FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KONINKLIJKE PHILIPS ELECTRONICS, 

N.V., a Netherlands corporation,

Plaintiff-Appellee,

v.

KXD TECHNOLOGY, INC.; ASTAR

ELECTRONICS, INC.; SHENZHEN KXD

MULTIMEDIA CO., LTD.; SHENZHEN

KAIXINDA ELECTRONICS CO. LTD.;

KXD DIGITAL ENTERTAINMENT,

No. 07-15310 LTD.; and JINGYI LUO, a/k/a JAMES

LUO, D.C. No.  Defendants-Appellants, CV-05-01532-RLH

and OPINION

SUNGALE GROUP, INC.; SUNGALE

ELECTRONICS (SHENZHEN), LTD.;

AMOI ELECTRONICS, INC.; AMOI

ELECTRONICS CO., LTD.; AMOI

ELECTRONICS, LTD.; CHINA

ELECTRONICS CORPORATION;

AMOISONIC ELECTRONICS, INC.;

INTERNATIONAL NORCENT

TECHNOLOGY, INC.; 

11201
NORCENT HOLDINGS, INC.; SHANGHAI 

HONGSHENG TECHNOLOGY CO., LTD.;

SHENZHEN NEWLAND ELECTRONIC

INDUSTRY CO., LTD.; DESAY A&V

(USA) INC.; DESAY A&V SCIENCE

& TECHNOLOGY CO., LTD.; DESAY

HOLDINGS CO., LTD.; XORO  ELECTRONICS (SHANGHAI), LTD.;

SHENZHEN XORO ELECTRONICS CO.,

LTD.; MAS ELECTRONIK AG

CORPORATION; and SHENZHEN

ORIENTAL DIGITAL TECHNOLOGY

CO., LTD.,

Defendants. 

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, District Judge, Presiding

Argued and Submitted

June 13, 2008—San Francisco, California

Filed August 20, 2008

Before: Mary M. Schroeder, John M. Walker, Jr.,* and

N. Randy Smith, Circuit Judges.

Opinion by Judge Walker

*The Honorable John M. Walker, Jr., Senior Circuit Judge for the

United States Court of Appeals for the Second Circuit, sitting by designation. 

11202 KONINKLIJKE PHILIPS v. KXD TECHNOLOGY
COUNSEL

Anton N. Handal, at argument, and Pamela C. Chalk and

Gabriel G. Hedrick, on the briefs, Handal & Associates, San

Diego, California, for the defendants-appellants. 

Jeffrey K. Joyner, at argument, and David C. Caplan and Jan

Jensen, on the briefs, Keats McFarland & Wilson LLP, Beverly Hills, California, for the plaintiff-appellee. 

OPINION

WALKER, Circuit Judge: 

Defendants-Appellants KXD Technology, Inc., Astar Electronics, Inc., Shenzen KXD Multimedia, Inc., Shenzhen Kaix11204 KONINKLIJKE PHILIPS v. KXD TECHNOLOGY
inda Electronics Co., Ltd., KXD Digital Entertainment, Ltd.,

and Jingyi Luo, a/k/a James Luo, appeal from an order of the

United States District Court for the District of Nevada (Hunt,

J) imposing monetary sanctions for civil contempt. Because

we lack appellate jurisdiction, the appeal is dismissed. 

I. BACKGROUND

Plaintiff-Appellee, Koninklijke Philips Electronics N.V.

(“Philips”) sued the above-named defendants, alleging that

they had infringed Philips’s registered trademark and had

knowingly offered counterfeited Philips goods for sale in the

United States. On January 5, 2006, the district court issued an

amended temporary restraining and seizure order that was

immediately served on the defendants at the Consumer Electronics Show in Las Vegas, Nevada. The following day,

because defendants’ principal place of business and warehouse was in California, Philips sought and was granted a

temporary restraining and seizure order by the United States

District Court for the Central District of California. That order

was served at defendants’ California warehouse, where the

Marshals Service found and confiscated counterfeit products

bearing the Philips trademark. 

On March 14, 2006, the district court issued a preliminary

injunction that principally enjoined defendants from dealing

in any product that infringed Philips’s trademarks. The district

court also ordered defendants to file a report setting forth their

inventory of counterfeit Philips products by April 13, 2006

and a report describing in detail their compliance with the preliminary injunction by May 15, 2006. Before these reports

were due, on April 10, 2006, the district court issued another

seizure order, which resulted in the confiscation of additional

counterfeit Philips products at locations controlled by the

defendants. 

By February of 2007, it became clear to the district court

that the defendants had no intention of complying with its

KONINKLIJKE PHILIPS v. KXD TECHNOLOGY 11205
orders. The district court noted that there was “abundant evidence of the Defendants’ non-compliance and active violations of both the TRO and preliminary injunction.” In fact, the

defendants had failed to file any reports, required or otherwise, showing that they had complied in any way with the district court’s orders. This failure continued even after the

plaintiff moved for sanctions on October 11, 2006. At the

sanctions hearing, the district court granted plaintiff’s motion

for civil contempt sanctions, holding the defendants jointly

and severally liable to the plaintiff for: (1) $353,611.70 in

attorney’s fees; (2) $37,098.14 in seizure and storage costs;

(3) $1,284,090.00 in lost royalties; and (4) $10,000.00 per day

until the reports were filed. In addition, the court ordered

defendants to post a $2 million bond. 

The defendants now appeal the district court’s imposition

of sanctions. The plaintiff contends that such an interlocutory

appeal is impermissible and that we lack jurisdiction to hear

it. 

II. ANALYSIS 

A. Standard of Review

We review questions of our own jurisdiction de novo. Toumajian v. Frailey, 135 F.3d 648, 652 (9th Cir. 1998). 

B. Civil vs. Criminal Contempt Orders

[1] “The rule is settled in this Court that except in connection with an appeal from a final judgment or decree, a party

to a suit may not review upon appeal an order fining or

imprisoning him for the commission of a civil contempt.” Fox

v. Capital Co., 299 U.S. 105, 107 (1936); see also Bingman

v. Ward, 100 F.3d 653, 655 (9th Cir. 1996) (“It is clear that

we do not have jurisdiction to hear interlocutory appeals from

civil contempt orders entered against parties to litigation.”).

This court “do[es] have jurisdiction[, however,] to hear

11206 KONINKLIJKE PHILIPS v. KXD TECHNOLOGY
appeals from criminal contempt orders because they are

appealable when entered.” Bingman, 100 F.3d at 655 (internal

quotation marks and citation omitted). 

Thus, to ascertain its jurisdiction, a court of appeals “must

decide whether the order before [it] [i]s one for civil contempt

or one for criminal contempt.” Id. As we have noted, the “distinction between the two forms of contempt lies in the

intended effect of the punishment imposed. The purpose of

civil contempt is coercive or compensatory, whereas the purpose of criminal contempt is punitive.” United States v. Armstrong, 781 F.2d 700, 703 (9th Cir. 1986); see also Plastiras

v. Idell (In re Sequoia Auto Brokers Ltd.), 827 F.2d 1281,

1283 n.1 (9th Cir. 1987). 

[2] Although this explanation of the “dichotomy between

civil and criminal contempt is helpful, it is not quite complete.” Bingman, 100 F.3d at 655. Often it is necessary to

explore other aspects of the contempt order to determine its

character. For example, the Supreme Court has found it useful

to ascertain to whom the fine is payable, suggesting that a fine

“is remedial when it is paid to the complainant, and punitive

when it is paid to the court.” Hicks ex rel. Feiock v. Feiock,

485 U.S. 624, 632 (1988); see also Bingman, 100 F.3d at 655.

Also instructive is whether the fine imposed is conditional in

nature. In this regard, the Supreme Court has stated that “[a]n

unconditional penalty is criminal in nature because it is solely

and exclusively punitive in character . . . . A conditional penalty, by contrast, is civil because it is specifically designed to

compel the doing of some act.” Hicks, 485 U.S. at 633 (internal quotation marks and citation omitted). 

Taking all of these considerations into account, the

Supreme Court has stated that:

A contempt fine accordingly is considered civil and

remedial if it either “coerce[s] the defendant into

compliance with the court’s order, [or] . . . compenKONINKLIJKE PHILIPS v. KXD TECHNOLOGY 11207
sate[s] the complainant for losses sustained.” Where

a fine is not compensatory, it is civil only if the contemnor is offered an opportunity to purge. 

United Mine Workers v. Bagwell, 512 U.S. 821, 829 (1994)

(alteration and omission in original) (citation omitted). Thus,

an otherwise criminal contempt order (i.e., an order not

intended to be compensatory) will nevertheless be categorized

as civil, and thus not appealable on interlocutory review,

when the defendant is given an opportunity to comply with

the order before payment of the sanction becomes due. 

C. The Instant Contempt Order

[3] The contempt order here is plainly civil under the above

test. The attorney’s fees, lost royalties, and storage costs were

assessed in order to compensate the plaintiff for losses sustained. Furthermore, the per diem fine was not to be assessed

until fourteen days after the entry of the order, and the defendants could avoid the fine by complying with the terms of the

injunction. Because the per diem fine allowed the defendants

the opportunity to purge the contempt before payment became

due, it was a civil sanction. We also note that the district court

was cognizant of the distinction between the two types of contempts. Although the district court warned the defendants that

it “may desire to impose criminal sanctions next time,” it limited itself “this time to civil sanctions.” Appellant’s Excerpts

of R. at 356 (emphasis added). 

Moreover, the defendants make no argument that the contempt order was not civil. Their sole argument is that a civil

contempt order is reviewable when it provides for payment of

the sanction on a “date certain” without providing the contemnor the opportunity to purge. The orders pertaining to attorney’s fees, seizure and storage costs, and lost royalties fall

into this category. Supreme Court precedent, however, makes

clear that contempt orders that are compensatory are not

reviewable on interlocutory appeal; if a contempt order “com11208 KONINKLIJKE PHILIPS v. KXD TECHNOLOGY
pensate[s] the complainant for losses sustained,” it “is considered civil,” and may only be reviewed upon final appeal.

Bingman, 100 F.3d at 656 (alteration in original). The defendants attempt to glean their purported “date certain” exception

to the general rule of non-appealability from certain cases

that, while permitting immediate appeals, do not announce the

rule defendants urge upon this court. Each case is unique to

its circumstances and all are inapposite. 

D. Defendants’ Authorities

Defendants argue that our opinion in Hoffman ex rel. NLRB

v. Beer Drivers & Salesmen’s Local Union No. 888, 536 F.2d

1268 (9th Cir. 1976), supports their contention that civil contempt orders that provide for payment of a sanction on a date

certain, without providing the contemnor the opportunity to

purge the contempt, are revieweable on interlocutory appeal.

Hoffman, however, merely applies the Supreme Court’s test

in Bagwell and is no help to defendants. In Hoffman, there

was no dispute that the contempt order was not compensatory

and hence criminal. Indeed, there is no indication from the

opinion that the fines imposed possessed a compensatory

character. Thus, the Hoffman court proceeded directly to the

only controversy presented by the facts: whether the two contempt orders at issue in the case offered the contemnor the

opportunity to purge the contempt. Any order that did so

would be deemed civil and not appealable; any order that did

not would be criminal and appealable. 

Analyzing the orders, the Hoffman court deemed one civil

and the other criminal based on its determination that, as to

the latter, “[t]he fines assessed were ordered to be paid within

30 days without any permission to otherwise purge the contempt.” Id. at 1273. Thus, Hoffman simply stands for the

familiar proposition, set forth in Bagwell, that contempt

orders that would otherwise be deemed criminal (because

there is no dispute that the order lacks a compensatory characKONINKLIJKE PHILIPS v. KXD TECHNOLOGY 11209
ter) will be deemed civil when the contemnor is offered an

opportunity to purge the contempt before payment is due. 

Defendants also cite cases from outside the Ninth Circuit to

support their argument. However, none of them warrants a

finding of jurisdiction in this case. In Howard Johnson Co. v.

Khimani, 892 F.2d 1512, 1515 (11th Cir. 1990), a case

involving the defendant’s violation of an injunction in a trademark suit, the court found that the civil contempt order, which

was indisputably compensatory, fell within an exception to

the general rule that civil contempt orders are not reviewable

on interlocutory appeal. The court stated that such an exception exists in Eleventh Circuit jurisprudence for those civil

contempt orders “in which a fine or penalty is imposed within

a time certain that may not be avoided by some other form of

compliance [i.e., purged].” Id. (internal quotation marks and

citation omitted). 

[4] While, to be sure, Howard Johnson lends support to

defendants’ argument in this case, the exception that it

announces does not exist under Ninth Circuit law. In this circuit, there are two ways in which a contempt order may be

deemed civil and thus not appealable on interlocutory review:

(1) if the sanction imposed compensates the plaintiff for

losses sustained; or (2) if the sanction allows for the contemnor to purge the contempt before payment is due. See Bingman, 100 F.3d at 655-56 (discussing Bagwell). There is no

exception under Ninth Circuit law that permits a compensatory, and thereby civil, sanction to be reviewable on interlocutory appeal simply because the sanction fails to allow the

contemnor to purge the contempt before payment is due on a

date certain. 

Were we to create the exception defendants urge, it would

contravene the Supreme Court’s decision in Fox, in which the

Court found a $10,000 compensatory sanction to be unreviewable on interlocutory appeal. See 299 U.S. at 108. Here,

as in Fox, the defendants “do[ ] not question the compensa11210 KONINKLIJKE PHILIPS v. KXD TECHNOLOGY
tory or civil quality” of the sanction. Id. Moreover, the

$10,000 sanction in Fox “was imposed unconditionally” and

thus could not be purged. Id. In contrast to the defendants’

contention in the instant case, the sanction’s unconditional

nature in Fox did not mandate a finding of interlocutory

appellate jurisdiction. The Court found it “very plain . . . that

the assessment was made in a genuine endeavor to reimburse

[the plaintiff] for the damages occasioned by obstruction and

delay.” Id. at 108-09. The Court held that the sanction “retained from first to last its unitary quality” as a civil sanction.

Id. at 109. Under Fox, therefore, the unconditional nature of

a compensatory sanction does not render it reviewable on

interlocutory appeal. See id. Because Howard Johnson is out

of step with the Supreme Court’s holding in Fox and its reasoning in Bagwell, we decline to follow it. 

The remaining authorities that defendants cite in support of

their contention are distinguishable because there was no

compensatory character to the sanctions, and the policy considerations present in those cases are not implicated by the

facts here. In New York Telephone Co. v. Communications

Workers, 445 F.2d 39 (2d Cir. 1971), a union was found to be

in violation of a restraining order that prohibited the union

from striking. After finding that the union should be held in

civil contempt, the district court ordered fines to be imposed,

gradually and in increasing amounts, as long as the strike continued. Id. at 44. After the district court entered several more

orders of civil contempt imposing fines in accordance with its

schedule, the strike ended. The union then appealed the various contempt orders to the Second Circuit. However, a final

judgment had technically not been entered in the case. The

plaintiffs argued that the circuit lacked jurisdiction to hear the

appeal because the fines were for civil contempt and the

appeal was interlocutory. The Second Circuit disagreed

because the fines’ “[e]xecution issued immediately” and the

“defendants thus faced immediate and perhaps irreparable

loss.” Id. at 45. 

KONINKLIJKE PHILIPS v. KXD TECHNOLOGY 11211
Defendants contend that this holding applies equally here

because the sanctions imposed against them were likewise

immediate and afforded no opportunity to purge. The Second

Circuit, however, in New York Telephone never addressed

whether the fines imposed were compensatory. Indeed, the

fines were imposed according to the district court’s gradual

schedule; nothing in the opinion indicates that they were fixed

to approximate the plaintiffs’ losses. Moreover and critical to

its determination, the New York Telephone court “doubt[ed]

that anything further remain[ed] of the . . . action.” Id.

Because it was unlikely that further actions would be taken by

the plaintiff in the case, the court found that “intervention by

way of appeal runs no risk of disrupting the orderly course of

proceedings below.” Id. The court concluded “that the policy

considerations which have led courts to deny immediate

review to civil contempt orders [we]re absent.” Id.

Here, the policy considerations that favor denying immediate review are present. The civil sanctions that were imposed

are part of an ongoing litigation in which the defendants have

refused to comply with the district court’s orders. If defendants’ past course of conduct is any indication, additional

future sanctions are likely. “To be effective, judicial administration must not be leaden-footed.” Cobbledick v. United

States, 309 U.S. 323, 325 (1940). A case’s “momentum

[should not] be arrested by permitting separate reviews.” Id.

Recognizing interlocutory jurisdiction here would run afoul of

these considerations. 

The defendants’ reliance on Drummond Co. v. District 20,

United Mine Workers, 598 F.2d 381 (5th Cir. 1979), is unpersuasive for the same reasons. That case also involved a labor

dispute between a union and employer in which the union was

found to be in contempt of an injunction barring the union

from striking. After the striking employees returned to work,

but before a final order was entered, the union appealed the

sanctions that imposed fines for civil contempt. Id. at 383.

The Fifth Circuit held that the order imposing civil sanctions

11212 KONINKLIJKE PHILIPS v. KXD TECHNOLOGY
was appealable. Id. at 384. The court stated that “there [wa]s

no reason to refuse to consider the Union’s contempt challenges . . . [because] further proceedings [are] unlikely.” Id.

The court concluded that “review of the contempt orders [ran]

no risk of disrupting a continuing, orderly course of proceedings below.” Id. By contrast, as we have explained, our

review of the district court’s order imposing civil sanctions

would directly interfere with the ongoing proceedings below

that are designed to bring difficult and defiant defendants to

heel. And like New York Telephone, Drummond does not suggest that the character of the sanctions imposed was compensatory; the sanctions were in the form of fines, not payments

approximating the plaintiff’s losses. Drummond therefore is

distinguishable from Bagwell, which remains binding upon

us. 

Finally, to the extent that defendants could face irreparable

harm because the contempt order amounts to an executable

judgment that the plaintiff could use to levy on defendants’

assets, any harm that defendants face is entirely of their own

making and does not move us to create a new exception for

interlocutory review here. Defendants were afforded the

opportunity to immediately appeal the district court’s preliminary injunction but declined to do so. Therefore defendants

waived any challenge to the sanctions imposed based on the

underlying injunction. Furthermore, because the district

court’s sanction order imposed a bond in an amount approximating that of the sanctions imposed, the plaintiff would have

had little reason to execute a judgment based on the sanction

order had the defendants actually posted the $2 million bond

as ordered. It was the defendants’ choice to defy the district

court’s order, which in turn forced the plaintiff to seek security in other ways. 

[5] Additionally, holding that a civil sanction is directly

appealable if it is immediately payable risks eviscerating the

fundamental rule that compensatory sanctions are civil and

not appealable on interlocutory review. Further, we note that

KONINKLIJKE PHILIPS v. KXD TECHNOLOGY 11213
defendants will have the opportunity to appeal the sanctions

imposed after a final judgment. In sum, we are not persuaded

that the defendants face irreparable harm and, in any event,

find that, because of defendants’ conduct, any risk of harm is

appropriately placed upon them. 

III. CONCLUSION

The appeal is dismissed for lack of jurisdiction. 

DISMISSED. 

11214 KONINKLIJKE PHILIPS v. KXD TECHNOLOGY