Judge OK’s service of foreign defendants via Facebook

The U.S. District Court for the Southern District of New York has approved the Federal Trade Commission’s request to use Facebook as an alternative means of effecting service of documents on consumer fraud defendants located in India.

“History teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel,” wrote U.S. District Court Judge Paul A. Engelmayer in Federal Trade Commission v. PCCARE247.

In September 2012, the FTC brought an action to put an end to a consumer fraud scheme operated in large part out of call centers located in India.

According to the FTC, the scheme involved tricking American consumers into spending money to fix non-existent problems with their computers. There are five India-based defendants in the case: Vikas Agrawal, Anuj Agrawal, Parmeshwar Agrawal, PCCare247 Solutions and Connexxions IT Services.

After Judge Engelmayer issued a temporary restraining order enjoining the defendants’ business practices and freezing various assets, the FTC served the defendants with the summons and complaint in India.

However, maintaining contact with the defendants became a problem when their U.S. lawyers abruptly withdrew from the case, purportedly because they weren’t being paid. To effect service of documents in the future, the FTC proposed using both email and Facebook.

Under Federal Rule of Civil Procedure 4(f)(3), “a Court may fashion means of service on an individual in a foreign country, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.”

In a ruling earlier this month, Judge Engelmayer in quick fashion determined that the FTC’s proposed use of email and Facebook was permitted under the Hague Service Convention, to which the U.S. and India are both signatories.

The FTC’s proposed use of email service also wasn’t that problematic because, as the judge observed, there’s federal precedent that service by email alone comports with due process where a plaintiff demonstrates that the email is likely to reach the defendant.

So the judge turned to the novel issue in the case: Does service by means of Facebook comport with due process?

The mechanics of Facebook service are fairly straightforward. Under the FTC’s proposal in the case, the agency would send a Facebook message to the Facebook account of each individual defendant, attaching the relevant documents. The defendants would be able to view the documents when they next logged on to their Facebook accounts.

Judge Engelmayer raised the concern that, because Facebook accounts can be faked, there’s the possibility that a particular Facebook page does not actually belong to the defendant intended to be served.

But the FTC addressed this concern to the judge’s satisfaction by introducing evidence linking the Facebook pages in question to the defendants’ companies and known email addresses.

“Thus, the FTC has demonstrated a likelihood that service by Facebook message would reach defendants,” Judge Engelmayer wrote.

More importantly, the judge was comforted by the fact that the FTC promised to use Facebook service in conjunction with email service. Judge Engelmayer recognized that it would be a tougher question if the FTC were proposing to serve the defendants only by means of Facebook.

But since Facebook service was essentially being used as a “backstop” in this case, it satisfied due process.

“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,” the judge wrote.