A federal jury acquitted Denver-based DaVita Inc. and its former CEO Kent Thiry of all charges Friday, a resounding defeat for the government prosecutors who had pursued an unprecedented criminal conspiracy case targeting the dialysis giant’s deals with rival companies to not poach each other’s employees.
Federal prosecutors had argued the agreements stymied competition and hindered employees’ abilities to progress their careers; attorneys for DaVita and Thiry countered that there was no evidence the deals were made in order to end meaningful competition.
The verdict — which came after two days of deliberation — is expected to have significant repercussions on how the 132-year-old Sherman Anti-Trust Act is used to regulate free competition in the United States.
The jurors found DaVita and Thiry not guilty of three counts apiece of conspiracy in restraint of trade to allocate employees.
“Congratulations to the defendants, condolences to the government,” U.S. District Senior Judge R. Brooke Jackson said once the jurors were dismissed from the Denver courtroom.
The two-week trial drew widespread attention as the first time a top executive and company were criminally charged for non-poaching agreements under the 1890 antitrust law.
“We appreciate the jury’s decision and are grateful to put this matter behind us,” DaVita said in a statement late Friday afternoon. “We remain committed to operating with integrity and upholding the highest standards of law.”
In his own statement, Thiry — who stepped down as DaVita’s CEO in 2019 — first thanked the jury for its “thoughtfulness in performing its solemn duty.”
“Second, it would be impossible to overstate the joy I feel for my family and all those I work with,” Thiry said. “The jury affirmed that this case should never have been brought. I want to thank the community that provided so much support through this difficult time.”
DaVita had faced a maximum penalty of $100 million per count, if convicted, while Thiry faced up to a $1 million fine per count and up to 10 years in prison.
Federal prosecutors, in their closing arguments Wednesday, alleged that Thiry was a vindictive, controlling leader, setting up agreements with former executives leading rival companies not to recruit each others’ workers.
The result, the government alleged, was that employees would not get recruiting calls from these other companies, giving them little ability to move around as they pleased.
Thiry’s personal defense attorney cast the accusations during Wednesday’s proceedings as a “witch hunt.”
DaVita’s lawyers, meanwhile, acknowledged that while the former CEO’s behavior and language didn’t look great, the agreements did not end meaningful competition as the prosecution alleged.
Ann M. O’Brien, an attorney and leader of the BakerHostetler firm’s Cartel and Government Antitrust Investigations Task Force, attended the trial in Denver as an observer and said in an email to The Denver Post that the case was well-tried by both sides.
The prosecution by the Justice Department’s Antitrust Division was an attempt to push the bounds of the Sherman Anti-Trust Act to frame non-poaching agreements as outright criminal offenses, she said.
Attorneys for DaVita mounted a “rule of reason” defense, she noted, meaning they argued that such agreements should only be considered illegal if they serve to unreasonably restrict trade.
“The jury seemed attentive and intelligent,” she wrote. “In the end, the jury had the last word, and justice was done.”
A federal grand jury last year indicted DaVita and Thiry on three conspiracy counts.
The indictment alleged the dialysis giant and three other companies — Surgical Care Associates, Hazel Health and Radiology Partners — agreed not to recruit each other’s workers at various times between 2012 and 2019, violating antitrust laws. All three companies were led by former DaVita executives.
Surgical Care Affiliates is facing its own criminal case as a co-conspirator.
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