As now-Judge Martin Glenn pointed out in a valuable paper on Civil and Criminal Contempt he prepared for the Federal Bar Council two years ago, there is a split in the Circuits as to whether violation of a consent decree that simply tracks the language of a statute may be punished by contempt. The Eleventh Circuit says no (SEC v. Smyth, 420 F.3d 1225, 1233 n.14 (11th Cir. 2005). The Second Circuit says yes, as in the recent decision in Chao v. Gotham Registry, Inc., 2008 U.S. App. LEXIS 1327 (2d Cir. Jan. 24, 2008), in which the defendant had been ordered to comply with 29 U.S.C. § 207(a) by paying its nurses time and one-half wages for time worked over 40 hours in any week. The Eleventh Circuit considers the language of a statute insufficiently specific to support a contempt citation, while the Second Circuit, as in Chao, looks at the specific decree and holds that contempt is available if a three-part test is satisfied:

(1) the decree was clear and unambiguous, and (2) the proof of non-compliance is clear and convincing.... Although the defendant's conduct need not be willful, a plaintiff must also prove that (3) the defendant has not been reasonably diligent and energetic in attempting to comply. [Citations omitted]

Held, “If, as we believe to be the case here, the law relied on by the party seeking contempt is ambiguous in its application to the challenged conduct, contempt will not lie.” Specifically, the Chao Court held that a party is no “required, on pain of contempt, to arrive at a correct answer to ... a difficult question of first impression.”