Abdou, M.D. et al v. Davita, Inc. et al

Filing 135

ORDER denying 100 Motion; ORDER denying 101 Motion; Signed by Judge Andrew P. Gordon on 3/7/2018. (Copies have been distributed pursuant to the NEF - JM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 5 SHERIF W. ABDOU and AMIR S. BACCHUS, Plaintiffs, 6 7 8 v. ORDER DENYING MOTION TO DISSOLVE OR MODIFY INJUNCTION (ECF Nos. 100, 101) DAVITA, INC., et al., Defendants. 9 10 Case No. 2:16-cv-2597-APG-CWH Plaintiffs Sherif Abdou and Amir Bacchus move to dissolve or modify the injunction I 11 entered in November 2017 (ECF No. 92). I deny the motion because the plaintiffs have not 12 presented sufficient evidence to justify the relief requested. The plaintiffs were paid millions of 13 dollars not to compete, or to prepare to compete, for five years. Davita has presented evidence 14 establishing a likelihood of success in showing the plaintiffs violated the non-compete provision 15 by preparing to compete through numerous conversations with UHS, Humana, and Anthem (the 16 restricted parties). Davita bought the right to operate in the market free from the shadow of the 17 doctors competing against it for five years, not only to allow Davita room to strengthen its own 18 relationships with market participants, but also to prevent the plaintiffs from strengthening or 19 developing their own. 20 The announcement of United Healthcare/Optum’s proposed acquisition of Davita Medical 21 Group does not warrant dissolving the injunction. The injunction is narrowly tailored to address 22 the irreparable harm attributable to the plaintiffs’ breach. The injunction does not prevent the 23 plaintiffs from developing a competing network with anyone except the restricted parties. And it 24 does not prevent the restricted parties from developing a competing network with anyone except 25 the plaintiffs. Other options exist for both the plaintiffs and the restricted parties. The fact that 26 the restricted parties apparently prefer to work with the plaintiffs and view them as the most 27 viable option even though the plaintiffs were supposed to be starting from ground zero only a few 28 1 months ago, only strengthens, not undermines, a likelihood of irreparable harm in the absence of 2 injunctive relief. Further, the public interest does not persuade me to lift the injunction. The 3 public’s allegedly limited choices, even if true, are primarily due to business decisions by 4 Humana, Prominence, the plaintiffs, and others, not the injunction. 5 6 7 IT IS THEREFORE ORDERED that the plaintiffs’ motion to dissolve or modify the injunction order (ECF Nos. 100/101) is DENIED. DATED this 7th day of March, 2018. 8 9 10 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 2 of 2

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