BY SVIATLANA LIASHCHYNA
as seen in Issue-36 of a360inc's Compliance Newsletter
By now, it’s clear that social media and electronic communications are not novelties. Instead, they have become mainstream staples that are used for a large portion of communications, advertising, commerce, and news. Despite all this, it may still surprise some that social media and emails can be used for service of legal process. In August 2018, the Pennsylvania Civil Procedural Rules Committee advised that it is planning to propose to the Supreme Court of Pennsylvania the amendment of Pa.R.C.P. No. 430, which governs service by order of the court. This would allow service via email or social media account upon receipt of the court’s order and if service cannot be made under any other rule. Pennsylvania is not the first state in the country to modify its service rules to adapt to technology changes and platforms.
Alternative means of service have been used more consistently and for a longer time than you may realize. Mostly, they have been used by courts in different jurisdictions to effectuate service of foreign defendants based on the Federal Rules of Civil Procedure Rule 4(f)(3).
For domestic defendants, personal or dwelling service and service by mail are traditional ways of service authorized in many jurisdictions. And when the traditional ways of service are impractical, the courts have historically ordered service by publication. With the development of technology, however, service by publication is becoming insufficient to meet the constructive notice standard and comply with the Fourteenth Amendment requirements. In Baidoo v. Blood-Dzraku the judge noted that traditionally, in New York service by publication is conducted through the New York Law Journal and the Irish Echo. “The chances of a defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none.”
Courts that approve service via social media or email do have a special set of requirements that must be met. They require some proof that the defendant owns the social media or email account to be used for service. Additionally, some courts approve service via social media or email only as an additional method to service by certified mail. See Ferrarese v. Shaw 164 F.Supp.3d 361 (E.D.N.Y. Jan. 20, 2016). It should be noted, however, that motions to serve via social media or email were rejected by some courts in jurisdictions where there are no “catch-all” service provisions or where service via social media and email is not specifically allowed by local rules.
Although service via social media and email provides many benefits, default services and debt collection law firms should carefully evaluate the implications of the applicable FDCPA requirements to this process. At this time, it is well-established that the use of social media in debt collection is not prohibited, as long as it is used in a manner that does not lead to the abuse and harassment of the debtor. Any firm wishing to use these alternative methods for service must, at a minimum, consider the following:
The financial industry should also consider “Social Media: Consumer Compliance Risk Management Guidance” issued by the Federal Financial Institution Examination Council. This document indicates the risks associated with the usage of social media by financial institutions as well as the necessity to implement strong risk management programs to ensure compliance with various federal regulations. As a result, many financial institutions have decided to limit social media usage and, in some instances, even prohibited usage of social media to their third parties, such as default and collection law firms.
Technology marches on, as we have all seen, and industries must adapt in some way or another. Despite the limitations that exist regarding these alternative means of service, firms should review case law, federal guidance, and local laws to fully understand both the risks and opportunities that are presented with these technological advances. This understanding will help to strengthen your risk-based compliance programs, as well as prepare you for any technology landscape changes that may be on the horizon.
Sharing trends and best practices to help you improve your processes and maximize your profitability.