The international legal network
At the urging of the United States Department of Justice, the U.S. Judicial Conference recommends changing criminal procedural rules to make it easy for U.S. prosecutors to assert jurisdiction over foreign corporations. Currently, U.S. rules for such cases reflect widely accepted principles of international law, generally restricting the service of U.S. criminal summons to U.S. soil. The amendment adds a new clause: “A summons to an organization … may also be served at a place not within a judicial district of the United States.” (emphasis added) The new rule offers U.S. prosecutors a number of traditional but somewhat burdensome alternatives for extraterritorial service (service as authorized by foreign law, stipulation, letters rogatory, or pursuant to international agreement). Most importantly, it gives the government the simpler alternative of accomplishing service of process against any organization outside the U.S. “by any other means that gives notice….” Thus, if the rule receives final approval, U.S. prosecutors may assert jurisdiction over any organizations, anywhere in the world, by simply giving them notice of a U.S. criminal summons.
In other words, U.S. prosecutors will soon be allowed to serve an American criminal summons in any other country by post or even email.
To be sure, an organization served in such a manner retains its right to hire U.S. counsel to defend it and to raise substantive arguments, including arguments that the U.S. lacks jurisdiction over it. And a U.S. court could ultimately reject a U.S. prosecutor’s effort as overreaching.
But the overseas organization will lose the right under U.S. court rules to simply ignore a summons served on it in violation of international law or the domestic law of its home country – even if the organization has taken care to structure its operations to operate in the U.S. only through a separate U.S. subsidiary, with no contact by its own personnel. In fact, the amendment also expressly authorizes U.S. judges to take action against organizational defendants who fail to respond to such a summons.
The U.S. Justice Department assured the Judicial Conference that it would use this power sparingly, but nothing in the new rule requires it to do so. In fact, it need not even seek court approval to resort to extraterritorial service by email.
The amendment has not yet been finally enacted, but it has cleared the only substantive review commonly given such matters. And the change has flown almost entirely under the radar, with no press coverage. If the Supreme Court approves it, Congress has the opportunity to review and reject the change, but the legislature rarely uses that power. History suggests that the amendment will be enacted absent, and maybe even despite, some belated realization by foreign governments or international business of the change that’s afoot.
Look for the U.S. Justice Department’s creeping assertion of worldwide criminal jurisdiction to continue to grow in the new year and beyond.
Patrick O’Donnell’s practice includes white collar criminal matters, civil governmental investigations, and complex federal litigation, at LAWorld member Harris, Wiltshire & Grannis in Washington, D.C. He often counsels international clients concerning U.S. investigations. To contact Pat please email him on firstname.lastname@example.org
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