156 F. Supp. 3d 1219
D. Or.2016Background
- Pacific Kidney seeks a TRO and preliminary injunction against Dr. Kassakian over covenants restricting practice after employment.
- Court held a hearing on the TRO on January 19, 2016; ruling grants in part and denies in part.
- The Physician Covenants include a two-year non-solicitation and a one-year, 25-mile non-compete, plus liquidated damages and an equitable-relief provision.
- Kassakian was employed in Portland starting September 1, 2014; Pacific Kidney informed her of the noncompete before employment; she has access to trade secrets and confidential lists.
- In October 2015 Kassakian gave 90 days’ notice of departure to NW Renal; 65 new patients were planned with NW Renal; she has not solicited existing Pacific Kidney patients.
- The TRO limits solicitation to a narrow scope and allows continued treatment of certain former patients at NW Renal; bond of $2,500; preliminary injunction hearing set for February 16, 2016.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Likelihood of breach of contract | Pacific Kidney shows non-solicit/non-compete breached | Kassakian argues covenants are unenforceable/public policy prevents enforcement | Likelihood/serious questions shown |
| Irreparable harm | Breach harms goodwill, client relationships, and financial health | Harm to public interest minimal if narrow relief | Irreparable harm shown (limited to relationship losses) |
| Balance of equities | Equities favor stopping solicitation to protect patients | Relief would unduly restrict Kassakian’s ability to practice | Balance tips in plaintiff’s favor with narrow TRO scope |
| Public interest | Public interest supports enforcement to protect patients’ access to care | Broad injunctive relief would disrupt patient care in community | Public interest supports narrow TRO; broader injunction not warranted |
Key Cases Cited
- Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832 (9th Cir. 2001) (irreparable harm among key factors for injunctions; equitable relief analysis guide)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (U.S. 2008) (establishes four-part Winter test for preliminary injunctions)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (serious questions meriting injunction if other Winter factors satisfied)
- M.R. v. Dreyfus, 697 F.3d 706 (9th Cir. 2012) (updates standard to require serious questions balanced with hardship)
- Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) (balancing of equities and public-interest considerations in injunctions)
- McCallum v. Asbury, 238 Or. 257, 393 P.2d 774 (1964) (historical Oregon precedent on physician covenants)
- Ladd v. Hikes, 55 Or.App. 801, 639 P.2d 1307 (1982) (Oregon appellate discussion of public policy and covenants)
- Oregon Growthers' Co-op. Ass'n v. Lentz, 107 Or. 561, 212 P. 811 (1923) (injunctive relief alongside liquidated damages under Oregon law)
- Fishermen’s Mktg. Ass’n, Inc. v. Wilson, 279 Or. 259, 566 P.2d 897 (1977) (discussion of remedies and injunctive relief in contracts)
- Vacold LLC v. Cerami, 545 F.3d 114 (2d Cir. 2008) (injunctions and liquidated damages interplay)
- Washel v. Bryant, 770 N.E.2d 902 (Ind. Ct. App. 2002) (injunctive relief in employment context despite liquidated damages)
- U-Haul Co. of N.C. v. Jones, 269 N.C. 284, 152 S.E.2d 65 (1967) (injunctive relief and liquidated damages coexist)