Posted on 11-02-2018

By: Jim Wagstaffe and The Wagstaffe Group

This article discusses how to enforce a preliminary injunction or temporary restraining order (collectively, pretrial injunctive relief) in a federal case and covers topics such as the court's authority to enforce its orders; types of sanctions, including monetary, imprisonment, and fee-shifting; procedures to enforce contempt; distinguishing civil and criminal contempt; constitutional protections; and immediate and interlocutory appellate review of contempt rulings and sanctions.

Using Contempt

A court enforces its pretrial injunctive relief through the exercise of its contempt authority. “The Supreme Court has consistently stated that the power to punish contempt is part and parcel of the judicial power.”1 Note that:

  • Courts have both statutory and inherent authority to enforce their orders through contempt.2
  • A contempt award can result in monetary sanctions, shifting of fees, imprisonment, or a combination of all three.3
  • A contempt award can be civil, criminal, or both.4
  • A civil contempt award is imposed to compel compliance with the court order, to compensate the complainant for losses caused by contemptuous actions, or both.5
  • A criminal contempt award is imposed to punish failure to comply with the court order.6
  • Contempt can be either direct or indirect.7
  • Civil contempt proceedings are usually initiated by a party; a criminal contempt proceeding must be initiated by the court.8
  • Contempt proceedings can be initiated against a party or nonparty if he or she is obliged to comply with the court order.9
  • The level of process owed an alleged contemnor in a contempt proceeding depends largely on whether the contempt award at issue is civil or criminal.10
  • Generally, a finding of criminal contempt is immediately appealable, whereas a finding of civil contempt is appealable only after entry of the final judgment.11

“[I]t is firmly established that the power to punish for contempt is inherent in all courts.”12 Federal courts also have statutory authority to find a person in civil or criminal contempt for failing to comply with a court order.13

The remedy for violating an injunction is an order of contempt.14 In addition, “[t]he contempt power serves to ‘protect[ ] the due and orderly administration of justice and [to] maintain[ ] the authority and dignity of the court.’”15

“[A] district court should enforce an injunction until either the injunction expires by its terms or the court determines that the injunction should be modified or dissolved.”16 However, if an injunction expires or is mooted for reasons other than its merits, the court loses authority to issue coercive contempt but retains the authority to issue both criminal and compensatory civil contempt.17

Available Remedies

“Contempt is a weighty penalty and should not be casually imposed.”18

A court in exercising its contempt power “should never exercise more than ‘the least possible power adequate to the end proposed.’”19

For example, if the goal is coercion, the court must determine the least coercive sanction reasonably calculated to prompt compliance with its order.20

Only the court that issued the injunction allegedly disobeyed possesses the authority to impose a contempt award.21

Types of Contempt Sanctions

The courts have broad discretion in fashioning a remedy that will effectively address a party’s contempt. However, in virtually all cases, contempt awards for failure to comply with an injunctive order are limited to:

  • Monetary sanctions. A monetary fine is probably the most common form of sanction awarded in contempt proceedings.22Depending on the circumstances, the court may order that monetary sanctions be paid to one of the following:
    • A party to the lawsuit
    • To a nonparty
    • To the court
  • Imprisonment. Incarceration has long been established as an appropriate sanction for both civil and criminal contempt.23
  • Fee-shifting. Generally, the injured party’s attorney’s fees and costs associated with prosecuting a contempt proceeding may be recovered as part of a remedial civil contempt award.24

While relatively rare in practice, the court may impose alternative non-monetary remedies for violation of a pretrial injunction. This includes, for example, a dismissal, conditional or otherwise, of a counterclaim.25

It also includes the imposition of additional pretrial remedies, such as further restrictions on the actions of the defendant or appointing a receiver.26

If non-monetary sanctions alter the legal relationship of the parties, amounting effectively to a new or independent form of pretrial injunctive relief, they may be subject to an immediate interlocutory appeal, unlike most interlocutory civil contempt awards.27

Contempt Categories

In general, contempt can also be classified as direct or indirect:

  • Direct contempt is committed in the actual presence of the court and as such can be punished immediately and summarily. All other contempt is indirect contempt.28
  • Contempt in the context of violating pretrial injunctive relief in all but the rarest of cases will occur outside of the presence of the court and will be considered indirect contempt.

Contempt may also be civil, criminal, or both. The distinction is important.

“A court’s contempt powers are broadly divided into two categories: civil contempt and criminal contempt.”29 Refusal to obey a court order may subject a person to civil and criminal contempt for the same acts.30 A contempt order can have elements of both civil and criminal contempt.31

Whether a specific contempt sanction is criminal is important “because criminal sanctions require certain constitutional safeguards before they are imposed (e.g., right to counsel, notice of charges, double jeopardy, proof beyond a reasonable doubt).”32 Civil contempt sanctions, on the other hand, require fewer procedural safeguards.33

In addition, generally interlocutory appeals are permitted for a finding of criminal contempt but not civil contempt.34

The distinction between civil and criminal contempt is “somewhat elusive.”35 In distinguishing between the two types of contempt, a reviewing court will look to the contempt award’s “character and purpose.”36

In general, the purpose of civil contempt is coercive or compensatory while the purpose of criminal contempt is punitive.37 While this “dichotomy between civil and criminal contempt is helpful, it is not quite complete”, and there are other factors that may need to be considered to determine the character of the contempt.38

Because whether a contempt award is criminal or civil depends on its “character and purpose,” the label the lower court gives the sanction or the court’s “subjective intent” is usually given little or no weight on appeal.39

Civil Contempt

If the purpose of a contempt award is remedial—that is, imposed solely to compensate for the costs of the contemptuous conduct or to coerce future compliance with the court’s order—the contempt order is almost always civil.40

“Because civil compensatory sanctions are remedial, they typically take the form of unconditional monetary sanctions.”41 “The amount of such a sanction must be established by competent evidence and must bear a reasonable relationship to the actual losses sustained by the injured party.”42 Contempt damages “must not exceed the actual damages caused the offended party by a violation of the court’s order.”43

In setting a compensatory monetary sanction, the court “must explain how it arrived at the specific amount of the sanction imposed.”44

Requiring the contemnor to pay the injured party’s attorney’s fees and costs related to the contempt is also a “commonplace sanction for civil contempt.”45

A coercive monetary sanction, while still a civil contempt award, is intended to deter future disobedience and “generally takes the form of conditional fines.”46 A “conditional fine” is one that the party in contempt has the “opportunity to purge” (i.e., the contemnor is given an “opportunity to reduce or avoid the fine through compliance.”)47

Examples include:

  • A per diem fine imposed for each day, hour, or other period of time a contemnor fails to comply with an injunction is a civil coercive sanction because, once the order is obeyed, future daily fines are “purged.”48
  • However, “a ‘flat, unconditional fine’ totaling even as little as $50 announced after a finding of contempt is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance.”49
  • Fixed fines may also be considered “purgable and civil when imposed and suspended pending future compliance.”50

In the context of serial contemnors, the purge requirement is deemed satisfied in situations where all of these conditions are met:

  • There is an initial injunction.
  • The injunction was violated.
  • There was a subsequent contempt order that outlined a future per diem fee schedule for further violations.
  • There was a subsequent violation of the injunction.
  • The unabated contemptuous conduct is subsequently purged before the parties appear again before the court on a new contempt hearing.

In such a case, the previously imposed sanctions can remain, and the sanction remains a civil one because it resulted from the prior failure to purge.51

In comparison, a remedial monetary sanction may be coercive in the sense that the sting of payment may convince the contemnor not to repeat the behavior. However, remedial monetary sanctions, by definition, provide no opportunity to purge and thus will not satisfy the requirements of a coercive civil contempt.

Coercive Imprisonment

Imprisonment is a sanction permitted in civil contempt. However, imprisonment as a civil contempt award is always coercive and, like a coercive monetary sanction, imprisonment is a civil contempt sanction only if the contemnor is afforded an opportunity to purge (i.e., he or she remains imprisoned only so long as he or she is capable of complying with the order but refuses to do so.)52

Courts may utilize incarceration as a coercive sanction for civil contempt, so long as “the contemnor is able to purge the contempt and obtain his release by committing an affirmative act.”53 In contrast, imprisonment for contempt is criminal if the contemnor is incarcerated for a “definite period” with no right to “purge.”54

Whether incarceration is the “least coercive” sanction55 necessary to encourage compliance with the court order usually requires the court to consider whether a monetary sanction would be at least as effective.56

Use of the coercive sanction of imprisonment “is especially appropriate” when both:

  • Increased monetary sanctions are likely ineffective in coercing compliance.
  • There has been repeated noncompliance.57

Several courts have held that while a court may impose a coercive fine or imprisonment interchangeably or successively, it cannot impose both at the same time absent support in the record that such “severe action” is necessary.58

Criminal Contempt

Generally, contempt is deemed criminal if the purpose of the award is either to punish the contemnor, vindicate the authority of the court, or deter future disobedience.59 “A criminal sanction . . . generally seeks to punish a ‘completed act of disobedience.’”60

As with civil contempt, a court’s exercise of the criminal contempt power “must be restrained by the principle that ‘only “[t]he least possible power adequate to the end proposed” should be used in contempt cases.’”61

However, this does not mean the court must consider civil contempt before criminal contempt in all cases. The court should consider civil contempt before criminal contempt when it seeks to coerce future behavior. However, if “the end is punishment of past behavior, criminal contempt can be appropriate without civil contempt being considered first.”62

“Since criminal contempt proceedings address a completed crime, and the fine imposed is a criminal ‘sentence,’ . . . the contemnor lacks the unilateral option to avoid the fine by future compliance with the court order. Further, since the fine is punitive rather than compensatory, its amount need not be exclusively commensurate with victim loss.”63

Additional Factors Distinguishing Civil and Criminal Sanctions

Note the following distinguishing factors:

  • Size of sanction. The “sheer size of the sanction is indicative of whether the sanction is intended to punish or coerce.”64
  • Complexity of injunction. Whether a sanction should be deemed civil or criminal may also depend on whether the contempt involves a simple disobedient act or “out-of-court disobedience to a complex injunction” that requires “elaborate and reliable fact-finding” before such sanctions are imposed.65 In cases involving a “complex injunction,” as a matter of due process, “civil procedural protections may be insufficient” and criminal procedural protections may be “both necessary and appropriate.”66
  • To whom sanction is paid. The U.S. Supreme Court has indicated to whom the fine is payable may be important, suggesting that a fine “is remedial when it is paid to the complainant, and punitive when it is paid to the court”, at least when it is not conditional.67

Initiating Contempt Proceedings

Civil contempt “is designed to coerce the contemnor to comply with a court order, and a civil contempt action is brought by a private party, not the court.”68 “If a party contends that another party is violating an injunction, the aggrieved party should move the court for an order to show cause why the other party should not be held in civil contempt.”69

A party may make a request for criminal contempt ordinarily by seeking an order to show cause.70 However, it is the court, not the parties, that actually initiates criminal contempt proceedings, and the court has the authority to initiate such proceedings on its own.71

Asserting Civil Contempt

For civil contempt involving disobeying a court order, courts generally require that some version of all of the following be established:

  • The order was in effect at the time of the alleged disobedience.
  • The respondent had actual or constructive notice of the order.
  • The order is clear and unambiguous.
  • The respondent was not reasonably diligent in attempting to accomplish what was ordered.
  • If compensatory damages are sought, proof of actual damages.72

Evidence of actual notice is required if the respondent is a nonparty.73

However, willful disobedience is not an element of civil contempt (although it may be relevant to the scope of any award).74

The movant must show by clear and convincing evidence that the respondent violated the injunction.75 However, some courts have held that in determining the appropriate type and size of sanction the preponderance of the evidence standard applies.76

Asserting Criminal Contempt

For criminal contempt involving disobeying a court order, courts generally require that some version of all of the following be established:

  • That the defendant had notice of a reasonably specific court order
  • That the defendant disobeyed the court order
  • In doing so, the defendant acted with intent or willfulness77

Willful in this context has been defined as a “volitional act” committed by one who knows or should “be reasonably aware” it is wrongful. This includes the mental state of recklessness.78

The burden of proof required is beyond a reasonable doubt.79

Procedures for Civil Contempt

“Since the civil contemnor may absolve herself of the sanction by complying with the contempt order, civil contempt sanctions may be imposed with merely notice and an opportunity to be heard.”80

While criminal contempt involves a separate proceeding between the public and the respondent, civil contempt is instituted and resolved as part of the original action.81

“A federal civil contempt proceeding is a civil proceeding governed by the rules of civil procedure.”82

Ordinarily, the complaining party initiates a civil contempt proceeding by seeking an order to show cause from the court.83 The complaining party’s motion in support of the order to show cause should cite the provision of the injunction at issue and allege, with supporting evidence, that the respondent has refused to obey it.84

If an order to show cause is issued, the respondent should file a response to the motion seeking an order to show cause, admitting or denying the allegations.85 Failure to do so may result in the moving party’s allegations being deemed admitted.86

The court may require the parties to submit affidavits or declarations in support and in opposition, and may narrow the issues by treating as true those facts set forth in uncontroverted affidavits or declarations.87

The courts have not been clear as to when a party is entitled to an evidentiary hearing for civil contempt. Some courts find that contempt proceedings are naturally “summary in form and swift in execution” and, therefore, the parties are not entitled to “what amounts to a full trial on the merits.”88

Others have held that an indirect civil contempt proceeding is akin to a trial that may require an evidentiary hearing, including the right to call witnesses.89

Courts generally hold, however, that when material facts are uncontroverted, a full-blown evidentiary hearing is not required.90

Generally, courts have held that a jury is not required for a civil contempt hearing.91

Procedures for Criminal Contempt

“Criminal contempt is a crime in the ordinary sense, and criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.”92

A number of these protections are set forth in criminal Rule 42(a), which provides the basic procedures for adjudicating all criminal contempts except direct contempt, which may be handled summarily under Rule 42(b).93

Rule 42 requires:

  • Notice. The contemnor must be given notice either in open court, an order to show cause, or an arrest warrant.94The notice must:
    • “State the time and place of the trial”
    • “Allow the defendant a reasonable time to prepare a defense”
    • “State the essential facts constituting the charged criminal contempt and describe it as such”95
  • Appointment of prosecutor. The court must first ask that a government attorney prosecute the contempt, unless the “interest of justice” requires another prosecutor. If the request for a government attorney is denied, “the court must appoint another attorney to prosecute the contempt.”96
  • Jury. “A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides.”97 Petty criminal contempt can be tried without a jury but serious criminal contempt must be tried to a jury.98 In criminal contempt prosecutions, courts “look to the penalty actually imposed as the best evidence of the seriousness of the offense.”99 Imprisonment for longer than six months constitutes a serious criminal contempt requiring a jury trial.100 It is unclear how much of a fine—with or without incarceration—is required for a serious criminal contempt.101
  • Pretrial detention or release. The person charged with criminal contempt can be held or released during pretrial consistent with Fed. R. Crim. P. 46.

Apart from the rights set forth in Rule 42, courts have recognized that the person charged with criminal contempt is also entitled to the full panoply of constitutional protections, which includes the additional rights to:

  • Assistance of counsel
  • The presumption of innocence
  • Proof beyond a reasonable doubt
  • The privilege against self-incrimination
  • The right to cross-examine witnesses
  • The right to present a defense
  • The right to call witnesses102

Criminal contempt must be established beyond a reasonable doubt.103

Defenses to Contempt

Defenses to contempt include:

  • Lack of subject matter jurisdiction. The contemnor can raise, as a defense to contempt, that the court issuing the injunction lacked subject matter jurisdiction.104
  • Court did not issue injunction. The court that issued the pretrial injunction is the only court that can decide contempt.105
  • Lack of personal jurisdiction. Personal jurisdiction is required to find a party or nonparty in contempt of a court’s order.106 However, once an injunction has been issued against a party, the court is deemed to have nationwide personal jurisdiction over any nonparty for purposes of contempt, if the nonparty has actual notice of the order and either aids or abets the enjoined party or is legally identified as the enjoined party.107
  • Good faith. Good faith may be a defense to criminal contempt if it effectively negates willfulness. It is not sufficient to simply state the good faith, but mistaken, belief that the order was not properly issued or is unlawful.108 Instead, the good faith defense applies only when the defendant has made a good faith effort to comply with the order.109 A mistaken interpretation defense to criminal contempt may be viable if such interpretation is adopted in good faith and is plausible.110 Generally, good faith is not a defense to civil contempt.111
  • Validity of order. Generally, those subject to an injunction, even an invalid one, must comply with it until it is overturned either on appeal or motion. As such, except in limited circumstances, the validity of the underlying injunction cannot be litigated in a contempt proceeding.112 The acceptable limited circumstances usually include that the court lacked jurisdiction to issue the injunction or the injunction was “transparently invalid or had only a frivolous pretense to validity.”113 Some courts also hold that unconstitutional orders may be challenged as invalid in a contempt proceeding if there is no adequate and effective appeal available and the order, if not challenged, would require an “irretrievable surrender of constitutional guarantees.”114
  • Underlying order overturned.Specifically:
    • Coercive civil contempt. If the underlying injunction is overturned for any reason, the issuing lower court can no longer issue a coercive civil contempt award as there is no longer an order with which to force compliance.115
    • Remedial civil contempt. An order of compensatory civil contempt cannot stand if the underlying injunction that was disobeyed is subsequently reversed as erroneously issued by the issuing court or the appellate court.116
    • Criminal contempt. Generally, a party can still be charged with criminal contempt for actions taken while an injunction was in effect even if at the time of the contempt hearing the injunction has been reversed as erroneously granted by the court or the court of appeals.117
  • Injunction terminated for non-merit related reason. An injunction may be mooted by, for example, the passage of time or a change in the law. It could also terminate because it provided the movant with effective relief or because the case settles. Regardless of why, an injunction that is no longer in effect cannot support a coercive contempt award.118 If a requested contempt order is compensatory in nature, it may proceed if the injunction order is terminated for reasons unrelated to its merits.119 The termination of an injunction for reasons unrelated to its merits is also not a defense to a criminal contempt for disobeying the order while it was in effect.120
  • Lack of notice. Notice of the injunction is usually an element the movant must meet.121
  • Substantial compliance. Substantial compliance with the injunction is a defense to contempt if the defendant establishes it took all reasonable steps to comply with the injunction and did so except for “minor, technical or good faith violations of the injunction.”122
  • Inability to comply. Inability to comply, provided the inability is not “self-induced,” is a defense to both civil and criminal contempt.123

Appellate Review

Whether a contemnor is entitled to an immediate or interlocutory appeal of a contempt award will depend on the contemnor’s party status and whether the contempt is criminal or civil:

  • Criminal contempt. A finding of criminal contempt against a party or nonparty is immediately appealable as a final order.124
  • Civil contempt against nonparty. A finding of civil or criminal contempt against a nonparty is immediately appealable as a final order.125
  • Civil contempt against party. A civil contempt order against a party is generally held not appealable until final judgment.126
  • Order denying civil contempt. Generally, an order denying civil contempt is not appealable until final judgment.127
  • Civil contempt award modifying existing injunction. An interlocutory appeal is permitted of a civil contempt award if it “effectively” modifies the terms of the original injunction.128

James M. Wagstaffe is a renowned author, litigator, educator, and lecturer, and the premier industry authority on pretrial federal civil procedure. He is a partner and co-founder of Kerr & Wagstaffe LLP, where he heads the firm’s Federal Practice Group. See his full bio here:

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1. United States v. Griffin, 84 F.3d 820, 828 (7th Cir. 1996). 2. 28 U.S.C.S. §§ 401–402; Fed. R. Crim. P. 42; Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 944 (9th Cir. 2014). Also see Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(B). 3. 18 U.S.C.S. § 401; In re Bradley, 588 F.3d 254, 265 (5th Cir. 2009). Also see Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(H)(1). 4. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(J). 5. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(J)(2). 6. Id. 7. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(I). 8. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(N). 9. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(O). 10. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(Q); see Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(R). 11. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(T). 12. Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (alteration and internal quotation marks omitted); Shillitani v. United States, 384 U.S. 364, 370 (1966); Cetacean Research, 774 F.3d at 944. 13. See, e.g., 18 U.S.C.S. §§ 401–402; Fed. R. Crim. P. 42; Cetacean Research, 774 F.3d at 944 (“[w]e also have statutory authority to punish both civil and criminal contempt pursuant to 18 U.S.C. § 401”); Ingalls, 588 F.3d at 265 (same). 14. Barrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186, 1190 (9th Cir. 2011); Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1134 n.23 (11th Cir. 2005) (“injunctions are enforced through the district court’s civil contempt power”). 15. CBS Broad. Inc. v., Inc., 814 F.3d 91, 98 (2d Cir. 2016), quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). 16. Fla. Ass’n for Retarded Citizens, Inc. v. Bush, 246 F.3d 1296, 1298 (11th Cir. 2001). 17. Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d 623, 630 (9th Cir. 2016) (coercive and compensatory contempt); Klett v. Pim, 965 F.2d 587, 590 (8th Cir. 1992) (same); see United States v. United Mine Workers, 330 U.S. 258, 294 (1947) (criminal contempt). 18. Cook Grp. Inc. v. Wilson (In re Wilson), 199 F.3d 1329 (4th Cir. 1999); see Cetacean Research, 774 F.3d at 951 (contempt power “must be exercised with restraint and discretion”) (internal quotation marks and citation omitted); TiVo Inc. v. EchoStar Corp., 646 F.3d 869, 881–82 (Fed. Cir. 2011) (contempt “is a severe remedy, and should not be resorted to where there is a fair ground of doubt as to the wrongfulness of the defendant’s conduct.”) (internal quotation marks and citation omitted). 19. United Mine Workers, 330 U.S. at 332 (internal citation omitted); F.T.C. v. Trudeau, 606 F.3d 382, 386 (7th Cir. 2010); Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991) (civil contempt). 20. United States v. Flores, 628 F.2d 521, 527 (9th Cir. 1980); In re Grand Jury Impaneled January 21, 1975, 529 F.2d 543, 551 (3d Cir. 1976). 21. Green Point Credit, LLC v. McLean (In re McLean), 794 F.3d 1313, 1318–19 (11th Cir. 2015) (power to sanction by contempt is jurisdictional); United States v. Reed, 773 F.2d 477, 481 (2d Cir. 1985); Waffenschmidt v. MacKay, 763 F.2d 711, 716 (5th Cir. 1985). 22. AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 420, 427–28 (1st Cir. 2015); Marshak v. Treadwell, 595 F.3d 478, 494 (3d Cir. 2009). 23. United States v. Bayshore Assocs., Inc., 934 F.2d 1391, 1400 (6th Cir. 1991); see Hicks v. Feiock, 485 U.S. 624, 632 (1988); John Roe, Inc. v. United States (In re Grand Jury Proceedings), 142 F.3d 1416, 1424 (11th Cir. 1998) ; United States v. Rauch, 717 F.2d 448, 451 (8th Cir. 1983) (imprisonment). 24. Cetacean Research, 774 F.3d at 958; Tranzact Techs., Inc. v. 1Source Worldsite, 406 F.3d 851, 855 (7th Cir. 2005); New York State NOW v. Terry, 159 F.3d 86, 96 (2d Cir. 1998) (willful violation supports award of fees). 25. See, e.g., Enovative Techs., LLC v. Leor, 110 F. Supp. 3d 633, 638 (D. Md. 2015) (“exceptional circumstances” support dismissal of defendant’s counterclaim as “added sanction” for defendant’s continuing violation of preliminary injunction). 26. Omaha Indem. Co. v. Wining, 949 F.2d 235, 238 (8th Cir. 1991); see Liberte Capital Grp., LLC v. Capwill, 462 F.3d 543, 557 (6th Cir. 2006) (violation of injunction against “satellite litigation” in connection with appointment of receiver). 27. See, e.g., Omaha Indem. Co., 949 F.2d at 238 (contempt sanctions restraining defendant’s expenditures and imposing receivership for first time). 28. In re Troutt, 460 F.3d 887, 893 (7th Cir. 2006). 29. Shell, 815 F.3d at 628. 30. Yates v. United States, 355 U.S. 66, 74 (1957). 31. Lamar Fin. Corp. v. Adams, 918 F.2d 564, 567 (5th Cir. 1990). 32. F.T.C. v. Trudeau, 579 F.3d 754, 769 (7th Cir. 2009). 33. See, e.g., Lightspeed Media Corp. v. Smith, 830 F.3d 500, 508 (7th Cir. 2016); F.T.C. v. Kuykendall, 371 F.3d 745, 754 (10th Cir. 2004). 34. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(T). 35. Int’l Union v. Bagwell, 512 U.S. 821, 831 (1994); Shell, 815 F.3d at 629 (difference “not always clear”); F.T.C. v. Trudeau, 579 F.3d at 769 (difference “not always easy to discern”). 36. Bagwell, 512 U.S. at 831; see Shillitani, 384 U.S. at 369 (“‘It is not the fact of punishment, but rather its character and purpose,’ that often serve to distinguish’ civil from criminal contempt.”). See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(K). 37. Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 539 F.3d 1039, 1042 (9th Cir. 2008). 38. Bingman v. Ward, 100 F.3d 653, 655 (9th Cir. 1996). See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(M). 39. F.T.C. v. Trudeau, 579 F.3d at 769; In re Jaques, 761 F.2d 302, 305 (6th Cir. 1985) (“because of the frequency with which the two forms of contempt are confused, a lower court’s characterization of its proceedings is but one factor to consider in determining their true nature”). 40. Shell, 815 F.3d at 629; Ohr ex rel. NLRB v. Latino Express, Inc., 776 F.3d 469, 479–480 (7th Cir. 2015) (“A civil contempt order can serve to coerce a party to obey a court order, or it can be intended to compensate a party who has suffered unnecessary injuries or costs because of contemptuous conduct” (collecting cases)). 41. Shell, 815 F.3d at 629. 42. Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 78 (1st Cir. 2002); Reliance Ins. Co. v. Mast Const. Co., 84 F.3d 372, 377 (10th Cir. 1996). 43. Quinter v. Volkswagen of Am., 676 F.2d 969, 975 (3d Cir. 1982). 44. F.T.C. v. Trudeau, 579 F.3d at 770 (setting forth methodology crucial to ensuring award is not greater than necessary). 45. Goya Foods, 290 F.3d at 78. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(H)(4). 46. Shell, 815 F.3d at 629. 47. Bagwell, 512 U.S. at 829; Shell, 815 F.3d at 629 (“ability to purge is perhaps the most definitive characteristic of coercive civil contempt”); CBS, 814 F.3d at 101 (“opportunity to purge is essential”). 48. Bagwell, 512 U.S. at 829; Shell, 815 F.3d at 630 (hourly fine); United States v. Spectro Foods Corp., 544 F.2d 1175, 1182–83 (3d Cir. 1976) ($500 fine for each day defendants continue to violate preliminary injunction “is unquestionably for civil contempt: it is clearly coercive since it can be avoided by compliance”). 49. Bagwell, 512 U.S. at 829. 50. Id. 51. CBS, 814 F.3d at 102. 52. Hicks, 485 U.S. at 632 (“those who are imprisoned until they obey the order, ‘carry the keys of their prison in their own pockets’”); see United States v. Harris, 582 F.3d 512, 515 (3d Cir. 2009). 53. Bagwell, 512 U.S. at 828-829 (internal citations and quotation marks omitted). 54. Hicks, 485 U.S. at 632. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(K)(2)(b). 55. See Wagstaffe Prac. Guide: Fed. Civ. Proc. Before Trial § 31-XXXII(F). 56. See, e.g., S.E.C. v. Yun, 208 F. Supp. 2d 1279, 1288 (M.D. Fla. 2002) (incarceration deemed “least coercive” effective sanction; fine would be ineffective due to contemnor’s alleged financial difficulties). 57. In re 1990’s Caterers Ltd., 531 B.R. 309, 320 (Bankr. E.D.N.Y. 2015). 58. Grand Jury Impaneled, 529 F.2d at 551. 59. Lightspeed Media, 830 F.3d at 508; CBS, 814 F.3d at 101; Koninklijke Philips, 539 F.3d at 1042. 60. Ahearn v. Int’l Longshore & Warehouse Union, Local 21, 721 F.3d 1122, 1129 (9th Cir. 2013), quoting Bagwell, 512 U.S. at 828. 61. Young v. U.S. ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 801 (1987) (internal citations omitted); N.L.R.B. v. A-Plus Roofing, 39 F.3d 1410, 1418 (9th Cir. 1994). 62. A-Plus Roofing, 39 F.3d at 1418. 63. United States v. Kouri-Perez, 187 F.3d 1, 7 n.2 (1st Cir. 1999) (internal citations omitted); United States v. Marquardo, 149 F.3d 36, 40 (1st Cir. 1998). 64. CBS, 814 F.3d at 102. 65. Bagwell, 512 U.S. at 834. 66. Bagwell, 512 U.S. at 833-34. 67. Hicks, 485 U.S. at 632; but see Lightspeed Media, 830 F.3d at 508 (“recipient of the fine is not . . . the sole determinant of whether the contempt is civil or criminal”); Shell, 815 F.3d at 629 (who receives payment is not dispositive as to whether sanction is coercive, compensatory, or punitive). 68. Wolfe v. Coleman, 681 F.2d 1302, 1306 (11th Cir. 1982). 69. Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 823, 829 (11th Cir. 2010). 70. See, e.g., United States v. Lohan, 945 F.2d 1214, 1215 (2d Cir. 1991); Musidor, B. V. v. Great Am. Screen, 658 F.2d 60, 62 (2d Cir. 1981). 71. Jones v. Clinton, 206 F.3d 811, 812 (8th Cir. 2000) (private party has no standing to initiate criminal contempt proceedings); Ramos Colon v. U. S. Attorney for the D. of P.R., 576 F.2d 1, 5 (1st Cir. 1978); see Young, 481 U.S. at 801 (court has authority to initiate prosecution for criminal contempt). 72. CBS, 814 F.3d at 98; Hawkins v. Dep’t of Health & Human Servs. for N.H., Com’r, 665 F.3d 25, 31 (1st Cir. 2012); Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574, 581 (5th Cir. 2000); Reliance Ins., 84 F.3d at 377. 73. Reliance Ins., 84 F.3d at 377. 74. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949); Am. Airlines, Inc., 228 F.3d at 581; Donovan v. Sovereign Secur. Ltd., 726 F.2d 55, 59 (2d Cir. 1984). 75. Lightspeed Media, 830 F.3d at 508; Cetacean Research, 774 F.3d at 945; Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995). 76. Kuykendall, 371 F.3d at 754. 77. United States v. Hendrickson, 822 F.3d 812, 820 (6th Cir. 2016); United States v. Trudeau, 812 F.3d 578, 587 (7th Cir. 2016). 78. United States v. Trudeau, 812 F.3d at 587. 79. Bagwell, 512 U.S. at 827; Kelly v. Wengler, 822 F.3d 1085, 1097 (9th Cir. 2016). 80. Biolitec AG, 780 F.3d at 427–428; see Bagwell, 512 U.S. at 827. 81. AngioDynamics, Inc. v. Biolitec AG, 823 F.3d 1, 7 (1st Cir. 2016). 82. Matter of Grand Jury Proceedings Empaneled May 1988, 894 F.2d 881, 882 (7th Cir. 1989). 83. N.L.R.B. v. Gimrock Const., Inc., 695 F.3d 1188, 1193 n.10 (11th Cir. 2012); Alcalde v. NAC Real Estate Invs. & Assignments, Inc., 580 F. Supp. 2d 969, 971 (C.D. Cal. 2008). 84. Gimrock, 695 F.3d at 1193 n.10. 85. Rogers v. Webster, 776 F.2d 607, 610 (6th Cir. 1985). 86. Rogers,776 F.2d at 611. 87. Peterson v. Highland Music, Inc., 140 F.3d 1313, 1324 (9th Cir. 1998); Rogers, 776 F.2d at 610. 88. Am. Airlines, Inc., 228 F.3d at 583. 89. Mercer v. Mitchell, 908 F.2d 763, 767 (11th Cir. 1990); Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 495 (9th Cir. 1983). 90. Grand Jury Proceedings Empaneled, 894 F.2d at 883; Peterson, 140 F.3d at 1324; In re Grand Jury Proceedings, 795 F.2d 226, 234–235 (1st Cir. 1986). 91. Bagwell, 512 U.S. at 827; United States v. Ayres, 166 F.3d 991, 995 (9th Cir. 1999); Daniels v. Pipe Fitters Ass’n, Local Union 597, 113 F.3d 685, 688 (7th Cir. 1997). 92. Bagwell, 512 U.S. at 826; Lightspeed Media, 830 F.3d at 508; Shell, 815 F.3d at 631. 93. Fed. R. Crim. P. 42. 94. Fed. R. Crim. P. 42(a)(1). 95. Fed. R. Crim. P. 42(a)(1). 96. Fed. R. Crim. P. 42(a)(2); Young, 481 U.S. at 801 (counsel for interested party may not be appointed prosecutor in contempt action). 97. Fed. R. Crim. P. 42(a)(3). 98. Muniz v. Hoffman, 422 U.S. 454, 475–76 (1975). 99. Bloom v. State of Illinois., 391 U.S. 194, 211 (1968). 100. Muniz, 422 U.S. at 475–76; United States v. Troxler Hosiery Co., 681 F.2d 934, 936 (4th Cir. 1982). 101. Muniz, 422 U.S. at 476–77 ($10,000 fine—by itself—against labor union did not require jury); Troxler Hosiery, 681 F.2d at 936 ($80,000 fine against corporation not serious criminal contempt). 102. F.J. Hanshaw Enterps., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1139 (9th Cir. 2001). 103. Young, 481 U.S. at 798; Kelly, 822 F.3d at 1097; In re Kendall, 712 F.3d 814, 830 (3d Cir. 2013). 104. Mid-Am. Waste Sys., Inc. v. City of Gary, 49 F.3d 286, 292 (7th Cir. 1995); see United Mine Workers, 330 U.S. at 295 (right to remedial relief fails “a fortiori when the injunction or restraining order was beyond the jurisdiction of the court”). 105. Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958, 970 (11th Cir. 2012) (“power to sanction contempt is jurisdictional”). 106. Reebok Int’l Ltd. v. McLaughlin, 49 F.3d 1387, 1390–91 (9th Cir. 1995); In re Novak, 932 F.2d 1397, 1400 (11th Cir. 1991). 107. Alderwoods, 682 F.3d at 971; Additive Controls Measurement Sys., Inc. v. Flowdata, Inc., 154 F.3d 1345, 1353 (Fed. Cir. 1998). 108. Hendrickson, 822 F.3d at 821. 109. Id., (honest, but incorrect, misunderstanding of court order may provide good faith defense but belief order that is unlawful will not). 110. United States v. Trudeau, 812 F.3d at 593. 111. Cetacean Research, 774 F.3d at 953; Goya Foods, 290 F.3d at 76. 112. Hendrickson, 822 F.3d at 820. 113. Walker v. Birmingham, 388 U.S. 307, 314 (1967); Hendrickson, 822 F.3d at 819. 114. United States v. Dickinson, 465 F.2d 496, 511 (5th Cir. 1972). 115. Klett, 965 F.2d at 590 (“court cannot impose a coercive civil contempt sanction if the underlying injunction is no longer in effect”). 116. United Mine Workers, 330 U.S. at 295; ePlus Inc. v. Lawson Software, Inc., 789 F.3d 1349, 1356–57 (Fed. Cir. 2015); Reliance Ins., 84 F.3d at 376; Coleman v. Espy, 986 F.2d 1184, 1190 (8th Cir. 1993). 117. Hendrickson, 822 F.3d at 818. 118. Shell, 815 F.3d at 631; Travelhost, Inc., 68 F.3d at 962. 119. Travelhost, Inc., 68 F.3d at 962; Klett, 965 F.2d at 590 (“[i]f the underlying injunction abates for a reason that does not go to the jurisdiction of the issuing court . . . a compensatory civil contempt may still be brought”). 120. ePlus Inc., 789 F.3d at 1356. 121. Hawkins, 665 F.3d at 31. 122. Irwin v. Mascott, 370 F.3d 924, 932 (9th Cir. 2004); see F.T.C. v. Lane Labs-USA, Inc., 624 F.3d 575, 591 (3d Cir. 2010). 123. McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 251 (1972) (civil); Hawkins, 665 F.3d at 31 (same); United States v. Rylander, 714 F.2d 996, 1002 (9th Cir. 1983) (criminal). 124. Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985); Dinler v. City of N.Y. (In re City of N.Y.), 607 F.3d 923, 934 (2d Cir. 2010); Carbon Fuel Co. v. United Mine Workers of Am., 517 F.2d 1348, 1349 (4th Cir. 1975). 125. Trade Well Int’l v. United Cent. Bank, 778 F.3d 620, 625 (7th Cir. 2015); Portland Feminist Women’s Health Ctr. v. Advocates for Life, Inc., 877 F.2d 787, 789 (9th Cir. 1989) (preliminary injunction). 126. Fox v. Capital Co., 299 U.S. 105, 107 (1936) (“except in connection with an appeal from a final judgment or decree, a party to a suit may not review upon appeal an order fining or imprisoning him for the commission of a civil contempt”); Aevoe Corp. v. AE Tech Co., 727 F.3d 1375, 1380 (Fed. Cir. 2013); Koninklijke Philips, 539 F.3d at 1042; McAlpin v. Lexington 76 Auto Truck Stop, Inc., 229 F.3d 491, 500 (6th Cir. 2000) (“[A] judgment of civil contempt is not itself a final decree, and therefore is not [itself] appealable in the absence of a final judgment.”) (internal citations omitted); but see Cent. States, SE & SW Areas Health & Welfare Fund v. Lewis, 745 F.3d 283, 286 (7th Cir. 2014) (interlocutory appeal of civil contempt award permitted because underlying preliminary injunction is interlocutory order). 127. N.Y. State Urban Dev. Corp. v. VSL Corp., 738 F.2d 61, 64 (2d Cir. 1984). 128. Entegris, Inc. v. Pall Corp., 490 F.3d 1340, 1348 (Fed. Cir. 2007); Omaha Indem. Co., 949 F.2d at 238.