’t discuss with the other side the proceeding or the facts of the case.
05 | Don’t take any steps in the proceeding
Taking any step in the North American litigation, whether on your own or through lawyers in your jurisdiction, may prejudice your ability to take certain positions down the road.
For example, in some Canadian provinces, even indicating an intention to defend against the claim may preclude challenging the Canadian court’s jurisdiction.
Likewise, some responses and objections to lawsuits brought in the US, including jurisdictional issues, can be waived if they are not asserted in the first papers your lawyers file with the court.
Should you wish to challenge the jurisdiction, or otherwise preserve your jurisdictional rights as a foreign defendant, only lawyers experienced in transnational disputes in the North American jurisdiction where you’ve been sued should take any steps in the proceeding on your behalf.
06 | Check to see if you have insurance coverage
You may have insurance policies that cover the lawsuit in issue. These policies invariably require that you give the insurance company prompt notice of any demands or proceedings. Undue delay in reporting may provide the insurance company with the right to deny coverage. You should therefore send a written report of what’s happened to every insurance company that might cover a claim. Your lawyers in the jurisdiction whose law governs the policy can assist with this process.
07 | Check any contracts to see if there is an arbitration or other dispute resolution clause
Many contracts contain provisions requiring the parties to arbitrate their differences or to litigate them under the law of a particular jurisdiction and/or in a designated forum. North American courts routinely enforce these provisions, but you may be found to have waived (and therefore lost) any such rights if you don’t assert them immediately. For this reason, you should arrange for your lawyers to review any relevant contracts to see if there are any such provisions.
08 | Consider your rights, remedies and interests
The law and procedure of the North American jurisdiction where you’ve been sued may, depending on the circumstances, provide you with certain rights and remedies as a foreign defendant. A claim will sometimes be stayed, discontinued or dismissed at the initial stages of the litigation when a defendant invokes these rights.
For example, it may be possible to challenge the service of the claim as being invalid under the local rules for service or an international treaty. It may also be possible to challenge the jurisdiction of the court over you or the subject matter of the claim. Even if the court has jurisdiction, you may still be able to persuade the court that the North American jurisdiction is not the appropriate forum for the matter to be determined. And, in the US, you may also be able to convince the court that it should not entertain the claim because of considerations of international comity.
In addition, in some cases, a court in another jurisdiction or an arbitration tribunal may view itself as having jurisdiction over the dispute, and may issue an anti-suit injunction against the plaintiff, enjoining the plaintiff from proceeding with the claim in the US or Canadian court.
That said, it is also important to consider potential rights and remedies in the context of your overall interests. Invoking your rights may merely delay a dispute you wish to have determined on its merits, or may be disproportionately costly given the claim amount. You may wish to allow the claim to proceed in North America, given that the plaintiff may have difficulties enforcing a judgment obtained there against your assets in other jurisdictions.
You’ll also want to consider how the laws and procedures of the jurisdiction where you’ve been sued compare with other jurisdictions where the plaintiff might pursue its claim against you. For example, you may prefer the law, predictability or procedures of the Canadian or US jurisdiction chosen by the plaintiff.
In considering these factors, your transnational lawyers in North America may need to communicate with lawyers in your jurisdiction, as well as with lawyers in other jurisdictions, depending on the nature of the case.
09 | Take the case seriously
All that’s happened so far is legal action has been initiated and certain allegations have been made. That does not mean the lawsuit necessarily has any merit or has been brought in the appropriate jurisdiction. Legal proceedings in North America are not reviewed or screened before they are commenced. Anyone can initiate a lawsuit on payment of a minimal court fee. Nevertheless, you should take the case seriously and act promptly to ensure your interests are fully protected.
10 | Retain experienced transnational lawyers
Should you wish to challenge the North American court’s jurisdiction, or otherwise preserve your jurisdictional rights as a foreign defendant, it is important to retain US or Canadian lawyers who can advise not only on the local rules and procedures, but also on the transnational aspects of the case. Multijurisdictional disputes can be complicated, and given that your rights as a foreign defendant may need to be invoked early in the proceeding to protect your interests, it is most prudent to have experienced transnational lawyers involved from the beginning.