Typically, the International Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, also known as the Hague Convention, is designed to facilitate service of process and other documents, such as subpoenas, in civil and commercial disputes among private litigants. Hague Convention is an international agreement among member countries that ensures that judicial and extrajudicial documents to be served abroad are brought to the notice of the addressee with enough time. Federal Rule of Civil Procedure 4(f) requires that a foreign person or entity be served through the Hague Convention.

However, one can serve a subpoena on a foreign company through its U.S. affiliate without serving through the Hague Convention, which can be a costly and time-consuming process. For instance, in the case of Yamaha Motor v. Superior Court, California's Fourth District Court of Appeal ruled that serving a foreign corporation through a domestic subsidiary was sufficient when the domestic subsidiary had "ample regular contact" with the foreign entity, such that the domestic subsidiary "would apprise the manufacturer of service."

The U.S. Court of Appeals for the Ninth Circuit listed some factors that influenced whether service through a subsidiary domestic branch was proper in Miller v. Public Warehousing, which include the frequency and quality of contact between the parent and subsidiary company, and the benefits that the parent company derives from the subsidiary. In addition, in Volkswagenwerk Aktiengesellschaft v. Schlunk, the U.S. Supreme Court held that the Hague Service Convention does not apply when process is served on a foreign corporation by serving its domestic subsidiary. The U.S. District Court for the Southern District of New York in Kwon v. Yun applied some of the factors considered by the Supreme Court for determining whether service of process on a domestic subsidiary is proper, which include: whether foreign corporation and American subsidiary shared common members of their boards of directors, ownership interest of the parent and subsidiary, financial reliance of the subsidiary on the parent corporation, the amount of involvement of the parent corporation in the selection and assignment of the subsidiary's executive personnel, and the amount of control over the marketing and other operational policies. Evidence of the corporation's online media presence has also been deemed important in determining whether domestic service was proper. For instance, if the website reveals that the foreign and U.S. affiliate are part of a single organization, if they share the same logo and advertising emblems, and if employees list their employer as the parent corporation.

Service on a foreign company through its U.S. subsidiary depends on the state where the U.S. affiliate is located and the subsidiary's relationship with the foreign entity. States such as California, Illinois and New York have largely favorable caselaw that permits service on the U.S. affiliate without needing to go through the Hague Convention.

Other states, however, diligently follow the requirements of the Hague Convention on service of process abroad. For instance, under Florida Statutes Section 48.194(1) "service of process on persons outside the United States may be required to conform to the provisions on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters." While service of process must comply with the Hague Convention, compliance may be satisfied by simply serving the foreign entity via mail. For instance, in Portalp International SAS v. Zuloaga, a summons and complaint were sent to the international company via Federal Express. The Second District Court of Appeal ruled that service of process by mail was permitted under article 10(a) of the Hague Convention, which states that "provided that the State of destination does not object, the present convention shall not interfere with … the freedom to send judicial documents, by postal channels, directly to persons abroad." In that case, because France did not object to service of process via mail, service through Federal Express under article 10(a) was allowed. Likewise, Michigan law follows a similar line of cases where service on a U.S. subsidiary will be insufficient to reach the foreign company. For example, in Lafarge v. Altech Environmental U.S.A., the U.S. District Court for the Eastern District of Michigan held that a subsidiary's sale of equipment, standing alone, did not constitute as "transacting business" in the state, and therefore service on the corporation had to comply with the requirements of the Hague Convention.

In either case, if one prefers a more direct route of service that circumvents the Hague Convention, the ultimate test that courts will use to make the determination is whether the U.S. affiliate is a "general manager" or "agent" of the foreign company. One must be able to demonstrate that the U.S. affiliate has an agency relationship of the parent company, outside of the mere bounds of ownership. Although common ownership is a component that courts will consider, corporate online presence, joint social media accounts, similar membership and employee policies, similar rules and regulations, or other like signals will evidence an agency relationship extending beyond merely an ownership interest between the subsidiary and the foreign corporation. Whether the goal is to serve the foreign parent corporation via the subsidiary U.S. affiliate, or whether a company needs to take steps to shield itself of liability from being served through its domestic subsidiaries, keeping agency indicators in mind will ultimately pinpoint whether service through a U.S. branch will be deemed proper by a court.

Berta Gonzalez is a law clerk with Ayala Law in Miami.