Document type: Checklist Practice area: Litigation — Remedies Jurisdiction: United States (federal) Last reviewed: 5 September 2026

Part 1 — Read your own order first

  • Operative decretal language pulled and read alone — not the findings, not the opinion.
  • Rule 65(d) tested: does the order state its terms specifically and describe in reasonable detail — not by referring to the complaint or another document — the acts restrained or required?
  • The Taggart v. Lorenzen, 587 U.S. 554 (2019) question: is there a fair ground of doubt that this order bars the conduct? Objective standard, regardless of the respondent's belief.
  • Provisions classified: enforceable as written / not specific enough / ambiguous.
  • If not enforceable as written → move to clarify or modify FIRST. A denied contempt motion is a judicial finding that the order does not prohibit the conduct.
  • One-page assessment written before any strategy discussion.

Part 2 — Identify who is bound

Rule 65(d)(2) reaches only the parties; their officers, agents, servants, employees, and attorneys; and persons in active concert or participation — each requiring actual notice.

  • The enjoined entity.
  • Named individuals — officers and employees directing the conduct. (Most often omitted; personal exposure is what changes behavior.)
  • Successors, affiliates, and alter egos.
  • Facilitators — contract manufacturers, distributors, marketplaces, fulfillment providers, payment processors, hosting services.
  • Actual notice established and documented for every intended respondent — personal service where possible.
  • For nonparties: the active concert facts identified specifically, not asserted generally.

Part 3 — Compliance demand (before any motion)

  • Specific provision quoted.
  • Specific conduct described, with the evidence.
  • Demand to cease and to confirm cessation in writing, with a deadline.
  • Compliance certification requested.
  • Rights reserved.
  • Sent to: the entity, its counsel, the individual officers, and — separately, with the order attached — each facilitator.
  • Response retained. A false denial is the best willfulness evidence available; a non-response establishes notice and indifference.

Part 4 — Post-judgment discovery

  • Court's continuing jurisdiction to enforce confirmed.
  • Rule 69 discovery in aid of execution used for money judgments — available from any person, including nonparties.
  • Sought: communications with the affected accounts; sales records and invoices for the enjoined line; manufacturing and supply records; design or formulation documents; steps taken to comply; identity of anyone assisting.
  • Expert engaged where the violation is technical (formulation, design, software).
  • Evidence preserved and authenticated: website captures with metadata, purchased samples with chain of custody, declarations from those who obtained them.

Part 5 — Choose the vehicle

  • Motion to clarify or modify — where Part 1 showed the order is not enforceable as written. This comes first.
  • Motion to enforce / compel compliance — lower temperature; some judges prefer it as a first step.
  • Motion for an order to show cause re civil contempt — the ordinary vehicle.
  • Rule 70 — judgment requiring conveyance or a specific act: the act may be done by another at the disobedient party's expense; title may be divested; contempt available.
  • Rule 69 — money judgments, by writ of execution under forum-state practice.
  • Rule 45(g) — subpoena disobedience.
  • Rule 37 — discovery orders (usually faster and more effective than contempt).
  • Criminal contempt — only if you want punishment for a completed act: 18 U.S.C. § 401, Rule 42, proof beyond a reasonable doubt, appointed prosecutor, jury for serious sanctions. Your firm cannot prosecute it — Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987). Refer to the court.

Part 6 — Choose the sanction before drafting

Part 7 — Build the motion

  • The order attached; operative paragraph quoted; service and actual notice established for every respondent.
  • Clarity addressed affirmatively — no fair ground of doubt, and why. Do not wait for the opposition.
  • Violation proved by documents: their emails, invoices, shipping records, product samples, website captures.
  • Chronology exhibit a judge can follow in two minutes.
  • Who is bound, respondent by respondent, under Rule 65(d)(2).
  • Harm and requested sanction: coercive ask with purge; compensatory computation; fee request with segregated time.
  • Kept short — the judge entered the order and wants to know two things: does it say this, and did they do it.

Part 8 — Compensatory harm and fees

  • Causation isolated — losses caused by the contempt, not by the underlying wrong.
  • Measure chosen and defended: lost profits on diverted sales (units × our margin), defendant's profits, reasonable royalty, or corrective cost.
  • Arithmetic built on records: our sales history before and after, their records from enforcement discovery, contemporaneous margin analysis.
  • Ancillary costs included: investigation, sample purchases, laboratory analysis, corrective communications, monitoring.
  • Expert engaged where the number is large or contested.
  • Separate matter number opened the day enforcement began.
  • Time entries task-specific ("draft declaration in support of contempt motion"), not "attention to case."
  • Underlying-matter time excluded; segregation explained in a declaration.
  • Prospective accrual requested where the violation is ongoing.

Part 9 — The hearing

  • Prepared as a bench trial on a narrow issue.
  • Authenticating witnesses ready: who pulled the records, who bought the sample, who did the comparison.
  • Inability-to-comply defense anticipated — cross-examination prepared on what steps were actually taken and when. The respondent must show impossibility categorically and in detail and that all reasonable steps were taken; self-induced inability is no defense.
  • Substantial-compliance argument anticipated, with the specific omissions ready.
  • Findings requested on each element — valid order, notice, clarity, violation. The clarity finding protects the ruling on appeal.
  • Proposed order submitted: findings, sanction, purge condition, compliance deadlines.

Part 10 — Defending a contempt motion

  • The order read as our client read it — is there a fair ground of doubt? (Taggart)
  • We complied — state it plainly if true.
  • Inability to comply — categorical, detailed, all reasonable steps, not self-induced.
  • Not bound — not an officer, agent, servant, employee, or attorney; not in active concert; or no actual notice.
  • Substantial compliance in good faith.
  • Relief is punitive — determinate fine payable to the court, no purge → criminal contempt protections required (Bagwell; Hicks v. Feiock, 485 U.S. 624 (1988)).
  • Collateral bar rule respected — do not defend on the ground that the underlying order was wrong. Comply and appeal. Exceptions are narrow, principally jurisdictional.
  • Cure considered — coercive sanctions become moot on compliance; prompt documented cure with a certification often converts the proceeding into a fee dispute.

Part 11 — Appeals and stays

  • Civil contempt against a party: generally not immediately appealable (interlocutory).
  • Civil contempt against a nonparty: generally appealable — no later final judgment will exist.
  • Criminal contempt: final and appealable.
  • Mandamus under 28 U.S.C. § 1651 considered only for a clear abuse of discretion.
  • Money sanction stay: supersedeas bond under Rule 62.
  • Injunction: no automatic stay. Move in the district court, then the court of appeals, on the four-factor standard. The order remains in force meanwhile.
  • Standard of review understood: contempt finding for abuse of discretion; interpretation of the order is a legal question reviewed more searchingly.
  • Mootness: coercive sanctions moot on compliance; compensatory sanctions remain live.

Part 12 — Judgment-proof and foreign respondents

  • Individuals proceeded against under Rule 65(d)(2) — personal exposure, including conditional confinement.
  • Rule 69 discovery used to find transfers; reaches any person.
  • Fraudulent transfer, receivership, and asset freeze considered.
  • Successors and alter egos assessed.
  • Facilitators served with the order and a demand — often ends the conduct without a motion.
  • Foreign respondents: client told that an injunction against a party with no United States presence or assets is a paper remedy. Alternatives: United States intermediaries within Rule 65(d)(2); All Writs Act orders under § 1651; customs recordation and border enforcement; domain and platform remedies; local proceedings on local rights.

Part 13 — Crossing district and state lines

  • Money judgments: registration in another district under 28 U.S.C. § 1963 once final; execution there under Rule 69 and forum-state practice.
  • Injunctions do NOT travel — enforced by the issuing court over persons subject to its jurisdiction. No registration mechanism transplants contempt jurisdiction.
  • Nonparty subpoena compliance handled by the court where compliance is required.
  • At judgment: confirmed that the order reaches the persons and assets in the place where enforcement will realistically occur.

Part 14 — Discovery-order enforcement

  • Rule 37 sequence used first: motion to compel → order → sanctions for violating that order.
  • Evidentiary sanction chosen over the fine where it resolves the issue: facts taken as established, claims or defenses stricken, adverse inference, dismissal or default.
  • Nonparties: Rule 45(g) contempt, since case-based sanctions have nothing to bite on. Proper service confirmed.
  • Recalcitrant witness: 28 U.S.C. § 1826 — confinement until compliance or the end of the proceeding, up to eighteen months.
  • Spoliation of electronically stored information pleaded on its own track.
  • Inherent power considered where the rules do not reach the abuse — Chambers v. NASCO, Inc., 501 U.S. 32 (1991), on a bad-faith finding, with fees limited by Goodyear.

Part 15 — Consent decrees

  • Can we use contempt at all? Terms must be embodied in the court's order, or the dismissal must expressly retain jurisdiction. Otherwise enforcement is a breach of contract action. Check before drafting the motion.
  • Interpreted as a contract — the agreement governs; no reading in of obligations, no "spirit of the decree" argument.
  • Enforced as a judgment — Rule 65(d) specificity and the Taggart standard both apply.
  • Negotiated compliance machinery used first — a missing required report is a clean, documented violation.
  • Modification considered under Rule 60(b)(5) where changed facts or law make continued enforcement inequitable.
  • Defendants advised at settlement: the decree will be enforced on its literal terms, by contempt, for its full duration.

Part 16 — Monitoring, and drafting the next order

Monitoring:

  • Every deadline in the order calendared: delivery, destruction, certification, reporting, sunset.
  • Certifications chased on the day due.
  • Required reports actually compared against market observation — owner assigned.
  • Market watched: listings, marketplaces, trade shows, job postings, website and archived versions.
  • Contemporaneous observation log maintained, with sources and dates.
  • Compliance letter sent at the first sign of drift.
  • Annual review of the order against how both businesses have changed.

Drafting:

  • Acts named, not legal conclusions.
  • Things named: products by model number, marks by registration number, documents by identifier, accounts by name as of a stated date, formulations by specification number.
  • Dates on obligations, not "promptly."
  • Compliance certification by a named officer required.
  • Periodic reporting required for ongoing conduct.
  • Rule 65(d)(2) tracked expressly; service on named individuals provided for.
  • Jurisdiction retained to enforce and modify.
  • Fees on enforcement provided for.
  • The test: a colleague not on the case reads it and can state exactly what the defendant may and may not do.

Related documents

This checklist is general information, not legal advice, and does not create an attorney-client relationship.