U.S. Senate Bill 1606 was introduced in the current session of congress. It would require foreign manufacturers of products imported into the United States to establish registered agents in the United States who are authorized to accept service of process against such manufacturers, and for other purposes.
http://www.govtrack.us/congress/bill.xpd?bill=s111-1606%20
Is this a good thing for private process servers? It appears to me that this bill in its current form would take a step toward leveling the playing field for domestic and foreign manufacturers that produce products that harm U.S. consumers.
I fail to see how that is a bad thing. I am sure it could be argued than it might drive some prices of products up that are imported into the U.S. because foreign manufacturers would be more likely to be held accountable for faulty products.
One reason they are not currently held accountable is because it is very expensive and time consuming to go after foreign manufacturers. One of the expensive and time consuming hurdles is the act of serving process internationally. It appears this bill removes that hurdle. Because the service of process on foreign entities is time consuming and expensive and requires a professional that specializes in providing these services. For a select few process serving agencies this bill could adversely impact their business.
For the vast majority of process servers this bill could result in more cases being filed against foreign manufactures and in turn mean more primary service of process, more discovery as well as more secondary service of process to be served domestically.
I have had a few discussions with fellow process servers and most feel this bill is a positive step forward for the private process server in the United States. A few other process servers are not so sure. Personally, I fall into the camp that would support the bill in its current form.
What do you think? I raise the question because nobody else is. I raise the question to create awareness about this bill. A few in the NAPPS leadership are aware of the bill. Thus far it has not been assigned to the legislative committee but is however being monitored by the International Committee. I do not know about you but I do not know what that means.
I believe the NAPPS leadership needs to hear form you on this topic; otherwise they will operate in a vacuum believing that they know what is in your best interest. Maybe they do, that is why they were elected right?
I believe what you think is more important than letting this issue remain quite.
This post represents my personal observations and should not be construed to be the opinion or position of anyone else or any organization.
Saturday, August 29, 2009
Tuesday, August 25, 2009
Private Process Servers - Scapegoats!
Earlier this month the Federal Trade Commission held a two day roundtable discussion in Chicago to address debt collection litigation and arbitration. The opening session was on the following topics:
Initiating Suits - Default Judgments and Service of Process.
The Panel was made up of approximately fifteen speakers ranging from Judges, Professors, Consumer Advocates, Debt Buyers and Collection Lawyers.
Over the course of an hour or so process servers took a beating. It was strongly suggested that the high default rates associated with consumer debt collection cases nationally were the result of among other things improper service of process, a complete lack of service or "sewer service".
By now, anyone that is paying attention to the challenges facing the public image of the private process serving profession has read about the situation in New York where it is alleged that a process serving agency was not properly serving collection law suits for some of the largest collection law firms in the country. Currently the New York Attorney General is investigating the practices of process serving agency in question and has suggested that as many as 100,000 default judgments may be thrown out or set aside. It is also worth noting that the AG is also focusing on the collection law firms as well and has indicated that they had a duty to oversee the process serving agency whose practices have come into question.
Needless to say, the panel was fully aware of this story and others such instances. The result was more than an hour focused on this issue. The panel discussions went on over a two day period and throughout the sessions the process serving issues continued to be raised.
Having sat through the webcast of this event a few comments were most troubling. They are not verbatim because I have not read the official transcript yet, so I will paraphrase:
• Speaker - Why isn't the National Association of Professional Process Servers here?
• Speaker - I am not sure that such an organization even exists.
• Speaker - Process servers should be subject to the Fair Debt Collection Practices Act (FDCPA)
• Speaker - I would like to see several things that should be define what we see as unfair deceptive practice. First the filing of a false return of service in a collection case.
• Speaker - 85 to 95% of collection cases result in defaults. The high default rate means no process is being served, we need to require servers to keep log and they should be forced to make them public.
• Speaker - I think the three biggest problems that I see, first one is one that has not been redressed by the statutes yet and that's the service of process. It is a problem that does not start with judicial supervision. It starts with the process server making a decision to do something outside the courtroom namely not serve that process on the defendant.
To be fair, process servers were not the only industry that took heat. The debt buyers, collection agencies, and collection law firms took their fair share of the focus.
The image of process servers in my opinion is at an all time low. Even in the best of times we are about as popular as the tax man. I believe the current problems are a result of a few bad apples, but you would not know that if you were reading all the bad PR. It is time that professional process servers start policing their own and get serious about addressing their image problem.
If you are interested in seeing the webcasts for yourself and reading the transcripts of the sessions, please visit http://www2.ftc.gov/bcp/workshops/debtcollectround/#090805 for all the information. You will also find information at that link on the next roundtable discussion in San Francisco, CA, next month.
Initiating Suits - Default Judgments and Service of Process.
The Panel was made up of approximately fifteen speakers ranging from Judges, Professors, Consumer Advocates, Debt Buyers and Collection Lawyers.
Over the course of an hour or so process servers took a beating. It was strongly suggested that the high default rates associated with consumer debt collection cases nationally were the result of among other things improper service of process, a complete lack of service or "sewer service".
By now, anyone that is paying attention to the challenges facing the public image of the private process serving profession has read about the situation in New York where it is alleged that a process serving agency was not properly serving collection law suits for some of the largest collection law firms in the country. Currently the New York Attorney General is investigating the practices of process serving agency in question and has suggested that as many as 100,000 default judgments may be thrown out or set aside. It is also worth noting that the AG is also focusing on the collection law firms as well and has indicated that they had a duty to oversee the process serving agency whose practices have come into question.
Needless to say, the panel was fully aware of this story and others such instances. The result was more than an hour focused on this issue. The panel discussions went on over a two day period and throughout the sessions the process serving issues continued to be raised.
Having sat through the webcast of this event a few comments were most troubling. They are not verbatim because I have not read the official transcript yet, so I will paraphrase:
• Speaker - Why isn't the National Association of Professional Process Servers here?
• Speaker - I am not sure that such an organization even exists.
• Speaker - Process servers should be subject to the Fair Debt Collection Practices Act (FDCPA)
• Speaker - I would like to see several things that should be define what we see as unfair deceptive practice. First the filing of a false return of service in a collection case.
• Speaker - 85 to 95% of collection cases result in defaults. The high default rate means no process is being served, we need to require servers to keep log and they should be forced to make them public.
• Speaker - I think the three biggest problems that I see, first one is one that has not been redressed by the statutes yet and that's the service of process. It is a problem that does not start with judicial supervision. It starts with the process server making a decision to do something outside the courtroom namely not serve that process on the defendant.
To be fair, process servers were not the only industry that took heat. The debt buyers, collection agencies, and collection law firms took their fair share of the focus.
The image of process servers in my opinion is at an all time low. Even in the best of times we are about as popular as the tax man. I believe the current problems are a result of a few bad apples, but you would not know that if you were reading all the bad PR. It is time that professional process servers start policing their own and get serious about addressing their image problem.
If you are interested in seeing the webcasts for yourself and reading the transcripts of the sessions, please visit http://www2.ftc.gov/bcp/workshops/debtcollectround/#090805 for all the information. You will also find information at that link on the next roundtable discussion in San Francisco, CA, next month.
Monday, August 24, 2009
CHANGE! - Is the Process Serving Profession doing enough to remain relevant?
Change – what is it and what does it mean?
If you Google “change” you will find dozens of definitions… for the purposes of this discussion, the change I am referring to could also be referred to as “shift” or “shift happens” or maybe even more accurately “shift is happening all around us”.
The change and shift that is happening all around us is difficult to measure as it is in constant movement and is even more difficult to stay ahead of. Whether we like it or not, change and shift does not care what we think. Change does not care what we believe; it does care if we would like things to stay the same in order to preserve the integrity of our profession. I have heard some say that the best we can do is acknowledge that the world is changing and attempt to manage how that change might affect the future of our profession. I believe we can do better; I believe we must embrace change if we hope to be successful.
Over the last five years or so, I have participated on a few panel discussions about what is happening in the courts, with a focus on how eFiling and eService and how it is effecting the process serving profession. During the first of these panel discussions five years ago I presented some information about the RIO case. That case for those of you who are not familiar with it was one of the first Appellate Court cases that allowed a Summons and Complaint to be served electronically. Since then there have been several cases that have cited RIO and that have allowed for e-service under similar circumstances. My point is what might not seem like a big deal might actually end up being the catalyst for more dramatic change or the shift in the laws and practices that effect the service of process.
Ten years ago, who would have predicted that there would be process serving agencies today that operate almost every aspect of their business electronically? No physical paper is picked up by or received by the process serving agency. Where all assignments are placed online, received online and dispatched electronically all without touching a single sheet of paper. All proofs of service, all status reports and all invoices are sent to the customers electronically. No paper at all. Yes they still need to serve a paper document. Sound far fetched? It is already happening.
Process Servers customers are eFiling in jurisdictions all over the country. In some cases those customers are not generating paper at all. They are either signing the electronic document digitally or not at all…
My point is the adoption of technology is effecting how law firms interact with the courts, opposing counsel, their customers and their vendors. Technology is also enabling process serving companies some of the same advantages. One might argue that a logical extension of the use of technology is that electronic service of process might become more and more prevalent. Mind you it has not become common; it is the exception rather than the rule. But make no mistake, that change is coming. I am not suggesting process servers role over and let change happen to them. On the contrary I am pointing out that process servers have the power to decide if we want to be part of the solution and effect change that helps protect the integrity of the profession. I am suggesting that process servers must protect a key element of due process by insisting that no matter what change or shift happens the concept of a disinterested third party that can attest to the facts related to the service of process is vital and necessary to insure that parties’ rights are protected and preserved.
If you doubt for a moment that the private process serving profession will not face the threat of process being served electronically on a scale that we may not be able to imagine, I invite you visit the following link to a video clip and then ask yourself if it is possible. http://www.youtube.com/watch?v=jpEnFwiqdx8
I believe that process servers will see this threat realized other countries first, like India, China, Great Britain, South Africa, Australia and New Zealand. It has already happened in New Zealand and Australia earlier this year. In both countries, courts have allowed instances of service of process electronically to a defendant’s Facebook account.
On the home front all it would take to get the ball rolling is an amendment to Rule 4 of the Federal Rules of Civil Procedure. Such an amendment has been suggested by some that believe it is a simple as adding the following language to Rule 4(e) (3).
The following section was reprinted from an article written by Jeremy Colby, Esq a partner at the New York firm Webster Szanyi LLP in 2006:
By adding the following language to Rule 4(e) (3)
"by delivering a copy of the summons and of the complaint to the individual via
electronic means such as electronic mail or facsimile where directed by the court.”
That coupled with a corresponding amendment to Rule 4(h) (1) as follows:
“in a judicial district of the United States in the manner prescribed for individuals by subdivisions (e) (1) or (e) (3), or by delivering a copy of the summons and complaint . . . .”
Amending Rule 4(e) and Rule 4(h)(1) in this manner would permit e-SOP upon individuals and corporate entities inside the United States in the same manner that is currently allowed under Rule 4(f)(3) for service outside the United States and for actions pending in the federal courts.
Such an amendment could lead to a disruption to the traditional manners of effecting service of process not just in the federal courts but in the state courts that follow the federal rules.
Mr. Colby’s article is the most comprehensive I have seen on the topic of electronic service of process and is a must read if you want to understand the history of electronic service of process and want to have a glimpse of what the future might hold if the profession does not embrace change and make it work for them. If you would like a copy of his article please send me an email requesting same and I will forward it to you.
What does ALL this mean? What are process servers supposed to do? What is their vision for the future? How will they remain relevant? What can NAPPS or other professional process serving organizations do to protect, promote and preserve the private process serving profession?
I challenge you to start asking yourself, the NAPPS leadership and the leadership of your state association these important questions. Together through a collaborative effort utilizing the collective skills and resources I believe process servers can start to formulate a thoughtful and proactive approach to address these challenges. I believe in order to effect change you must EMBRACE CHANGE.
If you Google “change” you will find dozens of definitions… for the purposes of this discussion, the change I am referring to could also be referred to as “shift” or “shift happens” or maybe even more accurately “shift is happening all around us”.
The change and shift that is happening all around us is difficult to measure as it is in constant movement and is even more difficult to stay ahead of. Whether we like it or not, change and shift does not care what we think. Change does not care what we believe; it does care if we would like things to stay the same in order to preserve the integrity of our profession. I have heard some say that the best we can do is acknowledge that the world is changing and attempt to manage how that change might affect the future of our profession. I believe we can do better; I believe we must embrace change if we hope to be successful.
Over the last five years or so, I have participated on a few panel discussions about what is happening in the courts, with a focus on how eFiling and eService and how it is effecting the process serving profession. During the first of these panel discussions five years ago I presented some information about the RIO case. That case for those of you who are not familiar with it was one of the first Appellate Court cases that allowed a Summons and Complaint to be served electronically. Since then there have been several cases that have cited RIO and that have allowed for e-service under similar circumstances. My point is what might not seem like a big deal might actually end up being the catalyst for more dramatic change or the shift in the laws and practices that effect the service of process.
Ten years ago, who would have predicted that there would be process serving agencies today that operate almost every aspect of their business electronically? No physical paper is picked up by or received by the process serving agency. Where all assignments are placed online, received online and dispatched electronically all without touching a single sheet of paper. All proofs of service, all status reports and all invoices are sent to the customers electronically. No paper at all. Yes they still need to serve a paper document. Sound far fetched? It is already happening.
Process Servers customers are eFiling in jurisdictions all over the country. In some cases those customers are not generating paper at all. They are either signing the electronic document digitally or not at all…
My point is the adoption of technology is effecting how law firms interact with the courts, opposing counsel, their customers and their vendors. Technology is also enabling process serving companies some of the same advantages. One might argue that a logical extension of the use of technology is that electronic service of process might become more and more prevalent. Mind you it has not become common; it is the exception rather than the rule. But make no mistake, that change is coming. I am not suggesting process servers role over and let change happen to them. On the contrary I am pointing out that process servers have the power to decide if we want to be part of the solution and effect change that helps protect the integrity of the profession. I am suggesting that process servers must protect a key element of due process by insisting that no matter what change or shift happens the concept of a disinterested third party that can attest to the facts related to the service of process is vital and necessary to insure that parties’ rights are protected and preserved.
If you doubt for a moment that the private process serving profession will not face the threat of process being served electronically on a scale that we may not be able to imagine, I invite you visit the following link to a video clip and then ask yourself if it is possible. http://www.youtube.com/watch?v=jpEnFwiqdx8
I believe that process servers will see this threat realized other countries first, like India, China, Great Britain, South Africa, Australia and New Zealand. It has already happened in New Zealand and Australia earlier this year. In both countries, courts have allowed instances of service of process electronically to a defendant’s Facebook account.
On the home front all it would take to get the ball rolling is an amendment to Rule 4 of the Federal Rules of Civil Procedure. Such an amendment has been suggested by some that believe it is a simple as adding the following language to Rule 4(e) (3).
The following section was reprinted from an article written by Jeremy Colby, Esq a partner at the New York firm Webster Szanyi LLP in 2006:
By adding the following language to Rule 4(e) (3)
"by delivering a copy of the summons and of the complaint to the individual via
electronic means such as electronic mail or facsimile where directed by the court.”
That coupled with a corresponding amendment to Rule 4(h) (1) as follows:
“in a judicial district of the United States in the manner prescribed for individuals by subdivisions (e) (1) or (e) (3), or by delivering a copy of the summons and complaint . . . .”
Amending Rule 4(e) and Rule 4(h)(1) in this manner would permit e-SOP upon individuals and corporate entities inside the United States in the same manner that is currently allowed under Rule 4(f)(3) for service outside the United States and for actions pending in the federal courts.
Such an amendment could lead to a disruption to the traditional manners of effecting service of process not just in the federal courts but in the state courts that follow the federal rules.
Mr. Colby’s article is the most comprehensive I have seen on the topic of electronic service of process and is a must read if you want to understand the history of electronic service of process and want to have a glimpse of what the future might hold if the profession does not embrace change and make it work for them. If you would like a copy of his article please send me an email requesting same and I will forward it to you.
What does ALL this mean? What are process servers supposed to do? What is their vision for the future? How will they remain relevant? What can NAPPS or other professional process serving organizations do to protect, promote and preserve the private process serving profession?
I challenge you to start asking yourself, the NAPPS leadership and the leadership of your state association these important questions. Together through a collaborative effort utilizing the collective skills and resources I believe process servers can start to formulate a thoughtful and proactive approach to address these challenges. I believe in order to effect change you must EMBRACE CHANGE.
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