"Super Contracts": Invoking Aiding-and-Abetting Jurisdiction to Hold Foreign Nonparties in Contempt of Court
Under Federal Rule of Civil Procedure 65(d), district court injunctions are binding on nonparties who are in active concert with the enjoined parties. Many circuits have held that a district court can hold a nonparty in contempt for knowingly aiding and abetting the violation of an injunction or restraining order, even when the court could not otherwise establish personal jurisdiction over that individual. In these cases, knowingly assisting the violation of an injunction establishes sufficient minimum contacts with the forum to establish personal jurisdiction. This principle has been referred to as a “super contact.” Whether this reasoning applies to nonparties residing abroad remains unresolved. The Ninth Circuit has held that an injunction does not extend across international borders to a foreign nonparty who aids and abets the violation of an injunction. Two district courts have reached the opposite conclusion.
Although courts have used traditional personal-jurisdiction analysis to determine whether courts can hold foreign nonparties in contempt, personal-jurisdiction jurisprudence does not easily apply to aiding and abetting the violation of an injunction, as the nonparty’s contact with the forum is often indirect. For instance, the nonparty might be a foreign bank that simply moves money between the defendant’s accounts in violation of a court order freezing the defendant’s assets. Nor does international law concerning the application of US judgments abroad resolve the issue. Attempts to establish international laws guiding the enforcement of judgments have been largely unsuccessful. Further, the United States is not a signatory to the one, albeit narrow, treaty that requires the enforcement of foreign judgments.
This Comment proposes an alternative approach for determining whether a foreign nonparty who aids and abets the violation of an injunction should be subject to the court’s contempt power. Under this approach, courts would apply “aiding and abetting jurisdiction”: when the substantive elements of aidingand-abetting liability under Rule 65(d) are met—that is, when the nonparty has notice of the injunction and shares with the party a purpose to violate it—a court could assert personal jurisdiction to hold the nonparty in contempt. Once personal jurisdiction is established, courts would apply a balancing test to determine whether a nonparty should be held in contempt. The test would weigh the motivations for the violation of the court’s order, the burden imposed on the nonparty by the injunction, and the relevant US and foreign interests.
There are two justifications—one substantive and one procedural—for holding foreign nonparties in contempt when they knowingly assist a party in violating an injunction. Substantively, a court’s assertion of aiding-and-abetting jurisdiction over a nonparty may be usefully analogized to conspiracy jurisdiction, which is invoked to hold foreign defendants liable for the inforum actions of their coconspirators. This approach would allow courts to establish jurisdiction whenever the substantive elements of aiding-and-abetting liability—that is, active concert with the enjoined defendant and actual violation of the injunction—are met. Procedurally, there is precedent for the enforcement of court orders against foreign nonparties in the discovery context. Courts considering whether a foreign nonparty is bound by a discovery order assess the burdens that would result from compliance with the order and then determine whether the nonparty evaded the order in good faith based on a conflict between the two sovereigns’ laws. These discovery cases indicate that contempt sanctions should issue when a nonparty purposefully evades a district court injunction and no compelling burden justifies the evasion.