Through DaVita Indictment, DOJ Continues Crackdown on Executive “No Poach” Agreements that Restrict Executive Mobility

July 27, 2021 Executive Litigation

On July 15, 2021, a Denver federal grand jury returned a two-count indictment charging DaVita Inc. and its former CEO, Kent Thiry, for conspiring with competing employers not to solicit executives and other senior personnel.  DaVita operates dialysis and kidney care centers across the country.  These charges are the result of the DOJ Antitrust Divisions ongoing investigation into employee “no poach” agreements in the health care industry.  Co-conspirator Surgical Care Affiliates LLC (SCA) was charged in January 2021 in a case pending in federal court in Texas.

The indictment alleges that DaVita and Thiry participated in conspiracies during the period from 2021 to 2019 to allocate senior-level employees by agreeing not to solicit each other’s senior-level employees.  In a DOJ press release, Acting Assistant Attorney General Richard A. Powers of the Justice Department’s Antitrust Division explained that “[t]hose who conspire to deprive workers of free-market opportunities and mobility are committing serious crimes that we will prosecute to the full extent of the law.”  “We are grateful for our partnership with the FBI and our shared commitment to rooting out illegal collusion targeting labor markets.” 

This indictment comes on the heels of President Biden’s executive order directing the DOJ and Federal Trade Commission to take actions to promote competition in the economy by, among other policy initiatives, cracking down on the use of non-compete agreements.  The executive order is addressed in this recent post.  These concerted efforts reflect a commitment by the executive branch to promote worker mobility and foster economic growth by fighting anti-competitive practices in healthcare and other industries. 

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