02/08/2013 Reading for the next week: Monday # 14 Wednesday # 15 SKIP # 13 Friday # 16 Bagwell: not going to test this

case because it is not clear what the court is holding. All justices agreed on the result (criminal injunction) but struggled on how to get there. Different topics weve covered so far: conditions under which an ex parte order can be issued standards for issuing provisional reliefs standards for granting TRO and PI standards for granting permanent injunctions (Different tests for each category) Bonds, sub issues: whether bonds can be waived and under what circumstances Defenses: unclean hands, laches speech injunction and constitutional problems modification and dissolution of Preliminary Injunction types of contempt; civil compensatory/punitive, criminal contempt requiring criminal safeguard procedures. Who is bound by equitable decrees? Today we cover: Who is bond by an equitable injunction? The parties, the party's officers, agents, servants, employees, attorneys, and any other person who is active participant with the described parties. Holding nonparties for violating equitable decrees. When you buy a company whos been issued permanent injunction? Is the new owner bound by the injunction if decided to do the same enjoined conduct? Yes, Note 2 on page 253. If you buy a company (has injunction enjoining from doing X) but your intent is not to engage in the prohibited conduct (X) the new owner will have go to the court and ask the court to modify the injunction so that it does not apply to you.

Instead of buying company, you hire COO (chief operating officer) who is the person who was directly engaged in the prohibited (enjoined) conduct. If COO then helps you to engage in the same prohibited conduct, you are bound by the original injunction because you are directly engaged with officer who is in the statutory list of third parties (applies only to current officers, not former officers) because you cannot bring in somebody from enjoined company and act on his/her knowledge to engage in the substantially same prohibitive conduct Note 4 p. 254: Nonparties in order to be liable for criminal contempt must have required mens rea (Intent) Row vs. Operation rescue The injunction issued: Operation rescue and it principal Terry are enjoined from engaging in blockading abortion clinics, staging demonstrations, etc. The injunction covers two types of conduct: trespassing and obstructing and harassing individuals who enter the clinic. Plaintiffs here are: pregnant women (arguing harassment) seven abortion and family planning clinics and a doctor who regularly performed abortions. What created contempt proceeding? It is against Operation Rescue (OR) and its principal Terry for publicly announced plans to close down clinics by staging mass demonstrations and blockades. Third parties here is another organization operating in seven other states included in Penn: Operation Rescue National (ORN) So technically they are two distinct organizations and the argument ORN is making is that it should not be held liable as a third party to injunction issued to OR. District court did not find ORN in contempt because the enjoined party is OR but the nonparty defendants, Roach and Lewis work for ORN. Two things must be shown to held nonparties responsible for contempt: Actual knowledge of the injunction and that they violated the injunction. The district court decided that arm band that ORN members wore does not show sufficient connection to OR, the enjoined party. The court ignored all other activities that OR and ORN were engaged in. There were tons of other joint activities that district court overlooked. After all, the arm band says: OR, it does not say ORN. Rule for acting in concert p. 253 note 1: two elements for proving acting in concert

A nonparty must know of the judicial decree, and nonetheless act in defiance of it AND the challenged action must be taken for the benefit of, or to assist a party subject to the decree. Lets focus is on the second one: the issue is whether Roche and Louis acting to assist for the benefit of enjoined party (OR) Terry was himself enjoined party from engaging in blocking, abstracting, but the district court did not find him in contempt because he was not physically present at July 9th rally, however the district court overlooked that the enjoined party cannot get somebody do what he or she is personally enjoined from doing. Here although Terry (OR) was not physically present at the subsequent rally, he was encouraging people to engage in prohibited conduct, he is raising money, putting together literature, the night before spoke out, etc. (sufficient connection with ORN) The fact that he knows people who are engaged in the prohibited conduct is not enough, but in this case his direct assistance itself was crucial in overruling the district courts decision. Actual knowledge can be proved by direct or circumstantial evidence. OR was not held in contempt by the district court for the same reason for not holding Terry in contempt. District courts argument was that OR and ORN are different organization, but the court of appeals saying such line of reasoning is ingenious because OR and ORN acted in concert, engaged in substantially similar conduct (undisputed evidence showing OR and ORN coordinated activities and Terrys crucial role in running and organizing the July 9th blockade) People v. Conrad The Conrad case gave the same definition of acting in concert requirement for holding nonparties in contempt. In addition to knowledge of the injunction, some actual relationship with an enjoined party is required to bring a nonparty actor within the injunction's scope, mere "mutuality of purpose" is not enough. In this case there was knowledge of the prohibited conduct but there was no "act in concert" Very much the same case but the outcome is different. An enjoined party (Reece) is watching anti-abortion demonstration from his car across the street. One of the nonparty protesters (White) signals Reece to go away because he says it will look bad if we have an enjoined party among us.

The court of appeals says thats not enough of a connection between the enjoined party and nonparty to hold the nonparty in contempt. The court of appeals says you cant hold somebody in contempt for simply waiving his/her hand. Signaling alone is not enough to show sufficient relationship between the enjoined party and nonparties. If you want to enjoin next group of people, new injunction will be needed. You have to show that there is a relationship between the people enjoined and nonparties. Holding people in contempt requires some sort of procedure (new injunction) to secure arbitrariness (due process concerns may be at issue) Rule to know p 261. Some additional involvement with an enjoined party is required to bring a nonparty actor within the injunctions scope. In this case it was missing. Nonparty to an injunction is subject to the contempt power if: There is actual knowledge of the injunction and the nonparty violates its terms with or for those who are restrained. Next week doing damages.