Dialysis provider DaVita and its former CEO Kent Thiry are part of a federal indictment that accuses the Denver-based company of conspiring with competitors not to solicit each other’s top employees.

The two-count indictment was handed up by a federal grand jury in Denver, the U.S. Justice Department said Thursday.

“These charges show a disturbing pattern of behavior among health care company executives to conspire to limit the opportunities of workers,” Steven M. D’Antuono, the FBI’s assistant director in charge, said in a statement. “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 other company, Surgical Care Affiliates LLC, was charged in January in the Northern District of Texas.

Thiry and his former company have an initial court appearance next Tuesday before U.S. Magistrate Judge Kristen L. Mix in Denver.

“These allegations are false and rely on a radical legal theory about senior executive recruitment without precedent in U.S. history,” said Karen Crummy, a spokesperson for Thiry. “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.”

The Justice Department said DaVita faces a maximum penalty of a $100 million fine on each count, while Thiry faces up to 10 years in prison and a $1 million fine per count. The fine could be increased to double the losses of the victims, which would be determined along with other statutory factors at sentencing, according to the Justice Department.

Federal prosecutors allege the collusion began as February 2012 and lasted until as late as July 2017.

“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,” stated Acting Assistant Attorney General Richard A. Powers of the Justice Department’s Antitrust Division. “We are grateful for our partnership with the FBI and our shared commitment to rooting out illegal collusion targeting labor markets.”

DaVita is likely to argue the case as a human resources dispute, not an antitrust violation, because the two companies are not competitors. Moreover, DaVita will provide examples of senior executives who have been hired away by each company.

The company said that from 2008 to 2020, at least 13 senior level employees from DaVita went to work for SCA, while two SCA employees joined DaVita. From 2000 to 2008, however, no employees moved between the two firms until Andrew Hayek, who was CEO of SCA in 2008 to 2018.

If the company argues the law is too vague, they will have an unexpected ally in President Joe Biden, The president said on July 7 he plans to issue an executive order that calls on the Federal Trade Commission to adopt new, clearer rules to curb non-compete agreements that he said impeded labor-market competition.

The U.S. Chamber of Commerce, filed a brief opposing the prosecution.

“Criminally prosecuting offenses not yet held by courts to be per se illegal – and based solely on Justice Department ‘guidance’ – imposes an unwarranted burden on American companies and executives, who are entitled to fair notice of what conduct is and is not prohibited by the federal antitrust laws,” the brief states.

Thiry was the CEO of DaVita from 1999 until he retired two years ago to pursue his civic interests. He stepped down as the company’s executive chair last year. Under his leadership, DaVita became a Fortune 400 Company offering outpatient treatment with 65,000 employees in 12 countries.

Thiry was the driver and face of amendments Y and Z, the successful ballot measures in 2018 that set up the independent commissions to draw district boundaries for state and congressional lawmakers, respectively.

He was briefly a Republican candidate for governor in 2016, and Thiry is widely speculated to be a future candidate for governor as well, though he has largely been an unaffiliated politico.

In 2019, he and Gov. Jared Polis worked together to try to get a measure before voters to pass a tax of vaping and tobacco, but the legislature couldn’t agree before the session ended that year. Last year, a different campaign passed Proposition EE more than 2 to 1.

He worked with Polis again last year to pass Amendment B to repeal the state constitution’s Gallagher Amendment, an equation that sets residential and commercial property taxes. Thiry was the co-chair of the repeal advocacy group Colorado Coming Together.

“Kent Thiry has worked for decades to provide affordable, life-saving health care to millions of Americans,” Crummy said. “He has dedicated the last 10 years to making Colorado a better place for everyone, and he has done it the right way: ethically, lawfully and with integrity.”