In Re Grand Jury Subpoenas ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE GRAND JURY INVESTIGATION, No. 19-10187
USAO No. 2018R01761 (Grand Jury
Subpoenas To Pat Roe), D.C. No.
3:19-xr-90017-
CRB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
OPINION
v.
DOE COMPANY,
Defendant-Appellant,
v.
PAT ROE; JOHN DOE,
Movants.
2 IN RE GRAND JURY INVESTIGATION
IN RE GRAND JURY INVESTIGATION, No. 19-10261
USAO No. 2018R01761 (Grand Jury
Subpoenas To Pat Roe), D.C. No.
3:19-xr-90017-
CRB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOE COMPANY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted November 14, 2019
San Francisco, California
Filed July 27, 2020
Before: Kim McLane Wardlaw, William A. Fletcher,
and Richard Linn,* Circuit Judges.
Opinion by Judge W. Fletcher
*
The Honorable Richard Linn, United States Circuit Judge for the
U.S. Court of Appeals for the Federal Circuit, sitting by designation.
IN RE GRAND JURY INVESTIGATION 3
SUMMARY**
Grand Jury Subpoenas
In two appeals arising from a federal grand jury
investigation into the acquisition of one company by another,
the panel (1) dismissed for lack of appellate jurisdiction the
Doe Company’s appeal seeking review of the district court’s
order enforcing Doe Company partner Pat Roe’s compliance
with a grand jury subpoena, and (2) affirmed the district
court’s orders enforcing the Doe Company’s compliance with
a grand jury subpoena and holding the Doe Company in
contempt for failure to produce the subpoenaed documents in
its possession.
Dismissing for lack of jurisdiction the Doe Company’s
interlocutory appeal from the enforcement order against Roe,
the panel clarified that under Perlman v. United States,
247 U.S. 7 (1918), this court may entertain interlocutory
appeals from orders enforcing grand jury subpoenas only
when they require production of materials that are claimed to
be privileged or otherwise legally protected from disclosure.
Because the Doe Company made no such claim, this court
lacks jurisdiction under Perlman. The panel noted that the
Doe Company has not sought a writ of mandamus and that
review is unavailable under the general collateral order
doctrine.
The panel affirmed the district court’s orders denying the
Doe Company’s motions to quash a grand jury subpoena and
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 IN RE GRAND JURY INVESTIGATION
holding the Doe Company, which is based outside of the
United States, in contempt. The panel held that, taken
together, the district court’s findings adequately support its
determination that it had in personam jurisdiction over the
Doe Company. The panel also held that it was fair,
reasonable and just to imply that an individual—who was
identified as the General Counsel for a firm in which the Doe
Company retained a significant ownership interest and who
stated that he could accept service for the Doe Company—
had authority to receive, at a United States address, service on
behalf of the Doe Company.
COUNSEL
Richard M. Strassberg (argued), James D. Gatta, and
Elizabeth S. David, Goodwin Procter LLP, New York, New
York; Andrew Kim, Goodwin Procter LLP, Washington,
D.C.; for Defendant-Appellant.
Adam A. Reeves (argued), William Frentzen, and Robert S.
Leach, Assistant United States Attorneys; Merry Jean Chan,
Chief, Appellate Section, Criminal Division; David L.
Anderson, United States Attorney; United States Attorney’s
Office, San Francisco, California; for Plaintiff-Appellee.
IN RE GRAND JURY INVESTIGATION 5
OPINION
W. FLETCHER, Circuit Judge:
A federal grand jury has been investigating the acquisition
of one company by another. The acquired company, through
its officers and shareholders, is alleged to have provided
fraudulently misleading information about its true value,
leading the acquiring company to pay a substantially inflated
price. The grand jury has so far issued two indictments. The
grand jury issued subpoenas to a third company, Doe
Company (“the Company”), and to Pat Roe, a former officer
at the acquired company and a current partner at the
Company. The Company moved to quash the subpoenas.1
The district court denied the Company’s motion to quash
and ordered compliance by both the Company and by Pat
Roe. The Company has appealed that order (No. 19-10187).
The district court then ordered the Company and Roe to show
cause why they were not in contempt. Roe responded by
agreeing to produce the documents in Roe’s possession. The
Company declined to produce the documents in its
possession, and the district court held the Company in
contempt. The Company has also appealed that order (No.
19-10261). We consolidated the Company’s appeals and
stayed the district court’s enforcement order against Roe.
We conclude that we lack appellate jurisdiction to review
the district court’s enforcement order directed to Roe. We
dismiss that part of the appeal. We have jurisdiction to
review the district court’s enforcement orders directed to the
1
All documents and briefs in this matter have been filed under seal.
This opinion does not use the parties’ true names.
6 IN RE GRAND JURY INVESTIGATION
Company and holding the Company in contempt. We affirm
those orders.
I. Standard of Review
We review a district court’s denial of a motion to quash
a grand jury subpoena and its order of contempt sanctions for
an abuse of discretion. In re Grand Jury Subpoena, No. 16-
03-217, 875 F.3d 1179, 1183 (9th Cir. 2017). Underlying
factual findings are reviewed for clear error. Id. “In
reviewing decisions of the district court, we may affirm on
any basis supported by the record . . . .” In re Frontier
Props., Inc., 979 F.2d 1358, 1364 (9th Cir. 1992); see also
Schweiker v. Hogan, 457 U.S. 569, 585 n.24 (1982).
II. Enforcement Order Against Pat Roe
The Company seeks to bring an interlocutory appeal from
the part of the district court’s enforcement order that is
directed to Pat Roe. For the reasons that follow, we do not
have appellate jurisdiction.
We generally have jurisdiction to review only “appeals
from all final decisions of the district courts.” 28 U.S.C.
§ 1291. Pretrial discovery orders, including denials of
motions to quash grand jury subpoenas, are not final
decisions under § 1291. United States v. Ryan, 402 U.S. 530,
532–33 (1971). Absent certification by the district court, a
party seeking review must either seek mandamus, or disobey
the order and then appeal the resulting contempt citation.
See, e.g., Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
110–12 (2009) (no appellate jurisdiction over a pretrial
discovery order seeking information claimed to be protected
by the attorney-client privilege); In re Grand Jury Subpoena
IN RE GRAND JURY INVESTIGATION 7
Issued to Bailin (“Bailin”), 51 F.3d 203, 205 (9th Cir. 1995)
(no appellate jurisdiction over denial of motion to quash a
subpoena until person subpoenaed refuses to comply and is
held in contempt).
The finality requirement is not a mere formality. It is
especially important in criminal cases, where interlocutory
appeals can impede the speedy and effective administration
of the criminal justice system. Ryan, 402 U.S. at 532–33.
“The appealability of the denial of a motion to quash is
particularly inappropriate in the grand jury setting.” In re
Grand Jury Subpoena Dated June 5, 1985, 825 F.2d 231, 236
(9th Cir. 1987). A grand jury may consider an extraordinarily
broad range of evidence, and “the scope of [its] inquiries is
not to be limited narrowly.” United States v. Calandra,
414 U.S. 338, 343 (1974); id. at 354–55 (grand jury may
consider illegally obtained evidence); Fed. R. Evid. 1101(d)
(Federal Rules of Evidence generally do not apply to grand
jury proceedings). Moreover, while the subpoena awaits
review, “targets are free, memories of other witnesses are
fading, evidence is disappearing, the grand jury may have
difficulty proceeding against other targets, and events may
escape scrutiny as the statute of limitations takes its toll.” In
re Klein, 776 F.2d 628, 631 (7th Cir. 1985)
A. Perlman
The Company argues that we have appellate jurisdiction
over its interlocutory appeal under the so-called Perlman
doctrine. See Perlman v. United States, 247 U.S. 7 (1918).
We disagree.
The Supreme Court has carved out a “narrow exception”
under Perlman for cases in which documents sought by the
8 IN RE GRAND JURY INVESTIGATION
grand jury are subject to a claim of privilege. Bailin, 51 F.3d
at 205. In Perlman, the trial court ordered the clerk of court,
who retained possession of Perlman’s documents from a
previous case, to produce the documents to a grand jury
investigating Perlman. Perlman appealed, claiming that
disclosure would violate, inter alia, his Fifth Amendment
privilege against self-incrimination. The Supreme Court
allowed the appeal on the ground that Perlman would
otherwise have been “powerless to avert the mischief of the
order.” Perlman, 247 U.S. at 13. As the Court later
explained, to have held otherwise in Perlman “would have
made the doctrine of finality a means of denying Perlman any
appellate review of his constitutional claim.” Cobbledick v.
United States, 309 U.S. 323, 328–29 (1940).
“We have interpreted Perlman to mean that a discovery
order directed at a disinterested third-party custodian of
privileged documents is immediately appealable because the
third party, presumably lacking a sufficient stake in the
proceeding, would most likely produce the documents rather
than submit to a contempt citation.” United States v. Griffin,
440 F.3d 1138, 1143 (9th Cir. 2006) (internal quotation marks
omitted). Because, as in Perlman, a person seeking to protect
privileged information in the hands of a third party cannot
expect that third party to submit to a contempt citation, that
person is “powerless to avert the mischief of the order” unless
an interlocutory appeal is available.
We have sometimes described the Perlman rule in
shorthand fashion, omitting recitation of the requirement that
the challenged order seeks privileged documents. We have
focused, instead, on the question whether the third party to
whom the subpoena is issued would be willing to risk
contempt. See In re Optical Disk Drive Antitrust Litig.,
IN RE GRAND JURY INVESTIGATION 9
801 F.3d 1072, 1076 (9th Cir. 2015) (“The Perlman rule has
been formulated as providing a right of immediate appeal by
a party aggrieved by a district court discovery order whenever
the order requires a third party to produce evidence or
documents and that third party cannot be expected to go into
contempt merely to create a final appealable order.”); In re
Grand Jury Subpoenas Duces Tecum, 695 F.2d 363, 365 (9th
Cir. 1982); cf. Church of Scientology of Cal. v. United States,
506 U.S. 9, 18 n.11 (1992) (under Perlman, “a discovery
order directed at a disinterested third party is treated as an
immediately appealable final order”); United States v.
Amlani, 169 F.3d 1189, 1192 (9th Cir. 1999) (a third party
who is a former attorney, as distinct from a current attorney,
cannot be expected to risk a contempt citation).
Despite our abbreviated statements of the doctrine, the
rule under Perlman is that we may entertain interlocutory
appeals from orders enforcing grand jury subpoenas only
when they require production of materials that are claimed to
be privileged or otherwise legally protected from disclosure.
The vast majority of our cases applying Perlman involve
orders issued to attorneys seeking information protected by
the attorney-client privilege. Wright & Miller, 15B Federal
Practice and Procedure § 3914.23 (2d ed. 2020 update)
(noting that these comprise the “largest identifiable category”
of Perlman cases); see, e.g., United States v. Krane, 625 F.3d
568, 571–72 (9th Cir. 2010). Other cases allege other
evidentiary privileges. See, e.g., United States v. Gonzalez,
669 F.3d 974, 977 n.2 (9th Cir. 2012) (joint defense
privilege); Griffin, 440 F.3d at 1143 (marital communications
privilege); In re Grand Jury Proceedings, 867 F.2d 562, 563
(9th Cir. 1989) (psychotherapist-patient privilege), abrogated
on other grounds by Jaffee v. Redmond, 518 U.S. 1 (1996).
Some cases, including Perlman, involve a constitutional
10 IN RE GRAND JURY INVESTIGATION
privilege. Harris v. United States, 413 F.2d 316, 317 (9th
Cir. 1969) (Fifth Amendment privilege against self-
incrimination). Finally, a few cases involve some other legal
claim against disclosure. See, e.g., In re Optical Disk Drive
Antitrust Litig., 801 F.3d at 1074, 1076 (information allegedly
protected under Fed. R. Crim. P. 6(e)); In re Grand Jury
Subpoena Served on Meserve, Mumper & Hughes, 62 F.3d
1222, 1223 (9th Cir. 1995) (information protected under court
order).
The subpoenaed documents need not actually be
privileged to warrant interlocutory review. A court may
properly assume jurisdiction under Perlman even if it later
concludes on the merits that the information is not actually
privileged. See, e.g., In re Grand Jury Subpoenas Duces
Tecum, 695 F.2d at 365 (reviewing under Perlman but
concluding attorney-client privilege did not protect
information on fee arrangements). The logic of Perlman
permits review in such cases, for if a document produced to
the grand jury is later held to have contained privileged
information, protection provided by the privilege will have
been irretrievably lost.
It is uncontested in the case before us that the information
in the documents held by Pat Roe is not privileged. The
Company notes, correctly, that in many cases we have
applied Perlman without addressing the privilege issue. The
Company therefore argues that there is no requirement that
the materials at issue be allegedly privileged for Perlman to
apply. The Company misreads our cases. Our failure to
mention a claim of privilege does not mean that it was not a
requirement. Quite the contrary. In virtually all of our
Perlman cases, there was no dispute that the information was
IN RE GRAND JURY INVESTIGATION 11
alleged to be privileged, which meant that we felt no need to
discuss the requirement of a claim of privilege.
More importantly, the privilege requirement explains why
Perlman exists to create interlocutory review in a context that
otherwise heavily disfavors it. A grand jury has “wide
latitude to inquire into violations of criminal law” and is
“generally . . . unrestrained” by procedural or evidentiary
rules that govern criminal trials. Calandra, 414 U.S. at 343.
As the Supreme Court has recognized, however, a claim of
privilege is one of the only non-procedural grounds on which
a subpoenaed individual may resist a grand jury subpoena.
Id. at 346. Perlman exists to protect that limited right. It
does not protect against any and all asserted “mischiefs”
resulting from a grand jury subpoena, but it does protect
against the specific harm of compelled disclosure to the grand
jury of information protected by a valid privilege. Because
an appeal after final judgment would come too late to remedy
that harm, Perlman permits immediate review in this narrow
case.
The Company invokes Perlman on the ground that it has
a “cognizable” “ownership interest” in the documents. In the
Company’s view, its ownership of the documents gives it the
right to conceal information the documents contain. An
ownership interest, standing alone, is not a sufficient defense
against disclosing information to a grand jury, whose
proceedings are “secre[t]” and “kept from the public eye,”
Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211,
218 n.9 (1979); see Fed. R. Crim. P. 6, and which considers
a range of evidence “generally . . . unrestrained by the
technical procedural and evidentiary rules governing the
conduct of criminal trials,” Calandra, 414 U.S. at 343;
contrast United States v. Hubbard, 650 F.2d 293, 311 n.67
12 IN RE GRAND JURY INVESTIGATION
(D.C. Cir. 1980) (reviewing claim where order sought public
disclosure of sealed information). The Company mistakenly
focuses on the “ownership interest” the petitioner had in
Perlman. That interest was relevant only insofar as it
involved the petitioner’s Fifth Amendment privilege against
self-incrimination. See Cobbledick, 309 U.S. at 328–29. The
Company makes no such claim here.
Under the Company’s argument, any company subject to
a grand jury investigation could cite an “ownership interest”
in documents subpoenaed from its employees, and could
thereby conceal from the grand jury information that might
reveal wrongdoing by the company. Accepting the
Company’s argument would expand Perlman far beyond the
“narrow exception” it created to the finality requirement.
Bailin, 51 F.3d at 205; In re Grand Jury Subpoena Served
Upon Niren, 784 F.2d 939, 942 (9th Cir. 1986) (per curiam)
(“[U]ntil the Supreme Court informs us that Perlman applies
to more than a ‘limited class of cases,’ it is not our
prerogative to enlarge the exception . . . .”) (quoting In re
Sealed Case, 655 F.2d 1298, 1302 (D.C. Cir. 1981)).
We recognize that Perlman was decided one hundred
years ago. But the Supreme Court has given us no reason to
suspect that it is no longer good law, or that its essential
contours have changed. See, e.g., Gravel v. United States,
408 U.S. 606, 608 n.1 (1972) (noting appeal proceeded under
Perlman because Senator intervenor could not expect third
parties to whom subpoenas were issued to protect privileges
under the Speech or Debate Clause); United States v. Nixon,
418 U.S. 683, 691 (1974) (discussing Perlman); Cobbledick,
309 U.S. at 328–29; see also Krane, 625 F.3d at 572–73
(holding Perlman remains good law after Mohawk Industries,
558 U.S. 100 (2009)). Our sister circuits generally
IN RE GRAND JURY INVESTIGATION 13
understand Perlman as we do, limiting it to claims of
privilege. As the Eighth Circuit has explained, “[t]he
[Perlman] exception is limited to an appeal by the privilege
holder.” United States v. Beltramea, 831 F.3d 1022, 1024
(8th Cir. 2016); see also FDIC v. Ogden Corp., 202 F.3d 454,
459–60 (1st Cir. 2000); United States v. Punn, 737 F.3d 1, 6
(2d Cir. 2013); In re Naranjo, 768 F.3d 332, 344 (4th Cir.
2014); Branch v. Phillips Petroleum Co., 638 F.2d 873, 878
n.3 (5th Cir. 1981); Holt-Orsted v. City of Dickson, 641 F.3d
230, 237–38 (6th Cir. 2011); United States v. Calandra,
706 F.2d 225, 228 (7th Cir. 1983) (per curiam); In re Motor
Fuel Temperature Sales Practices Litig., 641 F.3d 470, 485
(10th Cir. 2011); In re Grand Jury Proceedings, 832 F.2d
554, 558–59 (11th Cir. 1987); In re Sealed Case, 754 F.2d
395, 399 (D.C. Cir. 1985).
Only the Third Circuit has read Perlman as requiring only
a disinterested third party, irrespective of privilege. In In re
Grand Jury (“Schmidt”), 619 F.2d 1022, 1025 (3d Cir. 1980),
an employer brought an interlocutory appeal of a denial of a
motion to quash grand jury subpoenas issued to its
employees, contending that the grand jury was being used for
an improper purpose. Id. Making no mention of privilege,
the Third Circuit held that it had jurisdiction because Perlman
permitted appeals in cases of third-party subpoenas. Id. The
Second Circuit has expressly disavowed Schmidt. See In re
Subpoenas to Local 478, Int’l Union of Operating Eng’rs &
Benefit Funds (“Local 478”), 708 F.2d 65, 72–73 (2d Cir.
1983); Punn, 737 F.3d at 6 (“The mere fact . . . that a movant
cannot himself precipitate immediate review through a
contempt proceeding, does not end the finality inquiry.”).
“Unlike motions to quash that seek to preserve privileges of
the movant against possible disclosure by a third-party
witness, and thereby to prevent immediate, irreparable harm,
14 IN RE GRAND JURY INVESTIGATION
motions that allege improper use of the grand jury . . .
ultimately seek to prevent trial prejudice.” Punn, 737 F.3d
at 9–10. We agree with the Second Circuit that harms
resulting from improper purpose, unlike harms resulting from
wrongful disclosure of privileged information, can later be
addressed at trial or on appeal. See id.
If we have been unclear in our prior cases in stating that
a claim of privilege is essential to a Perlman appeal, we
clarify today that it is. In seeking interlocutory review of a
court order enforcing a grand jury subpoena, an appellant
must assert a claim of evidentiary privilege or some other
legal claim specifically protecting against disclosure to the
grand jury. The appellant must claim a “right . . . to secrecy
of the transaction” that can be vindicated only through
interlocutory review. In re Subpoena to Testify Before Grand
Jury, 39 F.3d 973, 975 (9th Cir. 1994). Because the
Company makes no such claim, we do not have jurisdiction
under Perlman.
B. Alternate Grounds
Alternate grounds for appellate jurisdiction are not
available. The Company has not sought a writ of mandamus
under 28 U.S.C. § 1651. Mandamus is reserved for
“exceptional circumstances,” which we do not find here. In
re Nat’l Mortg. Equity Corp. Mortg. Pool Certificates Litig.,
821 F.2d 1422, 1425 (9th Cir. 1976). Finally, review is
unavailable under the general collateral order doctrine. See
Mohawk Indus., Inc., 558 U.S. at 114.
IN RE GRAND JURY INVESTIGATION 15
III. Enforcement Order Against the Company and
Contempt Citation
The Company appeals the district court’s orders denying
its motions to quash the subpoena and holding the Company
in contempt. The Company is based outside the United
States, and the grand jury subpoena was served on a non-
Company employee in the United States. The Company
argues that the district court lacked in personam jurisdiction
and that service of the subpoena was improper. We reject
both arguments.
A. In Personam Jurisdiction
The parties do not dispute that in the grand jury subpoena
context, the “reasonable probability” test adopted by the
Second and D.C. Circuits governs a determination of in
personam jurisdiction. See In re Marc Rich & Co., A.G.
(“Marc Rich”), 707 F.2d 663, 670 (2d Cir. 1983), cert. denied
463 U.S. 1215 (1983); In re Sealed Case, 832 F.2d 1268,
1274 (D.C. Cir. 1987), abrogated on other grounds by
Braswell v. United States, 487 U.S. 99 (1988). We agree with
our sister circuits that this is the proper standard.
Under this standard, the government need only show “that
there is a reasonable probability that ultimately it will succeed
in establishing the facts necessary for the exercise of
jurisdiction” over a nonresident alleged to have violated
federal criminal law. Marc Rich, 707 F.2d at 670. The
relevant forum is not the state in which the grand jury is
empaneled but “the entire United States,” which is itself
“injuriously affected” by the criminal offense. Id. “Under
such circumstances, . . . the occurrence of the offense itself is
sufficient to support a claim of jurisdiction, provided
16 IN RE GRAND JURY INVESTIGATION
adequate notice and an opportunity to be heard has been
given.” Id. at 667–68.
The district court found that several people who had
profited from the sale of the acquired company used their
personal funds shortly thereafter to help found the Company.
An internal memorandum stated that the Company’s start-up
team—which included senior officials from the acquired
company whom the grand jury has already indicted—would
invest substantial amounts of their own money in the
Company. A Company employee also submitted an affidavit
stating that the Company was capitalized through equity
contributions.
The Company objects that the internal memorandum was
a draft document that was never implemented, and it relies on
an affidavit from a Company employee so stating. The
district court considered the record before it and found that
the affidavit did not override other evidence in the record.
We conclude that the district court did not clearly err in so
finding. In re Grand Jury Subpoena, 875 F.3d at 1183.
The district court also found that “the financial structure
of the entities at issue was enough to create a likelihood of
criminal conduct.” The government alleges that money from
the acquisition may have been laundered through the
Company, and later laundered again through what was
initially a wholly owned subsidiary of the Company (“the
Firm”). There is evidence in the record that the Company and
the Firm at one time shared the same office in the United
States, and that there is substantial overlap between the
employees of the Company and the Firm.
IN RE GRAND JURY INVESTIGATION 17
We conclude that, taken together, these findings
adequately support the district court’s determination that it
had in personam jurisdiction over the Company.
B. Service of Process
The district court also concluded that service of process
on the Company was proper. Until a specified month in
2018, the Company’s website listed its address as an office
suite at a particular address in the United States. Four days
into the following month, an FBI agent attempted to serve the
grand jury subpoena at this address. When at this address, the
FBI agent spoke with a particular individual, identified as the
General Counsel for the Firm, who accepted the papers and
stated that he “could accept service for [the Company].” At
that point, the Company no longer wholly owned the Firm,
but it retained a significant ownership stake. Within a month,
counsel for the Company contacted the United States
government regarding the subpoena. The Company objects
to service of process on the ground that the Firm is a distinct
entity from the Company, and that the General Counsel
worked for the Firm rather than the Company.
Service to a corporation “is not limited solely to officially
designated officers, managing agents, or agents appointed by
law for the receipt of process.” Direct Mail Specialists, Inc.
v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th
Cir. 1988). Instead, service can be made “upon a
representative so integrated with the organization that he will
know what to do with the papers.” Id. (quoting Top Form
Mills, Inc. v. Sociedad Nationale Industria Applicazioni
Viscosa, 428 F. Supp. 1237, 1251 (S.D.N.Y. 1977)).
“Generally, service is sufficient when made upon an
individual who stands in such a position as to render it fair,
18 IN RE GRAND JURY INVESTIGATION
reasonable and just to imply the authority on his part to
receive service.” Id. (same).
The General Counsel for the Firm was a representative
“so integrated with the [Company] that he [knew] what to do
with the papers.” He confirmed to the FBI agent that he
could receive process on behalf of the Company, and the
Company’s counsel contacted the government about the
papers shortly thereafter. See id. (“[A]ctual receipt of process
by the correct person may be a factor in finding process valid
when there are other factors that make process fair.”);
Henderson v. United States, 517 U.S. 654, 672 (1996) (“[T]he
core function of service is to supply notice of the pendency of
a legal action . . . .”). Under these circumstances, it is “fair,
reasonable and just to imply the authority” of the General
Counsel to receive service on behalf of the Company.
Conclusion
We dismiss for want of appellate jurisdiction the
Company’s appeal seeking review of the district court’s
enforcement order against Pat Roe. We affirm the district
court’s enforcement order and contempt citation against the
Company.
DISMISSED in part; AFFIRMED in part.