U.S. prosecutors could meet Fed. R. Crim. P. 4(c)(3)(C)'s requirement to mail a criminal summons to Megaupload Ltd.'s last known address within the district court's jurisdiction by mailing a copy to any extradited Megaupload officer who happened to be an alter ego of the company, the U.S. District Court for the Eastern District of Virginia ruled Oct. 5 (United States v. Dotcom, E.D. Va., No. 1:12-cr-00003, 10/5/12).
It would be unusual indeed, the court said, for a procedural rule to permit “a foreign corporate defendant to intentionally violate the laws of this country, yet evade the jurisdiction of United States' courts by purposefully failing to establish an address here.”
The indictment alleged that the operators of Megaupload conspired to copy to its servers all copyrighted videos that appeared on third-party websites such as YouTube.com. Indeed, the grand jury was presented with internal e-mails that demonstrated that in 2006 Megaupload's founder, Kim Dotcom, thought that it was a “priority” to copy YouTube's videos.
In February, the DOJ issued a second indictment replacing the original one, and adding charges of criminal copyright infringement and wire fraud (34 PTD, 2/22/12).
Rule 4(c)(3)(C) provides for service of a criminal summons on an organization by delivering a copy to an officer or other listed representative. The rule goes on to say, “A copy must also be mailed to the organization's last known address within the district or to its principal place of business elsewhere in the United States.”
Judge Liam O'Grady said the rule does not require such an extreme result as dismissal, and that in fact no court has dismissed a case on this basis. To begin with, it said, while the mailing provision is a requirement, the clear implication is that it is not a part of perfecting service of process, which is addressed in the rule's first sentence.
And the court analogized this issue to piercing the corporate veil, where the legal distinction between a corporation and its alter ego is eliminated. “[M]ailing a copy of the summons to the address of the corporation's alter ego is, for all intents and purposes, the same as mailing the summons to the corporation itself.”
Here, the court concluded, the government may ultimately be able to mail the summons as required, and so the motion was denied without prejudice.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)