Request for Rule 4(f)(3) Order

Summary

Plaintiff Children's Health Defense's reply in support of its request for substituted service of foreign defendant Science Feedback under Rule 4(f)(3), in Children's Health Defense v. Facebook, Inc., et al., Case No. 3:20-cv-05787-SI, U.S. District Court for the Northern District of California, Document 45, filed October 1, 2020. The overview states that the one live issue is the request for a Rule 4(f)(3) order for substituted electronic service of Science Feedback, a French organization, through Facebook's agent, WilmerHale. The reply states that Facebook opposed the request on due-process grounds, and that plaintiff paid ASAP Legal, Inc. $1,685.63 for international service, translation and reconfiguration fees. It asks the court to order immediate substitute electronic service.

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PLAINTIFF’S REPLY IN SUPPORT OF
REQUEST FOR RULE 4(f)(3) ORDER
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
ROGER I. TEICH
California State Bar No. 147076
290 Nevada Street
San Francisco, CA 94110
Telephone:  (415) 948-0045
E-Mail Address:  rteich@juno.com

ROBERT F. KENNEDY, JR.
MARY HOLLAND
Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
Telephone:  (917) 743-3868
E-Mail Address:  mary.holland@childrenshealthdefense.org

Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

CHILDREN’S HEALTH DEFENSE,

Plaintiff,

v.

FACEBOOK, INC., et al., ,

Defendants.
Case No. 20-cv-05787-SI

PLAINTIFF’S REPLY IN SUPPORT OF
REQUEST FOR SUBSTITUTED
SERVICE OF FOREIGN DEFENDANT
SCIENCE FEEDBACK; REPLY
DECLARATIONS OF GOOLAM
MONSOOR AND ROGER TEICH AND
EXHIBIT “A” THERETO

Fed. R. Civ. P. 4(f)(3)

Case 3:20-cv-05787-SI   Document 45   Filed 10/01/20   Page 1 of 16

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PLAINTIFF’S REPLY IN SUPPORT OF
REQUEST FOR RULE 4(f)(3) ORDER
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
i
TABLE OF CONTENTS
Page #
TABLE OF AUTHORITIES .................................................................................................................... ii
PLAINTIFF’S REPLY IN SUPPORT OF REQUEST FOR SUBSTITUTED SERVICE OF
FOREIGN DEFENDANT SCIENCE FEEDBACK; REPLY DECLARATIONS OF GOOLAM
MONSOOR AND ROGER TEICH AND EXHIBIT “A” THERETO .................................................... 1
I.  OVERVIEW ............................................................................................................................. 1
II. SUPPLEMENTAL FACTS ..................................................................................................... 2
A.
Facebook’s Opposition. ...............................................................................3
B.
Plaintiff’s Efforts to Serve Science Feedback. ............................................4
C.
Plaintiff’s Exigent Need to Effect Service on Science Feedback. ..............6
D.
Facebook’s “Partnership” with Science Feedback. .....................................7
E.
Allegations of the Complaint Concerning Facebook’s Extensive
Coordination with Science Feedback in Acts of Censorship and
Fraudulent Misrepresentation. .....................................................................8
III. LEGAL STANDARDS .......................................................................................................... 9
IV. DISCUSSION ....................................................................................................................... 10
V. CONCLUSION ...................................................................................................................... 11

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PLAINTIFF’S REPLY IN SUPPORT OF
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CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
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TABLE OF AUTHORITIES
Federal Cases
Comm’r of Internal Revenue v. Banks,
543 U.S. 426 (2005) .............................................................................................................. 10
Coy v. Lilith Games (Shanghai) Co.,
2020 U.S. Dist. LEXIS 164665 (N.D. Cal. September 9, 2020) .............................. 3, 4, 6, 10
Elrod v. Burns,
427 U.S. 347 (1976) ................................................................................................................ 6
Facebook, Inc. v. Banana Ads, LLC,
2012 U.S. Dist. LEXIS 42160 (N.D. Cal. 2012) .................................................................. 11
Glenn K. Jackson, Inc. v. Roe,
273 F.3d 1192 (9th Cir. 2001) ................................................................................................ 2
Klein v. City of San Clemente,
584 F.3d 1196 (9th Cir. 2009) ................................................................................................ 6
Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc.,
2008 U.S. Dist. LEXIS 116789 (N.D. Cal. 2008) .................................................................. 3
Mullane v. Central Hanover Bank & Trust, Co.,
339 U.S. 306 (1950) ...................................................................................................... 3, 4, 10
Oracle Corp. v. Druglogic, Inc.,
2012 U.S. Dist. LEXIS 83506 (N.D. Cal. 2012) .................................................................... 3
Richmond Techs., Inc. v. Aumtech Bus. Solutions,
2011 U.S. Dist. LEXIS 71269 (N.D. Cal. 2011) ................................................................ 6, 9
Rio Props., Inc. v. Rio Int’l Interlink,
284 F.3d 1007 (9th Cir. 2002) ................................................................................ 6, 9, 10, 11
SCC Alameda Point LLC v. City of Alameda,
897 F. Supp. 2d 886 (N.D. Cal. 2012) .................................................................................... 3
Volkswagenwerk Aktiengesellschaft v. Schlunk,
486 U.S. 694 (1988) ................................................................................................................ 4
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PLAINTIFF’S REPLY IN SUPPORT OF
REQUEST FOR RULE 4(f)(3) ORDER
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
iii
United States Constitution
First Amendment ..................................................................................................................... 6
Federal Rules of Civil Procedure
Rule 4 ...................................................................................................................................... 1
Rule 4(f) .................................................................................................................................. 9
Rule 4(f)(1) ................................................................................................................... 4, 9, 10
Rule 4(f)(2) ........................................................................................................................... 10
Rule 4(f)(2)(C)(i) .................................................................................................................... 9
Rule 4(f)(3) ........................................................................................................... 1, 2, 6, 9, 10
Rule 4(h)(2) ....................................................................................................................... 9, 10
Rule 16 .................................................................................................................................... 1
Miscellaneous Authorities
Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil
and Commercial Matters, Nov. 15, 1965 (“Hague Convention”),
20 U.S.T. 361, Art. 10 ............................................................................................................. 4
Emily Atkin, Facebook creates fact-checking exemption for climate deniers,
https://heated.world/p/facebook-creates-fact-checking-exemption ........................................ 9
Facebook revised Terms of Service
§ 3.2 ......................................................................................................................................... 2
French Code of Civil Procedure
Article 688-6 ........................................................................................................................... 5
Model Rules of Prof’l Conduct
Rule 1.2(a) ............................................................................................................................. 11
Restatement (Third) of Agency
§ 1.01 (Am. Law Inst. 2006) ................................................................................................. 11
Science Feedback
https://sciencefeedback.co/ ..................................................................................................... 4
https://sciencefeedback.co/about/ ........................................................................................... 7
https://sciencefeedback.co/partners-funders-donors/ .............................................................. 7

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PLAINTIFF’S REPLY IN SUPPORT OF
REQUEST FOR RULE 4(f)(3) ORDER
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
1
ROGER I. TEICH
California State Bar No. 147076
290 Nevada Street
San Francisco, CA 94110
Telephone:  (415) 948-0045
E-Mail Address:  rteich@juno.com

ROBERT F. KENNEDY, JR.
MARY HOLLAND
Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
Telephone:  (917) 743-3868
E-Mail Address:  mary.holland@childrenshealthdefense.org

Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

CHILDREN’S HEALTH DEFENSE,

Plaintiff,

v.

FACEBOOK, INC., et al., ,

Defendants.
Case No. 20-cv-05787-SI

PLAINTIFF’S REPLY IN SUPPORT OF
REQUEST FOR SUBSTITUTED
SERVICE OF FOREIGN DEFENDANT
SCIENCE FEEDBACK; REPLY
DECLARATIONS OF GOOLAM
MONSOOR AND ROGER TEICH AND
EXHIBIT “A” THERETO

Fed. R. Civ. P. 4(f)(3)

I.
OVERVIEW
Plaintiff Children’s Health Defense (“CHD”) moved for Fed. R. Civ. P. (“Rule”) 4
orders for substituted service of defendant Mark Zuckerberg and foreign defendant Science
Feedback, and Rule 16 scheduling and meet and confer orders. (Dkt. #28.) Following the filing
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PLAINTIFF’S REPLY IN SUPPORT OF
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CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
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of the motion, this Court issued a stipulated scheduling order (Dkt. #29),1 and WilmerHale,
counsel for Facebook /Zuckerberg, agreed to accept service on his behalf. (Dkt. #35.) While
the Guidelines for Professional Practice in this District encourage “good faith efforts” of
counsel to resolve or informally limit issues, plaintiff can find no other authority to compel
Facebook at this time to meet and confer on related issues of its ESI-retention protocols and a
standstill with respect to its revised Terms of Service § 3.2 prior to its effective date.2 Thus, the
one “live” issue still before the Court is Plaintiff’s request for a Rule 4(f)(3) order for
substituted electronic service of Science Feedback, a French organization, through Facebook’s
agent, WilmerHale, (see Dkt. #28 at 6-7), on the grounds that this alternative method of service
both comports with due process requirements, and meets the facts and exigencies of the case,
including but not limited to current COVID-19 conditions.

II.
SUPPLEMENTAL FACTS
As a threshold matter, this Court may, in its discretion, consider new facts or different
legal arguments in the reply brief than those that were presented in the moving papers. Glenn
K. Jackson, Inc. v. Roe, 273 F.3d 1192, 1202 (9th Cir. 2001) (quotation omitted). As discussed
infra, Facebook denies having an ongoing relationship with Science Feedback of a sort which
makes substituted service “reasonably calculated” to apprise Science Feedback of the
pendency of the action. (Dkt. #43 at 2-3.) Plaintiff’s supplemental factual submission is offered

1
Plaintiff’s objection was to factual omissions in opposing counsel’s declaration relating
to Plaintiff’s “good cause” and other conditions precedent to the stipulation, see Dkt. #24-1,
¶¶ 4-5, not to the briefing schedule itself.
2
Thus, while Plaintiff’s request for a court-ordered meet and confer may not be ripe,
neither is it “moot, meritless, or made-up” nor “with no apparent relevance to this litigation,”
as Defendants suggest. (Opp. at 1, 2.) In any event, on September 30, 2020, Facebook’s lead
counsel responded by letter in terms which, while not agreeing to, or even proposing any date,
suggest that she is at least willing to discuss these matters by phone. (See Dkt. #43-11 at 11-
14.)
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PLAINTIFF’S REPLY IN SUPPORT OF
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CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
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to rebut Facebook’s assertion as well as to apprise the Court of Plaintiff’s ongoing efforts to
serve Science Feedback by conventional means. Consideration of this evidence is proper for
both purposes, and the Court should exercise its discretion to so consider it. See, e.g., Coy v.
Lilith Games (Shanghai) Co., 2020 U.S. Dist. LEXIS 164665, *4 (N.D. Cal. September 9,
2020) (considering a “supplemental submission” by plaintiff which showed that the attempted
service under the Hague Convention was not successful); SCC Alameda Point LLC v. City of
Alameda, 897 F. Supp. 2d 886, 898 n.5 (N.D. Cal. 2012) (denying objection to reply evidence
offered to show that defendant’s opposition evidence lacked personal knowledge or was
incomplete); Oracle Corp. v. Druglogic, Inc., 2012 U.S. Dist. LEXIS 83506, *15 (N.D. Cal.
2012) (denying objection to reply evidence offered in direct response to factual assertions
made in opposition papers, where objector was also given opportunity to address the new
evidence at the hearing); Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., 2008 U.S.
Dist. LEXIS 116789, *2 n.1 (N.D. Cal. 2008) (same).
A.
Facebook’s Opposition.
Facebook opposes Plaintiff’s request in one paragraph, the gist of which is that:
[S]uch service would violate well-established due-process
principles because it would not be “reasonably calculated, under all
the circumstances, to apprise [Science Feedback] of the pendency
of the action.” Mullane v. Central Hanover Bank & Trust, Co., 339
U.S. 306, 314 (1950). Science Feedback has no corporate
relationship to Facebook. It is nothing more than an independent
contractor; the Complaint alleges only that Facebook engaged
Science Feedback as a fact-checker, and that Facebook
compensates Science Feedback for providing fact-checking
services, Compl. ¶¶ 20, 86, 119, 122; and counsel for Facebook has
no independent relationship with Science Feedback, Holtzblatt
Decl. ¶ 17; Mehta Decl. ¶ 4. None of these facts establish that
service on Facebook would be “reasonably calculated” to apprise
Science Feedback of the pendency of the action.

(Dkt. #43 at 2-3.) The ‘due process’ requirement is not in dispute, but Facebook is incorrect
that electronic service of Facebook through its agent WilmerHale would not be “reasonably
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PLAINTIFF’S REPLY IN SUPPORT OF
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CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
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calculated, under all the circumstances, to apprise [Science Feedback] of the pendency of the
action.” Mullane v. Central Hanover Bank & Trust, Co., 339 U.S. at 314.
The rub here is Facebook’s ipse dixit that “Science Feedback has no corporate
relationship to Facebook. It is nothing more than an independent contractor[,]” a proposition
for which Facebook offers no evidentiary support of its own, but instead selectively cites the
allegations of the verified complaint. As explained infra, the full factual details set forth in the
complaint as well as the supplemental evidence submitted with this reply demonstrate an
ongoing “partnership” — a set of coordinated actions with common purposes — between
Facebook and Science Feedback. In addition, Science Feedback has already received actual
notice of the summons and complaint, a factor which should weigh heavily, particularly given
COVID-19 constraints on effecting service by conventional means.
B.
Plaintiff’s Efforts to Serve Science Feedback.
Science Feedback is located in France, which is a signatory to the Hague Convention
referenced in Rule 4(f)(1). The Hague Convention requires signatory countries to establish a
Central Authority to receive requests for service of documents from other countries and to
serve those documents by methods compatible with the internal laws of the receiving state. See
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 698-99 (1988). Service through
a country’s Central Authority is the principal means of service under the Hague Convention.
Article 10 of Convention also permits other forms of service, such as service “by postal
channels,” through judicial officers, or other competent process servers of the state of
destination.” See Convention on Service Abroad of Judicial and Extrajudicial Documents in
Civil and Commercial Matters, Nov. 15, 1965 (“Hague Convention”), 20 U.S.T. 361, Art. 10.
Plaintiff is reliably informed and thereupon believes that service through the French central
authority would cost $1,000, and could take two to three months (if not even more time under
current conditions), which would seriously delay proceedings in this case. (Teich Dec. ¶ 2.)
As in the recent case of Coy v. Lilith Games (Shanghai) Co., 2020 U.S. Dist. LEXIS
164665, discussed infra, Plaintiff has expended significant amounts of time and effort to serve
Science Feedback by conventional means. As in Coy, Science Feedback’s website –
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PLAINTIFF’S REPLY IN SUPPORT OF
REQUEST FOR RULE 4(f)(3) ORDER
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
5
https://sciencefeedback.co/ – does not list any physical address, email address, or agent for
receiving process; indeed, Plaintiff has already submitted two summonses to the Court with
alternative addresses (Dkts. ## 7, 13), neither of which proved availing. (Teich Dec., ¶ 3.) On
or about August 19, 2020, Plaintiff retained ASAP Legal, Inc. to effect “rush service attempts”
of Science Feedback through its Paris affiliate, Nationwide Legal Services, pursuant to the
Hague Service Convention, paid ASAP Legal, Inc. $1,685.63 for international service,
translation and reconfiguration fees, and agreed to pay another $250 to $350 for postal service,
which was intiated by ASAP Legal Services via DHL express shipment on or about September
28, 2020. (Teich Dec., ¶ 4; Exh. “A”.)  Plaintiff is informed and thereupon believes that postal
service requires the signed return receipt of the recipient under French law, and therefore is
unlikely to be effective with Mr. Vincent. (Id.) Plaintiff also spent $430, and multiple hours in
largely-volunteered time to translate the case-related documents from English into French, in
conformity with the requirements of service of process in France under the Hague Service
Convention, and French Code of Civil Procedure Article 688-6 which provides that “The
process shall be notified in the language of the originating State. Notwithstanding the above,
the addressee who does not know the language in which the process is drawn may refuse the
notification thereof and ask that it be translated or be subjoined with a translation in the French
language at the instance and at the expense of the petitioner.” (Id.)
On September 22, 2020, Mr. Goolam Monsoor, a private process server employed by
Nationwide Legal in Paris, France, attempted to serve the English and French documents at the
Science Feedback organization address he had on file, at 16 rue Cécile Furtado Heine, 75014
Paris, France. There he was informed that Science Feedback and Mr. Emmanuel Vincent, its
founder and president, had recently relocated himself as well as the organization. Mr. Monsoor
found Mr. Vincent’s mobile phone on the internet, called Mr. Vincent at that number, and
made an appointment to meet with him at a different location, 7 rue de Tocqueville 75017
Paris, France.
When they met later that day (September 22, 2020), Mr. Vincent refused to sign the
waiver of process form. When he was shown the package of service documents, Mr. Vincent
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PLAINTIFF’S REPLY IN SUPPORT OF
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CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
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told Mr. Monsoor that he “had already received those documents by mail” at a third address,
65 Avenue Philippe Auguste, 75011 Paris, France. On August 17, 2020, plaintiff had mailed
the summons and complaint and other case-related documents by prepaid U.S. mail to Science
Feedback at 40 rue Alexandre Dumas, 75011, Paris France 11. (Dkt. #4.) Presumably (though
not definitively), these documents were forwarded to the 65 Avenue Phillippe Auguste address,
where Mr. Vincent received actual notice of the lawsuit. Mr. Vincent refused to sign for any
documents from Mr. Monsoor, but authorized Mr. Monsoor to photograph the documents on
his landing, and also signed a writing indicating that “J’ai bien reçu les documents de la part de
Monsieur Monsoor,” which translates as “I received documents from Mr. Monsoor.” (Monsoor
Dec., ¶¶ 1-8; see also Dkt. #44 (proof of service).) As in Coy, “[a]ll of this establishes that ‘the
district court's intervention’ on the issue of service is appropriate in this case. The question is
what method of alternate service to order.” Coy, 2020 U.S. Dist. LEXIS 164665, at **5-6
(quoting Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002)).
C.
Plaintiff’s Exigent Need to Effect Service on Science Feedback.
The Advisory Committee Notes to Rule 4(f)(3) indicate that it is appropriately used “in
cases of urgency if conventional methods will not permit service within the time required by
the circumstances.” In Richmond Techs., Inc. v. Aumtech Bus. Solutions, 2011 U.S. Dist.
LEXIS 71269, *44 (N.D. Cal. 2011), Judge Koh credited plaintiff’s representation that it could
not accomplish timely service through the foreign state’s central authority and that it had need
to serve the foreign defendant with “greater urgency than the Hague Convention can
accommodate.” Here, the Court has issued an order for briefing on the other four U.S.
defendants’ response to the Complaint such that their responses are due October 23, 2020.
(Dkt. #29.) Plaintiff alleges violations of its First Amendment rights, the loss of which “for
even minimal periods of time, unquestionably constitutes irreparable injury.” Klein v. City of
San Clemente, 584 F.3d 1196, 1207-08 (9th Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 347,
3737 (1976)). Plaintiff intends to seek expedited discovery, yet Facebook’s counsel has opined
that discovery is “premature” in part because the foreign defendant has not yet been served.
(Teich Dec., ¶ 5.) Additionally, Mr. Vincent and Science Feedback have already received
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PLAINTIFF’S REPLY IN SUPPORT OF
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CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
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actual notice of the action, (presumably) by forwarded receipt of plaintiff’s mailed service
documents (Dkt. #4), and Mr. Vincent as Founder and President of Science Feedback has also
been personally served by a conventional attempt on a date (September 22, 2020) which, if
effective, puts it on track to respond to the complaint along with the other four U.S. defendants.
(Monsoor Dec., ¶¶ 1, 2, 4-10.)
D.
Facebook’s “Partnership” with Science Feedback.
Significantly, for purposes of this motion, Science Feedback itself professes to be in
“partnership” with Facebook in an active and ongoing relationship, and the complaint
describes a pattern and practice of extensive coordination between these two entities with
respect to much of the censorship and fraud scheme at issue in this action.
On its website, https://sciencefeedback.co/about/, Science Feedback describes itself as
“a non-profit organization registered in France whose mission is defined in its status as to
improve the credibility of science-related information online, in the media and on social
media.” Under “Partners, Funders & Donors,” the website states that “Science Feedback is
partnering with Facebook to verify the credibility of viral content as part of the third-party fact-
checking initiative.” https://sciencefeedback.co/partners-funders-donors/ (emphasis added).
Thus, Facebook is listed first and most prominently above a handful of other, more obscure
“institutions that account for at least 5% of Science Feedback resources since 2015.” Id.
(emphasis added).  To be sure, neither Facebook nor Science Feedback makes public
disclosure of the amount of Facebook’s support, or the percentage of Science Feedback’s
“resources” for which Facebook’s donation accounts beyond that it is “at least 5%,” but it is
reasonable to infer that Facebook’s donation is more than – and separate from – its payment for
specific “fact-checker” services.  Facebook’s factually-unsupported assertion that Science
Feedback is “nothing more than an independent contractor” (Dkt. #43 at 2-3) does not square
with Science Feedback’s description of their relationship.
///
///
///
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PLAINTIFF’S REPLY IN SUPPORT OF
REQUEST FOR RULE 4(f)(3) ORDER
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
8
E.
Allegations of the Complaint Concerning Facebook’s Extensive
Coordination with Science Feedback in Acts of Censorship and Fraudulent
Misrepresentation.
In its complaint, Plaintiff specifically alleges that “Defendant Science Feedback is a
French non-profit organization to which Facebook donates, and which Facebook has
specifically engaged as a “fact-checker” to flag selected content on CHD’s Facebook page as
“false information,” insert oppositional articles in its place on CHD’s page, and divert users
from CHD’s own content on that false basis.” (Dkt. #1, ¶ 20.) Plaintiff alleges that Facebook
and Science Feedback, inter alia, engaged in a scheme to defraud CHD by, among other
conduct, multiple acts of misrepresentation of fact to third parties. (Id., ¶¶ 53, 69-88, 94-99,
119-123.) Plaintiff specifically alleges that “Facebook has also misrepresented as fact to all
third-party users that Facebook relied upon an ‘independent fact-checker,’ when the criteria
that Science Feedback has actually applied is neither neutral, reliable, nor up-to-date, nor for
that matter is Science Feedback ‘independent’ of its contractual payor.” (Id., ¶ 86.) Plaintiff
further alleges that Facebook “contracted with Science Feedback, a French organization which
Facebook funds, to ‘fact-check’ CHD’s content, and directed Science Feedback to deploy
Facebook’s circular WHO and CDC definitions of ‘vaccine misinformation.’ Science
Feedback is wholly dependent upon Facebook, both financially and editorially. On information
and belief, neither Facebook nor Science Feedback makes any genuinely independent effort to
check the veracity of the censored or labeled CHD content. Instead, Facebook created a
classification system that provides Science Feedback with a limited set of nine pre-populated
classifications to apply to a posting.” (Id., ¶¶ 119-120.)
Finally, plaintiff alleges that “Science Feedback fact-checkers have an obvious
incentive to categorize a post as “False” rather than an accurate but less damaging
classification of “Opinion,” because that is the only way Facebook will insert the clear warning
with a prominent link to Science Feedback’s oppositional article. Facebook deceives its users
by materially misrepresenting that its “fact-checkers” are “independent,” contractually or
editorially. Significantly, the arrangement also permits Facebook and Science Feedback to
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CHD v. Facebook et al.; Case No. 3:20-cv-05787-SK
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create categorical exemptions from “fact-checking” where it suits Zuckerberg’s political or
other biases, e.g., the “opinion” exemption for climate science deniers. Emily Atkin, Facebook
creates fact-checking exemption for climate deniers, supra,
https://heated.world/p/facebook-creates-fact-checking-exemption.” (Dkt. #1, ¶ 122.)
Defendants’ opposition ignores these specific allegations of Facebook’s financial
donations to and editorial control of Science Feedback. Instead, Facebook suggests that “the
Complaint alleges only that Facebook engaged Science Feedback as a fact-checker, and that
Facebook compensates Science Feedback for providing fact-checking services,” citing only
portions of the complaint at ¶¶ 20, 86, 119, 122. (Dkt. #43 at 3.) The Court can look beyond
that disingenuous assertion, and examine the full factual allegations of the Complaint, as well
as the other facts and circumstances suggesting that Science Feedback has already received
actual notice of the lawsuit, but conventional means of service may not suffice.

III.
LEGAL STANDARDS
Rule 4(h)(2) provides for service of corporations in a foreign country “in any manner
prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).”
Rule 4(f), in turn, provides several means by which a plaintiff may serve an individual “at a
place not within any judicial district of the United States.” Pursuant to Rule 4(f)(1), an
individual or corporation may be served in a foreign country “by an internationally agreed
means of service that is reasonably calculated to give notice, such as those authorized by the
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.” Rule
4(f)(3) further provides for service “by any other means not prohibited by international
agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). Under the Ninth Circuit’s analysis in
Rio Props., Inc., 284 F.3d at 1014, Rule 4(f)(3) is “neither a ‘last resort’ nor ‘extraordinary
relief.’ It is merely one means among several which enables service of process on an
international defendant.” Richmond Techs., Inc., 2011 U.S. Dist. LEXIS 71269, *39 (citing
Rio Props., Inc., 284 F.3d at 1014-15).
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In Coy, Judge Donato recently set forth the applicable legal standard and evidentiary
burden as follows:
Under Federal Rules of Civil Procedure 4(h)(2) and 4(f)(3), a
foreign business entity may be served in any manner directed by
the Court that is not  prohibited by international agreement. See Rio
Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1014 (9th Cir.
2002). “Court-directed service under Rule 4(f)(3) is as favored as
service available under Rule 4(f)(1) or Rule 4(f)(2),” and it is in the
district court’s “sound discretion” to “determin[e] when the
particularities and necessities of a given case require alternate
service of process under Rule 4(f)(3).” Id. at 1015-16. A wide
variety of alternatives may be ordered under Rule 4(f)(3), but to
comport with due process, “the method of service crafted by the
district court must be ‘reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.’”
Id. at 1016 (citation omitted).

Coy, 2020 U.S. Dist. LEXIS 164665, *2.

IV.
DISCUSSION
This Court can be confident that service upon Facebook through WilmerHale is
reasonably calculated to apprise the French defendant of the pendency of the action and afford
it an opportunity to present its objections, and accords with the requirements of due process.
Facebook may be correct that Science Feedback has no formal “corporate relationship”
to Facebook, in that Science Feedback is not owned by Facebook. But that is not the standard.
Rather, due process requires only that service on Facebook through its agent WilmerHale will
be “reasonably calculated, under all the circumstances, to apprise [Science Feedback] of the
pendency of the action.”3 Mullane, 339 U.S. at 314. Under these circumstances, substituted

3
A lawyer must act as the client’s agent. See Comm’r of Internal Revenue v. Banks, 543
U.S. 426, 436 (2005) (describing the attorney-client relationship as “a quintessential principal-

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electronic service on Facebook meets that test. See, e.g., Facebook, Inc. v. Banana Ads, LLC,
2012 U.S. Dist. LEXIS 42160, *7 (N.D. Cal. 2012) (Hague Service Convention does not
expressly prohibit email service).
Thus, it does not matter that Facebook’s counsel, WilmerHale, or its staff in this case
“has no independent relationship with Science Feedback, Holtzblatt Decl. ¶ 17; Mehta Decl.
¶ 4.” (Dkt. #43 at 3.) The relevant factual basis for substituted service here is that Facebook
itself has a relationship with Science Feedback which warrants substitute service through
Facebook’s attorney-agent, and that Plaintiff lacks alternate conventional means to accomplish
timely service. Rio Props., Inc., 284 F.3d at 1016.

V.
CONCLUSION
Plaintiff has expended considerable effort to serve Science Feedback in order to align its
response date with the four U.S. defendants, and move the case on an expedited schedule
commensurate with its stakes. Facebook opposes the motion, but has not presented any
colorable evidence to contradict Plaintiff’s detailed allegations that Facebook underwrites and
supervises Science Feedback in connection with the events at issue in this case. The Court
should also consider these collaborative facts offered in rebuttal to Facebook’s opposition:
(1) Science Feedback’s website statement that it receives donations from Facebook and
“partners” with Facebook on its science-related “misinformation” campaign; and
(2) Mr. Vincent’s statement that he had already received the case-related documents by mail
and that, while he refused to sign for them, he acknowleged personal receipt of those same

agent relationship”). Agency “arises when one person (a ‘principal’) manifests assent to
another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the
principal’s control, and the agent manifests assent or otherwise consents so to act.”
Restatement (Third) of Agency § 1.01 (Am. Law Inst. 2006). A lawyer derives authority to act
on behalf of the client once the client has so consented, and she must carry out the client’s
wishes concerning the objectives of the representation. Model Rules of Prof’l Conduct r.
1.2(a).
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documents from plaintiff’s process server. For these reasons, Plaintiff requests the Court issue
an order for immediate substitute electronic service of Science Feedback through Facebook’s
attorney-agent WilmerHale.
Dated:   October 1, 2020
Respectfully submitted,

ROBERT F. KENNEDY, JR.
Founder and Chairman, Children’s Health Defense

MARY S. HOLLAND
General Counsel, Children’s Health Defense

ROGER I. TEICH

Counsel for Plaintiff
Children’s Health Defense

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