Defense lawyers sought to change jurors’ perception of the corporate pacts at the heart of the federal criminal trial of DaVita, Inc. and its former leader, Kent Thiry, by clarifying the intent directly with one of the men responsible for the agreements.

Andrew Hayek, the former chief executive officer of Surgical Care Affiliates, said on cross-examination that he did not think it was accurate to say that his senior-level employees and DaVita’s had to get “permission” from their bosses to leave one company for the other.

“It’s not how I recall the discussions with Mr. Thiry or how I communicated the agreement,” he said.

The U.S. Department of Justice’s Antitrust Division is attempting to prove that a gentlemen’s agreement between Thiry and Hayek not to proactively recruit or solicit each other’s senior executives is a violation of a century-old antitrust law because it prevented the two companies from competing for employees. The agreement also contained a “tell-your-boss” provision requiring that DaVita executives needed to alert their supervisors before they could be considered for a job at SCA, and vice versa.

Key to its case, the Antitrust Division must convince a jury that Thiry intended to “allocate the market” for executives by restricting their movement between employers.

“Mr. Hayek, you did not think the agreement you reached with Mr. Thiry was going to result in the cessation of competition for employees between SCA and DaVita,” said defense attorney Tom Melsheimer on Thursday.

“Correct, there would still be competition,” Hayek responded. “There may be less. But it doesn’t cease because there are other ways to recruit. And in some cases, people are comfortable telling their supervisor they’re looking for another job.”

The line of questioning was in response to testimony in previous days from Bridget “Bridie” Fanning, the former head of human resources at SCA who was not a party to the non-solicitation agreement but helped enforce its terms. She said she had never seen the tell-your-boss provision in any other type of agreement and characterized it as requiring employees to ask permission to leave.

The defense also tried to illustrate that Hayek and Thiry had a cordial professional relationship, and decisions not to recruit from business partners benefitted the CEOs’ relationship as well as their respective companies. The government, in following up with Hayek, emphasized that the non-solicitation agreements appeared far from normal.

“Do your competitors sometimes get upset when you compete vigorously with them?” asked Justice Department lawyer Megan S. Lewis.

“Yes,” Hayek responded.

“And do you stop competing with them just because they get upset?”

“No,” Hayek acknowledged.

“Except in the instance of Mr. Thiry and his employees, right?” Lewis pressed.

“Except in the two matters we’ve talked about here,” Hayek answered, referencing the disclosure during trial that SCA also had a similar non-solicitation agreement with the Dallas-based United Surgical Partners International.

Although the criminal prosecution of DaVita’s non-solicitation agreements with other companies is the first of its kind under the Sherman Antitrust Act of 1890, the Antitrust Division has also brought a case against SCA in the Northern District of Texas. The two-count indictment for SCA points to the company’s non-solicitation agreement with DaVita as well as one with USPI.

According to the indictment, SCA entered into an agreement with USPI not to solicit each other’s senior-level employees approximately two years earlier than Hayek’s agreement with Thiry.

Hayek, who the government has agreed not to prosecute in exchange for his cooperation, claimed that Thiry and the CEO of USPI each came up with the idea of including the tell-your-boss rule.

Jurors have learned throughout the trial that solicitation and recruiting for executive positions is a crucial part of high-level corporate hiring. Hayek said that the intent of the non-solicitation agreement was not to put certain jobs off limits, but to ensure that an employee at either DaVita or SCA was genuinely looking to leave their current position. Notifying their boss of their job search was a means of ensuring no party “cheated” on the agreement and covertly solicited someone who had no plans of switching jobs.

However, as Hayek described the operation of the agreement, all roads seemed to lead to the conclusion that DaVita employees had to tell their supervisor if they were seeking a job at SCA, no matter whether Hayek’s company recruited them or not.

The government seized on that point, noting that normally it is the prerogative of individual workers whether to tell their current employer about a potential job offer.

“Did the agreement that you had with Mr. Thiry allow that choice or take it away?” Lewis asked.

“It took that choice away,” said Hayek.

In total, the government alleges three counts each against Thiry and DaVita for the non-solicitation agreements they formed with three other companies. Beyond SCA, the other two organizations were Hazel Health and Radiology Partners.

The government also called as a witness Radiology Partners’ co-founder and chief operating officer, Anthony Gabriel, who was formerly a DaVita executive. Gabriel acknowledged that his company had applied for leniency with the Antitrust Division, which allows parties to potentially-illegal activity to cooperate in exchange for their non-prosecution.

As with other witnesses, Gabriel spoke to Thiry’s displeasure with DaVita executives leaving for high positions at other companies and recruiting their former colleagues. Occasionally, Thiry’s reactions would appear retaliatory. Gabriel read from several emails from Thiry that contained phrases like “(Bill) Hughson continues to recruit our people … make sure our searches include recruiting his” and “targeting our teammates … I would like to discuss.”

At one point, the CEO of Radiology Partners, Rich Whitney, devised “ground rules” for avoiding the recruitment of DaVita’s employees. Similar to DaVita’s agreement with SCA, the ground rules involved no solicitation from DaVita, encouraging DaVita employees to explore all opportunities at DaVita before continuing to apply with Radiology Partners, and the tell-your-boss provision.

Unlike SCA, the Radiology Partners agreement applied to all DaVita employees.

Gabriel highlighted emails in which he documented, point by point, how Radiology Partners had adhered to the ground rules with certain DaVita employees. One email contained a bulleted list in which Gabriel wrote that one potential recruit “has begun an active search” and “has decided to leave” DaVita.

Whitney even emailed Gabriel’s wife, a DaVita executive who would leave to join Radiology Partners, after she asked if there was anything she should convey in her meeting with Thiry.

“Just that we weren’t the reason you were exploring other opportunities. You felt it was time,” Whitney coached her.

On cross-examination, defense attorney John C. Dodds ticked through the list of people who had allegedly upset Thiry when they moved from DaVita to Radiology Partners. All of them, Dodds said, ended up switching jobs despite the non-solicitation agreement.

“So the long and short of it is, regardless of whatever drama there was about what needed to be said to Mr. Thiry,” Dodds said, “nothing about the ground rules stood in the way of that (hiring) one lick.”

Jurors asked several questions of Gabriel, including whether DaVita forced or induced Radiology Partners into the non-solicitation agreement and how Gabriel had expected to enforce the ground rules. Two questions in particular indicated that some jurors were thinking beyond the high-level discussions between chief executives.

“In one of the Nov. 5, 2013 emails about guidelines, Rich said, ‘fair way to treat each other.’ Does ‘each other’ include the employees of the companies?” read one juror question.

“We have heard that it is technically possible for someone to move to RP from DaVita, even respecting the ground rules. In your opinion, do the ground rules put any groups of people or types of personalities at a disadvantage to successfully having that opportunity?” asked another.

After a follow-up from the government, Gabriel conceded that the agreement disadvantaged employees who were nervous or unwilling to talk to their bosses about wanting to leave.

The case is United States v. DaVita, Inc. et al.