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