Phone on Fire? Serve Samsung the right way.
They literally catch fire. Literally. Not in a “using the word ‘literally’ to make a hyperbolic argument sound stronger than it is” sense. The things emit flame, without warning and seemingly without reason. The Samsung Galaxy Note 7 has become the new poster-child for defective products. As if designed by Irwin Mainway himself (he of Johnny Space Commander fame). See The Guardian’s latest (as of this writing, October 19, 2016) story here. And USA Today’s bit about the Note 7 flight ban. And the NYT’s take on how the thing plays out in China. The company has rolled out a worldwide recall of the entire Note 7 line, but that doesn’t help the thousands of buyers whose handsets have already injured them.
Lawsuits have already begun, but Samsung is a highly sophisticated defendant. If the company is not properly served—at its headquarters—then a suit has zero chance of progressing past the complaint stage. Yet Service of process in Korea is not as daunting as it might seem. It does require accuracy in drafting and, despite the obvious competence of this particular defendant in English, translation into Korean is required. [Help is available to the practitioner who does not wish to spend ten hours getting up to speed on the procedure.]
The Republic of Korea (ROK) is party to the Hague Service Convention, the strictures of which are mandatory in U.S. and Canadian law (the Note 7 catches fire in Canada too). While the text of the treaty itself sets forth several methods for service of process, only one method is acceptable to all countries who have enacted the agreement. Article 5 service entails a request to a Central Authority in the “destination state”, and is available universally.* Article 10 sets out additional methods of service, provided that (1) the method used is acceptable under forum court rules, and (2) the destination state does not object.
In the case of Korea, alternatives are off the table completely. Yes, FRCP 4(f)(2)(C)(ii) allows service by mail. Many states likewise allow service by mail—some judges even require it regardless of Hague status. Usual practice in common law jurisdictions calls for service by private agent.
But the Korean declarations to the Convention are explicit—the ROK objects to Article 10 entirely. Mail is off the table for foreign litigants, and private process servers don’t even exist in civil law countries.
So you intend to sue Samsung because a Note 7 spontaneously combusted in your client’s hand? Serve Samsung properly. [And also be sure to go after the source manufacturer of the batteries… they might be somewhere else entirely.]
*Note that Russia is an outlier in this analysis… see here for more detail.