concurring in part, dissenting in part.
The district court based its dismissal of Reliance’s complaint on four grounds: (1) the Second TRO did not meet Rule 65(d)’s specificity requirements; (2) the extensions of the Second TRO were invalid; (3) First Security did not receive notice of the Second TRO prior to the transactions in question; and (4) Reliance failed to show “by clear and con*1320vincing evidence” that First Security’s acts or omissions caused damage to Reliance. See Mem. and Order (July 16, 1997), reprinted in Appellant’s App. at 821-24. For the reasons set forth in the majority opinion, I agree that the district court erred in reaching its first three conclusions. Like the majority, I also believe that the district court utilized the incorrect standard of proof in resolving the damages issue. However, I do depart from the majority opinion on two points.
First, the district court reasoned that Reliance’s failure to show damages necessarily precluded a finding of contempt. The majority opinion does not take issue with this conclusion. Thus, both the majority and the district court clearly believe that damages are an element of civil contempt. However, a finding of contempt may stand even when a plaintiff fails to show any damages. See Gemco Latinoamerica, Inc. v. Seiko Time Corp., 61 F.3d 94, 100 (1st Cir.1995) (stating that defendant “could arguably defeat the damage ecward-although not the finding of contempt-” by showing that its actions caused no damages to plaintiff) (emphasis added); Hartman v. Lyng, 884 F.2d 1103, 1106 (8th Cir.1989) (holding that “because [defendant] had a duty to comply with the injunction independently of whatever benefit such compliance would or did confer on plaintiffs,” district court’s finding of contempt stands even though plaintiffs failed to demonstrate damages) (quotation omitted); United States v. Professional Air Traffic Controllers, 678 F.2d 1, 4-5 (1st Cir.1982) (vacating fine imposed by district court but ruling that court’s “bare finding of civil contempt may stand”). Thus, unlike the majority, I believe that Reliance can prevail even if it fails to prove any damages.
Accordingly, I would hold that the district court erred not only when it concluded that (1) the Second TRO did not meet Rule 65(d)’s specificity requirements; (2) the extensions of the Second TRO were invalid; (3) First Security did not receive notice of the Second TRO prior to the transactions in question; and (4) Reliance was required to show damages by clear and convincing evidence, but that it also erred when it (5) held that First Security could escape a finding of contempt by showing that Reliance had suffered no damages. Consequently, like the majority, I would reverse the district court’s dismissal of Reliance’s complaint and remand for a bench trial. This bench trial would address the issues specified by the majority in Part III supra, with one exception: Unlike the majority, I would not require a bench trial on the question of “whether First Security was in active concert or participation with Mast in violating the permanent injunction issued on December 22,1988.”
Reliance has never alleged or even suggested that First Security was “in active concert or participation” with Ron Mast in violating the permanent injunction. This is understandable, since it is undisputed that all of the transactions in question took place before the district court entered the permanent injunction. Given this factual backdrop, the court simply could not find First Security liable for civil contempt where any assistance it might have rendered to Mr. Mast predated the court’s entry of the permanent injunction.
In sum, I agree with the majority that the district court’s dismissal order must be reversed and remanded. However, upon remand, I would limit the bench trial to the questions of whether First Security received timely notice of the Second TRO and the extensions thereof and, if necessary, whether First Security was capable of complying with the second TRO. If Reliance were to prevail on each of these issues, the court should find First Security in civil contempt. Finally, if the court were to find First Security in contempt, I believe it should then conduct a factual determination regarding what damages, if any, Reliance suffered as a result of First Security’s violations of the Second TRO, and award Reliance any such damages that it proved by a preponderance of the evidence.