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