Who is bound by an injunctions – with special relevance to third parties and contempt

1. Who is bound by an injunctions – with special relevance to third parties and contempt • Injunctions do not operate against the world generally – they operate only against specific persons/entities against whom they are directed. • Occasionally, however, they can operate against people not specifically named. This is governed by FRCP and state analogs. • FRCP 65(d) - Contents & Scope of Injunctions (2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise: • (A) the parties; • (B) the parties' officers, agents, servants, employees, and attorneys; and • (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B). • Two issues arise: • Who are the people referred to in FRCP 65(d)(2)(A)-(C)? • What does it mean to have “actual notice?”

2. Who is bound - parties, officers, agents, servants, employees, and attorneys • HYPO: Carter filed a race discrimination class action lawsuit against Buzzo, Inc. and obtained an injunction against Buzzo, Inc. barring it from hiring and firing persons based on race. Buzzo, Inc. issued a directive to all employees to stop discriminating on this basis. • If BuzzoInc’s supervisors/managers continue to discriminate, can Buzzo, Inc. be held in contempt? Can Buzzo Inc.’s supervisors and managers be held in contempt? • Answer • Buzzo, Inc. can be held in contempt via respondeat superior liability. • Supervisors/Managers also can be held in contempt under Rule 65(d) because they are agents/servants/employees of D.

3. Who is bound – active concert • HYPO: A&B are animal rights activists who vandalized an animal laboratory. A&B are enjoined from destroying or defacing the lab’s property. A week later C&D, who belong to the same organization as A&B but who are not named in the injunction, enter the lab’s property and pour glue in all of the door locks. • Are C&D bound by (and thus in contempt of) the earlier order against A&B? • Yes – IF there is evidence that C&D were “acting in concert” with A&B. • A&B can also be held in contempt. • Active concert: defined as a situation where A&B are using C&D to get around the court order. Key is to find “subterfuge” of some kind. • Note – the fact that they are members of the same organization is not alone enough if the organization is not enjoined. But it is helpful.

4. Who is Bound – Successors in Interest • ABC Co. infringes XYZ Co.’s patent. XYZ sues ABC and obtains an order barring ABC from infringing. ABC then dissolves/reforms as “123, Inc.” but all other aspects of the corporation are the same. Thereafter, 123 infringes XYZ’s patent. • Is 123 bound by (and in contempt of) the original injunction against ABC? • Yes - 123 is essentially acting in concert with ABC to subvert the court order so it falls under FRCP 65(d)(2)(C) • What if ABC did not reform as 123, Inc. but instead sold to an independent entity, Infinity Co., which buys ABC’s assets with full knowledge of the order but infringes XYZ’s patent anyway. Is Infinity in contempt of the original order? • FRCP 65(d)(2) does not mention whether independent successors in interest are bound by an injunction against the original owner of property. • Courts are generally reluctant to hold successors in interest bound by injunctions if they are not connected with the original party in any way.

5. Who is bound – successors in interest (government defendants) • Koster, Missouri state attorney general, is enjoined from enforcing Missouri’s railroad rate law, which was found unconstitutional. Koster loses the next election and is succeeded by Rule. Is Rule bound the injunction against Koster? Yes: (1) FRCP 25 requires automatic substitution of a new state officer in pending lawsuits against officers in their official capacity. (2) It follows that under FRCP 65(d)(2) a new state officer would be substituted for the old officer – and thus bound by – an existing injunction issued in an official capacity case. Presumption seems to be that the government successor in interest is “acting in concert” with former official since all work is done in official capacity.

6. Rule 65 and the Notice Requirement • Rule 65(d): The order is binding only on the following “who receive actual notice of the order by personal service or otherwise.” • A person cannot be bound by an order (nor can they be held in contempt of an order) of which they are unaware. • For parties this is rarely a problem as they usually participate in hearings leading up to an injunction (TRO’s are the occasional exception). BUT the persons/entities listed in FRCP 65(d)(2) who aren’t actual parties to litigation but who may be bound must have notice too. • Under FRCP personal service isn’t necessaryBUT order must be made public in (1) circumstances that make a person likely to come to know of the order (2) from a credible source • Examples: (1) pervasive local publicity about order, (2) being informed of order from local police authority or attorney, (3) posting of order in employee lounge of one’s workplace or hearing of order through company mass email

7. Planned Parenthood v. Garibaldi (p. 805) – the facts • Permanent injunction issued in 1995 against ORCal and Robert Cochran prohibiting various acts of vandalism and trespass, harassment, and noisy and disruptive protests…. The order specifically applied to: • Defendants and their agents, employees, representatives and all persons acting in concert or participation with them, or either of them, and all persons with actual notice of this judgment.” • Foti/Garibaldis (non-parties) engaged in conduct that clearly violated the injunction. Planned Parenthood sought a declaration that the injunction applied to Foti/Garibaldis • Foti/Garibaldis maintained that the “actual notice” provision was invalid and that there wasn’t enough proof to hold them bound via the “in concert” provision (which is admittedly valid).

8. Planned Parenthood v. Garibaldi • The “actual notice” provision: • Court held provision invalid because injunctions “are not effective against the world at large.” • Orders must be directed at individual/entities or classes of persons to which individuals belong. • Foti/Garibaldis are not members of ORCal so they cannot be bound as agents, employees, etc. • A provision that binds people who are not otherwise bound because they have “actual notice” and do things similar to the original Ds essentially acts like a statutory mandate. But such an order has none of the procedural protections of a statute and is manifestly unfair. • The “in concert” provision • Court remanded re the “in concert” provision – Foti/Garibaldis may have acted “in concert” with ORCal and Cochran to thwart the order but the court needed to have a trial on those issues