Welcome to Court Crawl, Colorado Politics’ roundup of news from the third branch of government. Over the past two weeks, the U.S. Department of Justice tested its theory in Colorado that a certain type of corporate agreement is so anticompetitive as to be illegal – and lost its case. Also, Colorado Politics looked at what happened after details came to light that two federal judges in Colorado had presided over cases despite having financial conflicts of interest.

United States v. DaVita

?  For those who didn’t follow the high-profile jury trial in Colorado’s federal court last week, here are the basics: The Justice Department’s Antitrust Division began investigating around 2019 a series of “gentlemen’s agreements” that kidney care company DaVita, Inc. and its CEO Kent Thiry had with various other chief executives between 2012 and 2019. Thiry allegedly wanted to keep other companies from poaching or soliciting DaVita workers, so he conspired to keep those workers off-limits. In certain of those agreements, a DaVita employee could only be considered for a position at those competitors if they told their DaVita boss they were looking elsewhere, even before they had another job offer.

?  There had never before been a prosecution of employee non-solicitation agreements as the Antitrust Division charged the offenses, so Colorado was a test case. The test did not go the government’s way: A jury acquitted Thiry and DaVita of all charges on Friday. The Antitrust Division needed to prove beyond a reasonable doubt that Thiry knowingly entered these agreements with the intent to end all meaningful competition for employees. Jurors evidently held onto a reasonable doubt as to one or more of those elements.

?  The Court Crawl was in the courtroom for all two weeks, along with scores of attorneys, paralegals and support staff for both the prosecution and defense. The jury, which was quite young on the whole, posed dozens of probing and technical questions to witnesses throughout the course of the trial. Coupled with the nearly two full days they took to deliberate, jurors were clearly engaged despite the sometimes dry nature of white collar crime.

?  There are a number of reasons why the jury may have found for the defense. First, it wasn’t clear that Thiry and DaVita entered into at least two of the three agreements to begin with. There was also a lack of victims, as everyone the prosecution name-checked seemed to have gotten jobs elsewhere or been promoted at DaVita despite the alleged conspiracy to keep DaVita workers at their jobs. Finally, the jury heard that dozens of employees from DaVita did move between companies during the alleged conspiracy period.

?  For Colorado Politics’ complete coverage, here is the trial in chronological order.

Week 1:

White-collar DaVita trial kicks off with competing interpretations of corporate agreements

‘I’m not proud of this’: Jurors in DaVita hear from witnesses who carried out allegedly illegal agreements

‘Tell-your-boss’ mandate at center of witness testimony in DaVita trial

Defense gets chance to clarify gentlemen’s agreements in DaVita criminal trial

DaVita criminal trial ends first week with executive hiring under microscope

Week 2

Jurors in DaVita trial quiz FBI agent about investigation tactics

Jurors hear from victim of alleged corporate conspiracy in ongoing DaVita trial

DaVita case heads to jury: ‘There’s not a bro code exception’

Not guilty: Jury acquits DaVita, Kent Thiry of corporate conspiracy charges

Whatever happened to…?

?  Last September, The Wall Street Journal reported that at least 131 federal judges handled civil lawsuits over the past decade despite having an undeclared financial interest in one of the corporate parties. Two of those judges are from Colorado: U.S. District Court Senior Judges R. Brooke Jackson and Lewis T. Babcock. Colorado Politics’ cover story last week looked at what happened after those judges’ rule-breaking came to light. Here is an excerpt:

Mary M. Mayotte took out nearly a half-million-dollar home loan for a mortgage in 2006. A year later, she sought to modify the terms of the loan. A customer service representative for Wells Fargo, her loan servicer, allegedly told Mayotte she had to miss three payments to qualify for a modification.

She did so, but that triggered foreclosure proceedings. After years in state court, a judge gave the bank possession of the home. Mayotte filed suit in federal court, alleging negligence against Wells Fargo and U.S. Bank, as well as violations of the Colorado Consumer Protection Act.

Calling it a “series of unfortunate events,” Jackson sided with the corporate defendants in September 2019, and the U.S. Court of Appeals for the 10th Circuit upheld that decision. The judge and Liz Jackson at the time held Wells Fargo stock among their investments.

After the clerk’s letter last year, Mayotte’s attorney withdrew, citing his other work and the fact that he had “not anticipated this communication.” He asked for an extension on behalf of Mayotte so she could find another attorney. Wells Fargo in response said no review was necessary given the age of the case, the 10th Circuit’s agreement with Jackson’s decision and a lack of any indication of bias.

On Jan. 4, U.S. District Court Senior Judge John L. Kane, a Jimmy Carter appointee assigned to review Jackson’s cases, granted Mayotte more time and indicated she was now responsible for filing any future motions. He gave Mayotte until Feb. 4 to respond. The deadline passed with no further communication from her.

Mayotte told Colorado Politics she was unhappy with Jackson’s behavior during the litigation and intended to seek legal counsel in light of his financial conflicts.

“I am not interested in having a judge who’s one of his cronies review him because we all know where that’s gonna go,” she said.

News from the Supreme Court

?  Colorado’s Supreme Court justices have agreed to hear three appeals. Two of them call into question the applicability of criminal proceedings in other states or countries under Colorado law, and the third case involves a grisly double-homicide from 1991 in which there is evidence suggesting the defendant may actually be innocent.

?  The Weld County District Attorney’s Office complained it didn’t have the notice and the opportunity to argue why a trial judge shouldn’t suppress evidence from a warrantless search. The Supreme Court labeled those claims, in legal terms, BS.

?  The state’s Court of Appeals didn’t quite understand the law that gives government agencies the ability to enforce their regulatory orders through the courts. As a result, agencies are breathing easier now that the Supreme Court has ruled they have longer than 35 days to seek judicial enforcement.

In other news from the judicial branch

?  The Supreme Court’s ethics advisory panel has given the thumbs up to judges who want to attend LGBTQ pride festivals and march with legal associations. The panel also said a judge can serve as an officer of a potential new bar association focused around lawyers with disabilities.

?  Four Democratic lawmakers have urged the Supreme Court’s criminal rules committee to restart discussions around racial bias in jury selection, after their legislative proposal faced universal opposition from district attorneys this year.

?  Certain members of the Supreme Court have taken an interest in legislative discussions to revamp the system of judicial discipline in Colorado.

Vacancies and appointments

?  Applications are due by May 2 to succeed Judge Anne M. Ollada on the Arapahoe County Court.

?  The governor has appointed Magistrate Marques A. Ivey, a former defense attorney and municipal judge, to the Adams County Court to succeed Judge Brian N. Bowen. Alamosa County Attorney Jason T. Kelly will also take a seat on the Conejos County Court following the elevation of Judge Kimberly Cortez-Rodriguez. Finally, civil litigator Lane P. Thomasson is the newest Ouray County Court judge, succeeding Judge Zachary Martin.

?  The Supreme Court has appointed Magistrate Bryon Large of Adams County to be the next Presiding Disciplinary Judge overseeing attorney discipline. He will succeed William R. Lucero and become the third person to ever serve in the position. 

Miscellaneous decisions

?  Losing two fingers on a prison work assignment does not count as cruel and unusual punishment, the U.S. Court of Appeals for the 10th Circuit said.

?  A federal judge turned down a request from Republicans to block unaffiliated voters from casting ballots in Colorado’s GOP primary.

?  Two Jefferson County deputies and the Jeffco sheriff cannot be held liable for the suicide of an at-risk detainee in the jail, the 10th Circuit ruled by 2-1.

?  Because the court and the prosecution failed to bring a defendant to trial within the six-month deadline state law requires, the state’s Court of Appeals overturned his conviction.