Navigating Rule 65(D)(2) Post-Havens V. James

<p>Can a person be bound by a court’s order even though they were not named in it? If so, under what circumstances? Federal Rule of Civil Procedure 65(d) (“Rule 65”) provides for judicial orders to have binding effect on the following parties when they have received adequate notice of an injunction: “(A)&nbsp;the parties; (B)&nbsp;the parties’ officers, agents, servants, employees, and attorneys; and (C)&nbsp;other persons who are in active concert or participation with anyone described in&nbsp;Rule 65(d)(2)(A) or (B).” In Havens v. James, the Second Circuit held that a district court’s injunction could not prohibit an anti-abortion protestor from engaging in protest activity because he was not named in the court’s order, nor was he acting in concert or participation with a named party. Havens surfaced several points of tension for courts when assessing whether a non-named party acted in “active concert or participation” with an explicitly enjoined party, pursuant to Rule 65. The sources of tension present in Havens, and potential resolutions to this tension, are the subject of this paper.</p> <p>This piece contributes to existing literature through its discussion of Havens and its deployment of the Supreme Court’s aiding-and-abetting framework provided in Twitter, Inc. v. Taamneh. Informed by an examination of the underlying legal traditions at tension in Havens and a survey of Rule 65(d) case law, the piece offers a two-step approach for courts to navigate Rule 65(d) inquiries that considers (1) whether the non-party’s participation satisfies the elements of civil aiding-and-abetting liability, and (2) whether a substantial public interest is implicated. Drawing upon desegregation-era case law, the piece argues that courts must adjust the breadth of their Rule 65(d) interpretations as a function of the nature and strength of the government and public interest underlying an injunction. The piece concludes by proposing an amendment to Rule 65(d) to codify this interpretative guidance.</p>