DOJ Lost a Big Antitrust Criminal Case Against DaVita

In the world of federal trials, especially where the Department of Justice is involved, going to trial is high risk. The DOJ generally touts a 97% win rate, mainly because, with the stakes so high in such cases, the high majority of defendants plea bargain and settle. However, every once in a while, a case comes along where the feds don’t have the stronger case, and the defendant wins. That just happened in the case of the dialysis giant DaVita and its former CEO, Kent Thiry.

The case allegations charged Thiry and his company, DaVita, with conspiracy, specifically to not poach or hire key employees from competing employers. It’s a hefty charge and had the guilty verdict pushed through, DaVita could face a $100 million maximum penalty for each of the three counts, while Thiry could suffer from a $1 million fine per count and 10 years imprisonment.

However, after only two days of review and consideration, the jury came back and flat out rejected the federal prosecutor’s case. This was a landmark decision because the DaVita case was spearheading an effort by the DOJ to criminalize employee poaching using the Sherman Antitrust Act, typically a law reserved for going after potential or existing monopolies and cartels for being anti-competitive.

Given that the DaVita case is essentially a huge blow to the DOJ’s antitrust enforcement, there will likely be a serious reconsideration of the legal strategy on the federal side. If nothing else, DOJ’s antitrust division will likely be taking a long, hard look at their pending caseload to decide what to do next. And for those with pending similar indictments or investigations, the DaVita verdict is a huge positive. More than likely, the pressure will be on for the DOJ to settle those cases for far fewer results than convictions, especially given how the trial path is extremely untenable for the courts.