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

Who this is for

Counsel whose client won an injunction, a consent decree, or a discovery order, and whose opponent is not complying.

Our example is Havenmoor Diagnostics, which obtained a permanent injunction against Trellis Bio, a former licensee, barring Trellis from manufacturing or selling assays using Havenmoor's proprietary reagent formulation and from using Havenmoor's customer list. Havenmoor's litigation counsel is Idris Nwachukwu-Bell.

Eight months after judgment, Havenmoor's sales team reported that Trellis was selling a competing assay to three Havenmoor accounts.

The organizing principle of this guide: before you ask a court to find that someone disobeyed an order, satisfy yourself that the order told them, unambiguously, not to do what they did. That single discipline determines the outcome of most enforcement efforts.

Step 1 — Read your own order as a hostile reader

Pull the operative order and read only the decretal language. Not the findings, not the opinion — the paragraphs that say what the defendant must do and must not do.

Apply the two requirements of Federal Rule of Civil Procedure 65(d). Every injunction must state its terms specifically and describe in reasonable detail — and not by referring to the complaint or other document — the acts restrained or required.

Then ask the Taggart v. Lorenzen, 587 U.S. 554 (2019) question: is there a fair ground of doubt as to whether this order bars the conduct? The standard is objective. If a reasonable person could read the order not to prohibit what happened, civil contempt is generally unavailable — regardless of what the defendant subjectively believed.

Havenmoor's order said Trellis was enjoined from "manufacturing, using, or selling any product incorporating Havenmoor's proprietary reagent formulation" and from "using Havenmoor's confidential customer information." Nwachukwu-Bell's honest assessment: the reagent prohibition was specific enough if the formulation could be identified; the customer information prohibition was not, because the order did not identify the information or say what "using" meant.

Deliverable: a one-page memorandum stating, provision by provision, whether the order is enforceable as written, and where it is not.

Step 2 — Identify who is bound

Rule 65(d)(2) binds only: the parties; the parties' officers, agents, servants, employees, and attorneys; and other persons in active concert or participation with them — and then only if they receive actual notice of the order by personal service or otherwise.

Work through the list for your case:

  • The enjoined entity, obviously.
  • Named individuals — the officers and employees directing the conduct. This is the group most often omitted from enforcement motions and the group whose personal exposure changes behavior.
  • Successor and affiliated entities, reachable as alter egos or as persons in active concert.
  • Facilitators — distributors, contract manufacturers, fulfillment providers, payment processors, hosting services — who continue to enable the conduct with actual notice.

Then confirm notice. For a nonparty, actual notice is an element. Serve the order, personally where possible, on every individual and entity you may proceed against, and keep the proof.

Havenmoor identified Trellis, its chief executive, its vice president of operations, and a contract manufacturer in Ohio that was producing the assay.

Step 3 — Send the compliance demand

Before any motion. This resolves a large share of enforcement problems at the cost of an afternoon, and where it does not, it builds the record.

What it contains: the specific provision violated, quoted; the specific conduct, described with the evidence; a demand to cease and to confirm cessation in writing; a deadline; a request for a compliance certification; and a reservation of rights.

Who gets it: the entity, its counsel, the individual officers, and — separately — any facilitator you have identified, with the order attached.

Why the facilitator letter matters disproportionately. A contract manufacturer, marketplace, or payment processor served with an injunction and a demand will usually stop rather than litigate whether it is in active concert. That often ends the commercial harm before any court is involved.

Keep the response. A denial that turns out to be false is the best evidence of willfulness available, and a non-response establishes notice and indifference.

Step 4 — Use post-judgment discovery

Underused, and it is what converts suspicion into a record.

A court retains jurisdiction to enforce its own orders, and discovery in aid of enforcement is available. For money judgments, Rule 69 expressly permits discovery from any person, including nonparties, in aid of execution.

What to seek: communications with the accounts at issue; sales records and invoices for the enjoined product line; manufacturing and supply records; the design or formulation documents behind the accused product; steps taken to comply with the order; and the identity of anyone assisting.

Why it matters: contempt requires clear and convincing evidence, and a motion resting on customer reports and inference will fail. Havenmoor's discovery produced Trellis's purchase orders to the Ohio manufacturer, the specification sheet those orders referenced, and an internal email describing the accounts as "the Havenmoor list."

Consider an expert. Where the violation is technical — a formulation, a design, a software implementation — a comparison analysis by a qualified expert is often the difference between a motion and a finding.

Step 5 — Choose the vehicle

Four options, and choosing wrong costs months.

Motion to clarify or modify the order. Where Step 1 showed the order is not specific enough to enforce, this comes first. It is not a retreat; it is the necessary predicate. A court retains continuing jurisdiction over its equitable decrees, and a motion identifying the specific documents, products, or accounts the order was meant to cover — supported by the trial record — is routinely granted. Havenmoor moved to modify to identify the reagent formulation by specification number and to list the customer accounts as of the judgment date.

Motion to enforce or compel compliance. A lower-temperature request that the court order specific performance of the decree. Some judges prefer it as a first step, and it can produce compliance without a contempt finding.

Motion for an order to show cause why the respondent should not be held in civil contempt. The ordinary vehicle. Filed in the underlying action, supported by declarations and documents.

Rule-specific enforcement. Rule 70 where the judgment requires a party to convey property or perform a specific act: the court may have the act done by someone else at the disobedient party's expense, may divest title, and may hold the party in contempt. Rule 69 for money judgments, by writ of execution under the practice of the forum state. Rule 45(g) for subpoena disobedience. Rule 37 for discovery orders — where the evidentiary sanctions are usually more effective than contempt.

And note the criminal option, carefully. If what you want is punishment for a completed act, that is criminal contempt under 18 U.S.C. § 401 and Rule 42, with proof beyond a reasonable doubt, an appointed prosecutor, and — for serious sanctions — a jury. Under Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), your own firm cannot prosecute it. The realistic step is a referral to the court, which decides whether to initiate.

Step 6 — Decide what sanction you actually want

Ask this before drafting, because it determines the shape of the motion and the evidence.

Coercive — to make them stop. A daily fine, an escalating schedule, or conditional confinement, with a purge condition. The condition is what keeps it civil: under Shillitani v. United States, 384 U.S. 364 (1966) the contemnor must carry the keys. Ask for a specific amount, tied to a defined compliance act, with a stated purge.

Compensatory — to be made whole. Paid to you, measured by loss actually caused: lost margin on diverted sales, corrective costs, remediation. Quantify it now, with a declaration and, where the number is contested, an expert.

Fees — recoverable as part of a compensatory award, but limited. Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017) requires but-for causation for an inherent-power fee award: only fees you would not have incurred but for the misconduct. Segregate your contempt time from day one, in separate matter numbers if possible.

What not to ask for. A large fixed fine payable to the court, with no purge condition, for a completed violation. That is punishment, and under International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994) requesting it in a civil proceeding invites reversal or converts your motion into one requiring criminal protections.

Step 7 — Build the motion

Structure it in the order a court will decide it.

The order. Attach it. Quote the operative paragraph. Establish service and actual notice as to every respondent, including individuals and nonparties.

Clarity. Explain why the language unambiguously covers the conduct. Address the ambiguity defense affirmatively — do not wait for the opposition — using the Taggart framing: there is no fair ground of doubt because [reason].

The violation, proved by documents. Their emails, invoices, shipping records, product samples, website captures. A chronology exhibit that a judge can follow in two minutes is worth more than ten pages of argument.

Who is bound. For each respondent: party, officer or agent, or person in active concert with actual notice under Rule 65(d)(2). For nonparties, plead the concert facts specifically.

Harm and the requested sanction. The coercive ask with its purge condition; the compensatory ask with its computation; the fee request with segregated time.

And keep it short. Contempt motions are read by a judge who entered the order and wants to know two things: does my order say this, and did they do it.

Step 8 — The hearing

Expect an evidentiary hearing where facts are disputed. Prepare it like a bench trial on a narrow issue.

Bring the witnesses who can authenticate the documents — the person who pulled the sales records, the investigator who bought the sample, the expert who compared the formulations.

Expect an inability-to-comply defense, and be ready to test it. The respondent must show categorically and in detail that compliance was impossible and that it took all reasonable steps. Cross-examination on what steps were actually taken, and when, is where this defense usually fails.

Expect a substantial-compliance argument, and be ready with the specific things not done.

Ask the court for findings on each element — valid order, notice, clarity, violation — because a finding on clarity is what protects the ruling on appeal, where the interpretation of the order is reviewed more searchingly than the contempt finding itself.

And propose an order. A proposed contempt order that states the findings, the sanction, the purge condition, and the compliance deadlines is a gift to a busy court and is usually entered close to as submitted.

Step 9 — If you are defending

Lead with the order. Read it as your client did. If a reasonable person could read it not to prohibit the conduct, that is the defense — and Taggart makes it a real one, on an objective standard, regardless of what your client believed.

Then the other defenses, in order of strength: we complied; we could not comply (categorical, detailed, all reasonable steps, not self-induced); we are not bound (not an officer, agent, or person in active concert; or no actual notice); substantial compliance in good faith.

Object if the relief sought is punitive. A determinate fine payable to the court with no purge condition is criminal contempt, and your client is entitled to Rule 42 protections, proof beyond a reasonable doubt, and — for serious sanctions — a jury. Bagwell and Hicks v. Feiock, 485 U.S. 624 (1988) supply the argument.

Do not attack the underlying order. The collateral bar rule generally forecloses defending contempt on the ground that the injunction was wrong. The remedy is appeal. Advise the client to comply and appeal, not to disobey and litigate validity — the exceptions are narrow, principally jurisdictional.

And consider curing. Coercive sanctions are moot once compliance occurs, and a respondent who cures promptly, documents it, and offers a certification often converts a contempt proceeding into a fee dispute.

Step 10 — Appeals and stays

A civil contempt order against a party is generally not immediately appealable — it is interlocutory, and the party can end a coercive sanction by complying.

A civil contempt order against a nonparty generally is appealable, because for the nonparty there will be no later final judgment.

Criminal contempt adjudications are final and appealable.

Where no appeal lies and the sanction is severe, mandamus under the All Writs Act, 28 U.S.C. § 1651, is the extraordinary route — a clear abuse of discretion, rarely granted.

Stays. A money sanction can be stayed by posting a supersedeas bond under Rule 62. An injunction is not automatically stayed on appeal; move in the district court first, then the court of appeals, on the four-factor standard. Meanwhile the order is in force and disobedience is contempt.

Standard of review. The contempt finding is reviewed for abuse of discretion; the interpretation of the order is a legal question reviewed more searchingly. An ambiguity argument rejected below often fares better on appeal.

Step 11 — When the respondent has nothing, or is abroad

Judgment-proof respondents. A fine coerces nothing and a compensatory award is a claim. What works instead:

  • Proceed against the individuals within Rule 65(d)(2). Personal exposure, including conditional confinement, changes behavior when a corporate fine does not.
  • Post-judgment discovery under Rule 69 reaches any person and is the tool for finding transfers.
  • Fraudulent transfer, receivership, and asset freezes follow from what it finds.
  • Successors and alter egos, on the ordinary showings.
  • Facilitators in active concert, served with the order and a demand.

Foreign respondents. An injunction against a party with no United States presence and no United States assets is a paper remedy, and clients should be told so before spending to obtain one. What sometimes works: enforcement against United States-based intermediaries within Rule 65(d)(2); All Writs Act orders under § 1651 directed at nonparties whose conduct would frustrate the judgment; customs recordation and border enforcement for goods; domain and platform remedies; and foreign recognition proceedings — which are far more developed for money judgments than for injunctions.

Step 4A — Choosing between speed and completeness

Enforcement presents a recurring tension: the fastest route is rarely the most complete one, and counsel has to choose deliberately rather than drifting.

The fast route is the demand letter to the entity, the individuals, and the facilitators, followed — if that fails — by an immediate motion on the clearest single violation, seeking only coercive relief with a purge condition. It can produce compliance in weeks. It leaves money on the table, because compensatory damages are not developed and fees are minimal, and it risks a narrow ruling that addresses one violation while others continue.

The complete route is post-judgment discovery, expert analysis, a comprehensive motion against every respondent covering every violation, with coercive and compensatory relief and a full fee application. It takes six to twelve months, costs a great deal, and — where it succeeds — ends the matter.

Choose by asking what is actually happening to the business. Ongoing diversion of major accounts is an emergency: take the fast route and preserve the compensatory claim for a later motion. Historical violations that have already stopped are not: build the complete record, because speed buys nothing.

A hybrid works more often than either. Move promptly on the clearest violation for coercive relief, expressly reserving compensatory relief and fees for a later application, and run enforcement discovery in parallel. Courts are receptive to this sequencing, because it asks first for the thing the court most wants — compliance with its own order.

And revisit the choice. A demand letter that produces a partial cure, a promise, and continued conduct is a signal to move to the complete route immediately, with the promise as an exhibit.

Step 5A — Enforcing across district and state lines

Enforcement frequently has to happen somewhere other than the court that entered the order, and the mechanics differ by what you are enforcing.

Money judgments travel well. A federal judgment can be registered in another district under 28 U.S.C. § 1963 once it is final by appeal or the time for appeal has expired, and a registered judgment has the same effect as a judgment of the registering court. That opens execution under Rule 69 against assets in that district, using the practice of the state where that court sits. State judgments move between states under enacted versions of the uniform enforcement act.

Injunctions do not travel the same way. An injunction is enforced by the issuing court, through its contempt power, over persons subject to its jurisdiction. There is no registration mechanism that transplants an injunction into another district's contempt jurisdiction. That is why the personal jurisdiction and the Rule 65(d)(2) analysis in Step 2 matter so much: your enforcement reach is defined by who is bound and who the issuing court can command.

Nonparty discovery elsewhere. A subpoena to a nonparty in another district issues from the court where the action is pending, but compliance and enforcement are handled by the court where compliance is required — with transfer available in defined circumstances. Plan for a second court's involvement when the records you need sit in another district.

Assets abroad. Money judgments are recognized and enforced abroad through the relevant country's recognition procedures, and the framework is reasonably developed. Injunctive relief is another matter: foreign courts are generally unreceptive to enforcing a United States injunction as such, and the practical substitutes are proceedings brought locally on local rights.

And the practical point for counsel. Decide at judgment where enforcement will realistically occur, and make sure the order reaches the persons and the assets in that place. An injunction that binds only an entity whose assets and operations sit outside the issuing court's reach is a document, not a remedy.

Step 6A — Counseling the client through the decision

Enforcement decisions are made by clients who are angry, and the counseling is a real part of the work.

Reset the expectation about speed. A contempt motion with discovery and an evidentiary hearing takes six to twelve months. The client who wants the conduct stopped this quarter needs the demand letter and the facilitator letters, not the motion.

Reset the expectation about the order. Clients believe they won something broader than they did. Walking through the decretal language, provision by provision, and explaining that "we can only enforce what this says" is an uncomfortable conversation that must happen before money is spent — not after a denial.

Be explicit about the downside of losing. A denied contempt motion is a judicial statement that the order does not prohibit the conduct. That is worse than not moving, because it licenses the behavior going forward and it will be cited in every subsequent dispute. Where the order is weak, fix the order first.

Price it honestly. A contested proceeding is a six-figure exercise. Fees are recoverable as compensatory sanctions but only in part, only if caused by the misconduct, and only after you win.

Offer the alternatives. The demand letter. The facilitator letters. A negotiated stipulated modification that clarifies the order and resolves the conduct without findings. A motion to enforce rather than to hold in contempt, which some judges prefer and which is less likely to produce an entrenched opponent.

And separate the commercial objective from the vindication objective. Clients frequently want a finding that the other side behaved badly. That is available — it is called criminal contempt, it is prosecuted by someone other than you under Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), and it does not put money in the client's pocket or stop the conduct any faster. Name the objective, then choose the tool.

Step 7A — Monitoring compliance before anything goes wrong

The best enforcement practice is the one that makes enforcement unnecessary, and it starts the day judgment is entered.

Calendar every deadline in the order. Delivery dates, destruction dates, certification dates, reporting dates, and any sunset. An obligation nobody diarized is an obligation nobody notices was missed.

Collect the certifications. If the order requires a compliance certification by a named officer, chase it on the day it is due. A late certification is an early warning; a false one is the best evidence you will ever have.

Read the reports. Periodic sales or customer reports required by the order are only useful if someone compares them against what you observe in the market. Assign it.

Watch the market deliberately. Product listings, marketplaces, trade shows, job postings, customer conversations, and the defendant's own website and archived versions of it. Where the enjoined conduct is technical, buy the product periodically and keep it with chain of custody documentation.

Log what you see, contemporaneously. A dated log of observations, with sources, becomes the chronology exhibit if a motion follows — and reconstructing it from memory eighteen months later is how motions lose.

Preserve properly. Website captures with metadata and a declaration from the person who made them; purchased samples with receipts and custody records; communications from customers, retained rather than summarized.

Send the letter early. The first observation is the cheapest moment to intervene. A short, specific compliance letter at the first sign of drift resolves matters that become six-figure motions if allowed to run for a year.

And review the order annually against how the business has changed. Both sides drift: your own conduct may have moved outside what the decree contemplated, and their operations may have changed in ways that make a provision unenforceable or obsolete. A short annual review, by someone who reads the decretal language rather than remembering the case, is an hour well spent.

Step 8A — Proving compensatory harm

Compensatory sanctions are paid to you and must be proved. Most enforcement motions treat this as an afterthought and recover less than they should.

Establish causation first. The sanction compensates losses caused by the contempt, not losses caused by the underlying wrong that produced the injunction. Where the defendant was already competing lawfully in some respects, isolate the harm attributable to the enjoined conduct.

Pick the measure and defend it. Lost profits on diverted sales is the usual measure: units diverted, times your margin, not the defendant's price. Alternatives worth considering are the defendant's profits from the contumacious conduct, a reasonable royalty where the enjoined conduct is a licensable use, and the cost of corrective action — notice to customers, remediation, re-qualification.

Build the arithmetic on records. Your sales history for the affected accounts before and after, their sales records obtained in enforcement discovery, and a contemporaneous margin analysis. A declaration from finance that describes the systems, the query, and the computation carries more weight than an expert opinion resting on assumptions.

Consider an expert where the number is large or contested, and expect the defendant to argue that the customers would have left anyway.

Include the ancillary costs that are genuinely attributable: investigation, sample purchases, laboratory analysis, corrective communications, and the cost of the compliance monitoring the order now requires.

Then the fees. Recoverable as part of a compensatory award, and constrained by Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017) to the fees you would not have incurred but for the misconduct. Practical consequences: open a separate matter number the day enforcement begins; describe tasks specifically ("draft declaration in support of contempt motion," not "attention to case"); exclude time on the underlying matter; and submit a declaration walking the court through the segregation. Courts reduce fee requests they cannot follow, and the reduction is usually larger than the disputed hours.

And ask for prospective relief on the number. Where the violation is ongoing, request that the compensatory measure continue to accrue until compliance, so a further motion is not required for the next quarter.

Step 9A — How Havenmoor's enforcement actually ran

Month 1. The sales report arrived. Nwachukwu-Bell pulled the order and wrote the one-page assessment: the reagent prohibition was enforceable if the formulation could be identified; the customer information prohibition was not, because the order neither identified the information nor defined "using." That memorandum saved the case, because the instinct in the room was to move for contempt that week.

Month 1. Compliance demands went out — to Trellis, to its counsel, to the chief executive and the vice president of operations personally, and, separately, to the Ohio contract manufacturer with the order attached. The manufacturer stopped production within eleven days and asked for a copy of the judgment. That single letter did more for Havenmoor commercially than everything that followed.

Months 2–3. Motion to modify the injunction: identify the reagent formulation by specification number, list the eighty-one customer accounts as of the judgment date, and define prohibited use of the customer information to include any Trellis-initiated contact concerning diagnostic assays. Trellis opposed on the ground that the modification expanded the injunction. The court granted it in substantial part, on the trial record, describing the change as making explicit what the decree had always meant.

Months 3–6. Post-judgment discovery in aid of enforcement. Purchase orders to the Ohio manufacturer. The specification sheet those orders referenced. Sales records for the three accounts. And an internal email describing the target accounts as "the Havenmoor list" — the document the entire motion was eventually built around.

Month 6. An independent laboratory compared the accused assay to the specification. Two reagent concentrations matched to a tolerance that appeared in no published source.

Month 7. Motion for an order to show cause, against Trellis, the chief executive, and the vice president of operations, seeking coercive sanctions with a purge condition and compensatory sanctions measured by lost margin plus segregated contempt fees.

Month 9. Evidentiary hearing. Trellis argued inability to comply as to the formulation (it had already contracted for materials) and substantial compliance as to the accounts. Cross-examination established that no steps had been taken to cancel the contract and that two of the three accounts were contacted after service of the modified order.

The order. Civil contempt as to the modified customer provision against Trellis and the vice president of operations; no finding as to the chief executive, who had no documented involvement; coercive fine of $7,500 per day with a stated purge; compensatory sanctions of $1.9 million; fees of $310,000 against $520,000 requested, reduced because Havenmoor's early time entries did not distinguish contempt work from ordinary matter management.

Three lessons Nwachukwu-Bell records. Write the injunction at judgment as though you will enforce it. Send the facilitator letter first, because it is free and it usually works. And open a separate matter number for contempt on day one — the $210,000 reduction was entirely self-inflicted.

Step 10A — Enforcing a consent decree or settlement

A large share of injunctive relief arrives by agreement, and it enforces differently.

Confirm you can use contempt at all. A settlement merely filed with the court, or referenced in a dismissal order, is generally not enforceable by contempt — enforcement is a breach of contract action, which may not even belong in federal court. Contempt is available only where the terms are embodied in the court's order or the dismissal expressly retains jurisdiction to enforce the agreement. Check this before you draft a motion; discovering it in the opposition brief is expensive.

Interpret it as a contract. Courts read consent decrees using contract principles: the parties' agreement governs, and a court will not read in obligations the parties did not accept. You cannot argue that conduct violates the spirit of the decree or the statute underlying the original claim. If the decree does not cover it, the remedy is a new action.

But enforce it as a judgment. The specificity requirement of Rule 65(d) applies, and contempt findings resting on decree provisions too general to give notice have been set aside. The Taggart "fair ground of doubt" test applies to a decree exactly as it does to a litigated injunction.

Use the compliance machinery you negotiated. A well-drafted decree contains reporting obligations and certifications precisely so that non-compliance is observable without discovery. Start there — a missing report is a clean, documented violation, and it is usually the first one.

Consider modification from either side. A party bound by an ongoing decree may seek relief under Rule 60(b)(5) where a significant change in facts or law makes continued enforcement inequitable. A movant frustrated by a vague decree may seek clarification. Both are ordinary applications to a court that retains jurisdiction.

And advise defendants accordingly at settlement. A decree traded for a lower payment is a decree the client will live under, enforced by contempt, on its literal terms, for its full duration. Read every operative provision against current operations and against the five-year plan — because what governs is what the decree says, not what everyone understood at the time.

Step 11A — Enforcing discovery orders, which is a different exercise

Most enforcement in federal practice concerns discovery, and the framework above is not the fastest route.

Go through Rule 37 first. The sequence is a motion to compel, an order compelling, and then sanctions for violating that order. The available sanctions — directing that facts be taken as established, prohibiting the disobedient party from supporting or opposing designated claims or defenses, striking pleadings, staying proceedings, dismissing, or entering default, plus an adverse inference in the appropriate case — operate on the case rather than on the person, and they are usually what the client actually wants.

Choose the evidentiary sanction over the fine. A daily fine may not move a recalcitrant opponent. An order establishing the facts the withheld documents would have shown ends the dispute. Ask for the remedy that resolves the issue, not the one that expresses displeasure.

Nonparties are different. Rule 37's case-based sanctions have nothing to bite on, so Rule 45(g) contempt is often the only meaningful remedy for subpoena disobedience. Confirm proper service, move to compel where practicable, and be prepared to show adequate service and the absence of any excuse.

Witnesses who refuse to testify are reached by 28 U.S.C. § 1826 — confinement until compliance or the end of the proceeding, not to exceed eighteen months. Purely coercive; the witness holds the keys.

Spoliation of electronically stored information runs on its own track with its own findings requirements, and should be pleaded as such rather than folded into a general contempt motion.

And where the conduct abuses the process in ways the rules do not reach — a pattern of concealment, fabricated discovery responses, a scheme to defeat the court's fact-finding — the inherent power recognized in Chambers v. NASCO, Inc., 501 U.S. 32 (1991) is available on a finding of bad faith. The fee remedy is constrained by Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017) to fees actually caused by the misconduct, so segregate the time.

Step 12 — Draft the next order properly

The most valuable step in this guide happens before any violation, when you draft the proposed judgment.

Name the acts, not legal conclusions. Not "unfair competition"; the specific conduct.

Name the things. Products by model number, marks by registration number, documents by Bates number, accounts by name as of a stated date, formulations by specification number.

Put dates on obligations, not "promptly."

Require a compliance certification by a named officer within a defined period — converting invisible non-compliance into a documented false statement.

Require periodic reporting where the conduct is ongoing.

Track Rule 65(d)(2) expressly for officers, agents, employees, attorneys, and persons in active concert with actual notice, and provide for service on named individuals.

Retain jurisdiction to enforce and modify.

Provide for fees on enforcement.

For consent decrees specifically: the settlement terms must be embodied in the court's order, or the dismissal must expressly retain jurisdiction — otherwise enforcement is a breach of contract action and contempt is unavailable. This is the most consequential and most common drafting failure in settled cases.

And the test: hand the draft to a colleague who was not on the case. If they can state exactly what the defendant may and may not do, it is enforceable. If they ask a question, the defendant's lawyer will ask the same one — to a court, at your expense.

Related documents

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