Also known as: active concert tests · in active concert · active concert or participation
Written by attorneys · grounded in primary & secondary sources — see below
An extension of an injunction's binding effect to nonparties who act in active concert or participation with a party or its agents. The doctrine requires actual notice of the order. It prevents an enjoined party from evading compliance by delegating prohibited conduct to intermediaries.
BizNet received a preliminary injunction barring enforcement of early termination penalties. Its in-house counsel circulated the order to employees and to PayFast, an outsourced billing vendor. PayFast continued assessing the penalties on class accounts. The customers sought contempt against PayFast. PayFast is bound because it acted as BizNet's agent in active concert with notice of the order.
A company subject to an NLRB order requiring reinstatement sold its business to Golden State. Golden State continued operations with the same workforce and knew of the order. The Board sought enforcement against Golden State. Golden State is bound as a successor acting in active concert with the original employer.
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A city obtained an injunction barring certain protest marches. Leaders received the order but proceeded with demonstrations. The city sought contempt. The leaders are bound because they acted in active concert with the named parties after receiving actual notice.
A federal court enjoined state officials to process welfare applications within regulatory deadlines. Successor officials continued the prior practice of delay. The plaintiffs sought enforcement. The successors are bound because they acted in active concert with the originally enjoined officials.
No. The test extends binding effect to nonparties who act in active concert or participation with a party or its agents when they have actual notice. This prevents evasion through intermediaries such as employees or vendors.
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Actual notice of the order is required. Notice may be provided by personal service or otherwise, including internal memoranda from counsel that convey the injunction's terms.
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No. An independent contractor can be bound when it receives actual notice and continues the enjoined conduct under the direction of a party or its employees. The key is participation in the prohibited activity rather than formal employment status.
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No. The test reaches only those acting in concert with the enjoined party. Personnel of the party that obtained the injunction are not bound merely by implementing the relief they secured.
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…Aid, his agents, including all of the County Departments of Public Aid in the State of Illinois, and employees, and all persons in active concert and participation with them, are hereby enjoined to release and remit AABD benefits wrongfully withheld to all applicants for AABD in the State of Illinois who applied between July 1, 1968…