One of the first Department of Justice criminal antitrust cases targeting agreements in the labor market started yesterday.  The Indictment charges that DaVita (a kidney dialysis center) engaged in three agreements with competitors that prevented solicitation of each other’s executives.  The agreements also contained a “tell your boss” provision, which prevented the participants in the agreement from discussing employment opportunities until employee informed current employer.

The government’s opening statement, as reported by Law360 HERE, accused DaVita’s CEO of “cheating” and becoming outraged when others wanted to recruit his talent.  The government further stated that leaving DaVita was a “risky career move”.

In response, DaVita’s attorney stated that its CEO didn’t like when his employees left because he spent a lot of time mentoring them.  DaVita’s attorney did not dispute that the competitors had come to an agreement regarding employee solicitation.  He referred to the agreement as “ground rules”.  He further stated that there is nothing illegal about the agreements because they had nothing to do with “allocating the market”.

Most interesting is that attorneys for the CEO, who is also charged, reserved their opening for the start of the defense case.  A great strategy when defenses are aligned because the defense will get a closing argument following the government’s case and before they start the defense.


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