good morning your honors in may it please the court andrew jacobs with charles gina loney for the appellants of doing baucus the scorch of vacate the injunction for lack of the required wing of the public interest as compelled under winter since the supreme court decision in winter it's been very clear that there's no question that a movement for the extraordinary relief of injunction used to fulfil all four of the prongs and this record discloses very palpably in very clearly the failure the very strong failure to comply with the fourth prong and showing of the injunction being in the public interest i found the district courts found a public interest here within the sanctity of contract there is essentially a half sentence in the district court's order that refers to the importance of contract and that's all the district court did well if the district court cited the element and explained what it thought the public interest was here then do we examine the district court's decision under the abuse of discretion standard well i would say no your honor and two reasons one is the winner case and one is the caribbean marine services case there's both a us supreme court case and a case from a panel of this court that basically say when you have a fragment of a sentence less than one sentence that just sort of pays lip service to one side's characterization of public i lip service that's the substantive law of the state of nevada as i read the nevada cases so the fact that the district court judge didn't enter into an extended exodus on the law of public interest and sanctity of contracts isn't required is that what is required is a weighing of the competing public interest when it was clear about that caribbean marine service is clear about that there has to be a weighing in when you mention the one concern the primacy of contract which the district court mentioned and you omit altogether mention in the injunction order the competing compelling public interest in competition you have not even minimally satisfactorily we need competing interests in a district court go through the each of the would know it it did not respectfully judg because when you don't even mention the competing interest you can have it found that each of the what the factors favor was right he asserted that as a conclusion he did not provide the weighing he did not even mention but given citations of the record concerning the pretty issue that just common mention along with you know the district courts weighing referencing went as a what have you you want you reading the district court's opinion is somewhat narrow in the sense that you believe more was needed other than a few sentences or two and i just very much appreciate the questions from your honor and judge tolman the cases speak of a required weighing and when you say freedom of contract is provided for in my injunction you are not visibly weighing anything he has the has not even identified the competing concern and therefore not weighing in and that is what occurred in caribbean marine services and judge wallace wrote a really nice explain nation of how that works you've got to actually explain what the other interest is and weigh it and it's not putting the district court to someone reasonable proof it's that the district court didn't even acknowledge the enormous anti competitive effect of this two year injunction a council if the standard review is abuse of discretion and the district court correctly cites all four of the winners factors and then addresses each of those factors however briefly in the district court's order why don't we apply our decision in united states versus hanks and and declare the district courts weighing of the public interest factor is a plausible resolution of that factor based on the record and again because other law in the circuit in this specific context says that the weighing needs to at least identify the other factor and stepped through the other factor and that's caribbean marine services and hence not mention banks and as an end bank decision which i believe post dates judge wallace's opinion does well it does it does and i just like then to turn to one more point about public interest here  relationship to irreparable harm which the panel may have more interest in based on the questions at this point there is a hydraulic an inverse relationship between the public policy issue and the alleged harm which is to say the court indicates in its order declining to revise the injunction of march seventh one that the restricted parties apparently prefer to work with the plaintiffs and view them as the most viable option now we think that's really strong evidence that the injunction disserves competition because the district judge is recognizing that the other market players believe that our clients would actually aid competition but that's the harm if there is an imminent harm that's to be found in this records council that also shows that the district court was well aware of the competing harms and the issues because it's all about the non compete it's not like this divvied entered into what is the status of that proposed merger her public information your honor it is still pending regulatory review and approval by the government so right now in its financials the business unit is being listed is not conclude there were suggestions in the record from six months ago that it might close by july there's nothing in the record of the public that i've seen so far that would give the panel a better view and i've asked people privately and we just don't really know you judge graver so turning then to the factor of imminent harm i think that there's an analytic error here and from our point of view all of the different prongs have been collapsed into the determination on the merits the district court clearly believes there's been a breach was very clear in stating his concern that he believed there was a breach we respect and understand that as to the first factor but when you look at what the court found about humana the injunction to be clear is not avoiding an identified imminent harm in the future the complaint the court seems to have about humana is of a completed harm for which a damage remedy should be full and sufficient the court is saying you messed up the relationship with humana humana start january twenty one thousand will not be working with us exclusively and every day in america in federal courts experts from places like cornerstone going to court and they quantify and they provide damage measures when you have cla that i thought your client stipulated in the settlement agreement when they took the extra five million in payment from that there was sensually an agreement that if they violated the terms of the injunction the harm would be irreparable even though it was difficult to quantify and judge tolman under international association of plumbing at circuit law from a panel of this court that irreparable harm cannot be presumed from the contracts i'm aware the words are there when i increase the you presume from the contract but there's an express contract provision that essentially stipulates in advance that if violation is shown that there is irreparable harm i haven't looked at the underlying contract in the case you just cited but i suspect that language is probably mechanics of identifying what that future harm to be avoided is why can that not be a consideration for the contract it may have been consideration for the contract but that doesn't really alter the rule sixty five analysis that the court is required to find and it's their burden  ours that it's in the public interest in that there's an imminent harm to be avoided by this specific injunction and even if you assume for the sake of the argument that one shares very strongly the district court's concerns you cannot collapse those inquiries all into one inquiry if the court turns out later to be right that there breach that's supposed to be resolved by judgment not by the extraordinary under winter and preliminary remedy of this injunction so are you arguing that there was no breach of the agreement it's plainly a question to be determined by the district court later what's been resolved for now that under rule sixty five the court determined that there was a likelihood of success on the merits we concede no more and we don't need to for purposes of the argument i believe just the district court did devote a substantial part of its preliminary injunction order identifying the conduct for your clients engaged in that was found to be in violation of the contract and that is not the appeal that we have respectfully judge tom that's what we wanted to focus on the three prongs that we think were clearly erroneous i did not focus on that promise me house and the district court also discussed irreparable harm at much greater length and what you are suggesting and didn't rely entirely on actual disruption of one of the contractual relationships primarily  seems to me relied on the opportunity cost of good will and so forth so that can't necessarily be quantified so i'm not sure  the court gave i think four or five listed reasons under irreparable harm and only one of them dealt with what you're calling measurable harm so what's wrong with the other ones they didn't  to quantify well i think what's wrong with the court's assertion that the lower court's assertion that it is not quantifiable because it's in the nature of good will is that the be to monetize this good will that might have been true before they sold the business for four point nine billion dollars haven't that's that's why i was asking the question well the transaction remains pending there is an ink contract to sell it and they have monetized it so it does have a definitive value in the market have they received the money no i'm the order collapses past breach into future reparable harm you can assume that there is a breach for purposes of an analysis of this you know we're not conceding it for the litigation but assume for the sake of argument there just is a breach they still have to prove that the past breach is going to cause a harm in the next year year and a half and that's their burden and they didn't have that all that burden but even even if you consider the four point nine how do we know that they wouldn't have been able to sell it for five point nine million have had the please the court good morning my name is john bailey i'm here with paul williams and josh dickie on behalf of the pelleas the issues before this court on appeal are relatively straightforward it prescribe activities with only three entities and only in the state of nevada and this was done in the face of undisputed contemporaneous evidence showing that they had breached their restrictive covenants by misappropriating damaging impairing disrupting and exploiting the good will that divvied up paid them five million dollars not to do let me address a couple of the questions that you asked opposing counsel with respect to the public interest if you look at the excerpt of record page one sixty nine because the two cases were consolidated both the injunction case and the order denying the motion to dissolve there's two thousand and seventeen and a two thousand and eighteen i'm talking about the excerpt of record for the two thousand and seventeen portion of the transcript where the judge talks about the public interest you are correct he talks about it both in the order he talks about it in the transcripts and he talks about it in the primary injunction to say that he did not weigh the public interest would be a complete misnomer and miss statement you are correct that he identified what the public interest is in order to identify the public interest he certainly had to weigh it and think about it and he discussed it with us at the time of the hearings council is correct that the sale the proposed acquisition is pending it's in progress it's still being when it might conclude to my knowledge there is not i believe the parties are waiting for the federal trade commission under the a s r h r s act to review any anti competitive impacts that the  proposed acquisition may have but as to whether it will close in at what point in time if it will close when that will occur i have no idea it's in the hands of the federal government let me address the question that you had about the tolling aspect of the agreement between the parties it is correct that the law in this circuit and in other circuits is the re a non compete agreement and a sale or employment non compete agreement the recitation that the parties agree that if the breaching party in fact does breach that that will create irreparable harm to the non breaching party and therefore be appropriate for injunctive relief the law is that that recitation alone is not sufficient to satisfy the element of irreparable harm in this case we have all the other factors that judge gordon alluded to in terms of the extensive meetings the extensive strategizing the plans put in place between doctors of do and b with our contractual parties in order to damage us in the marketplace he also discussed and you see in the record and you've mentioned the fact that they have caused or at least played a part in humana terminating exclusivity provision in our contract with humana so in addition to the parties a green in the covenant that they're breaching of the restrictive covenant due to their knowledge due to their relationships and due to their abilities in the market their breaching would create irreparable harm justifying injunctive relief we also have all of these actual activities that took place  to satisfy that important element of likely to incur irreparable harm in addition the parties agreed that if a breach were to occur the remedy would be t for the period of the breach now this is no different and is consistent with this court's opinion in ocean beauty versus specific foods seafood where this court said irrespective of having that provision in the agreement that there is the ability for the court under its equitable authority to have what this court referred to as equitable extension and that's precisely what we have here and this is precisely what judge gordon did was he could rely not only on ocean beauty but also the parties agreement itself the only way that the court could have satisfied the parties intent given the conduct that was unequivocally demonstrated on the record was to do exactly what judge gordon did which was to impose the plume an injunction in a very narrow fashion subject to modification if there's additional evidence that comes forward that the modification contemplate marrying it further in terms of geographic scope what what judge gordon said to both parties in in court was go dude your discovery if there's additional evidence to support either expanding the scope of the plenary injunction or reducing the scope of the pulmonary injunction we will get to that bring it to me and i will take it under consideration he was very judicious though and making sure despite what the parties agreed to the parties agreed that if there is a breach the entire covenant restrictive covenant gets extended for the period of the breach judge gordon was very judicious in the fact that he narrowly limited the plenary injunction to only deal with the three parties that he had evidence of the breach in front of him in fact we have engaged in discovering we decided in one of our footnotes that we've we have obtained additional information from one of those parties that suggests to us that the breach period was much greater than the twenty two months that we had a first found out about that it was six months that they had started breaching their restrictive covenant six months before that period of time that is pending in front of judge gordon right now unless you have any additional questions for me i will i will submit it on the record and ask you to keep in mind that there is no evidence of an abuse of discretion here by judge gordon and to i'd like to go first to judge mel's question northern nevada let's talk about northern nevada for a minute in the original hearing in november two thousand and seventeen judge gordon was clear i'm going to explore this i'm going to let you look at this if there's no evidence that vito was going to northern nevada then that would be a reasonable way to reform this injunction and of course the law calls for narrow tailoring as we all know and acknowledge so what happened after that there was discovery mr general from prominence with which is of washoe county northern nevada based insurer came back and said they just never talked to us at all despite the seeming importance of the injunction allowing devoted to get more runway to reestablish good will they then after going in and passionately declaiming how they needed to get this good will never talk to prominence so when we obtain the actual evidence and testimony and put i front of the district court in february of this year the district court was completely unmoved there was no contrary demonstration if you go back and look at the hearing transcript there was the argument of their counsel saying well that's not how we think it is we had competent evidence from an insurer from the chief operating officer saying they never talked to us and the court said in november two thousand and seventeen i would look at that that would be a reasonable thing to do if the court is not inclined to consider the public policy implications of one hundred thirty five thousand people here who are basically going to be under an eighty percent market domination by de vito we would really implore the court to please look at northern nevada where they haven't even gone there's not a straight face contention here that there's a goodwill issue in northern nevada they have not been disadvantaged they did not go there they're not talking to mr gemma and there's just no reason for the injunction to be broader than it has to be so that was one thing that we would like to clarify also with respect to the tolling what's really interesting about the tolling here is that the court seems to have treated this and counsel in its argument he sort of very very  artfully i thought he explained how it was you know sort of indisputably shown there's a breach there's no summary judgment in this case there's a breach the contract says that there's a breach you have tolling the district court to sort of slipped over that and said well that's a likelihood of success and if so then who it is dealing with the likelihood of success breach which then translates to a likelihood of success on towing well it translates into a likelihood of success but the requirement of narrow tailoring that's inherent in the law here also calls just as we don't you know have the injunction in florida where there's no operations that are implicated the injunction should also be that where there is a harm the court seem to think humana was a harm the harm only goes back to at the earliest page ten twenty two december eleventh of two thousand and sixteen and then the court has bootstrap that into a twenty two month tolling period and it does that based on a discontinuous discussion from the first quarter of two thousand and sixteen that never came to anything there's no evidence in this record of a coming to any th was pretty impressed by the draft business plan i mean that's a pretty occupied just home and i totally get and appreciate the question and it accurately reflects judge gordon's concern i get it negotiation detail that they were considering not withstanding their character and that these were high level discussions and again i get it and again that would go to why we might lose a trial in there might be a judgement that that business plan is a breach but does that business plan create the imminent likelihood of economic harm and harm in twenty eighteen or nineteen years no linkage there it appeared to me that what influenced the district court was that no sooner was dry on this agreement then your clients set out to engage in conduct in violation and frankly not surprise that councils represent that he found evidence that six months earlier than the twenty two months before that its record counts and i believe that you are channeling some frustration that judge gordon i think very sort of elegantly and politely expressed i would still are jurors to please look at northern nevada that goes to what judge gordon said was fair and appropriate we'd really urge you to give a close look to the scope on that thank you our scouts case just argue