ISSUE 18.30.F • 2021-08-09

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LEGAL BRIEF

By Max Stul Oppenheimer, Esq.

Has the International Trade Commission come up with the opening wedge in eliminating important protection against lawsuits — or merely the worst idea ever for a holiday toy?

Do you have a Facebook or LinkedIn or Amazon.com profile? Have you ever annoyed a foreign individual or company? How would you feel about opening one of your accounts and discovering a summons to appear in, say, Beijing, to explain yourself? The US International Trade Commission (ITC) may have just opened the door to that possibility.

To understand why the case I’m about to describe is potentially important, it will help to start with a basic overview of how the civil legal system works.

It starts with someone being sufficiently upset with you to go to the expense and trouble of suing you. In order to force you to defend yourself, they need to write up a document called a “complaint” that specifies who they are, who you are, what you have done wrong, how it hurts them, and what they want done about it. They need to file the complaint with an appropriate court (or, in this case, government agency), and they need to let you know that all this is going on by taking the step of “serving” you with a copy of the complaint and a summons to respond to the complaint.

Normally, the complaint and summons are served by an official of the court (the sheriff in state court) or by a private process server who hands them to the person being sued and reports back to the court. Nothing else happens until the court is advised that the defendant has been served; if service is not effected in a timely fashion, the complaint is dismissed. In some special cases, there are alternative procedures if the person being sued cannot be found or is shown to be evading service of the complaint.

This procedure is not a polite nod to ancient customs. It serves a very important purpose: if someone is asking a court to order you to do something or to take your property away, it’s only fair that you know about it. Because maybe there are two sides to the story.

On April 7, 2021, the ITC issued a notice of investigation (In re Certain Toner Supply Containers and Components Thereof, Inv. No. 337-TA-1259, if you’re interested in that sort of thing) of a March 8, 2021, complaint by Canon that several entities were bringing certain infringing items (um … toner containers and supplies) into the US.  That is unremarkable. US patent, trademark, and copyright owners attempt to enlist the help of the ITC to prevent infringing imports all the time. It is common for the ITC to open investigations of their allegations.

And the entire case would be unremarkable had the defendants — technically, “respondents” in an ITC proceeding — been served a copy in the normal manner: by mail or FedEx or some other form of personal delivery to the company at its principal place of business. But rather than send the sheriff to China, where several of the respondents were located, the judge allowed Canon to notify several of the Chinese respondents of the initiation of the investigation by sending electronic notice to their Amazon.com seller-profile pages.

(In fairness, the ITC also put a notice in the Federal Register — you know, the daily publication that you read before you turn to the sports page in your local paper — and advised the defendants that they could find the complaint on the ITC website; and if they needed further help, they could contact the ITC help desk).

OK, maybe some people “live” on Amazon.com in one sense, but not in the sense required for service of a complaint.

There are several reasons why the average user can defer getting too concerned with how the ITC handled service of process in this case. The defendants are companies, not people. They are, moreover, companies for whom it was, apparently, difficult to determine physical addresses, so the ITC was convinced to look at alternative ways to find them. Presumably, they were selling the allegedly infringing items using their Amazon.com page, so it may have seemed logical to serve them there.

If you do not accept that logic, you can still take comfort in the fact that this is only an initial determination by an administrative law judge — there is a host of levels of appellate tribunals that have yet to be asked what they think about the procedure. And, perhaps most importantly, there was no one there to object — the defendants had not yet been served (and if they showed up to object, an alert lawyer might have handed them the complaint then and there and been done with it.)

So there is a long way to go before local courts start allowing service of process online as a routine matter.

While this may have been a special case, in a special court, with a special problem, the solution is still potentially troubling. If someone has complained about you in court, you should know about it, and the most reliable way of letting you know is to find you and give you a copy of the complaint. In some cases, that can be done by mailing it to you where you live instead of actually handing it to you, on the reasonable assumption that it will most likely get to you.

Stretching that assumption to allow the complaint to be sent to a location that you are thought to frequent starts to become questionable. In this case, it was a profile page presumably maintained by the defendant, but it is unclear what principles would guide determining where else someone might be served. Facebook? We’ll need a whole new set of emojis, but people have Facebook profiles and LinkedIn profiles and lots of other profiles, just as these defendants had Amazon.com profiles — so wouldn’t this case provide precedent for serving process on one of those sites? Will any profile page do, or must it have special characteristics? If so, what are they?

I admit that I would enjoy, at a certain level, watching service by TikTok, with extra points for creativity. But at a deeper level, I worry about Internet service of legal process for several reasons, including the unreliability of some services in some areas, the inability to verify identities, and the just plain wrongness of the concept. Putting aside the problem of more than one person having the same name, identity theft is a big enough problem to support an entire industry to deal with it, and cybersquatting is a big enough problem to legislate against it, so we shouldn’t rule out deliberate attempts at deception that would leave innocent victims facing judgments when they didn’t even know there was a problem.

And if a US agency can do it to a foreign company, what is to stop a foreign court or agency from applying the same rules to a US company or person?

For the moment, just think twice before deleting what appears to be spam from the US International Trade Commission — they may be serving you with a complaint. Also think twice before following the link that says, “Click here for your summons.” And hope that other governments, agencies, and courts don’t get the notion that it would be much more convenient — for them — if they just served people on Amazon or eBay or Facebook or LinkedIn or the like, and that any inconvenience to the defendant would be an acceptable cost.

And hope that this idea goes the way of Windows ME.

Join the conversation! Your questions, comments, and feedback about this topic are always welcome in the AskWoody Lounge!

Max Stul Oppenheimer is a tenured full professor at the University of Baltimore School of Law, where he teaches business and intellectual property law. He is a registered patent attorney licensed to practice law in Maryland and D.C. Any opinions expressed in this article are his and are not intended as legal advice.

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