On March 7, 2013, the Southern District of New York ruled that the Federal Trade Commission (“FTC”) could serve foreign defendants via Facebook and e-mail in connection with a case where the FTC charged defendants with a violation of U.S. law relating to deceptive conduct.[1]
According to the FTC, the underlying complaint related to an alleged scheme between and among nine individuals and two companies—all located in India—to use call centers to trick American consumers into paying to fix non-existent problems with their computers. The FTC served its summons and complaint on the defendants in four ways:
- Submission to the Indian Control Authority;
- E-mail to defendants’ known e-mail addresses;
- Courier, via FedEx; and
- Personal service via process server.
FedEx delivered to the documents to most of the defendants and the process server personally delivered the documents to all five individuals involved in the current motion, but the Indian Control Authority had not formally served the defendants. In other words, although the defendants had actual notice, they had not been formally served. In those circumstances, could the FTC serve them officially via e-mail and Facebook? “Yes,” said the trial court.
The court found that several other courts had already ruled that service via e-mail comported with international requirements (the Hague Service Convention) as long as the plaintiff could demonstrate that e-mail was likely to reach the defendants. With respect to Facebook, the court acknowledged that service via Facebook is “a relatively novel concept”[2] In this case, the court noted that the FTC was not intending to use Facebook as the sole means of service, and that the defendants had “zealously embraced” this new means of communication. Therefore, the court held, “it comports with due process to serve them by those means.”[3]
The court cautioned that “if the FTC were proposing to serve the defendants only by means of Facebook, as opposed to using Facebook as a supplemental means of service, a substantial question would arise whether such service would comport with due process.”[4] In this case, however, the FTC’s proposal to effect service “by both e-mail and Facebook satisfies the due process inquiry. Where defendants run an online business, communicate with customers via email, and advertise their business on their Facebook pages, service by email and Facebook together presents a means highly likely to reach defendants.”[5]
Sue Ross (susan.ross@nortonrosefulbright.com / +1 212 318 3280) is a lawyer in Norton Rose Fulbright’s US intellectual property practice.
