* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 26 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SIZEWISE RENTALS, INC., a Kansas corporation, Plaintiff - Appellee, No. 00-3051

v. (D. Kansas) MEDIQ/PRN LIFE SUPPORT SERVICES, INC., a Delaware corporation, Defendant - Appellant. (D.C. No. CV-99-2304-GTV)

ORDER AND JUDGMENT *

Before TACHA , ANDERSON , and EBEL , Circuit Judges.

Mediq/PRN Support Services, Inc. (“Mediq”) appeals the entry of a preliminary injunction in favor of SizeWise Rentals , Inc. (“SizeWise”). The injunction prohibits Mediq until November 2000, or until arbitration between the parties is complete, from leasing certain medical e quipment to certain hospitals1 As the district court found, SizeWise’s “product li ne includes bariatric

hospital beds, air mattresses, wheelchairs, commode s, walkers, lifts, and transfer systems.” SizeWise Rentals, Inc. v. Mediq/PRN Life Support Servs., Inc. , 87 F. Supp. 2d 1194, 1196 (D. Kan. 2000). - 2 - and facilities which had leased such equipment fromMediq during the period of an agreement between Mediq and SizeWise. We affirm

.

BACKGROUND SizeWise is a Kansas corporation that, since 1994, has been in the business of distributing and leasing bariatric equipment to hospitals and other health care facilities. Bariatric equipment is equipment speci fically designed for patients weighing over 350 pounds. 1 SizeWise was one of the first companies to market bariatric equipment “as a ‘full room environment,’ which means marketing a set of bariatric products as a complete package to care for all the needs of obese patients.” SizeWise Rentals, Inc. v. Mediq/PRN Life Support Servs., Inc. , 87 F. Supp. 2d 1194, 1196 (D. Kan. 2000). SizeWise engag es in no other business activities. It has seven to ten employees and annu al gross revenues of approximately $6 million. Mediq is a Delaware corporation that distributes an d leases a variety of hospital and medical equipment. It is the largest distributor of medical products in the United States, with annual gross revenues of approximately $300 million.- 3 -

Mediq strives to provide “one stop shopping” for it s customers by offering a complete line of medical products, including such s pecialty lines as bariatric equipment. In November 1997, SizeWise and Mediq entered into a“Consignment for Rent/Rental Agreement,” pursuant to which, from Nov ember 1, 1997, until October 31, 1999, SizeWise agreed to supply a set o f eight bariatric products, which Mediq would rent to facilities in certain ter ritories (ultimately fifty counties in nine states). During the course of the Agreement, Mediq leased SizeWise’s equipment to customers in the territorie s. Mediq entered into the leases with the facilities and billed them. SizeWi se retained ownership of the equipment and maintained liability insurance for it . Mediq and SizeWise shared the revenues generated through the leases. The district court made the following additional fi ndings about the conduct of the two parties to the Agreement: [SizeWise] also provided marketing and technical tr aining to [Mediq’s] employees at its Ellis, Kansas facility, employed four regional managers who assisted [Mediq] with marketi ng and training, and provided a toll-free telephone number for users of the equipment. Over the course of the term of the Agreement, [Medi q] leased [SizeWise’s] equipment to approximately 268 hospita ls, health care facilities, or other facilities. Id. at 1197.2 There was some disagreement at oral argument of thi s case as to which

party produced a specific SizeWise “rollout manual. ” The record reveals that one particular “rollout manual” was produced by a Mediqemployee. See Tr. of Hr’g at 19-21, J.A. at 130-32. As Mr. Wood testified, h owever, apparently other pamphlets and brochures were produced by SizeWise. At oral argument, Mediq’s counsel more generally ch allenged the district court’s factual findings, asserting that the court “fabricated them out of nowhere.” We have carefully reviewed the record and, as this opinion indicates, the district court’s findings are supported by evidence in the r ecord. Mediq’s counsel’s representation to this court to the contrary was bo th incorrect and misleading.

3 Mr. Frickey described more specifically how he assi sted in “co-marketing” SizeWise equipment with Mediq personnel: (continued...) - 4 - The record supports those findings: Mediq employee Andrew Wood testified that “SizeWise provided us with product i nformation, pamphlets, brochures, marketing materials, and put on, to the best of my knowledge, two training sessions and one sales meeting.” Tr. of Hr’g at 18, J.A. at 129. 2 SizeWise’s president, Trever Frickey, testified that SizeWise conducted sales training for the Mediq personnel who leased the equ ipment and provided them with brochures and materials, and he stated that Si zeWise personnel “also went out into the field and taught the people who could not come to training how to sell and service the equipment.” J.A. at 166. Mr. Fric key further testified that SizeWise’s regional managers “went out and worked w ith the sites to directly market our products in the facilities and help them open doors.” Id. at 170. When asked if he and his fellow regional managers, “actually go to the hospitals to help co-market these products,” he responded, “yes, we did.” Id. at 171. 33 (...continued) Normally what we would do is we would go in and we would use the SizeWise line to get an appointment because most of the time people were always willing to deal with looking at this product line since sometimes it was something they couldn’t get from very many people so, therefore, we could get an appointment w ith that and we would talk about how to manage their bariatric pati ents, and that sometimes they need our products and you never needus until you really need us. You never know when you’re going t o have somebody, you know, six, seven hundred pounds there at that facility. And then what we would do after we got d one bidding the SizeWise product and got in the door, they would us ually conclude with stating that they had other products as far as air support therapy and things of that nature that could also help thei r regular sized patients. Tr. of Hr’g at 62, J.A. at 173. He also testified that one of SizeWise’s regional managers, Tim McCarty, performed a similar functionin developing the Tempe, Arizona, market. See id. at 197. - 5 - Mr. Frickey also testified that he: was in charge of the Wisconsin sites so [he] workedwith facilities in that Wisconsin area, including the University of Wi sconsin, to try and help get a contract for both of our companies f or bariatrics as well as frameless air support therapy. I worked wi th Froedert Memorial Hospital, the Vincor in Milwaukee. I did m ake a call to the Aurora system in that area to try and gain some bus iness, but we were unsuccessful with that. Id. at 172. When asked if he was “involved in assisti ng Mediq in negotiating long-term contracts,” Mr. Frickey stated that he was in “some” cases. Id. at 173. He also testified that SizeWise maintained a 24-hou r toll free telephone number to answer questions concerning SizeWise equipment. See id. at 174. The Agreement contained the following covenant:- 6 -

8. Piracy, Trade Secrets and Confidential Informat ion

. . . (b) During the term of this Agreement and for a per iod of one (1) year immediately following the termination of t his Agreement, [Mediq] shall not: (i) call upon, solicit, divert or take away, or accept rental business for Specialty Equipment fromany customer in the Territory that has been referred to [Mediq] by SizeWise or (ii) directly or indirectly request or advise any present or future customers of SizeWise within the Territory to withd raw, curtail, alter or cancel their business with SizeWise. It is spec ifically acknowledged, understood and agreed by [Mediq] thatthe covenant against piracy as provided in this paragraph 8(b) i s a material inducement for SizeWise to retain the services of [ Mediq], to grant the Territory to [Mediq] and to allow [Mediq] limit ed use of the SizeWise tradenames and trademarks and access to th e trade secrets and proprietary and confidential information refere nced below, and that SizeWise would not enter into this Agreement, agree to retain the services of [Mediq] or grant such rights or acc ess absent this covenant. J.A. at 41-42. Section 8 also contained the follow ing provision: (c) [T]he provisions contained in subparagraphs 8( a) and 8(b) shall not apply to a situation where a customer insists that it rent obese patient aids manufactured or distributed by an enti ty other than SizeWise. In such a situation [Mediq] agrees that it will consult with SizeWise and that it will use reasonable efforts to convince said customer to first rent the [SizeWise] equipment as opposed to renting obese patient aids manufactured or distributed by an entity other than SizeWise. In the event, however, that following su ch consultation and efforts, the customer nevertheless insists thatit be provided with a product manufactured by an entity other than Size Wise, [Mediq] shall be permitted, without penalty, to rent such p roducts . . . to said customer. Id. at 42. In mid-1999, the relationship between SizeWise and Mediq apparently broke down. In July 1999, SizeWise filed its compl aint, seeking damages and- 7 -

injunctive relief, alleging that during the term of the Agreement, and “unbeknownst to [SizeWise], [Mediq] acquired a numb er of companies that were direct competitors of [SizeWise]. After said acqui sitions, and during the [Agreement] term, [Mediq] began selling, renting an d marketing obese patient aids other than [SizeWise’s] products within the [t erritories subject to the Agreement] and outside [those territories].” Compl aint at ¶ 13, J.A. at 17-18. The Complaint further alleged that “[i]n acquiring [SizeWise’s] competitors and then selling, renting and marketing similar product s, [Mediq] utilized the Confidential Information provided to it by [SizeWise].” Id. at ¶ 14, J.A. at 18. SizeWise alleged that Mediq had also breached the A greement in various other
ways. By its own terms, the Agreement expired on October 31, 1999. On November 9, 1999, SizeWise filed a motion for a temporary restraining order and a preliminary injunction, seeking to restrain Mediqfrom violating section 8(b)(ii) of the Agreement. The court conducted a hearing on December 17, 1999, at which SizeWise’s officers testified, as well as an employee of Mediq and an expert in the field of marketing bariatric products. Willard Frickey, the owner and founder of SizeWise, testified that, although the Agreement pr ovided that Mediq would bill the customers to whom SizeWise bariatric equipment was leased, he considered4 Mediq argues that the district court struck as spec ulative Ms.

Vasconcellos’s entire testimony relating to irrepar able harm. While the court sustained Mediq’s objections to several of Ms. Vasc oncellos’s answers, Mediq did not object to the testimony quoted above. - 8 - those customers to be customers of both Mediq and SizeWise. See Tr. of Hr’g at 29, J.A. at 140. Trever Frickey testified that he was concerned that a violation of section 8(b) would affect “referrals of business th at you get from existing business.” J.A. at 184. Mediq employee Andrew Woo d testified as to the desirability of establishing “long-term contracts” with facilities, pursuant to which Mediq would endeavor to supply all of those f acilities’ medical equipment needs. The expert, Darlene Vasconcellos, testifiedthat a small specialized company like SizeWise would be unwilling to enter i nto a relationship with a national distributor like Mediq without a non-compe tition clause “because essentially the larger company after gaining this e xpertise and knowledge specific to bariatrics could then take that knowledge and wh en the contract was over, they would be in a position to go in and convert all the business over to themselves, thereby cutting out the smaller distribution or the smaller manufacturer.” Id. at 206-07. 4Following the hearing, the district court grantedSizeWise’s motion for a preliminary injunction. It then specifically ord ered as follows: [F]rom the date of the Order until either the merit s of this case are decided in the pending arbitration or November 1, 2 000, whichever comes first, [Mediq] and any party or parties in pr ivity or acting in concert with [Mediq] are enjoined from leasing any hospital beds,- 9 -

mattresses, support services, commodes, walkers, wh eelchairs, lifts or transfer systems to any hospital or facility ide ntified in Exhibit A . . . if such products are specifically designed to be used by patients whose weight exceeds 350 pounds. SizeWise Rentals , 87 F. Supp. 2d at 1200-01. This appeal followed.

DISCUSSION A. Merits of Preliminary Injunction

A party seeking a preliminary injunction must show that four conditions are met: (1) the movant will suffer irreparable harm unless the injunction issues; (2) there is a substantial likelihood the m ovant ultimately will prevail on the merits; (3) the threatened injury to the movant outweighs any harm the proposed injunction may caus e the opposing party; and (4) the injunction would not be contraryto the public interest. ACLU v. Johnson , 194 F.3d 1149, 1155 (10th Cir. 1999) (quoting Kiowa Indian Tribe of Oklahoma v. Hoover , 150 F.3d 1163, 1171 (10th Cir. 1998)). “We review the grant of a preliminary injunction for an abuse of discretion.” Id. We reverse the grant of injunctive relief “‘only if th e district court abuses its discretion, commits an error of law, or is clearly erroneous in its preliminary factual findings.’” Id. (quoting Kansas Health Care Assoc., Inc. v. Kansas Dep’t of Social & Rehabilitation Servs. , 31 F.3d 1536, 1543 (10th Cir. 1994) (further quotations omitted)).- 10 -

We have adopted a “modified requirement as to the l ikelihood of success.” Federal Lands Legal Consortium v. United States , 195 F.3d 1190, 1194 (10th Cir. 1999). If the movant establishes the other three r equirements for the issuance of a preliminary injunction, “the movant may satisfy [th e] requirement . . . [of likelihood of success on the merits] by showing that questions going to the merits are so serious, substantial, difficult, and doubtfu l as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. at 1195. Although we apply federal standards concerning the requireme nts for a preliminary injunction, see Equifax Servs., Inc. v. Hitz , 905 F.2d 1355, 1361 (10th Cir. 1990), Kansas law may be relevant to particular issues. See Baker’s Aid v. Hussman Foodservice Co. , 830 F.2d 13, 15 (2d Cir. 1987). The district cou rt found that SizeWise met all four conditions for the issuance o f an injunction.

1. Irreparable Harm Mediq argues SizeWise has failed to show irreparabl e harm because any harm SizeWise suffered is compensable in damages in asmuch as the restrictive covenant at issue applies to a discrete and identif iable group of former customers. It also argues that SizeWise delayed four months inseeking injunctive relief, thereby undermining its claim that it is in imminen t danger of irreparable harm. Finally, Mediq argues the district court clearly erred in finding that Mediq had- 11 -

long-term relationships with “many of the facilitie s to which it rented [SizeWise’s] bariatric equipment,” and that “these relationships will seriously impede, if not bar, [SizeWise’s] attempts to rent b ariatric equipment to those facilities.” SizeWise Rentals , 87 F. Supp. 2d at 1198. “Where there is a full, complete, and adequate reme dy at law through recovery of calculable money damages, the injury is not irreparable and equity will not apply the extraordinary remedy of injunction.” Wichita Wire, Inc. v.
Lenox , 726 P.2d 287, 292 (Kan. Ct. App. 1986). Damages are calculable if they result from the “loss of identifiable customers, wh o had generated a known dollar amount of business.” Id. On the other hand, there is an “inherent difficul ty in quantifying the loss of [plaintiff’s] competitive a dvantage in the marketplace, and the damages resulting from loss of customers and good will.” Heatron, Inc. v. Shackelford , 898 F. Supp. 1491, 1502 (D. Kan. 1995). The district court found that SizeWise: received referrals from facilities being served pur suant to the Agreement, that referrals are an important source o f its business, and that facilities being served pursuant to the Agreem ent were aware that they were using [SizeWise’s] equipment. In ad dition, the Agreement specifies several interests of plaintiff, such as trade names, trademarks, trade secrets and proprietary an d confidential information, that [SizeWise] specifically sought to protect with Section 8(b)(ii).5 Trever Frickey testified that, if Mediq is allowed to continue to violate

section 8(b), “I already know we have customers we will currently lose, and I don’t think there’s any way we’ll be able to regainthose customers or the referrals that we would have the opportunity to get .” Tr. of Hr’g at 71, J.A. at 182. He further explained, “[m]ost of the time you develop relationships with these people, and, I mean, it’s like any relationsh ip, there are relationships that go for a long period of time and you move forward and grow with those and prosper. If you lose one of those relationships, it can be e xtremely detrimental because you don’t know what kind of decision maker they are in that marketplace. They could be at a teaching institution and educating people o n what is the appropriate bariatric products.” J.A. at 183. When asked if h e was aware of any injury to SizeWise’s reputation because of Mediq’s violation of the non-competition covenant, Mr. Frickey responded, “[t]he only instan ce I’m aware of is the one in southern California where a nurse had called in andasked if we were out of business.” Id. at 184. - 12 - SizeWise Rentals , 87 F. Supp. 2d at 1197-98. The record supports those findings. 5 Moreover, section 8(b)(ii) prohibits Mediq from i nterfering even “indirectly ” with any “present or future ” customer of SizeWise. The district court did not abuse its discretion in concluding that Siz eWise’s “interests in good will, brand recognition, customer contacts, and referral sources cannot be measured in numerical or monetary terms.” SizeWise Rentals , 87 F. Supp. 2d at 1200. With respect to Mediq’s delay argument, “[w]hile de lay can undermine a claim of irreparable harm,” we decline to so hold in this case. See Kansas Health Care Assoc., Inc. v. Kansas Dep’t of Soc. & Rehabilitation Servs. , 31 F.3d 1536, 1543 (10th Cir. 1994). First, Mediq does not appear to have made this argument before the district court. Additionally, SizeWise asserts that, while it was aware that Mediq was violating various provisions of the Agreement when it filed its- 13 -

complaint in this case, it was not aware that it wa s specifically violating section 8(b)(ii) until shortly after the term of the Agreem ent expired, and it sought injunctive relief shortly thereafter. We conclude that any claimed delay is not fatal to SizeWise’s assertion of irreparable harm. Finally, Mediq argues that “to the extent that the court’s decision with respect to irreparable harm and balancing of hardsh ips were based on its holding that Mediq had long-term contracts with former Size Wise customers which would bar SizeWise from renting to those customers, its d ecision is based on clear factual error.” Appellant’s Br. at 29. Mediq misapprehends the district court’s finding. The district court held that “[i]n the me dical supply business . . . distributors often establish long-term relationship s with hospitals and health care facilities in which the distributor serves as the p rimary vendor for all of a customer’s medical equipment needs.” SizeWise Rentals , 87 F. Supp. 2d at 1198. The record supports that finding. Indeed, Mediq ha s conceded that it endeavors to establish such long-term relationships to serve all the needs of health care facilities as those needs arise. The court did not find that these “relationships” were actual contractual relationships. Thus, Mediq ’s assertion that there are no long-term contracts between Mediq and health care facilities is irrele vant.

2. Likelihood of Success on the Merits- 14 -

Mediq makes several arguments why the district court erred in concluding SizeWise had demonstrated a likelihood of success o n the merits of its claim that Mediq was violating section 8(b). It argues: (1) section 8(b)(ii) is an illegal restraint on trade because it serves no legitimate business interest of SizeWise; (2) SizeWise has not established that Mediq is in f act violating section 8(b)(ii); and (3) the court’s injunctive order is “overbroad and deprives Mediq of rights secured in the Agreement.” Appellant’s Br. at 36. Mediq asserts section 8(b)(ii) is illegal and unenf orceable because it does not protect any legitimate business interest of Siz eWise. “Under Kansas law, a noncompetition agreement is valid and enforceable w here three conditions are
met.” Heatron , 898 F. Supp. at 1499. “First, the agreement mustbe a valid and enforceable contract under general principles of contract law.” Id. Second, “the employer must have a legitimate proprietary interest to protect.” Id. at 1500. Third, “the agreement must be reasonable, based upo n the particular facts of the case.” Id. ; see also Weber v. Tillman , 913 P.2d 84, 88-96 (Kan. 1996); Eastern Distrib. Co., Inc. v. Flynn , 567 P.2d 1371, 1376 (Kan. 1977). Mediq argues that section 8(b) protects no legitimate proprietary int erest of SizeWise because all the customer contacts made under the Agreement were dev eloped and maintained by Mediq, and SizeWise identifies no other legitimate proprietary interest such as- 15 -

“proprietary information, training, or marketing te chniques.” Appellant’s Br. at
33. The district court upheld the validity of the restr ictive covenant. It found: [SizeWise] produced brochures and “roll-out” materi als explaining its products, had a small team of managers that ass isted defendant with distribution, and maintained a toll-free numbe r for the benefit of the facilities using its products. Common sense di ctates, and the court concludes, that the facilities to which [Medi q] rented [SizeWise’s] bariatric equipment are customers of b oth [SizeWise] and [Mediq]. SizeWise Rentals , 87 F. Supp. 2d at 1199. As indicated above, the record supports those findings. It is “a well-recognized principle that ‘customer contacts’ is a legitimate interest to be protected.” Eastern Distrib. , 567 P.2d at 1376. While Mediq may have had a preexisting relat ionship with most of the customers who rented SizeWise equipment under the A greement, the record supports the district court’s conclusion that SizeW ise also contributed to the development and maintenance of those customer conta cts as they facilitated the placement of SizeWise equipment in those customers’ facilities. The record further supports the district court’s conclusion th at the covenant “seeks to protect [SizeWise’s] legitimate interests in customer conta cts, good will, brand recognition, and referral sources.” SizeWise Rentals , 87 F. Supp. 2d at 1200. The fact that Mediq actually billed the customers d oes not completely trump other- 16 -

evidence showing that, in reality, the customers be longed to both Mediq and SizeWise. Mediq also argues the court erred in holding that M ediq was breaching or likely to breach section 8(b)(ii) by offering to re nt bariatric products to any customer to whom it had previously rented SizeWise products. It argues that section 8(b)(ii) only prohibits it from “directly o r indirectly request[ing] or advis[ing]” SizeWise’s present or future customers to “withdraw, curtail, alter or cancel their business” with SizeWise. J.A. at 41. We agree with the district court’s rejection of this argument: If [Mediq] sells bariatric equipment to the[] facil ities [to which it had leased such equipment during the Agreement], it wil l violate the Agreement by indirectly—if not directly—requesting that the facilities not do business with [SizeWise], especia lly because [Mediq] endeavors to establish or maintain long-term “one-stop shop” relationships with them. That type of relati onship, by its very nature, anticipates that the facilities do business only with [Mediq], and not with [SizeWise]. SizeWise Rentals , 87 F. Supp. 2d at 1199.

Finally, Mediq argues that the court’s injunction i s overbroad and deprives Mediq of its rights under section 8(c) of the Agree ment, which provides that section 8(b) does not apply where a customer insist s on renting non-SizeWise equipment, so long as Mediq endeavors to convince s uch a customer to rent SizeWise equipment before renting non-SizeWise equi pment to it. Mediq did not6Apparently no one argued this issue to the districtcourt, even when the

district court raised the issue with the parties. See Tr. of Hr’g at 137, J.A. at 248 (The court observed that “[a]nother provision that really nobody has discussed much would be Subparagraph (c) of Paragraph 8.”).

7 Since, as we discuss infra, in addition to meeting the irreparable harm requirement, SizeWise also prevails on the balancin g of harms and public interest requirements for preliminary injunctive relief, Siz eWise need only show “that questions going to the merits are so serious, subst antial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation” to establish a likelihood that it wi ll prevail on the merits. Federal Lands Legal Consortium , 195 F.3d at 1195. - 17 - argue the effect of section 8(c) to the district court. 6The record contains no evidence relevant to such a determination. We conc lude that the district court did not abuse its discretion in granting the preliminary injunction without reference to section 8(c). The district court did not abuse its discretion in concluding that SizeWise demonstrated a likelihood that it ultimately will prevail on the merits. 7

3. Balance of Harms and Public Interest Mediq argues the district court erred in holding th at the balance of harms and the public interest support the grant of the pr eliminary injunction in this case. We affirm the district court’s conclusion that the proper resolution of those two issues supports the issuance of the preliminary inj unction. We do so for substantially the reasons set forth in the districtcourt’s opinion.- 18 -

In sum, we hold that the district court did not abu se its discretion in granting SizeWise’s motion for a preliminary injunc tion.

B. Rule 65(c) Security Fed. R. Civ. P. 65(c) provides as follows: No restraining order or preliminary injunction shal l issue except upon the giving of security by the applicant, in such su m as the court deems proper, for the payment of such costs and dam ages as may be incurred or suffered by any party who is found to h ave been wrongfully enjoined or restrained. In this case, the district court issued a brief Ord er Nunc Pro Tunc addressing the necessity of a Rule 65(c) bond:

The court, in its memorandum and order granting pla intiff’s motion for preliminary injunction, failed to state whether a bond shall be required in accordance with Fed. R. Civ. P . 65(c). The court determines that no bond shall be required. J.A. at 571 (citations omitted). Mediq argues the district court violated Rule 65(c) by entering the preliminary injunction without requiring SizeWise to post a bond. “[W]e have held that a trial court may, in the exe rcise of discretion, determine a bond is unnecessary to secure a prelimi nary injunction ‘if there is an absence of proof showing a likelihood of harm.’” Coquina Oil Corp. v. Transwestern Pipeline Co. , 825 F.2d 1461, 1462 (10th Cir. 1987) (quoting Continental Oil Co. v. Frontier Refining Co. , 338 F.2d 780, 782 (10th Cir. 1964)).- 19 -

While we have observed that “[a] trial court decisi on to waive a Rule 65(c) bond is subject to an abuse of discretion test on appeal [,] . . . [t]hat test cannot be employed in the absence of specific findings.” Id. In this case, while the district court considered the bond requirement issue, it failed to explain why it concluded that no such bond is necessary. We can only infer that the court determined there was “an absen ce of proof showing a likelihood of harm.” Id. While normally such an omission would necessitate a remand on that specific issue, we decline to do so in this case, given the particular circumstances present here. The preliminary injunc tion will be dissolved on November 1, 2000, or when arbitration of the disput e between the parties is concluded, whichever occurs first. Were we to remand this issue, by the time the district court ruled on it, and any appeal was reso lved, the matter would very likely have become moot by the passage of time.

CONCLUSION For the foregoing reasons, we AFFIRM the order of the district court.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge