Opinion
24-cv-0433-BAS-VET
07-26-2024
PROBO MEDICAL, LLC, Plaintiff, v. HEART MEDICAL, LLC, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (ECF NO. 23)
Hop. Cynthia Bashant, United States District Judge.
Presently before the Court is Plaintiff Probo Medical, LLC's (“Probo”) application for a temporary restraining order and preliminary injunction. (ECF No. 23.) Probo requests the Court to command Defendants Heart Medical, LLC; Heart Medical Services, LLC; James Wiggins; and Christopher Ryan Davis to stop holding themselves out as successors in interest to a company purchased by Probo and to stop using Probo's trade secret information. (Id.) Defendants oppose. (ECF No. 26.) The Court heard oral argument on July 22, 2024. (ECF No. 30.) Having considered the parties' filings and oral argument, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's application for a temporary restraining order and preliminary injunction. (ECF No. 23.)
I. BACKGROUND
The parties do not contest the following facts. Probo is a medical technology provider that sells ultrasound equipment, CT scanners, and EKG machines among other products. (ECF No. 23-1 at 1.) In an effort to grow its Southern California business, Probo acquired Davis Medical Electronics, Inc. (“DME”), a specialty cardiology equipment distributor, for $8 million in November 2023. DME employed Defendants Wiggins and Davis as territory sales managers. (Id. at 2.) Following Probo's acquisition of DME, Plaintiff also employed Defendants Davis and Wiggins in sales roles. In these capacities, Defendants Davis and Wiggins were subject to various agreements and policies as employees of DME and subsequently Probo. (Id. at 3.)
Probo maintains databases containing customer information including customer names, prior orders, pricing proposals, and brand preferences for particular clients. (ECF No. 23-1 at 5.) For example, Probo would know the name of the purchasing decisionmaker at a hospital and what brand of machine the hospital prefers. This information was gathered over time through Probo's effort and reflects Probo's knowledge of its customers and their needs. Some of this information is neither known to the public nor readily obtainable. Probo contends these databases are its trade secrets and key assets for its ability to compete. (Id. at 5-7.)
The parties dispute what followed Probo's acquisition of DME. According to Plaintiff, Defendants Davis and Wiggins surreptitiously formed Heart Medical, LLC, a competitor medical device supplier, while still employed at Probo. Although they resigned in January 2024, Plaintiff contends Defendants Davis and Wiggins began attempting to poach Probo's clients and Probo's staff while still employed at Probo. (ECF No. 23-1 at 8.) Plaintiff alleges Defendants Davis and Wiggins used their Probo credentials to access and download Probo's databases of customer information-their trade secrets-to pursue Probo's clients. (Id. at 8-9.) Defendants Davis and Wiggins also purportedly held themselves out as successors in interest to DME to pursue Probo's clients. (Id. at 10.)
Their efforts culminated in Heart Medical, LLC obtaining contracts with former Probo clients including Philips Imaging (“Philips”). (Id. at 11.)
Defendants admit they formed Heart Medical, LLC and began to compete with Plaintiff; however, they deny holding themselves out as DME's successors in interest, using Probo's trade secrets to compete with Probo, or attempting to convert customers while still employed at Probo. (ECF No. 26 at 6, 12.) At oral argument, Defendants admitted to having downloaded files from Probo's servers but maintained they did not view or use any trade secrets contained in that download. Defendants attest they compete fairly with Probo without the assistance of any illegitimately obtained trade secrets. (Id. at 2526.)
On March 5, 2024, Plaintiff filed suit asserting claims for: (1) violations of the Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836, et seq.; (2) violations of the California Uniform Trade Secrets Act (“CUTSA”), Cal. Civ. Code § 3426, et seq.; (3) violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; (4) unfair competition, under Cal. Bus. & Prof. Code § 17200; (5) breach of contract; (6) breach of fiduciary duty; (7) intentional interference with contractual relations; and (8) slander. (Compl., ECF No. 1.)
On July 3, 2024, Plaintiff filed the instant application for a temporary restraining order and preliminary injunction. (ECF No. 23.) Plaintiff seeks to enjoin Defendants from: (1) using, selling, or transmitting Probo's trade secret information; (2) providing any services, assistance, or information to others using Probo's trade secret information; (3) accessing Probo's electronic data without authorization; (4) doing business which requires the use, license, or publication of Probo's trade secret information; and (5) representing that Defendants are affiliated with Probo or DME or are successors in interest to DME. (Id. at 2.) Plaintiff also requests the Court affirmatively order that Defendants: (1) retrieve from any customers, vendors, or suppliers Probo's trade secret information; (2) return to Probo all of Probo's trade secret information; (3) return to Probo the hard drives Defendants allegedly removed from Probo computers; and (4) provide a list of each Probo customer Defendants contacted following Davis's and Wiggins's resignations from Probo. (Id. at 2-3.)
At oral argument, the Court asked Plaintiff to clarify the scope of its proposed preliminary injunction and how the injunction would function in practice. Plaintiff distilled its request into essentially two components prohibiting Defendants from: (1) using Probo's customer information-names, ordering history, pricing proposals, and preferences-it considers trade secret and confidential; and (2) using Probo's name or representing Defendants are successors in interest to DME or Probo. Defendants expressed concern it will be difficult to identify violations of the first component because much of Plaintiff's supposed proprietary information is publicly available. Defendants contend they will be haled into court for every perceived violation such that enforcement is untenable. Defendants represented they would take no issue with the second component.
II. ANALYSIS
Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary restraining order. Fed.R.Civ.P. 65(b). The standard for a temporary restraining order is identical to the standard for a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). The moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in the absence of preliminary relief; (3) that the balance of equities tips in favor of the moving party; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Likelihood of success on the merits is the most important factor.” California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018). A temporary restraining order is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. “In deciding a motion for a preliminary injunction, the district court is not bound to decide doubtful and difficult questions of law or disputed questions of fact.” Int'l Molders' & Allied Workers' Loc. Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir. 1986) (citations omitted).
The Ninth Circuit alternatively employs a “serious questions” or “sliding scale” standard for preliminary injunctions where the moving party must demonstrate either “(1) a combination of probable success on the merits and the possibility of irreparable injury or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in [its] favor.” Grocery Outlet Inc. v. Albertson's Inc., 497 F.3d 949, 951 (9th Cir. 2007) (citations omitted). See also All. for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011). The serious questions standard is “a lesser showing than likelihood of success on the merits.” Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, 98 F.4th 1180, 1190 (9th Cir. 2024) (quoting All. for Wild Rockies, 632 F.3d at 1127).
A. Misappropriation of Trade Secrets
Plaintiff brings this application under eight causes of action. Because Plaintiff requests relief according to its DTSA, CUTSA, and intentional interference with contractual relations claims, the Court need not address the other asserted claims. See, e.g., Comet Techs. USA, Inc. v. Beuerman, No. 18-CV-01441-LHK, 2018 WL 1990226, at *3 n.1 (N.D. Cal. Mar. 15, 2018) (addressing only the likelihood of success of the claims necessary for the requested relief).
1. Likelihood of Success on the Merits
In order to prevail on a claim under the DTSA and the CUTSA, a plaintiff must show the information is a “trade secret” and that the defendant “misappropriated” the information. See Eldorado Stone, LLC v. Renaissance Stone, Inc., No. 4-CV-2562-JM-LSP, 2005 WL 5517732, at *2 (S.D. Cal. May 31, 2005) (citing MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d 511, 522 (9th Cir. 1993)). The DTSA defines a trade secret as information which:
(A) the owner thereof has taken reasonable measures to keep such information secret; and
(B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable
through proper means by, another person who can obtain economic value from the disclosure or use of the information.18 U.S.C. § 1839(3). The CUTSA similarly defines a trade secret as information that:
(1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.Cal. Civ. Code § 3426.1(d). Publicly available information cannot be a trade secret. A plaintiff must “describe the subject matter of the trade secret with sufficient particularity to separate it from matters of general knowledge in the trade or of special knowledge of those persons . . . skilled in the trade.” InteliClear, LLC v. ETC Glob. Holdings, Inc., 978 F.3d 653, 658 (9th Cir. 2020) (citations omitted). A plaintiff must “clearly refer to tangible trade secret material” rather than referring to information “which potentially qualifies for trade secret protection.” Id. (citations omitted).
The DTSA and CUTSA both define misappropriation to include “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means.” 18 U.S.C. § 1839(5)(A); Cal. Civ. Code § 3426.1(b)(1). Both statutes define improper means to include means the party knew or should have known were improper such as theft or a breach of duty to maintain secrecy. 18 U.S.C. § 1839(6)(A); Cal. Civ. Code § 3426.1(a). A plaintiff may prove misappropriation through circumstantial as well as direct evidence. UniRam Tech., Inc. v. Taiwan Semiconductor Mfg. Co., 617 F.Supp.2d 938, 944 (N.D. Cal. 2007).
The Court finds Plaintiff may succeed in establishing some of the downloaded information is trade secret. Courts in the Ninth Circuit have consistently held purchasing history accompanying customer lists constitute trade secrets. A customer database “has potential economic value because it allows a competitor . . . to direct its sales efforts to those potential customers that are already using” the plaintiff's products. MAI Sys., 991 F.2d at 521. See, e.g., Chartwell Staffing Servs. Inc. v. Atl. Sols. Grp. Inc., No. 19-CV-00642-JLS-JDE, 2019 WL 2177262 (C.D. Cal. May 20, 2019) (collecting cases); Brocade Commc'ns Sys., Inc. v. A10 Networks, Inc., 873 F.Supp.2d 1192, 1213 (N.D. Cal. 2012) (finding customer information and prior order history was a protectable trade secret as it has potential value and is not publicly known). Here, Plaintiff spent significant time and expense collecting customers' information such as their last purchase date.
However, not all of the allegedly downloaded information constitutes trade secrets. Customer names are publicly available and can be located in the “yellow pages,” as discussed at oral argument. Plaintiff's pricing information is available online. (ECF No. 26 at 19.) Customers' brand preferences can be solicited as part of business negotiations. When asked at oral argument, Plaintiff could not identify any particular documents or trade secrets that had been misappropriated by Defendants. Other courts have found broad categories or descriptions of documents, like Plaintiff seeks to protect, are too vague to allege a trade secret. See Rescue 1 Fin., LLC v. Complete Debt Relief, LLC, No. SACV 23-00982-CJC-KESx, 2023 WL 6373884, at *4 (C.D. Cal. Aug. 24, 2023) (collecting cases).
Plaintiff requests a sweeping injunction of any use of its trade secrets or providing services using its trade secrets information. Its request, in light of what Probo is likely to prove at this juncture, is insufficiently particular. See Imax Corp. v. Cinema Techs., Inc., 152 F.3d 1161, 1164 (9th Cir. 1998) (finding plaintiffs cannot rely on “catchall” phrases or categories of trade secrets they intend to pursue at trial); X6D Ltd. v. Li-Tek Corps. Co., No. CV-10-2327-GHK-PJWx, 2012 WL 12952726, at *6 (C.D. Cal. Aug. 27, 2012) (citations omitted) (finding it inadequate when a plaintiff “cites and incorporates by reference hundreds of documents that purportedly reference or reflect the trade secret information”). Courts require precision in defining trade secrets for the purposes of a preliminary injunction because “the district court or trier of fact will not have the requisite expertise to define what the plaintiff leaves abstract.” InteliClear, LLC, 978 F.3d at 658 (citations omitted). Significant amounts, if not almost all, of the information Plaintiff seeks to protect would not be considered trade secret. At bottom, Plaintiff fails to provide the precision required to identify what information, that is not publicly available, Plaintiff seeks to protect and how to reasonably identify violations of such an order.
Moreover, at this juncture, the Court finds there are questions about whether Defendants misappropriated Probo's trade secret information. Probo has presented evidence that Defendants downloaded some trade secret information. (ECF No. 23-1 at 89.) Defendants' download, however, consisted of tens of thousands of files. (Id.) At oral argument, Defendants attested they have not accessed any of the downloaded files outside of personal files. Plaintiff has not provided any specific evidence to rebut this assertion. When Plaintiff's counsel was asked at oral argument what trade secret files Defendants accessed, Plaintiff admitted it was not certain. While in some instances merely downloading trade secret information is enough to constitute appropriation, the download size and intermingling of public information here renders Plaintiff's evidence insufficient under the DTSA or CUTSA. See InteliClear, LLC, 978 F.3d at 659-60 (noting “tendering the entire database” of possible trade secret information to the court “to parse through” would have been an insufficient means of identifying trade secret information).
Probo has presented circumstantial evidence Defendants used its trade secret information in the form of customer pricing in soliciting clients. (ECF No. 23-1 at 7.) California state courts and federal courts have “equated acts of solicitation with ‘use' or ‘misappropriation' of protected information.” Morlife, Inc. v. Perry, 56 Cal.App.4th 1514, 1524 (1997). See also MAI Sys., 991 F.2d at 521 (noting misappropriation occurs where information from a customer database is used to solicit customers). Probo's pricing, however, is publicly available. Other than this example, Plaintiff has failed to provide an instance where Defendants used trade secret information, that could not be gathered by publicly accessible means, to solicit or convert Probo's clients. See, e.g., Beatport v. Soundcloud, No. CV-19-847-MRW, 2019 WL 6330680, at *1 (C.D. Cal. Apr. 11, 2019) (citations omitted) (“Mere access to confidential information or subsequent employment at a competing firm is not enough to properly plead misappropriation.”).
All told, Plaintiff has failed to meet its burden of establishing likelihood of success on the merits under Winter. At this nascent stage of the litigation and given the extent of the injunction sought, there are too many factual uncertainties that prevent Probo from demonstrating a probability of success. See Apache Stronghold v. United States, 38 F.4th 742, 769 (9th Cir. 2022) (discussing factual uncertainties affecting likelihood of success at early stages of litigation). Plaintiff has, however, demonstrated the existence of serious questions going to the merits-a less exacting standard-under the Ninth Circuit's sliding scale approach. See Grocery Outlet Inc., 497 F.3d at 951. The Court therefore examines whether the balance of hardships tips sharply in favor of Plaintiff such that a preliminary injunction is nonetheless due.
2. Balance of Hardships
Under Ninth Circuit case law, a preliminary injunction may issue where plaintiff demonstrates “serious questions going to the merits” and “a hardship balance that tips sharply toward the plaintiff.” All. for Wild Rockies, 632 F.3d at 1132. “In assessing whether a party has met this burden, the district court has a ‘duty . . . to balance the interests of all parties and weigh the damage to each.'” Video Gaming Techs., Inc. v. Bureau of Gambling Control, 356 Fed. App'x. 89, 93 (9th Cir. 2009) (quoting Los Angeles Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980)).
Plaintiff contends it will experience the bulk of the hardships if a preliminary injunction does not issue because it will lose competitive opportunities, goodwill, and profits. (ECF No. 23-1 at 20.) Defendants contend the bulk of hardships would be levied against them if a preliminary injunction were to issue with respect to Plaintiff's purported trade secrets. (ECF No. 26 at 27-29.) Because it is difficult to assess whether the information at issue is publicly available or was used by Defendants, Defendants argue they would be placed between Scylla of not competing and Charybdis of being haled into court for any success over Plaintiff in the market.
Weighing the burdens imposed on both parties, the Court finds the hardships do not “tip sharply” toward Plaintiff. Plaintiff requests the Court restrain Defendants from using its trade secrets described at oral argument as customer lists, customer ordering history, customer preferences, and pricing proposals. If the Court were to issue such a preliminary injunction, it would be difficult if not impossible to monitor perceived violations because this category of information overlaps significantly with publicly available information. Cf. Nat'l Specialty Pharmacy, LLC v. Padhye, No. 23-CV-04357-PCP, 2024 WL 2206336, at *4 (N.D. Cal. May 16, 2024) (finding trade secrets described as “vendor and partner information, proprietary formulas, business processes, pricing strategies, pricing data, marketing methods, other data, computer and software processes and systems” and more are insufficiently particular); Vendavo Inc. v. Price f(x) AG, No. 17-CV-06930-RS, 2018 WL 1456697, at *4 (N.D. Cal. Mar. 23, 2018) (noting a plaintiff must describe a trade secret with sufficient particularity “to ascertain at least the boundaries within which the secret lies”). Defendants would then face the proposition of either refraining from competing with Plaintiff or enduring constant litigation costs in the form of hearings and motions.
The Court is sympathetic to the risks posed to Plaintiff. Plaintiff may face unfair competition if Defendants use its curated customer information and may lose potential customers as consequence. However, the Court does not find this risk outweighs the existential constraints an injunction would impose on Defendants. See, e.g., Docusign, Inc. v. Sertifi, Inc., 468 F.Supp.2d 1305, 1310 (W.D. Wash. 2006) (finding the balance of hardships does not favor the plaintiff, who would lose market share, when a preliminary injunction would put the defendant out of business). Moreover, the Court is not convinced Plaintiff cannot recover damages once this litigation has borne out. See, e.g., Facebook Inc. v. BrandTotal Ltd., 499 F.Supp.3d 720, 736-37 (N.D. Cal. 2020) (declining to find irreparable harm where loss of prospective customers was difficult to value and where other business factors may explain lost market share).
Accordingly, because the balance of hardships does not “tip sharply” toward Plaintiff, the Court denies Plaintiff's request for a temporary restraining order and preliminary injunction with respect to its trade secrets. The Court reminds Defendants of their legal obligations to not use Plaintiff's trade secrets and to return to Plaintiff any trade secret information. The Court, however, declines to further enjoin Defendants with respect to Plaintiff's trade secrets at this preliminary stage.
B. Intentional Interference with Contractual Relations
1. Likelihood of Success on the Merits
Plaintiff alleges Defendants interfered with Probo's contract with Philips. Plaintiff contends Defendants held themselves out as successors in interest to the contract, used “Probo Medical” display names for their Heart Medical email addresses, and began to court Philips's business while Philips was still contracted with Probo using Probo's trade secrets. (ECF No. 23-1 at 10-11.) Defendants urge no such interference occurred and that Philips terminated its contract with Probo for unrelated business reasons. (ECF No. 26 at 8.)
First, this matter alleges Defendants committed the tort of interference with an existing contract rather than interference with a business relationship that has not yet resulted in a contract between the parties. See Della Penna v. Toyota Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 392-93 (1995) (recognizing “the need to draw and enforce a sharpened distinction” between these torts). Although Plaintiff sells medical devices at discrete intervals, unlike the continuous interaction between a supplier and customer like the users of a game, see Blizzard Ent. Inc. v. Ceiling Fan Software LLC, No. SA-CV-12-00144-JVS-JPRx, 2012 WL 12888546, at *5 (C.D. Cal. Aug. 31, 2012), Plaintiff maintains a contractual supplier relationship with its customers such that business between the two is not merely prospective. Accordingly, the Court assesses Plaintiff's likelihood of success as to the tort of intentional interference with contractual relations.
Second, because supplemental jurisdiction applies to Plaintiff's state law claims under 28 U.S.C. 1367(a), the Court must assess which state's law applies to Plaintiff's tort claims. The parties do not appear to dispute that California law applies. The Court agrees. Under California law, to state a claim for interference with contractual relations, a plaintiff must prove: “(1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” Quelimane Co. v. Stewart Title Guar. Co., 19 Cal.4th 26, 55 (1988), as modified (Sept. 23, 1998). A plaintiff need only show a “defendant's knowledge that the interference was certain or substantially certain to occur as a result of his or her action.” Reeves v. Hanlon, 33 Cal.4th 1140, 1148 (2004) (citing Quelimane Co., 19 Cal.4th at 56).
Plaintiff has raised serious questions with respect to this claim. Probo had a valid contract with Philips. (ECF No. 26 at 8 (“It is true that DME had a longstanding positive relationship with Philips for EKG and stress equipment ”).) Defendants knew about this contract. Defendants held themselves out as the points of contact for the contract using their Heart Medical email addresses and appear to have begun to solicit Philips's business before the contract expired in March 2024. (ECF No. 23-1 at 9-10.) These actions resulted in Probo losing the Philips contract. Defendants claim Probo expressed reservations about the relationship and an ongoing lawsuit between Probo and Philips portended non-renewal of the contract, but a Philips executive noted it intended to “extend” the contract in April 2024. (ECF No. 23-1 at 10.)
Accordingly, Plaintiff has raised serious questions with respect to its intentional interference with contractual relations claim.
2. Balance of Hardships
Plaintiff contends the balance of hardships “tips sharply” in its favor, and it will suffer irreparable harm if Defendants are permitted to hold themselves out as DME's successors in interest. (ECF No. 23-1 at 19.) Plaintiff cites loss of goodwill, on account of Heart Medical representing itself as DME's successors, as one injury it will suffer. Courts have consistently held loss of goodwill is an irreparable harm for the purposes of a preliminary injunction. See Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991). Plaintiff argues it will lose market share and prospective profits due to Defendants' malfeasance. Courts have found these injuries weigh in favor of granting a preliminary injunction. See, e.g., Stuhlbarg Int'l Sales Co., 240 F.3d at 841 (citing Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 3738 (2d Cir. 1995)); Eldorado Stone, 2005 WL 5517732, at *4.
On the other hand, Defendants would not be burdened from an injunction. They have no legal right to hold themselves out as successors in interest to DME or claim any affiliation with Probo. See, e.g., Pyro Spectaculars N., Inc. v. Souza, 861 F.Supp.2d 1079, 1092 (E.D. Cal. 2012) (finding a preliminary injunction “would not cause any significant hardship to defendant, because it would essentially only require him to abide by existing law”). They are not restrained from competing fairly. Id. And at oral argument, Defendants acquiesced to this proposed condition.
Accordingly, Plaintiff has demonstrated the balance of hardships “tips sharply” in its favor.
C. Injunction Bond
Under Federal Rule of Civil Procedure 65(c), “[t]he court may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined.” Fed.R.Civ.P. 65(c). “Despite the seemingly mandatory language,” this rule grants the court discretion to determine “the amount of security required, if any.” Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009) (quoting Jorgensen v. Cassiday, 320 F.3d 906, 919 (9th Cir. 2003)). “The district court may dispense with the filing of a bond when it concludes there is no realistic likelihood of harm to the defendant from enjoining his or her conduct.” Jorgensen, 320 F.3d at 919.
Because Plaintiff does not request a particular bond amount, the Court assumes Plaintiff does not believe a bond necessary. At oral argument, Defendants acquiesced to Plaintiff's request they be enjoined from holding themselves out as successors in interest to DME. The Court interprets this to mean they do not request a particular bond amount for this condition. The Court also does not find there is a realistic likelihood of harm from enjoining Defendants' conduct. Accordingly, the Court declines to require Plaintiff to post any security.
III. CONCLUSION
Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion for a temporary restraining order and preliminary injunction. (ECF No. 23.) Accordingly, until entry of final judgment in this action, Defendants are ENJOINED from holding themselves out as successors in interest to DME or representing to any individual, entity, or party that they are affiliated with Probo or DME.
IT IS SO ORDERED.