Legal briefs filed by state and national trade organizations and the National Association of Criminal Defense Lawyers argue that Denver-based DaVita Inc. And federal charges in an antitrust case against its former CEO Kent Thierry must be dropped.
In a brief filed Thursday, the Colorado Chamber of Commerce said the state should not be used as a “laboratory” for a new application of the Sherman Antitrust Act. The US Justice Department announced in July that a federal grand jury handed down a two-count indictment against Davita and Thiri for conspiring with other health care firms not to solicit each other’s employees.
The allegation stems from an investigation by the DOJ’s Antitrust Division into employee allocation agreements in which health care providers pledged not to recruit each other’s employees. The DOJ said the agreements limit workers’ ability to earn higher wages and advance their careers.
But the Colorado Chamber of Commerce, the US Chamber of Commerce and the Union of Criminal Defense Lawyers said no court has found that non-solicitation agreements are illegal. The organizations said it raises questions about the right to due process due to lack of proper notice whether an act is illegal.
“Under the law that exists today (and in all the years before today), there is nothing close to a ‘fair warning’ that a no-solicitation or no-hire agreement is a violation of the Sherman Act that could lead to criminal liability.” Quite the contrary,” said the group of criminal defense lawyers in their brief.
According to the brief, the DOJ is also declaring the authority of Congress and the courts that “no-illegal” agreements are criminal offenses.
In a previous statement, Acting Assistant Attorney General Richard A. Powers of the DOJ’s Antitrust Division said that those who conspired to deprive workers of their free-market opportunities and mobility “are committing a serious crime that we are committing to the fullest extent of the law.” Will prosecute to the limit.”
Davita and Thiri have been charged with conspiring with surgical care affiliates to not solicit each other’s senior-level employees from February 2012 to July 2017. Surgical Care Affiliates was charged in January in a pending case in the Northern District of Texas.
The second count accuses DaVita and Thiry of conspiring with another health care company to not solicit DaVita employees from April 2017 to June 2019. The other company was not named in the July announcement. The DOJ did not respond to a request for names on Friday.
If convicted, DaVita faces a maximum fine of $100 million per count and Thierry faces up to 10 years in prison and a $1 million fine per count. The maximum penalty can be increased depending on the damage caused to the employees.
His spokeswoman said the Antitrust Division has ignored and even withheld evidence that could help Thierry, Karen Crummy. She said the companies have hired DaVita executives for years and are not competitors.
Davita has called the allegations “unjust and unfair”.
Thiri moved DeVita’s headquarters from Segundo, Calif., to Denver in 2009 and rapidly grew the company’s network of dialysis centers before stepping down as CEO in 2019 after two decades at the helm of the country. One of the largest kidney providers in the US. Dialysis Services.
Over the years, the company has faced several federal investigations.