Documents from Fox v. VSP

United States District Court - Sacramento

9th Circuit Court of Appeals


As background, Dr. Fox was audited by VSP and VSP concluded she had violated VSP rules. VSP terminated her VSP provider contract and sought restitution of more than $400,000 in alleged overpayments. Dr. Fox brought a lawsuit aginst VSP in the state courts of California. VSP caused the case to be removed to the United States Federal Court, Sacramento, California.


Dr. Fox's complaint asserted that the process for appealing the audit's findings is illegal for two reasons. First, under California law, she claimed it is illegal because it violates a California regulation that prohibits the use of arbitration to resolve provider billing disputes. Second, even if not illegal under that law, the VSP "Fair Hearing Procedure" is unenforceable under contract law because it is unconscionable (i.e., one-sided and unfair).


Dr. Fox then brought a motion for a preliminary injunction, seeking an order that VSP could not proceed with its appeal process until the Federal trial court determines if the process is either illegal or unenforceable. The Trial Court granted the motion and issued a preliminary injunction. VSP appealed that decision to the United States 9th Circuit Court of Appeals.


The sole issue is whether the Trial Court was correct to issue the preliminary injunction. It is not a final decision on the merits of Dr. Fox's argument and it does not address the merits of the underlying audit. However, in route to deciding to issue the preliminary injunction, the Trial Court had to make, and did make, a finding that Dr. Fox had demonstrated a "likelihood" of prevailing on the merits. This, however, is early in the process and before the parties have engaged in discovery (depositions, etc.), so the evidence at trial could result in a different outcome.


The following documents are available from the website of the Trial Court or the 9th Circuit, and are therefore available to the public. All files are in PDF format. Oral arguments before the 9th Circuit are likely to be in October, 2017, in San Francsico, though the final date is not yet set.

Court Order Granting Preliminary Injunction


This is the order granting the Preliminary Injunction that was issued by the Trial Court. It gives the full background to the case and the court's reasoning.

Excerpts of the Record


This is a large PDF containing the relevant documents (complaint, motions, declarations, oppositions, etc.) from the Trial Court upon which the Trial Court based its ruling granting the injunction and that are cited in the briefs.

VSP's Opening Brief (9th Circuit)


This is the legal brief filed on behalf of VSP arguing that the Trial Court incorrected issued the injunction.

Fox's Opposition Brief (9th Circuit)


This is the legal brief filed on behalf of Dr. Fox arguing that VSP is incorrect and the Trial Court correctly decided to issue the injunction.

VSP's Reply to the Opposition (9ith Circuit)


Ninth Circuit Decision (Not yet issued)