Novotech (Australia) PTY Limited v. SureClinical, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NOVOTECH (AUSTRALIA) PTY No. 2:22-cv-01259-JAM-AC LIMITED, an Australian 12 proprietary limited company, 13 Plaintiff, ORDER GRANTING PLAINTIFF NOVOTECH (AUSTRALIA) PTY 14 v. LIMITED’S MOTION FOR PRELIMINARY INJUNCTION 15 SURECLINICAL INC., a Nevada corporation, 16 Defendant. 17 18 The matter before the Court is Novotech (Australia) Pty 19 Limited’s (“Novotech”) motion for preliminary injunction. See 20 Mot. for Preliminary Inj. (“Mot.”), ECF No. 18. SureClinical 21 Inc.’s (“SureClinical”) opposed the motion. See Opp’n, ECF 22 No. 19. Novotech replied. See Reply, ECF No. 21.1 23 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 24 As the facts are already known to the parties, the Court 25 repeats them only as necessary to explain its decision. 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for November 1, 2022. 1 Novotech is a clinical research organization, which 2 facilitates and manages clinical trials for biotechnology, 3 pharmaceutical, and research clients. Mot. at 4. Part of 4 Novotech’s services includes maintaining the electronic Trial 5 Master File (“eTMF”) for each clinical trial they conduct for a 6 client to ensure that the trial is safe, sound, and in strict 7 compliance with the FDA. Id. Novotech contends that continuous 8 access to eTMFs is essential to the viability of clinical trials 9 and that even temporary loss of access can result in: 10 (1) regulatory violations and citations; (2) rejection of the 11 trial by regulators; (3) threats to the safety of patient- 12 participants; and (4) contractual breaches that damage business 13 relationships and reputations. Id. at 4. SureClinical licenses 14 its suite of cloud-based software applications to assist in the 15 operation of clinical trials, including the storage and 16 management of eTMFs. Id. In 2014, SureClinical and Novotech 17 entered into a contract, the Master Subscription Agreement 18 (“MSA”), where SureClinical agreed to license its software to 19 Novotech for use in Novotech’s clinical trials and the management 20 of its eTMFs. Id. at 5; MSA, Exhibit 3 to Declaration of Rajiv 21 Dharnidharka, ECF No. 13. Novotech alleges that its access to 22 SureClinical’s platform was contingent upon payment of an annual 23 fee and a monthly per-trial fee. Mot. at 5. SureClinical 24 alleges that access to its software platform is based on a 25 subscription fee and a user fee. Opp’n at 2. Novotech contends 26 that the MSA permitted access for: (1) Novotech’s employees, 27 agents, representatives, consultants, and independent 28 contractors; (2) Novotech’s clients; (3) Novotech’s clients’ 1 agents, employees, representatives, consultants, and independent 2 contractors; (4) any other persons or entities Novotech bound to 3 the MSA; and (5) the agents, employees, representatives, 4 consultants, and independent contractors of those bound third 5 parties. Mot. at 5. SureClinical alleges that Novotech 6 contracted to use SureClinical’s software solely for its internal 7 use with a limited number of one hundred named users, as outlined 8 in its supplemental Order Form, and that Novotech expressly 9 turned down the right to use and distribute SureClinical’s 10 platform outside of Novotech with users not affiliated with 11 Novotech. Opp’n at 4-5. 12 Novotech expressed its intention to not renew the MSA in 13 February 2022 and to export its trial data off of SureClinical’s 14 platform to a new provider. Mot. at 5-6. Under the MSA, the 15 contract term is set to expire on December 31, 2022. Id. at 5. 16 Novotech alleges that SureClinical took several measures against 17 Novotech following its stated intention to not renew the MSA, 18 including: (1) impeding Novotech’s ability to export eTMFs off of 19 SureClinical’s platform; (2) demanding that SureClinical pay 20 millions of dollars in additional fees; (3) unilaterally 21 modifying the terms and fee structure of the MSA to exclude 22 previously covered users; and (4) demanding that Novotech commit 23 to an audit of its financial records. Id. at 6-7. Novotech 24 further contends that on November 3, 2022 SureClinical cut off 25 Novotech and its users from SureClinical’s platform; they are no 26 longer able to access and manage their eTMF’s and other trial 27 data. Second Supplemental Declaration of Michael F. Donner 28 (“Supp. Decl.”), ECF No. 27. SureClinical claims that it only 1 cut off access for unauthorized, external accounts on November 3. 2 Objection and Request to Strike, ECF No. 27, at 1. SureClinical 3 further contends that its limit on exports to one per day 4 occurred in the summer of 2021 following a near complete system 5 collapse after one of its clients attempted to export fifty 6 studies off of the platform at one time. Opp’n at 5. In order 7 to avoid another near collapse and because users tended to 8 average one study export per month, SureClinical modified its 9 platform to allow only one study export per day for all of its 10 users; Novotech was promptly notified of this change and spent 11 six months testing the updated version of the platform without 12 objection and had its requests for accommodations met, when 13 feasible. Id. at 5-6. SureClinical contends that Novotech had 14 ample time to export its clinical data from SureClinical’s 15 platform from the day Novotech notified SureClinical of its 16 decision to not renew the MSA and that for SureClinical to allow 17 unlimited daily exports again for Novotech would cost the company 18 approximately $2.7 million. Id. at 6. SureClinical argues that 19 Novotech breached the terms of the MSA by (1) exceeding the scope 20 of its license by granting access to the platform to more than 21 the authorized one hundred internal users and (2) evading the 22 audit authorized under the terms of the MSA; Novotech’s 23 injunction is simply a way to distract the Court from its 24 misconduct. Id. at 7-8. 25 On July 15, 2022, Novotech filed the operative complaint 26 against SureClinical, alleging breach of contract and seeking 27 declaratory relief from the Court regarding the parties’ 28 respective rights and obligations under the MSA. See Compl., 1 ECF. No. 1. SureClinical filed a first amended answer and 2 counterclaim alleging breach of contract and copyright 3 infringement and seeking declaratory relief on the disputed terms 4 of the MSA. See First Amend. Answer and Counterclaim, ECF. No. 5 12. Several weeks later, Novotech filed this motion for 6 preliminary injunction seeking to: (1) prohibit SureClinical from 7 impeding or terminating the access of Novotech, its clients, its 8 client’s agents, and regulatory authorities to SureClinical’s 9 platform; and (2) prohibit SureClinical from imposing or 10 maintaining any restrictions on Novotech’s ability to export its 11 clients’ data and documents off of SureClinical’s platform. Mot. 12 at 1. SureClinical opposes the motion. See Opp’n. Novotech 13 replied. See Reply. 14 II. OPINION 15 A. Legal Standard 16 A preliminary injunction is an “extraordinary remedy” that a 17 court may award only “upon a clear showing that the petitioner is 18 entitled to such relief.” Winter v. Natural Resources Defense 19 Council, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary 20 injunction, a petitioner must demonstrate that: (1) they will 21 likely succeed on the merits, (2) they will suffer irreparable 22 harm in the absence of preliminary relief, (3) the balance of 23 equities tips in their favor, and (4) an injunction is in the 24 public interest. Boardman v. Pacific Seafood Group, 822 F.3d 25 1011, 1020 (9th Cir. 2016) (quoting Winter, 555 U.S. at 20). 26 Post-Winter, the Ninth Circuit kept a “sliding scale 27 approach” to preliminary injunctions known as the “serious 28 questions test.” Alliance for the Wild Rockies v. Cottrell, 632 1 F.3d 1127, 1131 (9th Cir. 2011). Under this approach, a 2 “likelihood” of success is not an absolute requirement. Id. at 3 1132. “Rather, serious questions going to the merits and a 4 hardship balance that tips sharply toward the [petitioner] can 5 support issuance of an injunction, assuming the other two 6 elements of the Winter test are also met.” Drakes Bay Oyster Co. 7 v. Jewell, 747 F.3d 1073, 1085 (9th Cir. 2014). “Serious 8 questions” under this approach constitutes “questions which 9 cannot be resolved one way or the other at the hearing on the 10 injunction,” but which suggest that the petitioner has a “fair 11 chance” of prevailing. Republic of the Philippines v. Marcos, 12 862 F.2d 1355, 1362 (9th Cir. 1988). 13 B. Analysis 14 1. Motion for Preliminary Injunction 15 a. Factor One: Success on the Merits 16 Novotech argues that it is likely to succeed on its breach 17 of contract claims because SureClinical breached and repudiated 18 its contractual duties under the MSA. Mot. at 13. Novotech 19 states that, under the MSA, SureClinical agreed to provide access 20 to its platform until December 31, 2022 and Novotech has prepaid 21 all of its annual fees for these services and has offered to 22 prepay its future monthly fees. Id. at 14. Novotech claims 23 that, despite its payments and offer to prepay, SureClinical 24 committed an anticipatory breach of its duty to provide Novotech 25 and its users with continuous access to SureClinical’s platform 26 when it notified Novotech that it would terminate access on 27 November 3, 2022 unless Novotech agreed to additional terms 28 outside of the MSA, including: (1) assenting to SureClinical’s 1 modification of the MSA’s use terms and fee structure; (2) paying 2 millions of dollars in extra fees to SureClinical based on these 3 modifications; and (3) complying with an audit requested by 4 SureClinical under Section 11.8 of the MSA. Id. at 14. 5 SureClinical also allegedly breached its duty of good faith and 6 fair dealing by modifying its software to limit Novotech’s 7 ability to transfer its clients’ eTMFs off of SureClinical’s 8 platform. Id. These breaches will force Novotech to extend the 9 MSA and pay SureClinical millions of dollars in unwarranted 10 license and service fees. Id. 11 SureClinical responds that Novotech fails to support 12 its breach of contract claims with any section of the MSA or the 13 applicable Order Form. Opp’n at 14. SureClinical contends that 14 Novotech has failed to sufficiently allege express or implied 15 repudiation to support its anticipatory breach allegation because 16 SureClinical’s decision to cut off access on November 3, 2022 17 applies only to unauthorized users; SureClinical’s right to deny 18 access to these unauthorized users is consistent with its 19 authority under Section 2.7 of the MSA. Id. at 14-15. As for 20 the duty of good faith and fair dealing claim, SureClinical 21 contends that state law does not permit this duty to impose 22 substantive terms and conditions beyond the express terms of the 23 MSA and Order Form; neither document refers to free, unlimited 24 export capabilities for platform users, so it would be 25 inappropriate for the implied duty of good faith and fair dealing 26 to impose such a responsibility on SureClinical. Id. at 15-16. 27 SureClinical argues that the express terms of the MSA and Order 28 Form allow SureClinical to change its platform and charge an 1 hourly rate for services not expressly stated in writing, which 2 applies to the custom export services that Novotech is 3 requesting. Id. 4 The Court finds that Novotech has raised serious 5 questions on the merits of its breach of contract claims, 6 specifically with respect to SureClinical’s express notice to 7 Novotech that SureClinical would cut off access to its platform 8 to alleged unauthorized users on November 3, 2022. A preliminary 9 injunction is appropriate where a petitioner shows “serious 10 questions going to the merits and a hardship balance that tips 11 sharply toward” their favor. Drakes Bay, 747 F.3d at 1085. 12 Serious questions are those “which cannot be resolved one way or 13 the other at the hearing on the injunction,” but which suggest 14 that the petitioner has a “fair chance” of prevailing. Republic 15 of the Philippines, 862 F.2d at 1362. A cause of action for 16 breach of contract requires a showing of: (1) a contract; 17 (2) performance by petitioner or excuse for non-performance; 18 (3) breach; and (4) damage to petitioner from the breach. 19 Acoustics, Inc. v. Trepte Constr. Co., 14 Cal. App. 3d 887, 913 20 (Ct. App. 1971). A contract is to be interpreted solely from the 21 written provisions of the contract, if possible. Foster-Gardner, 22 Inc. v. Nat'l Union Fire Ins. Co., 18 Cal. 4th 857, 868 (1998). 23 “If the contractual language is clear and explicit, it governs.” 24 Id. If an alleged ambiguity in the contract is not resolved by 25 the language or context of the contract, the ambiguity is 26 “generally construed against the party who caused the uncertainty 27 to exist.” Id. Repudiation, also known as “anticipatory 28 breach,” occurs when the contract is repudiated by the promisor 1 before the promisor’s performance under the contract is due. See 2 Taylor v. Johnston, 15 Cal. 3d 130, 137 (1975). Novotech has 3 sufficiently alleged (1) the existence of a contract between the 4 parties, through the MSA and Order Form, (2) performance of the 5 contract by Novotech, and (3) damages that would result if 6 Novotech and its clients are unable to access SureClinical’s 7 platform and are forced to assent to SureClinical’s demand to pay 8 additional fees. While the Court does not find that Novotech has 9 sufficiently alleged that SureClinical’s notice cutting off 10 access to unauthorized users on November 3 constitutes an 11 anticipatory breach, it finds that there are serious questions 12 concerning the distinction between authorized and unauthorized 13 users that implicate Novotech’s claim. The MSA defines 14 authorized users as the “employees, representatives, consultants, 15 or agents” of Novotech or any other legal entity for which 16 Novotech is accepting the MSA’s terms; the MSA contains no 17 express limit on the number of authorized users. MSA at 3. 18 While SureClinical asserts that the authorized users under the 19 MSA’s terms are limited to one hundred named users focused solely 20 on Novotech’s internal operations, the terms of the MSA are 21 unclear as to (1) what constitutes internal operations and 22 (2) how trial sponsors and federal regulators, who must have 23 access to trial eTMFs to ensure federal compliance, are to be 24 classified. Even SureClinical’s reference to the Order Form to 25 support its claim that it only authorized one hundred Novotech 26 users to access the platform is unclear; the Order Form refers, 27 in part, to “100 Ent. Named Users Std Adobe digital certs,” in 28 its line-item description but, on its face, the Order Form 1 provides no clarity on what that means or how it is to be applied 2 to Novotech. Order Form, Exhibit 4 to Declaration of Rajiv 3 Dharnidharka, ECF No. 13. This ambiguity is furthered by the 4 context of the parties’ eight-year continuous, contractual 5 relationship, during which the issue of Novotech granting access 6 to the platform to alleged unauthorized users was not brought up 7 by SureClinical until shortly after Novotech expressed its 8 decision to not renew the contract. In light of these 9 contractual ambiguities, which must be construed against 10 SureClinical as the party that created the MSA and Order Form, 11 the Court finds that serious questions have been raised regarding 12 Novotech’s breach of contract claims and that Novotech has a fair 13 chance of prevailing on these claims. 14 b. Factor Two: Irreparable Harm 15 Novotech alleges that it will suffer irreparable harm from 16 SureClinical’s cutting off its access to the SureClinical 17 platform in the form of: (1) damaging the viability and success 18 of Novotech’s clinical trials and eTMFs currently on the 19 platform; (2) delaying or preventing the approval of new drugs 20 and devices; (3) preventing trial sponsors from being fully 21 transparent with institutional review boards; (4) exposing 22 Novotech to increased scrutiny from federal regulators; 23 (5) exposing Novotech to legal liability to clients; 24 (6) threatening the safety and privacy of clinical trial 25 patients; and (7) a general risk to public health. Mot. at 9-12. 26 Novotech also alleges that SureClinical’s alleged slowing of 27 Novotech’s export capabilities will result in: (1) Novotech being 28 forced to maintain its contractual relationship with SureClinical 1 until all files have been exported; (2) Novotech having to pay 2 SureClinical millions of dollars in extorted fees; and (3) the 3 delay or prevention of the approval of important drugs and 4 medical devices. Id. at 13. 5 SureClinical responds that all of Novotech’s claims 6 must fail because they are speculative, self-inflected, and can 7 be compensated with monetary damages. Opp’n at 16. SureClinical 8 states that it has offered Novotech a $2.7 million custom service 9 to assist Novotech with its eTMF exports, which Novotech has 10 refused to agree to, even though Novotech could recover those 11 costs if it succeeds in the underlying action. Id. at 16-17. 12 SureClinical argues that Novotech’s concerns relating to the 13 viability of its clinical trials, regulatory scrutiny, legal 14 liability, and public health are speculative because SureClinical 15 has not threatened to delete any data and Novotech does not 16 distinguish between the access privileges of authorized and 17 unauthorized users; Novotech’s one hundred authorized users that 18 it contracted for will be unaffected, while the unauthorized 19 users would lose access under the applicable terms of the MSA. 20 Id. at 18-21. Also, Novotech does not support its claims with 21 testimony from its trial sponsors, federal regulators, medical 22 professionals, or trial patients who are allegedly relying on 23 Novotech’s trials. Id. As for Novotech’s export capabilities, 24 SureClinical claims that Novotech’s alleged injury was self- 25 inflicted because Novotech had notice of the export limit in 26 April 2022 and did not proceed to consistently conduct eTMF 27 exports despite the end of year deadline on the MSA. Id. at 22. 28 SureClinical also notes that Novotech delayed filing its 1 injunction, which implies a lack of urgency and irreparable harm. 2 Id. at 23. 3 The Court finds Novotech’s argument persuasive. A 4 petitioner “may not obtain a preliminary injunction unless they 5 can show that irreparable harm is likely to result in the absence 6 of the injunction.” Cottrell, 632 F. 3d at 1135. “Indeed, 7 suffering irreparable harm prior to a determination of the merits 8 is perhaps the single most important prerequisite for the 9 issuance of a preliminary injunction.” See Nutrition 10 Distribution LLC v. Lecheek Nutrition Inc., No. CV 15-1322-MWF 11 (MRWx), 2015 WL 12659907 (C.D. Cal. June 5, 2015) (internal 12 citations omitted). A petitioner must demonstrate “immediate 13 threatened injury.” Caribbean Marine Servs. Co. v. Baldrige, 844 14 F.2d 668, 674 (9th Cir. 1988). The Ninth Circuit has established 15 that irreparable harm can include damage to a company’s brand, 16 reputation, or goodwill, particularly as they relate to standards 17 of quality control and customer service; damage to one’s 18 competitive position and market share are also grounds for a 19 finding of irreparable harm. Apple Inc. v. Psystar Corp., 673 F. 20 Supp. 2d 943, 948–49 (N.D. Cal. 2009), aff'd, 658 F.3d 1150 (9th 21 Cir. 2011); see also Regents of Univ. of California v. Am. Broad. 22 Companies, Inc., 747 F.2d 511, 520 (9th Cir. 1984). Novotech has 23 sufficiently alleged damage to (1) the viability of its clinical 24 trials, (2) its reputation and goodwill with clients and federal 25 regulators, and (3) the safety of its trial patients; also, these 26 concerns have moved beyond speculation because of SureClinical’s 27 recent actions to restrict Novotech’s access to its platform, so 28 the harm is immediate. While the Court notes Novotech’s delay in 1 pursuing injunctive relief, delay is not “particularly probative 2 in the context of ongoing, worsening injuries” and is 3 insufficient on its own to dismiss a claim of irreparable harm. 4 Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848, 866 5 (9th Cir. 2017). Therefore, Novotech has demonstrated 6 irreparable harm absent an injunction. 7 c. Factor Three: Balance of the Equities 8 Novotech argues that the balance of equities tips sharply in 9 its favor because SureClinical cutting off access to its platform 10 before December 31, 2022 would result in considerable irreparable 11 harm to Novotech, its clients, and the general public, which 12 Novotech extensively described in the preceding section. Mot. at 13 15. Granting the injunction would maintain the status quo 14 because SureClinical would be compelled to follow through with 15 its contractual obligations, as it has done for the past eight 16 years. Id. Novotech claims that SureClinical would not suffer 17 any financial harm because Novotech has already paid what it owes 18 under the MSA; should the Court find that SureClinical prevails 19 on the merits of its claims, monetary damages would be adequate. 20 Id. 21 SureClinical responds that it would face great hardship 22 if it were compelled to write new code to accommodate Novotech’s 23 export demands and give platform access to unauthorized, non- 24 paying third parties. Opp’n at 23. SureClinical argues that 25 Novotech has failed to identify specific trials that would be 26 harmed absent an injunction or a specific provision in the MSA 27 that requires SureClinical to provide the free export services 28 that Novotech is seeking. Id. SureClinical claims that the 1 issuance of Novotech’s injunction would cost it over $2.7 million 2 and would divert engineering resources away from other parts of 3 the platform. Id. at 24. Also, granting access to unauthorized 4 users adversely affects SureClinical’s copyright protections and 5 oversight capabilities, particularly because of Novotech’s 6 refusal to comply with the Section 11.8 audit. Id. 7 The Court finds that the balance of equities weighs sharply 8 in favor of Novotech. A court must “balance the interests of all 9 parties and weigh the damage to each” in determining the balance 10 of the equities. CTIA-The Wireless Ass'n v. City of Berkeley, 11 California, 928 F.3d 832, 852 (9th Cir. 2019) (citing Stormans, 12 Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009)). 13 SureClinical, as the platformer through which Novotech continues 14 to manage and operate a number of its clinical trials, has 15 exclusive control over whether Novotech and its clients can 16 access their trial eTMFs and documents, and SureClinical has 17 recently demonstrated that it is prepared to exercise that 18 control absent an injunction. It has been alleged that even 19 temporary loss of access can result in considerable hardship to 20 Novotech, including regulatory citations, rejection of clinical 21 trials, threats to patient safety, and reputational damage, all 22 of which shift the balance of equities in Novotech’s favor. 23 Also, issuance of the injunction will return the parties to the 24 status quo with respect to access to the platform, considering 25 the underlying action marks the first time in the parties’ eight- 26 year relationship that SureClinical has raised an issue regarding 27 unauthorized users. SureClinical’s concerns about the 28 engineering costs of complying with the injunction and Novotech’s 1 resistance to the Section 11.8 audit can be addressed by a 2 monetary damages award in the underlying action and 3 SureClinical’s own pending motions for a preliminary injunction 4 and stay. 5 d. Factor Four: Public Interest 6 Novotech argues that an injunction is in the public interest 7 because the effects of SureClinical’s threatened actions extend 8 beyond Novotech to include its trial sponsors, trial patients, 9 and the general public. Mot. at 15. SureClinical responds that 10 the public interest goes against issuance of the injunction 11 because: (1) the public has a strong interest in enforcing 12 contracts and not imposing obligations inconsistent with express 13 terms, which is what Novotech is requesting the Court do in this 14 case; and (2) SureClinical’s compliance with the injunction will 15 require it to shift engineering resources away from other 16 customers’ trials to accommodate Novotech’s needs. Opp’n at 24- 17 25. 18 The Court finds that the public interest favors 19 granting the injunction. Special consideration is given to the 20 potential impact on nonparties by the issuance or denial of 21 injunctive relief. League of Wilderness Defenders/Blue Mts. 22 Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 23 2014). In this instance, the potential damage to trial sponsors, 24 trial patients, and the general public if Novotech and its 25 clients’ clinical trials are interrupted or corrupted by 26 SureClinical’s threatened actions outweighs the burden on 27 SureClinical’s other clients, particularly in light of the 28 parties’ extensive business relationship and SureClinical’s 1 exclusive control over its platform’s functions and capabilities. 2 The public’s interest in enforcing the express terms of a 3 contract is not strongly implicated here because of the serious 4 questions that have been raised about the terms at issue in the 5 MSA and Order Form. 6 e. Bond 7 Novotech argues that the Court should not require a bond 8 because (1) SureClinical will not suffer any harm from the 9 injunction, (2) Novotech has shown a likelihood of success on the 10 merits, and (3) the injunction is in the public interest. Mot. 11 at 17. If a bond is appropriate, the amount should be nominal. 12 Id. SureClinical contends that a $15 million bond is appropriate 13 because that is the amount it would cost for SureClinical to 14 comply with the injunction. Opp’n at 25. 15 The Court imposes a $2.7 million bond. The Court has 16 broad discretion to require a bond under Fed. R. Civ. P. 65(c). 17 Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009). That 18 discretion vests the Court with the authority to not require a 19 bond if (1) there is no evidence the party to be enjoined will 20 suffer damages from the injunction or (2) the party requesting 21 the preliminary injunction is likely to succeed on the merits of 22 its claims at trial. Conn. Gen. Life Ins. Co. v. New Images of 23 Beverly Hills, 321 F.3d 878, 882 (9th Cir. 2003). The Court 24 finds that SureClinical has put forth sufficient evidence that it 25 will cost $2.7 million to modify its platform to accommodate 26 Novotech’s export requirements. However, in light of the serious 27 questions raised by Novotech regarding the distinction between 28 authorized and unauthorized users on SureClinical’s platform as nee ene eee III EE OE OSI OI III ee 1 they relate to the license fees allegedly owed by Novotech, the 2 Court does not require a bond beyond that amount. 3 Til. ORDER 4 For the reasons set forth above, the Court GRANTS Novotech’s 5 motion for preliminary injunction and requires a $2.7 million 6 bond to be posted by Novotech pursuant to Fed. R. Civ. P. 65(c). 7 IT IS SO ORDERED. 8 Dated: December 2, 2022 . FM ney JOHN A. MENDEZ 11 SENIOR UNITED*STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17