This indictment is a result of the Antitrust Division’s ongoing investigation of employee allocation agreements within the health care industry.
Dialysis and kidney care company DaVita and its former CEO Kent Thiry face a two-count indictment for conspiring with competitors not to solicit each other’s senior employees, the U.S. Department of Justice announced Thursday.
DaVita and Thiry are charged with two counts of violating the Sherman Act, which outlaws "every contract, combination, or conspiracy in restraint of trade," and any "monopolization, attempted monopolization, or conspiracy or combination to monopolize,” according to the Federal Trade Commission. If convicted, DaVita faces a maximum penalty of a $100 million fine per count, and Thiry faces a maximum penalty of 10 years in prison and a $1 million fine per count.
Count One charges both parties for conspiring with Surgical Care Affiliates LLC and its related entity “to allocate senior-level employees by agreeing not to solicit each other’s senior-level employees from as early as February 2012 until as late as July 2017,” according to a statement.
Similarly, Count Two charges DaVita and Thiry for agreeing with another healthcare company to not solicit DaVita’s employees from as early as April 2017 until as late as June 2019.
“These charges show a disturbing pattern of behavior among health care company executives to conspire to limit the opportunities of workers,” said Assistant Director in Charge Steven M. D’Antuono of the FBI’s Washington Field Office in the news release. “The FBI is dedicated to working with our partners to hold those accountable who would engage in labor market collusion to the detriment of their employees.”
The defendants are scheduled to appear in the U.S. District Court for the District of Colorado on July 20. DaVita is based in Denver.
The maximum fine may be increased to twice the gain derived from the crime or twice the loss suffered by victims if either amount is greater than the statutory maximum.
Karen Crummy, a spokeswoman for Thiry, issued a statement refuting the charges.
“These allegations are false and rely on a radical legal theory about senior executive recruitment without precedent in U.S. history. The government took steps to ignore – and even hide – key evidence. The facts bear it out decisively: No antitrust violations occurred, these companies hired DaVita executives for years, and the companies are not competitors.”
DaVita is one of two large dialysis providers that together account for more than 70% of the US market.