Denver-based dialysis provider DaVita and its former CEO Kent Thiry have been indicted by a federal grand jury on two charges they conspired with competitors not to hire certain key employees from each other.
The indictment alleges that the company and Thiry violated the federal Sherman Antitrust Act by participating in two separate conspiracies to suppress competition for the services of certain employees.
“Those 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,” Acting Assistant Attorney General Richard A. Powers of the Justice Department’s Antitrust Division said in a statement. “We are grateful for our partnership with the FBI and our shared commitment to rooting out illegal collusion targeting labor markets.”
DaVita said in its own statement that the charges “are unjust and unwarranted.”
“The government’s case relies on an unprecedented and untested application of the antitrust laws to alleged discussions involving a former executive that occurred many years ago,” the company said. “We will vigorously defend the company against this unjustified action. The evidence will demonstrate the government has chosen to unjustly attack our reputation.”
The first count alleges DaVita conspired with Illinois-based Surgical Care Affiliates and a related entity from as early as February 2012 until as late as July 2017. That company was already indicted in January.
Among other evidence, the indictment cites an email that Thiry allegedly sent to an SCA official in October 2014, which read: “Someone called me to suggest they reach out to your senior biz dev guy for our corresponding spot. I explained I do not do proactive recruiting into your ranks.”
The indictment also states that an SCA official emailed a consultant in April 2017, saying: “In order to pursue [candidate], he would need to have already communicated that he is planning to leave DaVita – that’s the relationship that we have with DaVita.”
The second count alleges DaVita conspired with another San Francisco-based company, which is not named in the indictment, from as early as April 2017 until as late as June 2019.
The indictment cites an email that an official at that company allegedly sent to Thiry in April 2017 reading: “You also have my commitment we discussed that I’m going to make sure everyone on my team knows to steer clear of anyone at DVA and that I’ll come back to you and talk before ever get anywhere near a point that could contemplate someone else.”
DaVita and Thiry are supposed to appear in federal district court in Denver on July 20 before U.S. Magistrate Judge Kristen L. Mix.
Thiry also denied the claims.
“The government took steps to ignore – and even hide – key evidence,” a representative for him said in a statement. “The facts bear it out decisively: No antitrust violations occurred, these companies hired DaVita executives for years, and the companies are not competitors.”
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, according to the Justice Department.
Thiry was named CEO of what was then known as Total Renal Care in October 1999. The company took on its current name a year later, and moved its headquarters from southern California to Denver in 2009.
Thiry stepped down as CEO of DaVita in the spring of 2019. He continued to serve as chairman of the board of directors, but stepped down from that role last year, according to his LinkedIn profile.
DaVita is one of the largest users of office space in downtown Denver, according to previous reporting, operating out of more than 500,000 square feet in two buildings at the base of the Millennium Bridge near Union Station. It owns one of the buildings, at 2000 16th St. The company is now led by Javier J. Rodriguez.
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