The U.S. Chamber of Commerce is siding with Kent Thiry and Davita in a Justice Department case that alleges the retired CEO and his company colluded with a competitor not to solicit each other’s  staff.

Thiry and his former company were indicted in July. The other company, Surgical Care Affiliates LLC, was charged in January in the Northern District of Texas.

The Colorado Chamber of Commerce and the National Criminal Defense Lawyers Association is among the other groups that have filed briefs in the case.

The national groups contend that the case lacks due process and separation of powers, which are required in the due process clause of the 14th Amendment, while ignoring that businesses make complicated decisions every day and are entitled to be notified, before prosecutors elevate the conduct.

Thiry briefBy JOEY BUNCH
joey.bunch@coloradopolitics.com

“By purporting to declare a new per se criminal offense, the Department of Justice has usurped antitrust policy- and decision-making authority vested in Congress and the courts,” the U.S. Chamber states in its brief. “What is more, criminally prosecuting practices not firmly established by courts as per se unlawful at the time the conduct occurred violates due process principles and contravenes a host of Supreme Court cases emphasizing the need for clarity in federal criminal prohibitions.

“Because no court has previously held that non-solicitation agreements are per se illegal, this prosecution falls far short of the fair notice that due process requires. The Court should dismiss the indictment.”

Karen Crummy, a spokesperson for Thiry, said Friday that the anti-trust investigators have ignored “and even hid” key evidence to try to “salvage” their case.

“We remain optimistic the court will dismiss these allegations,” she said.

This story was updated to clarify what the indictment alleges.