Preliminary Injunction Order May Not Incorporate Another Document by Reference without Consent of Enjoined Party — Void If It Does So

From Eyewonder, Inc. v. Abraham, 293 Fed. Appx. 818 (2d Cir. 2008):

Defendant-Appellant John Abraham appeals from an order entered June 9, 2008, in the United States District Court for the Southern District of New York (Daniels, J.), enjoining him from soliciting, directly or indirectly, the 42 specific entities named on a list (the "Bogan List") prepared by his former employer Eyewonder, Inc. ("Eyewonder") and disclosed to Abraham's counsel.***

Abraham *** contends that the reference to the extrinsic Bogan List violates Federal Rule of Civil Procedure 65(d)(1), which states that "[e]very order granting an injunction must . . . describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required." Fed. R. Civ. P. 65(d)(1)(C) (emphasis added). We agree. "The normal standard of specificity [under Rule 65(d)] is that the party enjoined must be able to ascertain from the four corners of the order precisely what acts are forbidden." Sanders v. Air Line Pilots Ass'n, Int'l, 473 F.2d 244, 247 (2d Cir. 1972). Eyewonder argues that because the Bogan List is clear and is easily understood by Abraham, this requirement is met. However, we have not been so flexible. For one thing, the specificity requirement also serves an additional purpose — facilitating appellate review. See Fonar Corp. v. Deccaid Servs., Inc., 983 F.2d 427, 429-30 (2d Cir. 1993). Moreover, "the specificity provisions of Rule 65(d) are no mere technical requirements." Schmidt v. Lessard, 414 U.S. 473, 476, 94 S. Ct. 713, 38 L. Ed. 2d 661 (1974). Compliance is "essential," Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000), unless the enjoined party acquiesces to the extrinsic reference, see Perfect Fit Industries, Inc. v. Acme Quilting Co., 646 F.2d 800, 809 (2d Cir. 1981). Since there is nothing in the record to demonstrate that Abraham agreed to the incorporation by reference, we agree that the order fails to comply with Rule 65(d)'s specificity requirement.

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