Jurors will now decide whether Denver-based kidney care company DaVita, Inc. and its former leader, Kent Thiry, are guilty of violating a century-old federal antitrust law by conspiring to prevent DaVita employees from being recruited for other job opportunities.

Prosecutors with the U.S. Department of Justice and defense attorneys for DaVita and Thiry delivered nearly four hours of closing arguments on Wednesday. The defense attempted to discredit certain government witnesses and derided the investigation, while the Justice Department’s Antitrust Division argued it was illegal for Thiry and other CEOs to conspire under the guise of maintaining friendships or furthering business relationships.

“There’s not a bro code exception to the Sherman Act,” government attorney Sara Clingan said.

The Sherman Antitrust Act of 1890, as written, is not explicit about what constitutes an illegal restriction on trade or commerce. The Antitrust Division brought three charges each against Thiry and DaVita as “per se” violations of the Sherman Act, meaning their behavior would be inherently illegal regardless of any beneficial effects.

DaVita is alleged to have formed unofficial agreements between 2012 and 2019 with three companies it competed against for employees: Surgical Care Affiliates, Hazel Health and Radiology Partners. A feature common to all agreements was the companies’ promise to not proactively recruit DaVita workers to positions, which is a common method of filling high-level jobs.

Some agreements included the requirement that any DaVita employees under consideration for a position at a co-conspirator company needed to first tell their DaVita bosses they were looking to leave.

After both sides had rested in the case, U.S. District Court Senior Judge R. Brooke Jackson denied the defense’s motion for acquittal. DaVita and Thiry had argued the government presented insufficient evidence that the defendants intended to “allocate the market” in a way that meaningfully ended competition for workers.

Allocating the market, in essence, meant keeping DaVita employees at DaVita. Jackson explained that, despite conflicting evidence, a reasonable jury could find the government proved its case beyond a reasonable doubt.

“It has been pointed out that there was lots of movement back and forth between and among the four companies involved in this case,” Jackson said. “That is a fact issue. Has there been a diminution in meaningful competition for senior or non-senior employees among these companies in this market? The jury will tell us the answer.”

The prosecution discussed in its closing argument the importance of free market competition, including in the market for employees. With Thiry stifling competition for DaVita’s workers, alleged Justice Department lawyer Anthony Mariano, job opportunities elsewhere for his workers were not just lost, but rather “stolen.”

“It’s very simple. Competitors are not allowed to get together and agree not to compete for their employees just because they’re friends or because they might one day want to do business deals or they might hurt someone’s feelings,” Mariano said. “Those are not excuses. Those are just motives for committing the crime.”

He described the pattern that gave rise to each of the non-solicitation agreements. A DaVita executive would leave for another company and seek to recruit their former colleagues. Thiry would then “shut it down” by entering into the alleged gentlemen’s agreements. Mariano pointed to testimony about how Thiry attempted to get job offers rescinded for certain DaVita workers trying to leave.

Government witnesses characterized the tell-your-boss provision as a means of ensuring no one would “cheat” on the agreement by secretly recruiting DaVita employees, with the intent of reducing the number of people who were willing to jump through that hoop to change jobs.

“This wasn’t a heads-up. This was a shutdown. This was a roadblock for employees trying to leave DaVita,” Mariano said. “This is not normal. This is not business as usual.”

The defense argued that the “drama” between Thiry and his counterparts at other companies was a distraction from the main issue of Thiry’s intent in entering into the agreements. In contrast, they said the agreements allowed DaVita to compete to retain its own employees who were thinking of leaving, once the company was alerted it might lose a worker.

“It may have been the wrong way to to do it. It may have been a messy way to do it. But the question is what the purpose of it was. And that was the purpose,” said attorney John C. Dodds.

The defense also suggested that key players in the alleged conspiracy were not brought to testify because their answers would not have supported the government’s theory of lawbreaking. Further, the defense heavily critiqued the government’s investigation and prosecution, wondering why the Federal Bureau of Investigation had not recorded any interviews with witnesses or why the Antitrust Division had only mustered the testimony of one victim. 

“With that kind of sloppy investigation, no one is safe,” said defense attorney Juanita Brooks.

Clingan, in rebuttal, pointed out that the defense could have just as easily called people whom the government spoke to as witnesses if they felt it would help their own case.

Jurors had asked dozens of questions to witnesses during the eight days of the trial. Their final opportunity came on Wednesday morning in response to the testimony of an expert witness for the defense. Economist Pierre-Yves Cremieux previously told the jury that his analysis detected none of the signs of an allocated labor market that he would expect to see if companies conspired to stop the movement of employees.

The government labeled him the “million-dollar man,” a reference to how much the defense paid Cremieux’s firm for his services. But jurors indicated through their questions that Cremieux’s analysis merited a closer examination. One juror picked up on the fact that although Cremieux looked at data from 460 companies that had hired from DaVita, the three other companies involved in the alleged conspiracy shared a unique characteristic: all were led by former DaVita executives whom Thiry knew personally.

“Did you do this same analysis where the population of companies is companies founded by a former DaVita employee who hired someone from DaVita?” the juror asked.

Other jurors wondered why Cremieux did not limit his comparison only to those handful of companies that hired a relatively high number of DaVita employees, like the three companies with DaVita non-solicitation agreements. Another question pertained to Cremieux’s chosen indicators of a market allocation – reduced turnover and reduced compensation – and asked how, in practical terms, overall compensation at a company could decrease. 

Cremieux responded that it was possible for compensation to go down if turnover resulted in people being hired at lower salaries.

A juror observed that Cremieux’s data reflected employees who had successfully moved from DaVita, but the case centered around employees who were prevented from moving. “How do you reconcile those scenarios of no movement versus data on actual movement?” the juror wrote.

“That’s an an excellent question of, ‘Why didn’t you identify that something didn’t happen’,” Cremieux responded. He elaborated that if people were “stuck,” that would show up in the aggregate data by affecting compensation and turnover rates. A market allocation would necessarily cause those two factors to decrease, Cremieux opined, because people would remain in their jobs in the absence of outside recruitment.

“You have to infer it because they’re not moving,” he acknowledged.

The jury could return a verdict as soon as Thursday. The case is the first instance in the country of a non-solicitation agreement of this type being the subject of an antitrust prosecution. Although the defense argued early on to Jackson that neither Thiry nor DaVita could have been on notice that their behavior was illegal, the judge declined to dismiss the charges on that basis.

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