When we think about getting served papers, it’s generally by a scary guy in a suit who shows up on the doorstep. Of course, if you live in India and you commit a violation against the U.S., the odds of a U.S. official showing up on your doorstep are low. The U.S. court system can hardly send people overseas to serve papers, nor is doing so necessarily legal.
That was the conundrum facing the Federal Trade Commission, or FTC, when they tried to start litigation for an Indian scam targeting American consumers. The result? A landmark ruling, and one more legal Facebook issue to add to the growing pile.
The scam in question was allegedly coordinated by two Indian companies – PCCare247 Solutions and Connexxions IT Services – and the group of five defendants who ran said companies. The scam allegedly duped tens of thousands of English speakers into paying $45-$450 apiece for fake spyware removal.
Here’s how it worked: English-speaking consumers would search for their anti-virus software’s phone number, and a phone number for the bogus operation would come up. When the victims called the number, telephone representatives would apparently claim that the victim’s system was infected. The reps would substantiate the claim by directing victims to the utility dock of the computer and giving them false information regarding indicators of computer infection. The representatives would then charge a fee ranging from $45-$450, take remote control of the victim’s computer, pretend to fix the problem, and download free anti-virus software onto the machine.
The scammers apparently tried to remain incognito by using 130 phone numbers, 80 domain names, and virtual offices. The FTC caught up with them anyway in late 2012, shutting down the scams and filing papers.
Once the FTC zeroed in on the operation, they tried to start litigation via more conventional means, according to a document obtained by TradeSecretsLaw. They sent a summons and complaint to the Indian Central Authority and to the defendants via FedEx, email, and personal service. The defendants got the summons and hired attorneys, only to fail to pay said attorneys. The lawyers therefore bowed out in early 2013. Meanwhile, the Indian government had not served anything and was unresponsive to FTC requests.
Which is why U.S. District Court Judge Paul Engelmayer of the Southern District of New York decided that the Federal Trade Commission could serve the defendants via Facebook. The court reportedly decided to grant the action because the FTC was able to provide lots of evidence that the Facebook accounts in question were operated by the defendants. The account owners were all Facebook friends, and the job titles and emails on the accounts matched those listed for the businesses. The court also took into account the fact that the defendants already knew about the case and had in large part ignored it, as had the Indian government. Finally, the defendants are all in the computer business and are known to use email and Facebook regularly, so chances of making contact via Facebook are relatively high.
“The Court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means,” the Court said in light of the decision. “But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And history teaches us 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.”
So, while getting served papers on Facebook seems like a scary concept, we in the U.S. will probably never experience it – and it will likely never be used alone. The judge in this case only approved it in conjunction with other means of communication with the defendants. So go ahead and make that extra cup of coffee for the process server. He or she will be around to drink it for years to come.