By Adam J. Langino and John Han
Don’t let foreign manufactures escape liability for exporting defective products. Learn how to meet the challenges of serving companies based in China and Japan and enforcing judgments against them.
Substantial trade relationships with foreign countries have led to the import of billions of dollars of products to the United States – but one drawback arises when defective products harm U.S. consumers. In our practices, many of the foreign manufacturers we deal with are based in China and Japan. Attorneys bringing products liability suits against defendants in these countries face challenges, including how to effect service and how to enforce judgement if one is obtained. Here are some techniques to overcome these obstacles.
Service in Japan
Service of process to defendants in Japan must be made under what is commonly referred to as Hague Service Convention. Strict compliance with its terms is required. As of December 2018, Japan no longer accepts direct service on a Japanese company via mail, so your only option is to follow Article 4 of the Convention. Translate the documents you are serving into Japanese. Japan requires this under Article 5, and it makes no difference whether the defendant’s representatives understand English.
Next, fill our form USM-94, available on the U.S. Marshals Service website, which must be completed to serve convention signatories. Form USM-94 has three parts: the Request, the Certificate, and the Warning and Summary. One mistake and the form will get kicked back, so make sure you fill it out yourself. Article 7 of the convention provides that the form may be completed in English.
Here are three essential tips for filling out the Request. First, it requires the applicant’s contact information, which means, the attorney; it is not referring to the client, process service company, or anyone else. Second, the Request requires you to choose how you want the documents to be served. Select box “a,” which essentially says your documents will be “formally” served in the same manner that documents are routinely served in that country. (Parties may select formal services under Article 5(a), service “by a particular method” un Article 5(b), or delivery to the addressee if it accepts service voluntarily.) Formal service is the most conservative course to ensure a judgement entered if the defendant defaults. Finally, the Request requires the applicant’s signature; the signer must be an attorney and, again, it should be you.
The complete article can be accessed here.