Trending Towards Service of Process via Facebook!

This post was also written by Lisa Kim.

Just a few weeks ago Legal Bytes updated its reporting (which has been going on since 2009) noting that the U.S. District Court for the Southern District of New York in Fortunato v. Chase Bank USA (S. D.N.Y June 7, 2012) declined to permit a plaintiff to effect service of process on a defendant via Facebook (see, Service of Process by Facebook? Not Just Yet!). However, it seems that legislators and courts alike are opening up to the idea of allowing service through social media where it would be reasonably likely for the defendant to receive actual notice. In the fast-paced world of digital technology and social media, the courts are indeed moving just a wee bit faster (do they have a choice?).

Last month, Rep. Jeff Leach, R-Plano, introduced a Texas bill (H.B. 1989) that would allow courts to approve the use of substituted service of process through a social media website. Specifically, this law would allow the court to prescribe substituted service through a social media website if: “(1) the defendant maintains a social media page on that website; (2) the profile on the social media page is the profile of the defendant; (3) the defendant regularly accesses the social media page account; and (4) the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.”

Similarly, last week, in FTC v. PCCare247 Inc., S.D.N.Y, the U.S. District Court for the Southern District of New York granted the Federal Trade Commission (FTC) permission to effect service of process (although not the summons and complaint) via Facebook and email upon five defendants based in India.

In the PCCare247 case, the FTC alleged that the defendants operated a scheme, largely out of call centers located in India, that tricked American consumers into spending money to fix non-existent problems with their computers. FTC served the defendants through the Indian Central Authority as required by the Hague Convention and also sent the summons and complaint to the defendants via email, Federal Express, and personal service via a process server. Although the Indian Central Authority (after more than five months) still had not responded to the FTC confirming that defendants had been served, the defendants received notice through the process server.

The request for service of process via Facebook and email came into play later when the FTC requested permission to serve additional documents on the defendants. The court granted the motion, holding that service via email and Facebook are not prohibited by the Convention or any other known international agreement. In addition, the court held that service via email and Facebook comports with due process as the FTC demonstrated the likelihood service via email and/or Facebook would reach the defendants. The court cited the fact that email addresses for service were used for various tasks in the alleged scheme to defraud consumers and defendants had used some of the emails to email the court.

The common thread between the Texas Bill and PCCare247 appears to be the high likelihood that service through these electronic means would give actual notice to the defendant. Indeed, in distinguishing Fortunato, the PCCare247 court specifically noted the FTC provided the court with “ample reason for confidence that the Facebook accounts identified are actually operated by defendants.” The Facebook accounts had been registered with email addresses known to be the email addresses of the defendants; the defendants listed their job titles at the defendant company as professional activities on their Facebook accounts and two of the defendants were shown to be “friends” with a third defendant.

The evolution of judicial precedent and thinking in this area will not only be interesting to watch but may also transform the manner in which the law, the courts and judicial systems around the globe confront and attempt to deal with legal professional and ethical issues (see generally, Friends on Facebook – Hold Them Close, Get Held in Contempt of Court!) Social media and technology, wired and wireless, continues to challenge every industry and profession and neither the law nor the legal profession are immune. Don’t hesitate to contact Keri Bruce, Lisa Kim if you want to know more about these issues, and, of course, you are always free to contact me, Joseph I. Rosenbaum, or any of the attorneys at Rimon with whom you regularly work. We would be happy to help.

What You Don’t Know Can Hurt You

Multiple Choice Question: What do the following have in common:

“Privacy & Data Protection: Distinctions Between Surveillance and Secrecy”

“Ethics, Process, Privilege, Discovery and Work Product in the Digital Age”

“When Worlds Collide: Old Ethics and New Media”

“Outsourcing: The Law & Technology”

“The Changing Legal Landscape: Evolution or Revolution”

“Growing Your Business Internationally – What to Know Before You Go”

“Social Media, Mobile Marketing, Clouds and Crowds: (modules)

  • Advertising & Marketing in a Digital World
  • Media & Entertainment: Digital Rights and Wrongs
  • Financial Services, Payments & E-Commerce
  • Online Gaming, Gambling & Virtual Worlds
  • Apps & M-Commerce
  • Context & Geo-Marketing: Wi-Fi, Bluetooth, SMS, RFID, QR Codes & Augmented Reality
  • Operations & Performance, Security, Compliance and Interoperability
  • Wired & Wireless: Sweepstakes, Contests, Product Placement & Branded Entertainment
  • Anti-Social? Communication & Public Relations for Companies, Employees & Investors
  • Behavioral Advertising, Endorsements, Blogs, Buzz, Viral, Street Teams & Word of Mouth
  • Labor & Employment Policies in a Networked Age: The Good, The Bad & The Ugly
  • Crowd Sourcing, Crowd Funding, Crowd Investing: Today & Tomorrow

“Privacy, Data Protection & Globalizing Technology: Digital Commerce Brings Legal Challenges”

“Comparative Advertising Issues: Multinational Brands; Global Challenges”

“Direct to Consumer: Legal Challenges in the Digital Marketplace”

“Out of Control? Challenges to Privacy & Security in a Big Data World.”


Answers: (a) Seminars & Presentations Given; (b) Seminars & Presentations Available; (c) Targeted at Lawyers; (d) Targeted at Commercial and Business Management; (e) Relevant to Small-to-Medium Size Business; (f) Relevant to Multinational, International & Global Companies; (g) None of the Above; or (Y) All of the Above.

If you guessed (Y), you are correct. Let us know if any of these, a combination of these or a customized version of these or any other presentations might be right for you. Hey, you never know, but what you don’t know, can hurt you. For more information, contact me, Joe Rosenbaum, or the Rimon attorney with whom you regularly work.

Service of Process by Facebook? Not Just Yet!

Back in 2009 (yes, 2009), Legal Bytes reported that the British High Court agreed to allow the service of a court order to an individual through Twitter (see, British High Court is for the Birds? Actually, for Twitter!). In that same article, we noted an Australian Supreme Court Judge allowed service of legal papers through Facebook. Increasingly, U.S. courts are confronting similar questions.

New York law, for example, has an enumerated set of mechanisms by which one can effect service of process. But the law also notes that if the enumerated methods are impracticable, service can be made “in such manner as the court, upon motion without notice, directs." In other words, if you are trying to sue someone in New York and none of the traditional methods works, you can petition the court and request some other method, and, assuming the court agrees, that will be effective to constitute service of process. But the standards remain high for the use of social media and other technology-enabled mechanisms. Witness the recent decision by the U.S. District Court for the Southern District of New York, in Fortunato v. Chase Bank USA (11 Civ. 6608), which in June of last year, denied the bank’s petition to allow service of process using Facebook.

The case started when Lorri J. Fortunato (Lorri) sued Chase, alleging that another person fraudulently opened a Chase credit card account in her name and incurred debts without her knowledge or authorization. When the debt went unpaid, Chase initiated collection proceedings against Lorri. In 2009, Chase obtained a default judgment and in 2010 began proceedings to garnish her wages – a process by which Chase eventually collected the full amount of the default judgment. But Lorri claimed she never lived at the address at which Chase attempted to serve her notice of the action and, during the course of the lawsuit, Chase discovered that Nicole Fortunato (Nicole), the plaintiff’s estranged daughter, had opened the account in her mother’s name, listed her address in the account application, and made the charges – the amount Chase ultimately received from garnishing Lorri’s wages.

Chase requested, and was granted permission, to bring Nicole into the case as a third-party defendant, but despite hiring an investigator to locate her, Chase was unable to determine exactly where Nicole lived. The investigator did, however, find a Facebook profile that was believed to be hers, and so Chase petitioned the court to allow it to effect service of process on Nicole in a number of ways, among which were service through Facebook and a message to the email address listed on the profile page.

Although the court did conclude that Nicole’s pattern of "providing fictional or out of date addresses” made service of process upon Nicole using traditional methods impracticable, the court went on to reason that Chase had not been able to assert "any facts" that could substantiate, among other things, that the Facebook profile was actually that of the Nicole Fortunato in this particular case. The court noted anyone can create "a Facebook profile using real, fake, or incomplete information," so how could they be sure it was the person they intended to serve! Feel free to read the Court’s Memorandum Opinion & Order (PDF) yourself.

The lesson from this and other cases so far: Whatever method of service of process is requested, one must be able to substantiate, with some degree of certainty, that the person intended to be served is likely to receive the summons and complaint and, thus, be apprised of the pendency of legal proceedings involving that person. Social media and technology, wired and wireless, is turning the legal world upside down. If you want to remain upright or need to know more, feel free to contact me, Joseph I. Rosenbaum, or any of the attorneys at Rimon with whom you regularly work.

Old Ethics and New Media: Reconciling Legal Ethics with New Technology

Colleagues and clients: Join us tomorrow, Friday, September 21 at Noon EDT (9 a.m. PDT; 11 a.m. CDT) for our timely seminar “When Worlds Collide: Old Ethics and New Media” discussing the ethical issues and implications arising from social media, cloud computing, mobile and wireless technology, and the latest in legal thinking, bar association rules and judicial rulings, among other things. Think you know the rules about metadata, discovery on social networks, litigation holds in cyberspace, and much more? Not sure? Join us for this one-hour session focusing on lawyers, law firms and the legal and regulatory processes that are being turned upside down by technology. Join us as the worlds of ethics and technology collide. Registration is open to all and, for licensed attorneys, attendance will provide 1.0 hour of Ethics CLE/CPD credit for UK, California, Pennsylvania, Illinois, New Jersey, and experienced New York lawyers, and we can file applications in Delaware, Virginia and elsewhere as needed. Clients can register by contacting Joe Maguire at or +1 202 414 9484.

Lawyer Advertising – Manipulate This!

When it comes to advertising, lawyers are bound not only by laws and regulations that apply to all advertisers, but also by the rules set by the professional licensing authorities in each state in the United States, as well as by many “Bar” Associations (Bar as in Barrister, not barista or your local tavern). These authorities and associations often set more stringent advertising standards and rules, based on ethical guidelines and professional standards.

Florida has some of the most stringent restrictions on attorney advertising in the United States. For example, Florida’s rules prohibited ads that were “manipulative” (whatever that means) or that included “background sound other than instrumental music” – presumably to prevent the sounds of ambulance sirens or jail cell doors slamming.

The restrictiveness of attorney advertising, including Florida’s tough rules, has been the subject of criticism, as noted in a previous Wall Street Journal article.

Yesterday, a federal judge in Jacksonville, Fla., ruled that these restrictions are vague and violate the First Amendment rights of lawyers, and must go! The judge’s ruling noted that, “The term ‘manipulative’ is so vague that it fails to adequately put members of the Bar on notice of what types of advertisements are prohibited” – declaring the standard void. The judge also overturned the prohibition on background sounds, noting that such a rule violates the free speech rights of attorneys. Here is the entire Harrell v. Florida Bar decision [PDF] if you are interested.

In honor of the occasion, one clever individual decided to create a “lawyer ad” parody, which, by the way, has sounds previously banned by the Florida regulations. Enjoy.


Friends on Facebook – Hold Them Close, Get Held in Contempt of Court!

Since 2009, Legal Bytes has been blogging off and on about the implications of social media to the legal profession and the legal process. Whether it’s judges being "Friends" with lawyers (see, Florida Judges Can’t Have Friends), or jurors networking about evidence or cases as they deliberate (see, When Pressing Suits, Judges Tell Jurors Neither Social Nor Media is OK), or reporters "tweeting" from the courtroom (see, Freedom of the Press = Freedom to Tweet), social media is a force to be reckoned with—and the legal process also needs to reckon with it.

The latest blip on the radar comes from the UK, where Joanna Fraill, a juror, has been tried and convicted of being in contempt of court in what is being widely reported as the first Internet-related contempt of court prosecution in the UK (and perhaps anywhere). So in addition to judges, prosecutors and plaintiffs’ lawyers being wary about managing their online relationships, and jurors being admonished for searching online for information regarding the facts, parties, or issues in a case, add communication between jurors and parties in the legal proceedings to the list. Ms. Jamie Sewart, a defendant in a trial in Manchester involving billions of BPS’ worth of drugs, was contacted by Ms. Fraill, one of the jurors in the trial, through Facebook while the jury was deliberating.

Ms. Sewart admitted knowing Ms. Fraill was one of the jurors when she "accepted" the request to be friends, and the case collapsed when their communication through the social networking medium was uncovered. Ms. Sewart’s partner was convicted and is currently in prison, but Ms. Sewart was acquitted as a result of this trial. In one exchange between them – the text has now been made public – Ms. Fraill sent a message to Ms. Sewart regarding the jury deliberations stating: "cant get anyone to go either no one budging pleeeeeese don’t say anything cause jamie they could all miss trial and I will get 4cked to0."

Now before everyone rants about the evils of social media, bear in mind that the same result would be obtained if the juror had written a letter, called by phone or sent a coded message by carrier pigeon. The fact that a new means of communication – the Internet – was involved doesn’t change the admonition, the rules, or the consequences of the conduct. Indeed, with Facebook’s user population at approximately 700 million, the relatively lax attitude toward anyone monitoring their millions of followers on Twitter (or who they follow – I generally just automatically reciprocate), isn’t it likely one of you is already "Friends" with a criminal, or you will be, or you are following someone who may be appearing in court any day now?

Communication between participants in legal cases has long been the subject of ethical rules, professional guidelines and rigorous policing. Issues relating to privilege and work product, attorney-client communication, and relationships between lawyers, judges, plaintiffs and defendants, are not new. But jurors wanting to be "friends" with a defendant in the midst of a trial – well that’s one I haven’t heard before.

Rimon has teams of lawyers knowledgeable in digital evidence and discovery, employment and social media, privilege and litigation, in the age of the Internet and mobile communication. So as I’ve said before, keep your browser tuned (or bookmarked) to for breaking news, and if you do need help, contact me, Joe Rosenbaum, or any of the lawyers at Rimon with whom you work.

OMG B KEWL and call (or SMS) if you need help.

Florida Judges Can’t Have Friends

Just last month, the Judicial Ethics Advisory Committee in Florida issued an Opinion that Florida judges may not have social media "friends" if they are lawyers who may appear before them in court. While the average person may question what being a "friend" on any media platform really means in terms of the level or relationship outside the virtual world of web-based interaction – how many of you are "friends" with people you have never met and don’t even know? – the Judicial Ethics Advisory Committee indicated that their main issue is not fact, but perception.

The Committee expressed concern that the "friend" identifier could create the impression or the appearance in a publicly available forum, that the lawyer might be in a position to influence the judge.

Influence the judge? Hmmm. So, let’s see. If I’m a government official or a corporate procurement officer, or perhaps I’m just campaigning for public office, I really can’t befriend anyone on any social media platform or network – unless I’m prepared to face potential charges of bribery, accepting bribes, improperly influencing a public official, or being improperly influenced in procurement and purchasing decisions. Can you think of other situations in which acknowledging another individual as a "friend" on a social media platform or social networking site might be considered a violation of some code of conduct? Have you read your employer’s code of conduct lately?

Not to worry, that’s just the tip of the iceberg. Have you checked those "fan" pages recently? Are you a journalist? Celebrity endorser? Blogger? Check the revised FTC Endorsement Guides carefully. Perhaps you need to disclose your material connection when you became a fan! Oh, and you corporate employees and investment advisors (and journalists) better think twice before becoming a friend or a fan. After all, do you have to disclose to your clients or the Securities and Exchange Commission that you are a fan of "INSERT YOUR FAVORITE BRAND HERE"?

Now I don’t want to worry anyone needlessly, so here’s a tip for all of you Legal Bytes readers, whether you are a judge (are judges allowed to read Legal Bytes?), a lawyer or simply a normal person: If you wish to recuse yourself from a case, change the venue or forum for a trial, or simply avoid being picked for jury duty, I have a recommendation. Befriend the defendant, become a fan of the company, send a Facebook friend request to as many police officers (or, depending on your preference, inmates) as you can, and become a Twitter "follower" of as many products, services, public officials and political parties as you can.

Much to my regret, I have now been permanently removed from the White House guest list because I have become a fan of the Presidential Portuguese water dog "Bo" – the "First Dog." While it had never occurred to me that being thoroughly engaged by this adorable puppy would get me into trouble, the fact that the dog is "Portuguese" appears to have created the perception that there could be a conflict between my loyalties to our government and Portugal – although I confess to being partial to the food and the Algarve as an occasional vacation spot.

That said, I don’t feel alone any more since, even though the pup is officially registered with the American Kennel Club as "Amigo’s New Hope," I believe that the President and First Lady Obama, as well as their daughters Malia and Sasha, for whom Bo was an election day promise, are also under investigation for possible ethics violations in connection with their love for Bo. Strange, brave new world.

So keep your web browser tuned (or bookmarked) to for breaking news. The social media fun is just beginning, and if you haven’t checked your company policy lately (or revised it), or if you need help making sense of social media and the legal implications, you’ve come to the right place. Feel free to contact me—Joe Rosenbaum—or any of the lawyers at Rimon you work with. We are happy to help.