Nike Temporary Restraining Order Against Boris Berian

 

Case 3:16-cv-00743-SB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTICT OF OREGON

 NIKE USA, INC., an Oregon Or egon corporation,

Case No. 3:16-cv00743SB

Plainti, TEMPORARY RESTRAINING

v

ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY

 BORIS BEIAN, an individual Calia resident,

INJUNCTION SHOULD NOT ISSUE

Dendant.

THIS MATTER came bere the Court on June 7, 2016 on Plainti Nike USA, Inc.'s ("Nike) (1) Motion r Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue and (2) Motion For Expedited Preliminary Injunction Hearing and Related Discovery (together, the "Motions) Having lly considered the parties' submissions and arguments, the Court nds that 1.

 Nike is i s likely to succeed on the t he merits m erits that t hat a contract contr act existed between Nike N ike and

 Boris Beri Beri ("Dendant) as of Juary 22, 2016. In ts case, case, Nike argues that it Dendant Boris Dendant  properly matched  oer om New Balance Athletics, Inc. ("New ("New Balance) to Dendant,

1  TEMPORARY RESTRAINING RESTRAINING ODER AD ORDER TO SHOW CAUSE RE PELIMINARY INJNCTION

 

Case 3:16-cv-00743-SB

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 thereby creating a new n ew contract pursuant to Section 5 of the paries' 2015 20 15 Track & Field Contract. Nike has shown that that it is likely that when, when, on January 22, 2016, Nike notie notied d Dendant that it agreed to match the terms of the New Balance oer, a contract was rmed.  Based on o n tthe he record currently cur rently bere the Court, Court , it is likely that the resulting result ing contract between  Nike and Dendant does not include reductions reductio ns because the New N ew Balance oer did not include reductions. Regarding the Afliation Clause (Term VII of the New Balance oer), Nike has sho a likelihood of establishing the clause is unenforceable, at least to the extent that it would allow Dendant to wear Big Bear Track Club otwear and apparel bearing the logo or mark of  New Balance. Given the timing of negotiations between the parties part ies and the appearance of the  New Balance logo l ogo on o n Big Bear Track Club otwear ot wear and apparel, it appears app ears likely that the clause was designed to undermine Nike's contractual rights d expectations.  See Oregon RSA No. 6, Inc

v.

Castle Rock Cellular of Oregon Ltd P'ship, 76 F.3d 1003, 1003, 1007 (9th Cir. 1996) (noting

 that every contract under Oregon law includes an implied covenant of good ith and ir dealing, and rejecting attempt to avoid right of rst resal provision trough an "arice intended to thwar plaintifs legitimate contractual expectation.). 2.

Nike is likely to suer irreparable harm in the absence of a temporary restraining

order, given Dendant's resal to recognize  agreement between himself and Nike and the upcoming events in the track and eld schedule. 3.

The balance of the equities vors Nike in this particular situation. situati on. While

Dendant's prerence to run r another organization may be at risk, his nancial wellbeing is not, because Nike is bound to match the terms of the New Balance oer. 4

A injunction is likely in the public interest.

 Now, therere, it i t is ORDERED that:

2 - TEMPOARY RESTAINING ORDER AND ORDER TO SHOW CAUSE E PRELIMINARY INCTION

 

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5

 Nike's Motions e hereby GRANTED;

6

Dendant is hereby eoined om competing in the otwear or apparel of any

 Nike competitor, including but not limited li mited to New Balce, Balce , and om endorsing any an y Nike competitor, on social media or elsewhere, or otherwise taking action contrary to the terms of  Nike's January 22, 2016 match of the New Balance oer; 7.

Consistent with the Afliation Clause in the New Balance oer, Dendant may

we Big we  Big Bear Track Track Club otwear ot wear and apparel apparel that does not include the logo of any any of Nike's competitors, including but not limited to New Balance; 8.

Dendant shall appear bere this Court on June 21, 2016 at 9:00 am d show

cause, if any there be, why a preliminary injunction should not be entered granting the same relief described in paragraphs 6 and 7 during the pendency of ts action; and 9.

Nike is not required to give security in connection with this order

II II II II II II II II II II II

- TEMPORARY RESTRAINING ODER AND ORDER ORDER TO SHOW CAUSE RE PRELIMINARY INJNCTION

3

 

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Further, the parties are hereby ORDERED to comply with he llowing schedule in advance of the preliminary injunction hearing: 10.

 By 5:00 PM on June 15, 2016, the parties will produce documens in response to

document requests. 11.

 Nike will take t ake the depositions of Dendant Dendant and his h is agen on June 17, 2016, or

another date agreed upon by he parties. Nike will take the depositions depositions telephonically or, if Dendant so prers, at a locaion of Dendant's choosing. Each deposition will be limited o  two hours ho urs on the record. rec ord.

IT IS SO ORDERED.

Dated this

'

day of June, 2016

4 TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PELIMINARY INJNCTION -