McGraw Hill LLC v. Doe 1

Background

On February 11, 2020, the Court heard the plaintiffs’ application for a preliminary injunction. The plaintiffs and Buy It Now Bargains LLC and Five To One Liquidators, LLC agreed on the form of stipulated preliminary injunctions binding those parties. The plaintiffs also presented a proposed preliminary injunction binding the remaining defendants. No party opposed entry of that proposed injunction as to the remaining defendants.

The Court suggested edits to ensure that the proposed and stipulated injunctions complied with Rule 65 of the Federal Rules of Civil Procedure. The plaintiffs then submitted revised versions.

Issue

The proposed and stipulated injunctions included language that would expressly bind “service providers to Defendants” that received actual notice and operated or controlled accounts holding or receiving money or other assets connected with the defendants’ sales of the plaintiffs’ works. Similar language would have extended the injunctions to service providers or other relevant third parties that had the plaintiffs’ works in their possession, custody, or control on behalf of or in association with a defendant.

Rule 65(d)(2) provides that an injunction binds, after actual notice, the parties; their officers, agents, servants, employees, and attorneys; and other persons acting in active concert or participation with those people. The plaintiffs cited authority concerning nonparties that aid or assist a defendant in violating a judicial order. The Court recognized that such nonparties may potentially be held in contempt when they act in active concert or participation with a person bound by the order. The Court also noted the rule that a court cannot enjoin the world at large.

Ruling

The Court was not convinced that the plaintiffs’ authority allowed it to expressly name service providers in the injunctions. It declined to decide in advance whether service providers receiving notice would qualify as persons acting in active concert or participation.

The Court struck the challenged service-provider language from Paragraph 4 of the proposed preliminary injunction and Paragraph 5 of the stipulated preliminary injunctions. It reasoned that, if the plaintiffs were correct that the service providers qualified as persons acting in active concert or participation, the added language was unnecessary because Rule 65 would already bind them. If the plaintiffs were incorrect, the added language could exceed Rule 65’s limits by binding people without giving them an opportunity to be heard.

The opinion states that no inference should be drawn from the striking of the language. The Court entered the order on February 12, 2020. The excerpt does not state a separate disposition of the plaintiffs’ overall application for a preliminary injunction beyond the ruling on the challenged language.