The nearly three-week criminal trial of Denver-based DaVita, Inc. and its former leader, Kent Thiry, will begin on Monday morning, as prosecutors attempt to prove that a series of agreements between DaVita and its competitors are a novel violation of a century-old antitrust law.

The government alleges there were high-level understandings that certain competitor companies of DaVita’s in the healthcare industry would not solicit DaVita workers for jobs. If DaVita employees were candidates for jobs at those competitors, they would have to tell DaVita before they could be considered for a position.

From that arrangement, the U.S. Department of Justice has charged Thiry and DaVita with three counts each of a conspiracy in restraint of trade. The alleged offenses fall under Section 1 of the Sherman Antitrust Act of 1890, which broadly outlaws unreasonable, anticompetitive agreements in the marketplace – bid rigging or price fixing, for instance.

Prosecutors claim that the non-solicitation agreements intentionally restricted the interstate movement of employees and amounted to “per se” Sherman Act violations, meaning the non-solicitation pacts were inherently anticompetitive. One or more agreements were in place between approximately February 2012 and June 2019.

Here is where the case stands and who the players are.

The issues

In a set of orders last month, the judge addressed several of the disputed issues between the parties. First, the jury will be allowed to hear evidence about the possible pro-competitive reasons for DaVita’s agreements, which might be relevant to deciding whether the defendants intended to restrict the labor market. Jurors will also receive instructions before the trial begins to explain the Sherman Act at a basic level.

The jury will not hear about Thiry’s compensation as DaVita’s leader, nor will it hear about the extramarital affair of a DaVita executive who will testify.

Certain statements from co-conspirators will also be admissible at trial. For example, the chief talent officer at Surgical Care Affiliates forwarded an email stating the company “can recruit junior people (from DaVita), but our agreement is that we would only speak with senior executives if they have told their boss already that they want to leave and are looking.”

That same executive also wrote to the company’s recruiting firm, warning that “we must not under any circumstances be contacting people at DaVita … we have a commitment not to contact each other’s people.”

The prosecution

The Antitrust Division of the Justice Department is prosecuting the case with help from the Federal Bureau of Investigation. Among the lawyers for the government are Megan S. Lewis, assistant chief of the Washington Criminal II Section, chief James J. Fredricks, and trial attorneys William J. Vigen, Anthony W. Mariano, Terence Parker and Sara Clingan.

The defense

On the other side of the courtroom are the two defendants: Kent Thiry and kidney care company DaVita, Inc. Thiry was the chairman and CEO of DaVita for roughly 20 years beginning in 1999. If convicted, Thiry could face up to 10 years in prison and a fine of $1 million for each of the three criminal counts. DaVita could receive a fine of up to $100 million for each count, according to the government’s indictment.

On the defense’s legal team are a number of attorneys experienced in federal and financial cases. John Walsh, the top federal prosecutor in Colorado under the Obama administration, and Seth P. Waxman, the U.S. solicitor general during the Clinton administration, are now going up against their former employer, the Justice Department.

Former Assistant U.S. Attorney John C. Dodds, Texas trial lawyer Tom Melsheimer and Los Angeles-based Daniel Crump are also on the defense side.

The judge

Presiding over the trial is U.S. District Court Senior Judge R. Brooke Jackson, a 2011 appointee of the Obama administration who was a longtime state judge in the First Judicial District of Jefferson and Gilpin counties.

In late January, Jackson denied the defense’s motion to dismiss the charges. He waved aside the argument that there had never been a prosecution for employee non-solicitation agreements before, saying, “as violators use new methods to suppress competition by allocating the market or fixing prices these new methods will have to be prosecuted for a first time.”

Jackson recently concluded a three-week trial in which protestors prevailed against City and County of Denver after challenging its police response to the racial justice protests of 2020. Heading into the DaVita proceedings, he has ruled that the government has proven it more likely than not that there was a conspiracy between DaVita and competitors Surgical Care Affiliates, Hazel Health, IntegraMed and Radiology Partners.

For a conviction, the jury will have to decide the question beyond a reasonable doubt.